jkti=] fgekpy izns'k
fgekpy izns'k jkT; 'kklu }kjk izdkf'kr
eaxyokj 28 Qjojh] 2017@9 QkYxqu] 1938
fgekpy izns'k ljdkj
'kgjh fodkl foHkkx
vf/klwpuk
f'keyk&2] 23 Qjojh] 2017
la[;k% ;w0Mh0&,0¼3½&13@2015-&&fgekpy izns'k ds jkT;iky dh jk; gS fd iFk foØsrkvksa dks
thfodk vftZr djus ds volj iznku djus ds iz;kstu ds fy, lekt ds bl egRoiw.kZ oxZ ds lEiw.kZ
fgr ds n`f’Vxr ;g lehphu vkSj vko';d gS fd iFk foØsrk ¼thfodk laj{k.k vkSj iFk foØ; fofu;eu½
227&jkti=@2017&28&02&2017
¼7747½
7748
jkti=] fgekpy izns'k] 28 Qjojh] 2017@9 QkYxqu] 1938
vf/kfu;e] 2014 ¼2014 dk vf/kfu;e la[;kad 7½ dh /kkjk 38 ds fucU/kuksa ds vuqlkj ,d Ldhe dh
fojpuk dh tk, (
vr% fgekpy izns'k ds jkT;iky] iFk foØsrk ¼thfodk laj{k.k vkSj iFk foØ; fofu;eu½ vf/kfu;e]
2014 ¼2014 dk vf/kfu;e la[;kad 7½ dh /kkjk 38 }kjk iznRr 'kfDr;ksa dk iz;ksx djrs gq,] fuEufyf[kr
Ldhe fojfpr djrs gSa] vFkkZr~%&&
1- Lkaf{kIr uke vkSj izkjEHk-&&¼1½ bl Ldhe dk laf{kIr uke fgekpy izns'k iFk foØsrk ¼thfodk
laj{k.k vkSj iFk foØ; fofu;eu½ Ldhe] 2016 gSA
¼2½ ;g Ldhe jkti=] fgekpy izns'k esa izdk'ku dh rkjh[k ls izo`Rr gksxhA
2- ifjHkk’kk-&&¼1½ bl Ldhe esa tc rd fd lUnHkZ ls vU;Fkk visf{kr u gks]&
¼d½ **vf/kfu;e** ls iFk foØsrk ¼thfodk laj{k.k vkSj iFk foØ; fofu;eu½ vf/kfu;e] 2014
¼2014 dk vf/kfu;e la[;kad 7½ vfHkizsr gS (
¼[k½ **izek.k&i=** ls vf/kfu;e ds micU/kksa ds vuqlkj fdlh fof'k’V O;fDr dks dkjckj pykus ds
fy, izkf/kdj.k }kjk] iznku fd;k tkus okyk izek.k&i= vfHkizsr gS (
¼x½ **Qhl** ls LFkkuh; izkf/kdj.k }kjk miyC/k djokbZ xbZ lsok ds cnys esa iFk foØsrk ls
izHkkfjr dh tkus okyh Qhl vfHkizsr gS(
¼?k½ **iz:i** ls bl Ldhe ls layXu iz:Ik vfHkizsr gS( vkSj
¼³½ **/kkjk** ls vf/kfu;e dh /kkjk vfHkizsr gSA
¼2½ leLr vU; 'kCnksa vkSj inksa ds] tks bl Ldhe esa iz;qDr gSa fdUrq ifjHkkf’kr ugha gSa] ogha vFkZ
gksaxs tks Øe'k vf/kfu;e esa muds gSaA
3- losZ{k.k lapkfyr djus dh jhfr-&¼1½ lEc) 'kgjh LFkkuh; fudk;] tSls fd] ;FkkfLFkfr] uxj
fuxe ;k uxjikfydk ifj’kn~ ;k uxj iapk;r dh uxj foØ; lfefr LFky fujh{k.k }kjk LFky ij iFk
foØsrkvksa dh igpku dk losZ{k.k lapkfyr djus dk vuqHko j[kus okys fo'ks’kK vfHkdj.k fu;ksftr dj
losZ{k.k dk lapkyu djok,xhA losZ{k.k lapkfyr djus vkSj foØ; izek.k&i= tkjh djus dh lEiw.kZ izfØ;k
,d o’kZ dh vf/kdre le; vof/k ds Hkhrj iw.kZ dh tk,xh vkSj Ik'pkr~orhZ losZ{k.k izR;sd ik¡p o’kZ ds
Ik'pkr~ lapkfyr fd, tk,axsA losZ{k.k ds fy, fuEufyf[kr i)fr;ka mi;ksx esa ykbZ tk,axh]&
(i) HkkSxksfyd lwpuk iz.kkyh ¼th-vkbZ-,l-½ eSfiax(
(ii) fMthVykbZTM QksVks tux.kuk (
(iii) QksVks igpku i=ksa lfgr ck;ksehfVªd (
(iv) losZ{k.k ds fy, izkr%dkyhu le; izkr% 7%00 cts ls 10%00 cts rd] nksigj dk le; 2%00
cts vijkUg ls 5%00 cts vijkUg rd vkSj lka;dkyhu le; 6%00 cts vijkUg ls 9%00 cts
vijkUg rd ( vkSj
(v) iFk foØ; tksuksa@{ks=ksa esa iFk foØsrkvksa dh tkx:drk ds fy, cktkj esa bl fufeRr xfBr
ny }kjk f'kfoj yxkdjA
7749
jkti=] fgekpy izns'k] 28 Qjojh] 2017@9 QkYxqu] 1938
¼2½s 'kgjh LFkkuh; fudk;] iFk foØsrkvksa ds LFky ij losZ{k.k izkjEHk djus ds uksfVl dks LFkkuh;
nSfud lekpkj&i=ksa esa vf/klwfpr djok,xhA uksfVl ds lkFk&lkFk fuEufyf[kr fofufnZ’V fd;k tk,xk]&
¼d½ dSEil] cktkj@{ks=okj] losZ{k.k dh rkjh[k vkSj le;(
¼[k½ 'kgjh LFkkuh; fudk;ksa ls {ks= dk uksMy vf/kdkjh ( vkSj
¼x½ rkjh[k vkSj le;] tc rd iFk foØsrkvksa ds jftLVªhdj.k ds fy, vkosnuksa dksa xzg.k fd;k
tk,xkA
4- izek.k&i= tkjh djuk-&&losZ{k.k }kjk igpkus x, iFk foØsrk dks uxj foØ; lfefr }kjk
losZ{k.k dh rkjh[k ls vf/kdre rhu ekl dh vof/k ds Hkhrj iz:i&1 esa izek.k i= tkjh fd;k tk,xkA
5- izek.k&i= tkjh djus ds fy, fucU/ku vkSj 'krsZa-&&mu O;fDr;ksa] tks nks losZ{k.kksa dh e/;orhZ
vof/k ds nkSjku tks iFk foØ; djuk pkgrs gSa] lfgr iFk foØsrkvksa dks fuEufyf[kr fucU/kuksa vkSj 'krksZa ds
v/;/khu] foØ; djus dk izek.k&i= tkjh fd;k tk ldsxk]&
¼i½ iFk foØ; djus ds flok; mlds ikl vU; dksbZ thfodk dk lk/ku ugha gS(
¼ii½ ml O;fDr }kjk fdlh vU; LFkku ij dksbZ oSlk gh foØ; LFky vf/k;ksx es ugha gksuk
pkfg, (
¼iii½ og Lo;a ;k vius dqVqEc ds lnL;ksa ds ek/;e ls foØ; djsxk (
¼iv½ mlus losZ{k.k lapkfyr djrs le; ;k vkosnu ds le; pkSng o’kZ dh vk;q iw.kZ dj yh gks(
¼v½ foØ; izek.k&i= fdlh Hkh jhfr esa vU; O;fDr dks vUrfjr@iV~VkUrfjr@HkkM+s ij ;k
foØhr ugha fd;k tk,xkA bl izHkko dk opuca/k iFk fodzsrk }kjk iz:Ik&2 esa uxj foØ;
lfefr dks izLrqr fd;k tk,xk (
¼vi½ foØ; izek.k&i= ij foØ; dk;Zdyki djus okys O;fDr dk QksVkxzkQ gksxk vkSj ;fn foØ;
djus ds LFkYk ij foØ; esa “kkfey mldk@mldh ifr ;k iRuh ;k mldk vkfJr gS rks
ml n'kk esa mDr O;fDr dks QksVksxzkQ esa lfEefyr fd;k tk,xk (
¼vii½ u, iFk foØsrk] tks nks losZ{k.kksa dh e/;orhZ vof/k ds nkSjku iFk foØ; djuk pkgrs gSa]
;FkkfLFkfr] uxj fuxe] uxjikfydk ifj’kn~ ;k uxj iapk;r ds ek/;e ls foØ; izek.k&i=
ds fy, vkosnu djsaxs( vkSj
¼viii½ ;FkkfLFkfr] uxj fuxe ;k uxjikfydk ifj’kn~ ;k uxj iapk;r }kjk u, LFkyksa dh igpku
djuk] u, foØsrkvksa ls vkosnu Lohdkj djus ds lkFk&lkFk u, vkosndksa dks vkcaVu ,d ckj dh izfØ;k
ugh gS vfirq ;g ,d lrr~ izfØ;k gksxhA
6- igpku i= tkjh djus dk iz:Ik vkSj jhfr-&&lEc) LFkkuh; izkf/kdj.k] iz:i&3 esa igpku
i= tkjh djsxkA
7- foØ; izek.k&i= tkjh djus ds fy, ekun.M-&&vuqlwfpr tkfr;ksa] vuqlwfpr tutkfr;ksa]
vU; fiNM+s oxksZa] efgykvksa] fu%'kDr O;fDr;ksa] csjktxkj] f'kf{kr ;qok] fodykax O;fDr@ofj’B ukxfjdksa]
,dy efgykvksa] efgyk iz/kku x`gLFkh] efgyk m|edRkkZvkas ds Lo;a Lkgk;rk lewgksa] vYila[;dksa vkfn ds
7750
jkti=] fgekpy izns'k] 28 Qjojh] 2017@9 QkYxqu] 1938
fy, foØ; LFkku vkcafVr djrs le; izR;sd LFkkuh; izkf/kdj.k@uxj foØ; lfefr fuEufyf[kr Øe esa
vf/keku fn;k tk,xk %&
¼i½s vuqlwfpr tkfr
&
5 %
¼ii½s vuqlwfpr tutkfr
&
2 %
¼iii½s vU; fiNM+k oxZ
&
3 %
¼iv½s csjkstxkj@f'kf{kr ;qok
&
5 %
¼v½s fodykax O;fDr@ofj’B ukxfjd
&
2 %
¼vi½s ,dy efgyk@efgyk iz/kku x`gLFkh &
2 %
¼vii½s efgyk m|edRkkZvksa ds Lo;a
&
3 %
lgk;rk lewg
¼viii½s vYila[;d
&
2 %
fVIi.k%&vkjf{kr izoxkZsa dks fodz; LFky vkcafVr djus dh n'kk esa ,d dqVqEc dks fgekpy izns'k
jkT; esa dsoy ,d gh foØ; LFky vkcafVr fd;k tk,xkA
8- foØ; ds fy, Qhl-&&foØ; Qhl] iFk foØsrkvksa ds izoxZ vkSj cktkj dh vofLFkfr ds
vuqlkj izHkk;Z gksxhA lkekU; izoxZ ds LFkk;h foØsrk ds fy, U;wure Qhl dsoy 500@&:Ik, ¼ikap lkS
:i,½ vkSj vf/kdre 1200@&:i, ¼,d gtkj nks lkS :i,½ izfr ekl gksxh vkSj vkjf{kr izoxZ ds fy,
bls 400@&:Ik, ¼pkj lkS :i,½ ls 1000@&:i, ¼,d gtkj :i,½ ds chp izfr ekl izHkkfjr fd;k
tk,xkA lkekU; izoxZ ds vLFkk;h foØsrk ds fy, U;wure Qhl dsoy 300@&:Ik, ¼rhu lkS :i,½ vkSj
vf/kdre 900@&:i, ¼ukS lkS :i,½ izfr ekl gksxh vkSj vkjf{kr izoxksZa ds fy, bls 200@&:i, ¼nks
lkS :i,½ ls 800@&:i, ¼vkB lkS :i,½ ds chp izfr ekl izHkkfjr fd;k tk,xkA vU; izoxZ ds
foØsrkvksa] tSls lkIrkfgd] dky lgHkktu vkfn ds fy, U;wure Qhl dsoy 100@&:i, ¼,d lkS :i,½
vkSj vf/kde dsoy 600@&:i, ¼Ng lkS :i,½ gksxhA
9- vko';d izHkkjksa dk lank;-&&foØ; Qhl] vuqj{k.k izHkkj] foØ; izek.k&i= ds uohdj.k ds
fy, Qhl vkSj fu;r rkjh[k ds Ik'pkr~ jftLVªhdj.k ds fy, 'kkfLr;ka vkSj vU; izHkkj] ;FkkfLFkfr]
jk’Vªh;d`r cSadksa vkSj LFkkuh; izkf/kdj.k rFkk uxj foØ; lfefr ds iVyksa ¼dkamVjt½ ds ek/;e ls
lax`ghr dh tk,xhA izR;sd uxj foØ; lfefr dk viuk ,d cSad [kkrk gksxkA [kkrs dh okf’kZd ys[kk
ijh{kk uxj foØ; lfer }kjk dh tk,xhA uxj fuxe] uxjikfydk ifj’kn~ vkSj uxj iapk;r iFk
foØsrkvksa ls Qhl laxzg.k dks lqdj cukus ds fy, ¼cSadks ds lkFk lgHkkfxrk ls½ u, rjhds btkn djus ds
iz;kl djsxk@djsxh %
ijUrq foØ; Qhl ds flok; vU; izHkkj uxj fod; lfefr }kjk le;≤ ij fuf'pr fd,
tk,axsA
10- foØ; izek.k&i= dh fof/kekU;rk dh vof/k-&&foØ; izek.k&i=] tkjh djus dh rkjh[k ls
ik¡p o’kZ dh vof/k ds fy, fof/kekU; gksxkA
11- foØ; izek.k&i= dk uohdj.k-&&¼1½ foØ; izek.k i=] ikap o’kZ iw.kZ gksus ls iwoZ visf{kr
Qhl tek ¼fuf{kIr½ djus ds Ik'pkr~ iz:i&4 esa lkekU; izfØ;k }kjk uohd`r fd;k tk,xkA uohdj.k Qhl
lEc) LFkkuh; izkf/kdj.k ;k uxj foØ; lfefr }kjk le;≤ ij fuf'pr dh tk,xhA tek ¼fuf{kIr½
dh xbZ Qhl dh jlhn ls foØ; izek.k&i= dk uohdj.k lqfuf'pr gksxkA
¼2½ uxj foØ; lfefr] mu O;frØeh iFk foØsrkvksa] tks fofufnZ’V le; ds Hkhrj foØ;
izek.k&i= dk uohdj.k djus ds fy, Qhl tek djus esa vlQy jgrs gSa] dh lwph izdkf'kr djsxhA
fu;r rkjh[k ds Ik'pkr~ mu iFk foØsrkvksa dks] tks iz:i&5 esa vius foØ; izek.k&i= dks uohd`r djus esa
7751
jkti=] fgekpy izns'k] 28 Qjojh] 2017@9 QkYxqu] 1938
vlQy jgrs gSa] ,d ekl dk uksfVl tkjh fd;k tk,xkA uksfVl dh vof/k ds nkSjku iFk foØsrk] Qhl ds
vfrfjDr 'kkfLr ds :Ik esa izfrfnu 20@&:i, ¼chl :i,½ ds lank; ds fy, nk;h gksxkA
¼3½ jftLVªhd`r iFk foØsrk] tks [k.M ¼2½ ds v/khu izFke uksfVl dh rkehy ds Ik'pkr~ Hkh viuk
foØ; izek.k&i= uohd`r ugha djokrk gS rks mls uxj foØ; lfefr }kjk iz:i&5 es ,d vkSj uksfVl
rkfey fd;k tk,xk fd D;ksa u mldk izek.k&i= jn~n ;k fuyfEcr dj fn;k tk, A
12- izek.k&i= dk jn~ndj.k-&&/kkjk 10 esa vUrfoZ’V micU/kksa ds vfrfjDr ;fn dksbZ iFk foØsrk
fuEufyf[kr fdlh 'krZ dk Hkax djrk gS rks uxj foØ; lfefr dks] mls lquokbZ dk ;qfDr;qDr volj
iznku djus ds Ik'pkr~] izek.k&i= jn~n djus dh 'kfDr gksxh %&
¼i½s foØ; vuqKfIr ds vuqlkj vkcafVr cktkj ls ckgj foØ; djrk gS@cSBrk gS@Qsjh yxkrk
gS(
¼ii½s foØ; izek.k&i= izkIr djus dh ik=rk ds fy, ¼U;wure 14 o’kZ dh½s vk;q dk nqO;Zins'ku
djrk gS (
¼iii½s foØ; LFkku ds vkcaVu ds ekun.Mksa dk mYya?ku djrk gSA rFkkfi] vkcafVr 5 x 7 oxZQqV
dk vf/kdre {ks= foØ; ds fy, vkcafVr fd;k tk,xk (
¼iv½s vuf/kd`r :Ik ls foØ; LFky dks c<+krk gS (
¼v½s fdlh izdkj dh LFkk;h lajpuk dk lfUuekZ.k djrk gS (
¼vi½s foØ; LFky dks fdlh vU; dks iV~Vs ij nsrk gS@HkkM+s ij nsrk gS@csp nsrk gS (
¼vii½s foØ; izek.k&i= dks fn, x, vfrfjDr le; ds volku ds Ik'pkr~ Hkh uohdj.k djkus esa
vlQy jgrk gS (
¼viii½s pkSng o’kZ dh vk;q ls de ds fdlh cky Jfed ¼Jfedksa½s dks fu;ksftr djrk gS ( vkSj
¼ix½s efgyk foØsrk ;k fdlh vU; O;fDRk ds lkFk nqO;Zogkj dk nks’kh ik;k tkrk gSA
13- LFkk;h foØsrk cktkj vksj vLFkk;h foØsrkvksa ls vU;Fkk iFk foØsrk cktkjksa ds izoxZ fuEu
izdkj ls gSa %&
¼i½s izkd`frd cktkj (
¼ii½s lkIrkfgd cktkj (
¼iii½s ijEijkxr cktkj (
¼iv½s R;kSgkjh cktkj (
¼v½s jkf= cktkj (
¼vi½s QwM dksVZl vkSj
¼vii½ le; vuq’kaxh cktkj A
14- yksd iz;kstu dh n”kk es iFk foØsrk dks iqu%LFkkiu ¼u, LFkku ij clkuk½ djus dh
jhfr-&&tc yksd ç;kstu ls lEcfU/kr dksbZ ç'u mRiUu gksrk gS rks ml ij uxj foØ; lfefr ds ijke'kZ
ls fuEufyf[kr fcUnqvksa ds –f"Vxr fofu'p; fd;k tk;sxk %&
¼i½ uxj foØ; lfefr dh flQkfj'k@lgefr vfuok;Z gksxh (
¼ii½ iFk foØsrk dks foØ; ds fy, mlh LFkku@{ks= esa O;ofLFkr fd;k tk;sxk (
7752
jkti=] fgekpy izns'k] 28 Qjojh] 2017@9 QkYxqu] 1938
¼iii½ lfUuekZ.k@fodkl ds nkSjku iFk foØsrk ¼vksa½ dks utnhd ds LFkku ij vLFkk;h :i ls
O;ofLFkr fd;k tk ldsxk (
¼iv½ fodkl ladeZ ds iw.kZ gks tkus ds i'pkr foLFkkfir iFk foØsrk¼vksa½ dks foØ; ds fy,
mlds@muds ewy LFkku esa LFkku fn;k tk ldsxkA
15- iFk foØsrk dks csn[ky djus dh jhfr-&&ml n'kk esa tgk¡ yksd :dkoV dkfjr dh xbZ gS
;k iFk foØsrkvksa ds fy, ,d leku vkn'kZ foØ; LFky fpfUgr fd;s tkus gsrq losZ{k.k çLrkfor gS] rks
,slh fLFkfr esa] iFk foØsrkvksa )kjk vuf/k—r :i ls dCtk, x, LFkku dks bl 'krZ ds v/;/khu [kkyh
djok;k tk,xk fd uxj foØ; lfefr ekeys dks de ls de Ng ekl iwoZ lfefr ds le{k fopkj foe'kZ
gsrq j[ksxh A
16- iFk foØsrk dh csn[kyh ds fy, uksfVl fn, tkus fd jhfr-&&vf/kfu;e vkSj Ldhe ds
micU/kksa ds v/khu csn[kyh vkns'k tkjh djus ls iwoZ iFk foØsrk ;k LFky ds dCtk/kkjh dks ,d ekl dk
uksfVl fn;k tk,xk vkSj ;fn og vKkr gS ;k [kkstk ugha tk ldk gS rks uksfVl dks ;k rks uxj foØ;
lfefr dk;kZy; ds uksfVl cksMZ ¼lwpuk iVV~½ ij yxk;k tk,xk ;k ç:i&6 esa foØ; LFky ds fdlh
lgt –'; Hkkx ij fpidk;k tk,xk A
17- iFk foØsrk dh oLrqxr csn[kyh dh jhfr-&&¼1½ ,d ekl dh uksfVl vo/kh ds iw.kZ gks tkus
Ikj iFk foØsrk 'kkLrh ls] tks çR;sd fnu ds fy,] ftlds nkSjku ,slk O;frØe tkjh jgrk gS] nks lkS ipkl
:i;s rd dh gks ldsxh] n.Muh; gksxk vkSj tks vfHkx`fgr fd;s x, eky dh dher ls vf/kd ugha gksxhA
¼2½ ;fn iFk foØsrk fu;r vof/k ds Hkhrj dCtk fd;s x, foØ; LFky dks [kkyh djus esa
vlQy jgrk gS rks LFkkuh; çkf/kdkjh ;k LFkkuh; çkf/kdj.k )kjk bl fufer çkf/k—r dksbZ] ;FkkfLFkfr]
O;fä@vf/kdkjh] iFk foØsrk@O;fä dks oLrqr% csn[ky djus gsrq iqfyl lgk;rk ys ldsxk vkSj ;fn
vko';d gks rks foØ; LFky@LFkku ls fou'oj@vu'oj lfgr leLr eky dks tCr djsxk A
18- LFkkuh; çkf/kdj.k }kjk eky dk vfHkxzg.k-&&eky ds vfHkxzg.k ds i'pkr LFkkuh; çkf/kdj.k
;k LFkkuh; çkf/kdj.k }kjk bl fufer çkf/k—r O;fä@vf/kdkjh [kkyh djk, x, LFky@LFkku ij miyC/k
fdUgh nks lkf{k;ksa dh mifLFkfr esa ml }kjk lE;d :i ls gLrk{kfjr eky dh lwph ç:i&7 es rS;kj
djsxk A
19- iFk foØsrkvksa }kjk vfHkx`fgr eky dh iqu% çkfIr vkSj mlds fy, çHkkj-&&¼1½ LFkkuh;
çkf/kdj.k ;k çkf/k—r O;fä@vf/kdkjh }kjk vfHkx`ghr eky dks vf/kfu;e vkSj Ldhe ds micUnksa ds
v/khu iFk foØsrkvksa dks mlds fyf[kr vkosnu ij fou'oj eky dh n'kk esa mlh fnu] vkSj vu'oj eky
dh n'kk esa] nks dk;Z'khy fnuksa ds Hkhrj dsoy ` 500@¾ ¼ik¡p lkS :i,½ dh Qhl ds lank; ij rFkk
fofgr le; lhek ds i'pkr vHkhx`ghr eky dks iqu% çkIr djus ds fy, dsoy ` 100@& ¼lkS #i,½
çfrfnu ds lank; ij NksM+ fn;k tk,xkA
¼2½ ;fn iFk foØsrk vfHkx`ghr eky dks okfil ysus dk nkok ugha djrk gS rks uxj foØ; lfefr
;k LFkkuh; çkf/kdkj.k dk vf/k—r O;fä@vf/kdkjh rRdky rn~}kjk iFk foØsrk dks iz:Ik&8 eas fyf[kr esa
uksfVl nsxk vkSj uksfVl esa nh xbZ le; lhek] tks uksfVl dh rkehy dh rkjh[k ls nks fnu ls de dh
ugha gks ldsxh] ds volku ds i'pkr~ ,sls eky dks csp nsxk ;k fou'oj eky dh n'kk esa] ;fn mi;ksx esa
ykus ;ksX; u gks] mls u"V dj nsxk A
¼3½ LFkkuh; çkf/kdj.k ;k LFkkuh; çkf/kdj.k )kjk bl fufer çkf/k—r fdlh O;fä@vf/kdkjh
)kjk vHkhx`ghr fdlh eky dks iFk foØsrk dks rc rd ugha ykSVk;k tk,xk tc rd og ,sls eky dks
gVkus ;k Hk.Mkj.k ds fy, vfuok;Z çHkkjksa dks tek djus ds i'pkr mldk nkok ugha djrk vkSj ;fn og
,slk djus esa vlQy jgrk gS rks mls ç:i&9 esa ,slh oLrqvksa ds C;kSjs rS;kj djus ds i'pkr lkoZtfud
7753
jkti=] fgekpy izns'k] 28 Qjojh] 2017@9 QkYxqu] 1938
uhykeh }kjk ;k ,slh vU; jhfr esa fcfØr dj fn;k tk,xk A vfuok;Z çHkkj LFkkuh; çkf/kdj.k@uxj
foØ; lfefr }kjk le;≤ ij fofuf'pr fd;s tk;saxsA
¼4½ vf/kfu;e vkSj bl Ldhe ds micU/kksa ds v/khu fcfØr eky dks gVk, tkus vkSj Hk.Mkj.k ds
fy, çHkkj] foØ; ds vkxeksa esa ls lanr fd;s tk,axs vkSj vfr'ks"k] ;fn dksbZ gS] dks iFk foØsrk@fcfØr
eky ds Lokeh dks] foØ; dh rkjh[k ls nks ekl dh vof/k ds Hkhrj fd;s x, nkos ij] lanr fd;k tk,xk]
vkSj ;fn mDr vof/k ds Hkhrj ,slk dksbZ nkok ugha fd;k tkrk gS rks bls] ;FkkfLFkfr] LFkkuh; çkf/kdj.k
;k uxj foØ; lfefr dh fuf/k;ksa esa tek dj fn;k tk,xk A
20- uxj foØ; lefr ds fØ;kdykiksa dh lkekftd laijh{kk dk;kZfUor djus dk ç:i vkSj
jhfr-&&
¼1½ uxj foØ; lfefr] vf/kfu;e ;k Ldhe ds mica/kksa ds vuqikyu ds fy, visf{kr bldh
xfrfoèk;ksa dh lkekftd laijh{kk fØ;kfUor djus ds ç;kstu ds fy, ,d rhu lnL;h; bdkbZ dk xBu
djsxh A
¼2½ lkekftd laijh{kk bdkbZ ,d LorU= fudk; gksxh vkSj fuEufyf[kr ls xfBr gksxh]&
(i) lkekftd 'kkL= ds {ks= esa ,d ç[;kr f'k{kkfon~ (
(ii) ,d ç[;kr lkekftd dk;ZdrkZ ( vkSj
¼iii½ ,d lsokfuo`r ç'kkLkd A
¼3½ LFkkuh; çkf/kdj.k }kjk lkekftd laijh{kk bdkbZ dks dk;kZy; LFkku vkSj miLdjksa lfgr
i;kZIr lgk;d vuqlfpoh; deZpkjho`Un miyC/k djok;k tk,xk A
¼4½ lkekftd laijh{kk rhu o"kksaZ esa de ls de ,d ckj djokbZ tk,xkA lkekftd laijh{kk
vk;ksftr djus ds fy, le; lkfj.kh de ls de rhu ekl igys ¼vfxze esa½ fofuf”pr dh tk,xh A
¼5½ uxj foØ; lfefr laijh{kk bdkbZ dks] lkekftd laijh{kk çfØ;k ds vkjEHk gksus ls de ls
de iaæg fnu iwoZ lqlaxr lwpuk ds C;kSjs miyC/k djk,xhA ,sls C;kSjksa esa fuEufyf[kr] lEehfyr gksxk]&
(i) iFk foØsrkvksa ds fy, vf/kfu;e] fu;e vkSj Ldhe ds dk;kZU;u dh çkfLFkfr (
(ii) uxj foØ; lfefr dh mu o"kksaZ esa dh xbZ cSBdksa ds dk;Zo`rksa dk vfHkys[k (
(iii) leLr jftLVªh—r iFk foØsrkvksa dk vfHkys[k (
(iv) vf/kfu;e dh /kkjk 11 ds v/khu LFkkuh; çkf/kdj.k ds le{k dh xbZ vihyksa dk vfHkys[k(
(v) vf/kfu;e dh /kkjk 20 ds v/khu xfBr f'kdk;r fuokj.k lfefr ds le{k leLr f'kdk;rksa
vkSj fooknksa dk vfHkys[k (
(vi) mu o"kksaZ esa dh xbZ csn[kyh] eky ds vf/kgj.k ¼tCrh½ vkSj iFk foØrkvksa dh iqu%LFkkiu dh
dqy la[;k dk vfHkys[k ( vkSj
(vii) iwoZorhZ dh xbZ lkekftd laijh{kk fjiksVksaZ] ;fn dksbZ gksa] ds vfHkys[k A
7754
jkti=] fgekpy izns'k] 28 Qjojh] 2017@9 QkYxqu] 1938
21- lkekftd laijh{kk bdkbZ dhs cSBd vkSj dk;Z-&¼1½ lkekftd laijh{kk bdkbZ iFk foØrkvksa ds
lkFk vf/ku;e] fu;eksa vkSj Ldhe ds dk;kZUo;u ds fofHkUu igyqvksa ij cSBdsa vk;ksftr djsxh vkSj
lkewfgd fopkj foe'kZ ij cy nsxh A
¼2½ laijh{kk bdkbZ iFk foØrkvksa ds fdlh fook/kd ij ;k muds le{k is'k vk jgh leL;k dh
f'kdk;rksa dks fyf[kr esa vfHkfyf[kr djsxh A
¼3½ lkekftd laijh{kk çfØ;k ds lekIr gksus ij bdkbZ vius fu"d"kZ dks fyf[kr esa vfHkfyf[kr
djsxhA
¼4½ laijh{kk bdkbZ] uxj foØ; lfefr ds dk;kZy; esa ,d lkekftd laijh{kk tulk/kkj.k cSBd
dk vk;kstu djsxh A lfefr ds lnL; vkSj LFkkuh; çkf/kdj.k ds çfruhf/k cSBd esa Hkkx ysaxsA laijh{kk
bdkbZ cSBd esa blds fu"d"kksaZ dks i<+sxhA iFk foØrkvksa dks Hkh çek.k çLrqr djus gsrq çksRlkfgr fd;k
tk,xk vkSj uxj foØ; lfefr] lkekftd laijh{kk esa fpfUgr çR;sd fook/kd dks çHkkfor i{k vkSj
tulk/kkj.k dks bl ckr dk Li’Vhdj.k vkSj O;k[;ku nsdj lqy>k,xh dh dfri; djokbZ D;ksa dh xbZ
;k D;ksa ugha dh xbZ A
¼5½ laijh{kk bdkbZ] lkekftd laijh{kk tu lk/kkj.k cSBd dk i;kZIr vfxze lkoZtfud uksfVl
nsxh A
¼6½ LFkkuh; çkf/kdj.k vUrjksa] =qfV;ksa ;k fopyu dh n'kk esa lkekftd laijh{kk bdkbZ ds çR;sd
fu"d"kZ ij mÙkjnkf;Ro fu;r djsxk vkSj rRdky lq/kkjkRed mik; djsxk ;k vuq'kklukRed djokbZ
djsxkA fdlh fookn dh n'kk esa LFkkuh; çkf/kdj.k ¼vFk‚fjVh½ }kjk ç'kklfud tk¡p dh tk ldsxh vkSj
;FkklEHko vYier le; ds Hkhrj] fdUrq fdlh Hkh n'kk esa ,d ekl ds vi'pkr~ ugha] rnuqlkj djokbZ dh
tk ldsxh A
¼7½ lkekftd laijh{kk vk;ksftr djus dh dkuwuh vis{kk] ys[kksa dh lkekU; laijh{kk dk;kZfUor
djus dh fdlh Lora= igy dks oafpr ugha djsxh A
¼8½ bl çfØ;k esa çLrqr dh xbZ lkekftd laijh{kk fjiksVZ vfHkys[k dk ,d Hkkx gksxh vkSj uxj
foØ; lfefr )kjk çfrfØ;kRed gksxhA tgka dfe;ksa ikbZ tkrh gS ogka bl Ldhe ds vuqlkj rRdky
djokbZ dh tk,xh A —r djokbZ fjiksVZ vfHkys[k dk Hkkx gksxh A
¼9½ lkekftd laijh{kk vk;ksftr djokus dk O;; uxj foØ; lfefr dh ctVh; O;oLFkk esa ls
mixr gksxkA
22- çkbosV LFkku ¼LFky½ dks çfrcU/k eqDr foØ; tksu] çfrcfU/kr&foØ; tksu vkSj vfoØ; tksu
ds :i esa iqu% ukfer djus ds fy, 'krsaZ-&&¼1½ bls uxj foØ; lfefr )kjk] okMZ@{ks= ds iFk foØsrkvksa
dh dqy tula[;k ds <kbZ çfr'kr ds vuqlkj fu/kkZfjr fd;k tk,xk A
¼2½ ;fn vkosndksa dh la[;k foØ; {ks=ksa esa miyC/k LFkyksa dh la[;k ls vf/kd gks tkrh gS rks
uxj foØ; lfefr] ckdh cps vkosndksa dks vkolkfjZr djus gsrq lEc) Lokeh dh lgefr ls futh LFkkuksa
dks çfrcU/k jfgr foØ; {ks=ksa ds :i esa iqu% inukfer djus gsrq] vf/kfu;e vkSj bl Ldhe esa fofufnZ’V
'krksaZ ds vuqlkj dne mBk ldsxhA
23- tuLOkkLF; vkSj LoPNrk ds fy, ekun.M-&&¼1½ LFkkuh; izkf/kdj.k iFk foØsrkvksa dks LoPN
okrkoj.k cuk, j[kus ds vk'k; ls viuh vif'k’V lkexzh ds fuiVkjs ds fy, leqfpr LFkku miyC/k
djok,xhA
7755
jkti=] fgekpy izns'k] 28 Qjojh] 2017@9 QkYxqu] 1938
¼2½ iFk foØsrk uxjikfydk ;k uxjikfydk dh Bksl vif'k’V izcU/ku iz.kkyh }kjk fu;r
vif'k’V fuiVku ekun.Mksa ds vuqlkj vif'k’V lkexzh ds fuiVku ds fy, leqfpr <dh gqbZ dpjk isVh
¼MLV&fout½ dk mi;ksx djsxk@djsaxsA iFk foØsrk Bksl vif'k’V izcU/ku ¼,l MCyw ,e½ ds fy,
uxjikfydk }kjk ekun.Mksa ds vuqlkj fu;r LoPNrk izHkkjksa dk lank; Hkh djsxk@djsaxsA
¼3½ LFkkuh; izkf/kdj.k] tgka dgha lEHko gks] iFk foØsrkvksa dks fo|qr@iFk&izdk'k ¼LVªhV ykbVl½
dh izlqfo/kk ds lkFk&LkkFk LoPN vkSj rktk ikuh lqfuf'pr vkSj miyC/k djok,xhA
¼4½ LFkkuh; izfk/kdj.k tuLOkkLF; vkSj LoPNrk cuk, j[kus ds vk'k; ls Ik;kZIr ty vkSj fo|qr
lfgr 'kkSpky; dh O;oLFkk djsxkA
¼5½ LFkkuh; izkf/kdj.k }kjk leqfpr la[;k esa vif'k’V lkexzh ds fuiVku ds fy, dpjk isfV;ksa
¼MLV&fout½ dh O;oLFkk dh tk,xhA
¼6½ uxj foØ; lfefr iFk foØsrkvksa ds fy, lkewfgd chek Ldhe izkjEHk dj ldsxhA
24- jkT; uksMy vf/kdkjh dk inuke-&&¼1½ jkT; uksMy vf/kdkjh] 'kgjh fodkl funs'kky; ds
vfrfjDr@la;qDr funs'kd] dh iafDr ls uhps dk ugha gksxkA
¼2½ jkT; uksMy vf/kdkjh iFk fodszrkvksa dh izkfLFkfr cuk, j[kus ds vk”k; ls LFkkuh; izkf/kdj.k
ds lkFk de ls de ,d v/kZokf’kZd cSBd djsxkA
25- iFk foØsrkvksa ds lEcU/k esa uxj foØ; lfefr] LFkkuh; izkf/kdj.k] ;kstuk izkf/kdj.k vkSj
jkT; uksMy vf/kdkjh }kjk leqfpr vfHkys[kksa vkSj vU; nLrkostksa ds vuqj{k.k dh jhfr-&&¼1½ iFk
foØsrkvksa ds vfHkys[k ds vuqj{k.k ds fy, 'kgjh fodkl foHkkx }kjk ,d vkWu ykbZu lk¶Vos;j fodflr
fd;k tk ldsxkA
¼2½ uxjikfydk izkf/kdj.k vkWu&ykbZu izfØ;k ds ek/;e ls losZf{kr iFk foØsrkvksa dk MkVk ntZ
djsxkA
¼3½ foØ; izek.k&i= vkSj igpku i= dks vkWu&ykbZu cuk;k tk ldsxkA
¼4½ LFkkuh; izkf/kdj.k dh oSCklkbV ij foØ; tksut vkSj iFk foØsrkvksa dks iznf'kZr fd;k
tk,xkA
26- dky lgHkktu ¼”ks;fjax½ vk/kkj ij foØ; dk;Zdyki pyk, tkus dh jhfr-&&uxj foØ;
lfefr] cktkj dh vko';drkvksa vkSj iFk foØsrkvksa ds LFkyksa ij fuHkZj jgrs gq, dky lgHkktu vk/kkj ij
foØ; dk;Zdykiksa dk vo/kkj.k djsxhA fdlh efgyk foØsrk ls dky lgHkktu foØ; dk;Zdykiksa dk
vkcaVu djrs le; foHksn ugha fd;k tk,xkA
27- fucZU/ku eqDr foØ; tksuksa] fucZfU/kr foØ; tksuksa vkSj vfoØ; tksuksa ds :Ik esa foØ; tksukas
dk vo/kkj.k-&&¼1½ uxj foØ; lfefr fof'k’V xyh ;k cktkj ds vuqlkj foØ; LFky ds vkcaVu dk
fofu'p; djsxhA uxj foØ; lfefr;ka] vius&vius 'kgj@uxj ds Qsjh okyksa@iFk foØsrkvksa ds fy,
;kstukvksa dks fgrdj vkSj i;ZkIr cukus gsrq 'kgjksa@uxjksa esa fucZU/ku] vFkkZr~ fucZU/ku eqDr foØ; tksuksa]
fucZfU/kr foØ; tksuksa vkSj vfoØ; tksuksa ds lhekadu dks lqdj cukus ds fy, ix mBk,xhA
¼2½ LFkkuh; izkf/kdj.k@uxj foØ; lfefr foØsrkvksa ¼LFkk;h vkSj vLFkk;h½ dh la[;k ds fy,
,sls izkd`frd cktkjksa dh yksds”kut esas] ys vkmV Iykut esa **iFk foØsrk cktkj** ds :Ik esa vfHkfgr]
Ik;kZIr LFkku dh O;OkLFkk djsxk@djsxh tks mudh lkexzh@ekWax dks iwjk dj ldsA ;fn ,slh yksds”ku ds
7756
jkti=] fgekpy izns'k] 28 Qjojh] 2017@9 QkYxqu] 1938
fy, izkfFkZ;ksa ¼mEehnokjksa½ dh la[;k miyC/k LFkku ls vf/kd gS rks ,sls vkf/kD; ¼izkfFkZ;ksa@mEehnokjksa ½ dks
v/khu Qhl ;k YkkVjh }kjk vkSj [k.M 8 ds v/khu fofgr jhfr esa fofu;fer fd;k tk,xk vkSj u fd
oSosfdd vuqKfIr;ksa ds }kjkA
¼3½ vLFkk;h foØsrkvksa dks vfHkfgr **iFk foØsrkvksa ds cktkj** ls ckgj Hkh vuqKkr fd;k tk
ldsxk tc rd fd mls vfoØ; tksu vfHkfgr u fd;k x;k gksA vfoØ; tksu ¼tksut½ vofLFkfr vkSj
volj ds vuqlkj vf/klwfpr fd, tk ldrs gSaA 'kgjksa@uxjksa ds fodkl ds lkFk&lkFk izR;sd u, {ks= esa]
iFk foØsrkvksa ds fy, Ik;kZIr O;oLFkk gksuh pkfg,A
28- foØ; tksuksa dh {kerk vkSj O;kid tux.kuk vkSj losZ{k.k djus dh jhfr-&&vf/kfu;e dh
/kkjk 3 ds v/khu] okMZ@tksu ds iFk foØsrkvksa dh la[;k dk v<+kbZ izfr'kr /kkj.k {kerk ds vuqlkj
lek;ksftr fd;k tk,xkA fdlh foØ; tksu dh /kkj.k {kerk foØ; tksu ds dqy {ks= }kjk foHkkftr
foØ; LFky ds vuqlkj gksxhA
29- iqu%LFkkiu ¼u, LFkku ij clkuk½ ds ekun.M-&&iqu%LFkkiu ds fy, fuEufyf[kr ekun.M
gksaxs%&
¼i½ tgka rd lEHko gks iqu%LFkkiu ls cpuk pkfg, tc rd fd iz'uxr Hkwfe ds fy, Li’V vkSj
vR;ko';d vis{kk u gks (
¼i½ ifjlEifRr;ksa dh fdlh Hkh izdkj dh gkfu ls cpuk gksxk vkSj gkfu dh n'kk esa bldh
{kfriwfrZ dh tk,xh (
¼iii½ izHkkfor fodzsrkvksa ;k muds izfrfuf/k;ksa dks ifj;kstuk vkSj iquO;ZOLFkkiu ds dk;kZUo;u esa
'kkfey djuk gksxk (
¼iv½ uxj foØ; lfefr cktkj ds izfrfuf/k;ksa dks ckrphr esa 'kkfey djsxh (
¼v½ iquO;ZOLFkkiu ifj;kstuk ds dk;kZUo;Zu ds v/khu ijLij Lohdk;Z LFky ds fy, fopkj fd;k
tkuk pkfg, (
¼vi½ izHkkfor foØsrkvksa dks mudh thfodk vkSj thou ds Lrj dks csgrj cukus ds fy, oLrqr% de
ls de csn[kyh ls iwoZ ds Lrj ij ykus ds fy, iqu%LFkkfir fd;k tk,xk A
¼vii½ ubZ volajpuk fodkl ifj;kstukvksa }kjk l`ftr thfodk ds volj ls ik= foLFkkfir foØsrk
lek;ksftr fd, tka,xs(
¼viii½ Hkwfe esa gd ;k vU; fgr dk dksbZ vUrj.k] ,slh Hkwfe ij iFk foØsrkvksa dh thfodk dks
izHkkfor ugha djsxk vkSj ,sls fd, x, fdlh vUrj.k ds ifj.kkeLo:Ik dksbZ iqu%LFkkiu
vf/kfu;e ds micU/kksa ds vuqlkj fd;k tk,xk (
¼ix½ jkT; rU=] cyiwoZd dh xbZ csn[kyh dh izfØ;kvksa dh tkap vkSj fu;U=.k ds fy, O;kid
mik; djsxk ( vkSj
¼x½ mu izkd`frd cktkjksa dks ijEijkxr cktkj ?kksf’kr fd;k tk,sxk tgka ij iFk foØsrkvksa us
ipkl ls vf/kd o’kkasZ ls dkjckj lapkfyr dj fy;k gS] vkSj ,sls cktkjksa esa iFk foØsrkvksa dks
iqu%LFkkfir ugha fd;k tk,xk %
ijUrq LFkkuh; izkf/kdj.k ,sls cktkjksa dh lwph rS;kj dj ldsxk vkSj mUgsa **ijEijkxr cktkj**
?kksf’kr djsxkA uxjikfydk fudk;] Ik;ZVu foHkkx ds lg;ksx ls ,sls cktkjksa dks **Ik;ZVu cktkjksa** ds :Ik
esa c<+kok nsxsaA
7757
jkti=] fgekpy izns'k] 28 Qjojh] 2017@9 QkYxqu] 1938
iz:i&1
¼[k.M 4 ns[ksa½
iFk foØsrk dk izek.k&i=
fof'k’V jftLVªhdj.k la[;k-------------------------------------------------------------------
jkT; dk uke -------------------------------------------------------------------------------------------
uxjikfydk dk uke--------------------------------------------------------------------------------
foØ; tksu dk uke-----------------------------------------------------------------------------
foØ; LFky dk uke---------------------------------------------------------------------------
foØ; dk izoxZ ¼pkgs vLFkk;h@LFkk;h@izkd`frd@lkIrkfgd vkfn gks ½s----------------------------------------------------
---------------------------------------------------------------------------------------
foØsrk ds lkFk foØ; djus esa ;fn mldk@mldh ifr ;k iRuh ;k mldk vkfJr ckyd
vUroZfyr gS rks mldk uke---------------------------------------------------------------------
O;fDr ¼O;fDr;ksa ½s dh vk;q vkSj fyax ftldk@ftudk QksVks gS] ;gka fpidk,a----------------------------------------
-----------------------------------------------------------------------------
izekf.kr fd;k tkrk gS fd Jh--------- tks vk;q------------] vkoklh; irk----------------------------------------------------------------
--------------------------------------------------------------------------------------------------] izoxZ -------------------------------------------] dk ifr ;k firk gS
;Fkk ------------------------------------ ¼uxjikfydk dk uke½ dk jftLVªhd`r iFk foØsrk gS tSlk [k.M 6 ds v/khu
micfU/kr gSA
¼gLrk{kj½
Tkkjh djus dh rkjh[k%------------------------
----------------------------rd fof/kekU;A
fVIi.k %& foØsrk izR;sd ik¡p o’kZ ds Ik'pkr~ foØ; izek.k&i= dk uohdj.k djok,xkA
&&&&&&&&
iz:i&2
¼[k.M 5 ¼v½ ns[ksa½
iFk foØsrk }kjk opuca/k&i= ds fy, vk:i
eSa ] --------------------------------------------------- iRuh@iq=@iq=h Jh --------------------------------------------------------------- uxj foØ;
lfefr--------------------------- dk jftLVªhdj.k@ foØ; izek.k&i=] la[;k%---------------------------------------------] /kkjd ,rn~}kjk
foØsrk dk mlds@
mldh ifr ;k iRuh
;k vkfJr ckyd ds
lkFk QksVksxzkQ
7758
jkti=] fgekpy izns'k] 28 Qjojh] 2017@9 QkYxqu] 1938
?kks’k.kk djrk gaw fd eq>s iznRr foØ; izek.k&i= dks fdlh vU; O;fDr dks iV~Vs ij] ugha fn;k tk,xk]
HkkM+s+ ij ugha fn;k tk,xk ;k foØhr ugha fd;k tk,xkA
eSa] ;g Hkh ?kks’k.kk djrk@djrh gaw fd eSa fdlh vU; dkjckj eas ugha yxk gawA u gh fdlh vU;
foØ; LFky ls foØ; dj jgk gwa A vkSj u gh fdlh laxBu ds lkFk fu;ksftr gawA
foØsrk dk uke vkSj gLrk{kj ---------------------------------------------------------------------
jftLVªhdj.k@foØ; izek.k&i= la[;k% -------------------------------------------------
rkjh[k%
LFkku%
¼foØsrk ds gLrk{kj½
&&&&&&&&
iz:i&3
¼[k.M 6 ns[ksa½
igpku i=
Ukxjikfydk dk uke
fof'k’V
jftLVªhdj.k
la[;k--------------------------
firk@ ifr dk uke --------------------------------------------------------------------------------------------------------------
foØsrk dh QksVks
fpidk,a
foØ; dk izoxZ-------------------------------------------------------------
Ukxjikfydk okMZ@foØ; tksu-----------------------------------------------------------------------------
foØ; LFky dk] irk@vofLFkfr------------------------------------------------------------------------
vkoklh; irk--------------------------------------------------------------------------------------------------------------
iqfyl Fkkuk------------------------------------------------------------------------------------------------------------------
Ukke-------------
gLrk{kj----------------------------------------------------
vk;q--------
fyax------------
nwjHkk’k uEcj ----------------
Tkkjh djus dh
rkjh[k-----------
lEc) “kgjh LFkkuh; fudk; dk vk;qDr@dk;Zdkjh vf/kdkjh@Lkfpo ----------------
---------------------------------------------------------------------------------------
iz:i&4
¼[k.M 11 ¼1½ ns[ksa½
iFk foØrk izek.k&i= ds uohdj.k gsrq vkosnu
¼bl iz:i dks Li’V v{kjksa esa Hkjk tkuk gS½
vkonsd dk uke-----------------------------------------------------------------------------------------------------------------------------------------------------
¼miuke igys½
firk dk uke ---------------------------------------------------------------------------------------------------------------------------------------------------------------
7759
jkti=] fgekpy izns'k] 28 Qjojh] 2017@9 QkYxqu] 1938
fof'k’V jftLVªhdj.k la[;k----------------------------------------------------
vkoklh; irk-----------------------------------------------------------------------------------------------------------------------------------------------------------------------
Mkd irk-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
eSa fuEukuqlkj] vius iFk foØsrk izek.k&i= ds uohdj.k gsrq vkosnu djuk pkgrk@pkgrh gWw%
¼1½ vUrxZr vkus okys {ks=&
---------------------------------------------------------------
---------------------------------------------------------------
¼2½ eky dh fuEufyf[kr Js.kh dk O;kikj dj jgk@jgh gWw--------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------
Rkkjh[k%-------------------------------------
vkosnd ds gLrk{kj---------------------------
dsoy dk;kZy; iz;ksx gsrq
rkjh[k] ftldks vkosnu izkIr fd;k x;k--------------------------------------------------------------
vkosnu ds vuqeksnu@vLohdkj djus dh rkjh[k---------------------------------------------
vf/kdkjh ds] eqgj lfgr] gLrk{kjA
&&&&&&&
iz:i&5
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iFk foØsrk ds izek.k&i= ds uohdj.k ds fy, uksfVl
foØsrk dk uke -------------------------------------------------------------------------------------------------------------------------
firk dk uke ----------------------------------------------------------------------------------------------------------------------------
fof'k’V jftLVªhdj.k la[;k% ------------------------------------------------------------------------------------------------
foØ; LFky dh vofLFkfr --------------------------------------------------------------------------------------------------
vkoklh; irk ------------------------------------------------------------------------------------------------------------------------
igys tkjh fd, x, uksfVl dh ------------------------------------------------------------------------------------
rkjh[k
7760
jkti=] fgekpy izns'k] 28 Qjojh] 2017@9 QkYxqu] 1938
i=kpkj gsrq irk% -----------------------------------------------------------------------------
uohdj.k u djkus ds dkj.k -------------------------------------------------------
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&&&&&&&&
iz:i&6
¼[k.M 16 ns[ksa½
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foØsrk dk uke ---------------------------------------------------------------------------------------------------------------------------
¼miuke igys½
firk dk uke --------------------------------------------------------------------------------------------------------------------------
fof'k’V jftLVªhdj.k la[;k% ---------------------------------------------------------------------------------------------
foØ; LFky dh vofLFkfr ------------------------------------------------------------------------------------------------
vkoklh; irk ----------------------------------------------------------------------------------------------------------------------
Mkd irk ------------------------------------------------------------------------------------------------------------------------------
csn[kyh ds dkj.k --------------------------------------------------------------------------------------------------------------
rkjh[k
vf/kdkjh ds] eqgj lfgr] gLrk{kjA
egRoiw.kZ vuqns'k%
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gksxkA
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lgk;rk ys ldsxkA
7761
jkti=] fgekpy izns'k] 28 Qjojh] 2017@9 QkYxqu] 1938
iz:i&7
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1- O;fDr dk uke vkSj irk ftlls eky vfHkx`ghr fd;k x;k gS-----------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
2- fof'k’V jftLVªhdj.k la[;k ----------------------------------------------------
3- Rkkjh[k vkSj le; lfgr vfHkxzg.k dk LFkku -----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
4- vfHkx`ghr eky ds C;kSjs ----------------------------------------------------------------------------------
¼d½ izR;sd eky dk fooj.k-------------------------------------------------------------------------
5- ml O;fDr dk uke vkSj irk ftldh vfHkj{kk esa vfHkx`ghr lEifRr ¼eky½ j[kh xbZ gS-----------------------------
---------------------------------------------------------------------------------------------------------------------------
6- vfHkj{kd ds gLrk{kj ----------------------------------------
7- vfHkx`ghr eky dh yxHkx dher -------------------------------------------------
8- fVIif.k;ka--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
9- gLrk{kj lfgr lkf{k;ksa ds uke vkSj mudk irk%
¼1½ -----------------------------------------------------------------------------------
-----------------------------------------------------------------------------------
¼2½ -----------------------------------------------------------------------------------
----------------------------------------------------------------------------------
rkjh[k %
eky vfHkx`ghr djus okys
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gLrk{kj
inuke vkSj irk
&&&&&&
iz:i&8
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1- ml O;fDr dk uke vkSj irk ftlls eky vfHkx`ghr fd;k x;k gS-----------------------------------------------------
------------------------------------------------------------------------------
2- vfHkx`ghr eky ds fy, nwljs nkosnkj dk uke vkSj irk-------------------------------------------------------------------------
------------------------------------------------------------------------
7762
jkti=] fgekpy izns'k] 28 Qjojh] 2017@9 QkYxqu] 1938
3- ml O;fDr dk uke vkSj irk ftldh vfHkj{kk esa vfHkx`ghr lEifRr j[kh xbZ gS -------------------------
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
4 Rkkjh[k vkSj le; lfgr vfHkxzg.k dk LFkku --------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------
5- vfHkx`ghr eky ds C;kSjs----------------------------------------------------------------------------------
6- vfHkx`ghr eky dh yxHkx dher -----------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
7- fVIif.k;ka-----------------------------------------------------------------------------------------------------------------------
rkjh[k%
eky vfHkx`ghr djus okys
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gLrk{kj
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&&&&&&
iz:i&9
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1- ml O;fDr dk uke vkSj irk ftlls oLrq,a vfHkx`ghr dh xbZ gaS--------------------------------------------------------
-----------------------------------------------------------------------------
2- vfHkj{kd dk uke----------------------------------------------------
3- uhykeh dh rkjh[k vkSj LFkku--------------------------------------------------------------------------------------------------------------------------
-----------------------------------
4- oLrqvksa@eky ds C;kSjs---------------------------------------------------------------------------------
5- yxHkx dher -----------------------------------------
6- uhykeh dh jde-------------------------------------------------------------------
7- oLrqvksa@eky ds vfHkxzg.k ds fo:) lek;ksftr O;; dh jde----------------------------------------------------
8- izfrns; jde---------------------------------------------------------------------------------------------------------------------------------
9 lk{kh% --------------------------------------------------------------------------------------------------------------------------
1--------------------------------------------------------------------------------------------------------------------------------------------------------------
2-----------------------------------------------------------------------------------------------------------------------------------------------------------
vf/kdkjh ds] eqgj lfgr]
gLrk{kj
Iknuke vksj irk
vkns”k }kjk]
euh’kk uank]
vfrfjDr eq[; lfpo ¼”kgjh fodkl½A
7763
jkti=] fgekpy izns'k] 28 Qjojh] 2017@9 QkYxqu] 1938
[Authoritative English text of this Department Notification No. UD-A(3)-13/2015 Dated
23/02/2017 as required under clause (3) of article 348 of the constitution of India.]
URBAN DEVELOPMENT DEPARTMENT
NOTIFICATION
Shimla-2, the 23rd February, 2017
No. UD-A(3)-13/2015.—WHEREAS, the Governor of Himachal Pradesh is of the opinion
that for the purpose of providing an opportunity to the street vendors to earn livelihood, it is
expedient and necessary that a scheme be framed in terms of section 38 of the Street Vendors
(Protection of Livelihood and Regulation of Street Vending) Act, 2014 (Act No. 7 of 2014),
Keeping in view the overall interest of this important section of society;
NOW,THEREFORE, in exercise of the powers conferred by section 38 of the Street
vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014 (Act No. 7 of
2014), the Governor, Himachal Pradesh, is pleased to frame the following Scheme, namely:-
1. Short title and commencement.—(1) This Scheme may be called the Himachal
Pradesh Street Vendors (Protection of Livelihood and Regulation of Street Vending) Scheme, 2016.
(2) It shall come into force from the date of its Publication in the Rajpatra, Himachal
Pradesh.
2. Definition.—(1) In this Scheme, unless the context otherwise requires,—
(a) “Act” means the Street Vendors (Protection of Livelihood and Regulation of Street
Vending) Act , 2014 (Act No. 7 of 2014);
(b) “Certificate” means a certificate to be granted by the authority to a particular person to
run business as per provisions of the Act;
(c) “Fees” means fee chargeable from the street vendor in lieu of services provided by the
local authority ;
(d) “Form” means Form appended to this Scheme ; and
(e) “section” means the section of the Act.
(2) All other words and expression used in this Scheme but not defined herein shall have
the same meanings respectively as assigned to them in the Act.
3. The manner of conducting survey.—(1) The Town Vending Committee of the
concerned Urban Local Body such as Municipal Corporation or Municipal Council or Nagar
Panchayat, as the case may be, shall conduct the survey after engaging expert agency having
experience of conducting survey to identify street vendors on the spot by spot verification. The
whole process for conducting the survey and issuance of vending certificate shall be completed
within maximum time period of one year and subsequent surveys shall be conducted after every
five years. The methods which shall be used for survey are,—
(i) Geographic Information System (GIS) mapping ;
(ii) Digitalized photo census;
7764
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(iii) Bio-metric alongwith photo Identity Cards;
(iv) The timing for survey shall be morning time from 7AM to 10 AM, afternoon time from
2 PM to 5 PM and evening time from 6 PM to 9 PM; and
(v) Holding camps by the team constituted in this behalf in the market for awareness of
street vendors in vending zone/ areas.
(2) The Urban Local Body shall notify in local dailies, the notice of commencement of on
the spot survey of the Street Vendors. The notice shall inter-alia specify,-
(a) Camps, market/ area-wise, date and time of survey;
(b) Nodal Officer of the area from Urban Local Bodies; and
(c) Date and time upto which the applications for registration of the Street Vendors shall
be entertained.
4. Issuance of certificate.—The street vendor identified in the survey shall be issued
certificate by the Town Vending Committee within a maximum period of three months from the
date of survey in Form-1.
5. The term and conditions for issuance of certificate.—The street vendors including
those persons who wish to carry on street vending during the intervening period of two surveys
may be issued certificate of vending subject to the following terms and conditions,-
(i) he should not have any other means of livelihood except for street vending ;
(ii) he should not have any parallel vending site in any other place occupied by the same
person;
(iii) he shall carry on the vending by himself or through family members ;
(iv) he should have completed the age of 14 years at the time of conducting survey or
making application ;
(v) the certificate of vending shall not be transferred/leased/rented or sold to other in any
manner. An undertaking to this effect shall be submitted by the street vendor to the
Town Vending Committee in Form -2.
(vi) the certificate of vending shall have a photograph of the person carrying on vending
activity and in case of spouse or dependent involved in vending at vending site, in such
situation the said person shall be covered in that photograph ;
(vii) new street vendors, who wish to carry on street vending during the intervening period
of two surveys, shall apply through Municipal Corporation or Municipal Council or
Nagar Panchayat as the case may be, for the vending certificate ; and
(viii) identification of new sites, acceptance of application from new vendors as well as
allotment to new applicants by Municipal Corporation or Municipal Council or Nagar
Panchayat, as the case may be, shall be a continuous process rather than one time
exercise.
7765
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6.
The form and manner of issuing identity card.—The concerned Local Authority
shall issue identity card in Form-3.
7. Criteria for issuing certificate of vending.—Every Local Authority/ Town Vending
Committee shall give preference while allotting vending place, to the Scheduled Castes, Scheduled
Tribes, Other Backward Classes, Women , persons with disabilities, unemployed, educated youth,
handicapped person/senior citizens, single women, women headed household, self help groups of
women entrepreneurs, minorities, etc. in the following order.-
(i) Scheduled Castes
5%
(ii) Scheduled Tribes
2%
(iii) Other Backward Classes
3%
(iv) Unemployed/Educated youth.
5%
(v) Handicapped person/senior citizens
2%
(vi) Single Women/women headed house hold
2%
(vii) Self Help Groups of Women entrepreneurs.
3%
(viii) Minorities
2%
Note:—In the case of allotment of vending place to reserved categories one family shall be
allotted one vending place only in the State of Himachal Pradesh.
8. Fee for vending.—The vending fee shall be chargeable according to the category of the
street vendor and the location of the market. The fees for Stationary Vendor shall be minimum Rs.
500/- (Rupees five hundred only) and maximum Rs. 1200/- (Rupees one thousand two hundred
only) per month to the general category and for reserve category same shall be charged between Rs.
400/- (Rupees four hundred only) to Rs. 1000/- (Rupees one thousand only) per month. The fees for
Mobile Vendors shall be minimum Rs. 300/- (Rupees three hundred only) and maximum Rs. 900/-
(Rupees nine hundred only) per month to the General Category and for Reserve Category same
shall be charged between Rs. 200/- (Rupees two hundred only) to Rs. 800/- (Rupees eight hundred
only) per month. The fees for other category of vendors such as weekly, time sharing, etc. shall be
minimum Rs. 100/- (Rupees one hundred only) and maximum Rs. 600/- (Rupees six hundred
only).
9. Payment of necessary charges.—The vending fee, maintenance charges, fee for
renewal of certificate of vending and penalties for registration after due date and other charges shall
be collected through Nationalized Banks and counters of local authority and Town Vending
Committee, as the case may be. Every Town Vending Committee will have a bank account. An
annual audit of the account shall be carried out by the Town Vending Committee. Municipal
Corporation, Municipal Council and Nagar Panchayat shall make an endeavor to device innovative
methods (in partnership with banks) for fee collection to facilitate street vendors:
Provided that except vending fee, other charges shall be decided by the Town Vending
Committee from time to time.
10. The period of validity of certificate of vending.—The vending certificate shall be
valid for a period of five years from the date of issue.
11. Renewal of certificate of vending.—(1) Before completion of five years, the vending
certificate shall be renewed by way of simple process after depositing the requisite fee in Form-4.
The renewal fee shall be decided by the concerned Local Authority or Town Vending Committee
from time to time.The receipt of fee deposited shall ensure renewal of certificate of vending.
7766
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(2) The Town Vending Committee shall publish a list of defaulter street vendors who have
failed to deposit the fees for renewal of vending certificate within specified time. After due date,
one month notice shall be issued to those street vender who fails to renew their vending certificate
in Form-5. During the notice period, the street vender shall be liable to pay Rs. 20/-(Rupees twenty
only) per day as penalty in addition to fee.
(3) The registered street vendor who has not got his vending certificate renewed even after
service of first notice under clause (2), he shall be served another notice by the Town Vending
Committee in Form -5, as to why his vending certificate should not be suspended or cancelled.
12. Cancellation of certificate.—In addition to the provisions contained under section 10,
if a street vendor commits breach of any of the conditions given below, the Town Vending
Committee shall have the power to cancel the certificate after giving him opportunity of being
heard :-
(i) Carries out vending/squatting/hawking outside the market allotted according to the
vending license;
(ii) Misrepresents the age (minimum age is 14 years) for eligibility to get vending
certificate;
(iii) Violates norms of allotment of vending space. However, the maximum area of 5x7
sq.ft shall be allotted for vending ;
(iv) Extends the vending space unauthorizedly ;
(v) Constructs any kind of permanent structure;
(vi) Leases out/rents out/sells out the vending site to anyone else;
(vii) Fails to renew the vending certificate even after the expiry of the extra time given;
(viii)Employs any child labour(s) below the age of 14 years; and
(ix) Found guilty of mis-behavior with women vendor or any other person.
13. The categories of street vendors market other than stationary vendors market
and mobile vendors are as under;
(i) Natural markets,
(ii) Weekly markets,
(iii) Heritage markets,
(iv) Festival markets,
(v) Night Bazars,
(vi) Food courts, and
(vii)Time sharing market.
7767
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14. Manner of relocating street vendor in case of public purpose.—When any question
arises relating to public purpose, the same shall be decided in consultation with the Town Vending
Committee, keeping in view the following points :—
(i) The Town Vending Committee recommendation/consent is mandatory;
(ii) The street vendor shall be adjusted in the same locality/area for vending;
(iii) During construction/development, the street vendor(s) may be adjusted in a nearby
place temporarily; and
(iv) After the completion of development work, the displaced street vendor(s) may be
given space for vending in the original place.
15. The Manner of evicting a street vendor.—In case where public obstruction is caused
or survey is proposed to be conducted to identify an equally ideal vending site for the street
vendors, in such situation, place occupied un-authorizedly by the street vendors shall be vacated
subject to the condition that the Town Vending Committee shall place the matter for discussion
before committee at least 6 months prior.
16. The manner of giving notice for eviction of a street vendor.—Before issuing
eviction order under the provisions of Act and Scheme, one month notice shall be given to the
street vendor or occupier of place and if he is unknown or not traceable, the notice shall either be
placed on the notice board of the Town Vending Committee office or affixed to some conspicuous
part of the vending place in Form-6.
17. The manner of physical eviction of street vendor.—(1) On completion of one month
notice period, the street vendor shall be punishable with penalty, which may extend to rupees two
hundred and fifty for every day during which such default continues and the same shall not be more
than the value of the goods seized.
(2) If the Street Vendor fails to vacate the vending place occupied within stipulated period
the local authority or the person/officer authorized in this behalf by the local authority, as the case
may be, may take police assistance for evicting physically the street vendor/person and shall seize
all goods including perishable/non-perishable from the vending place/space, if necessary.
18. Seizure of goods by the local authority.—After seizure of goods, the local authority
or the person/officer authorized in this behalf by the local authority shall prepare list of goods duly
signed by him in the presence of any two witnesses available on the site of vacated space/place in
Form-7.
19. Reclamation of seized goods by the street vendors and the charges thereof.—(1)
Goods seized by local authority or the authorized person/officer shall be released to the street
vender under the provisions of Act and the Scheme, on his written request on same day in case of
perishable goods and in case of non-perishable goods within two working days, on payment of fee
of Rs. 500/- ( Rupees five hundred only) and Rs. 100/- ( Rupees one hundred only) per day for
claiming the seized goods after prescribed time limit.
(2) In case the vendor does not claim the seized goods on same day, the Town Vending
Committee or the authorized person/officer of the local authority shall forthwith give a notice to the
street vendor in writing in Form-8 thereby and after the expiry of the time limit given in the notice
which may not be less than two days from the date of service of the notice, he shall sell such goods
or in case of perishable goods destroy the same if not, useable.
7768
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(3) Any goods seized by the Local Authority or the person/officer authorized in this behalf
by the Local Authority shall not be returned to the street vendor unless he turns up for claiming the
same after depositing the necessary charges for the removal or storage of such goods and if he fails
to do so, the same shall be sold by public auction or in such other manner after preparing the details
of such articles in Form-9. The necessary charges shall be decided by the Local Authority/Town
Vending Committee from time to time.
(4) the charges for the removal and storage of the goods sold under the provisions of the
Act and this Scheme, shall be paid out of the sale proceeds and the balance, if any, shall be paid to
the street vender/owner of goods sold, on a claim being made within a period of two months from
the date of sale, and if no such claim is made within the said period, it shall be credited to the funds
of Local Authority or Town Vending Committee, as the case may be.
20. The form and the manner for carrying out social audit of the activities of Town
Vending Committee.—(1) The Town Vending Committee shall constitute a three members unit
for the purpose of carrying out social audit of its activities required to be performed under the
provisions of the Act, or the Scheme.
(2) The social audit unit shall be an independent body and shall consist of,-
(i) an eminent Academician in the field of sociology;
(ii) an eminent Social Activist; and
(iii) a retired Administrator.
(3) The adequate supporting secretariat staff with office space and equipments shall be
provided by the local authority to the social audit unit.
(4) The social audit shall be carried out at least once in every three years. The schedule for
conducting social audit shall be decided at least three months advance.
(5) The Town Vending Committee shall provide details of all relevant information to the
audit unit, at least a fortnight before the social audit process commences. Such details include,—
(i)
status of implementation of the Act, Rules and the Scheme for the street vendors;
(ii) the record of the minutes of the meetings of the Town Vending Committee conducted
in those years;
(iii) the record of all registered street vendors;
(iv) the record of appeals made before the local authority under section 11 of the Act;
(v) the record of all grievances or disputes brought before the grievance redressal
committee constituted under section 20 of the Act;
(vi) the record of the total number of evictions taken place, confiscation of goods and the
relocation of street vendors taken place in those years; and
(vii) the records of social audit reports, if any, taken place previously.
7769
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21. Meeting and working of social audit unit.—(1) The social audit unit shall conduct
meetings and focus group discussions with street vendors on various aspects of the implementation
of the Act, Rules and the Scheme.
(2) The audit unit shall record in writing the grievances of the street vendors on any issue
or problem faced by them.
(3) At the culmination of the social audit process, the unit shall record its findings in
writing.
(4) The audit unit shall hold a social audit public meeting at the town vending committee
office. The members of the committee and representatives of the local authority shall attend the
meeting. The audit unit shall read out its findings at the meeting. The street vendors shall be
encouraged to testify and the Town Vending Committee shall respond to each of the issues
identified in the social audit by giving clarification and explanation to the affected party and the
public as to why a certain action was taken or not taken.
(5) The audit unit shall give adequate advance public notice of the social audit public
meeting.
(6) The local authority shall, on each findings of the social audit unit in the cases of gaps,
lapses or deviations, fix responsibility and shall take immediate corrective measures or disciplinary
action. In case of a dispute, an administrative enquiry may be conducted by the local authority and
action be taken accordingly in the shortest time possible but in any case not later than a month.
(7) The statutory requirement of conducting social audit shall not preclude any independent
initiative to carry out normal audit of accounts.
(8) The social audit report submitted in this process shall form a part of the record and
shall be responded to by the Town Vending Committee. Where shortcomings are found, immediate
action shall be taken as per this Scheme. The action taken report shall form part of the record.
(9) The cost of conducting social audit shall be met from the budgetary provisions of the
Town Vending Committee.
22. Condition for Re-designation of private place as restriction free-vending zones,
restricted–vending zones and no-vending zones.—(1) It shall be determined by the Town
Vending Committee in accordance with the two and half percent of the total population of street
vendors of the ward/zone.
(2) In case, the number of applicants exceeds the number of spaces available in the
vending zones, the Town Vending Committee may take steps to redesignate private places with the
consent of the owner concerned as restriction free-vending zones on the terms and conditions
specified in the Act and this Scheme to accommodate the left out applicants.
23. Norms for up keeping public health and hygiene.—(1) The Local Authority shall
provide street vendors a proper place for disposing of their waste materials in order to maintain a
hygienic environment.
(2) The street vendor(s) shall use proper covered dustbin(s) for disposing of the waste
materials, in accordance with the waste disposal norms set by Municipality or Solid Waste
Management system of Municipality. The “street” vendors shall also pay the sanitation charges as
per the norms set by the Municipality for Solid Waste Management (SWM).
7770
jkti=] fgekpy izns'k] 28 Qjojh] 2017@9 QkYxqu] 1938
(3) The Local Authority shall ensure and provide the street vendors clean and fresh water
alongwith the electricity/street light facility wherever possible.
(4) The Local Authority in order to maintain public health and hygiene shall provide
toilets facility with adequate water and electricity.
(5) Appropriate number of dustbins shall be provided by the Local Authority to dispose of
the waste materials.
(6) Town Vending Committee may initiate group insurance scheme for the street vendors.
24. The designation of State Nodal Officer.—(1) The State Nodal Officer shall not be
below the rank of Additional /Jt. Director, Directorate of the Urban Development.
(2) The State Nodal Officer shall have at least a half yearly meeting with the Local
Authority in order to update the status of the street vendors.
25. The manner of maintenance of proper records and other documents by the Town
Vending Committee, Local Authority, Planning authority and State Nodal Officer in respect
of street vendors.—(1) On-line software may be developed by the Urban Development
Department for keeping the records of the street vendors.
(2) The Municipal Authority shall enter the data of the surveyed street vendors through
on-line process.
(3) The certificate of vending and identity card may be generated on-line.
(4) The website of local authority shall display the vending zones and street vendors.
26. The manner of carrying out vending activities on time–sharing basis.—The Town
Vending Committee shall determine the vending activities on time-sharing basis depending on the
market needs and space to the street vendors. No women vendors shall be discriminated while
allotting time-sharing vending activities.
27. Determining of vending zones as restriction free vending zones, restricted vending
zones and non-vending zones.—(1) The Town Vending Committee shall decide the allotment of
vending space according to the particular street or market. The Town Vending Committees shall
take steps to facilitate the demarcation of restriction i.e. free vending zones, restricted vending
zones and non-vending zones in cities/towns for marking the plans conducive and adequate for the
hawkers/street vender of the respective city/town.
(2) The Local Authority/Town Vending Committee shall provide sufficient space,
designated as ‘Vendors’ market’ in lay out plans at locations of such natural markets for the
number of vendors (Stationary and mobile) which can cater to demand for their wares/services. If
aspirants to such location exceed the number of spaces available, excess may be regulated by way
of fees or lottery and manner prescribed under clause 8 and not by discretionary licenses.
(3) The Mobile vendor may be permitted in area even outside the designated vendors’
markets’ unless the same are designated as ‘non-vending zone’. The ‘non-vending zone(s)’ may be
notified in terms of location and time. With the growth of city/town every new area should have
adequate provisions for street vendors.
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28. Capacity of vending zones and the manner of undertaking comprehensive census
and survey.—Under section 3 of the Act, two and half percent of the population of street vendors
of a ward/zone shall be accommodated as per the holding capacity. The holding capacity of a
vending zone shall be according to the vending site divided by the total area of the vending zone.
29. Norms of relocation.—There shall be following norms of relocation:-
(i) relocation should be avoided as far as possible, unless there is clear and urgent need for
the land in question;
(ii) any kind of loss of assets shall be avoided and in case of any loss it shall be
compensated;
(iii) affected vendors or their representative shall be involved in planning and
implementation of the rehabilitation project;
(iv) the Town Vending Committee shall engage in the dialogues with the representatives of
the markets; and
(v) mutually agreed place for relocation should be considered under the implementation of
the rehabilitation project.
(vi) affected vendors shall be relocated so as to improve their livelihoods and standards of
living at least to restore them, in real terms to pre-evicted levels;
(vii) livelihood opportunities created by new infrastructure development projects shall
accommodate the eligible displaced vendors ;
(viii) any transfer of title or other interest in land will not affect the livelihood of street
vendors on such land, and any relocation consequent upon such a transfer shall be done
in accordance with the provisions of the Act;
(ix) State machinery shall take comprehensive measures to check and control the practices
of forced evictions; and
(x) natural markets where street vendors have conducted business for over fifty years shall
be declared as heritage markets, and the street vendors in such markets shall not be
relocated :
Provided that the Local Authority may prepare a list of such markets and declare them as
“Heritage Markets”. The Municipal bodies in collaboration with the Tourism Department shall
promote such markets as Tourist Markets.
Form-1
(See clause 4)
Street Vendor Certificate
Unique Registration No._______________________________
Name of State _______________________________________
Name of Municipality _________________________________
___________________________________________________
Name of Vending Zone___________________________________________________
Name of Vending Place___________________________________________________
Category of Vending (whether Mobile/Stationery/Natural/Weekly etc.)_____________
Photograph of
vendor along
with his/her
spouse or
dependent child
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Name of the spouse or dependent child if involved in vending with the vendor________________
Age and sex of the person (s) whose photo appears/affix_________________________
This is to certify that ____________________, Husband or Father of _______________________,
age__________ residential address, __________________________ Category ____________ is a
registered street vendor of ___________________________, (Municipality Name) as provided
under clause 6.
Date of Issue: _______________
(Signature)
Valid up to: _______________
Note.—The vendor shall renew the Vending Certificate after every five years.
_______
Form-2
[See clause 5(v)]
FORMAT FOR LETTER OF UNDERTAKING BY A STREET VENDOR
I,………………………………………, wife/ son/ daughter of Shri………………………,
Registration/
Certificate
of
Vending
No…………………………………………..of…………………………town vending committee,
hereby declare that the certificate of vending granted to me shall not be leased, rented or sold to any
other person.
I, further declare that I am not engaged in any other business/ not vending from any other
vending site/ not employed with any organization.
Name and Signature of the Vendor: ………………………………………………………
Registration/ Certificate of Vending Number:…………………………………………….
Date:
Signature of Vendor:
Place:
________
Form-3
(See clause 6)
Identity Card
Name of Municipality
Unique Registration No………........ Father’s/Husband’s Name……………………...................
Affix photo of the
vendor
Category of Vending……………………………...............
Municipal Ward/ Vending Zone………………………......
Address/Location of the Vending Site…………………….
Residence Address………………………………………
Police Station………………………………………………
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Name ………………....................
Signature …………………………………
Age ………………….
Sex ………………
Phone No. ………….
Issuing Date………………….........
Commissioner/EO/Secretary of concerned Urban Local
Body………………………………………..
Form-4
[See clause 11(1)]
APPLICATION FOR RENEWAL OF STREET VENDOR’S CERTIFICATE
(This form is to be completed in block letters.)
Names of applicant...................................................................................
(Surname first)
Fathers Name………………………………………………………………….
Unique Registration Number..............................................................................
Residence address..............................................................................................
Postal address..................................................................................................
I wish to apply for the renewal of my street vendor’s certificate as follows:
(1) Areas to be covered–
..................................................................................
...................................................................................
(2) Trading in the following classes of goods–
.........................................................................................
........................................................................................
Date: ..............................................
Signature of applicant
FOR OFFICIAL USE ONLY
Date on which application was received ...................................................................
Date of approval/rejection of application ..................................................................
Signature of officer
With seal.
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Form-5
[See clause 11(2) and (3)]
NOTICE FOR RENEWAL OF STREET VENDOR’S CERTIFICATE
Names of the Vendor...................................................................................
Father’s Name:- ...............................................................................................
Unique Registration Number..............................................................................
Location of the vending Site................................................................
Residence address..............................................................................................
Date of earlier notice issued ..................................................................
Postal address..................................................................................................
Reasons of non renewal ....................................................................................
Date:
Signature of officer
With seal
Important instruction:
(1) One month notice shall be served to the street vendor for renewal of vending
certificate.
(2) After serving one month notice, if he fails to renew the vending certificate another
notice may be served as to why his/her vending certificate may not be suspended or
cancelled.
__________
Form-6
(See clause 16)
Notice for eviction of street vendor
Names of the Vendor.......................................................................................................
(Surname first)
Father’s Name:- .............................................................................................................
Unique Registration Number..........................................................................................
Location of the vending site............................................................................................
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Residence address..........................................................................................................
Postal address................................................................................................................
Reasons of eviction........................................................................................................
Date:
Signature of officer
With seal
Important instructions:
(1) One month notice shall be served to the street vendor or occupier of the place.
(2) If he is unknown, the notice may be placed on the notice board of the Town Vending
Committee.
(3) After serving one month notice, if he fails to vacate the vending place, shall be
punishable with penalty upto Rupees two hundred fifty for everyday.
(4) Where such non compliance continues in spite of notice and fine imposed, the Town
Vending Committee or authorised officer as the case may be, may require police
assistance to remove physically the street vendor.
__________
Form-7
(See clause 18)
List of Seized Goods
1. Name and address of person from whom the goods is seized...............................
2. Unique Registration Number………………………………………………………
3. Place of seizure with date and time....................................................................
4. Details of the Goods seized………………………………………………………..
(a) Description of each goods..........................................................................
5. Name and address of person under whose custody the seized property has been
kept..................................................................................................................
6. Signature of custodian.......................................................................................
7. Approximate value of the seized good.............................................................................
8. Remarks............................................................................................................................
..........................................................................................................................................
................................................................................................
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9. Name and address of the witness with their signature:
(1) ..............................................................................................................................
......................................................................................................
(2) .................................................................................................................................
......................................................................................................
Date:
Signature of Officer/ Official seizing the good
with full name
Designation and address.
_________
Form-8
[See clause 19 (2)]
Notice for reclamation of seized goods
1. Name and address of person from whom the goods is seized ……….............................
............................................................................................................
2. Name and address of any other claimant for the seized goods.....................................
3. Name and address of person under whose custody the seized property has been
kept....................................................................................
4. Place of seizure with date and time...........................................................
5. Details of the goods seized…………….......................................................
6. Approximate value of the seized good………………………………………..
7. Remarks…………….................................................................................
..........................................................................................................
Date:
Signature of Officer/official seizing the good
with Designation and address
__________
Form-9
[See clause 19(3)]
Detail of articles placed for auction
1.
Name and address of person from whom the articles seized……………………
2. Name of custodian…………………………………………………………………
3. Date and place of auction…………………………………………………………..
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4. Details of articles/goods………………………………………………………….
5. Approximate value………………………………………………………………….
6. Auction amount…………………………………………………………………….
7. Amount adjusted against expenses for seizing of articles/goods………………..
8. Refundable amount……………………………………………………………….
9.
Witnesses…………………………………………………………………………..
1 .……………………………………………………………………………
2 .…………………………………………………………………………...
Date:
Signature of Officer
with
Designation and address
By order,
MANISH NANDA,
Additional Chief Secretary (UD).
_________
LABOUR AND EMPLOYMENT DEPARTMENT
NOTIFICATION
Dated, 16 th January, 2017
No. Shram (A) 6-2/2014 (Awards) D/Shala.—In exercise of the powers vested under
section 17(1) of the Industrial Disputes Act, 1947, the Governor Himachal Pradesh is pleased to
order the publication of awards of the following cases announced by the Presiding Officer, 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
1.
614/2016
Virender Kumar
Er.-in-Chief & other
05-11-2016
2.
403/2015
Kamla Kumari
E.E. HPPWD, Killar
09-11-2016
3.
406/2015
Kami Devi
E.E. HPPWD, Killar
09-11-2016
4.
408/2015
Aaj Dei
E.E. HPPWD, Killar
09-11-2016
5.
410/2015
Bodh Raj
E.E. HPPWD, Killar
09-11-2016
6.
419/2015
Sili Devi
E.E. HPPWD, Killar
09-11-2016
7.
398/2015
Negi Ram
E.E. HPPWD, Killar
09-11-2016
8.
284/2015
Bihari Lal
CSK HPKVV
16-11-2016
9.
233/2014
Gorakh Singh
Dr. Y.S.Parmar Uni.
21-11-2016
10.
402/2015
Roshan Lal
E.E. I&PH/HPPWD Killar
28-11-2016
7778
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11.
459/2015
Souni Devi
E.E. I&PH/HPPWD Killar
28-11-2016
12
455/2015
Man Dei
E.E. I&PH/HPPWD Killar
28-11-2016
13
271/2015
Sakina Devi
E.E.HPPWD, Joginder Nagar
28-11-2016
14
434/2015
Kuldeep Chand
E.E.HPPWD, Joginder Nagar
28-11-2016
15
207/2015
Gassi Lal
E.E. HPPWD, Killar
29-11-2016
16
231/2015
Trilok Singh
E.E. HPPWD, Killar
29-11-2016
17
325/2015
Harnam Singh
E.E. HPPWD, Killar
29-11-2016
18.
341/2015
Bhag Dei
E.E. HPPWD, Killar
29-11-2016
19
446/2015
Gian Chand
E.E. HPPWD, Killar
29-11-2016
20
174/2015
Thanu Lal
E.E. HPPWD, Killar
29-11-2016
21
77/2015
Dev Raj
E.E. HPPWD, Killar
29-11-2016
22
36/2014
Shubha Rani
M.D. Sazler Electronics
29-11-2016
23
323/2015
Desh Raj
E.E. HPPWD, Salooni
29-11-2016
24
212/2015
Hem Raj
E.E. HPPWD, Salooni
29-11-2016
25
346/2014
Sunku Ram
Dy. Director Agriculture Chamba
29-11-2016
By order,
Sd/-
Pr. Secretary ( Lab. & Emp.).
__________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA, H.P.
Ref: No. 614/ 2016
Sh. Virender Kumar s/o Sh. Sohan Lal, Village Nansai, P.O. Sidhpur, Tehsil Sarkaghat,
Distt. Mandi.
...Petitioner.
Versus
1. The Engineer-in-Chief HPPWD, Nirman Bhawan, Shimla.
2. The Executive Engineeer, HPPWD, Division Dharampur, Distt. Mandi, H.P.
...Respondents.
05-11-2016 Present : None for the petitioner.
Sh. Sanjeev Singh Rana, Dy.D.A. for the respondents.
Case called on several times but none has appeared on behalf of the petitioner despite due
knowledge. It is 11.20 A.M. Be awaited and put up after lunch hours.
(K.K.SHARMA),
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Kangra at Dharamshala, H.P.
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05-11-2016 Present : None for the petitioner.
Sh. Sanjeev Singh Rana, Dy.D.A. for the respondents.
Case has been called again several times but none has appeared on behalf of petitioner. It is
2.35 P.M. None appearance of petitioner today is indicative of the fact that he is not interested to
pursue present reference and accordingly reference is disposed of for non-prosecution.
Reference is answered in the aforesaid terms. The parties to bear their own costs.
Let copy of the Order/Award be sent to the appropriate government for information and
further necessary action/publication. The file, after completion be consigned to the records.
Announced:
05-11-2016
(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)
(CAMP AT CHAMBA)
Ref No. : 403/2015
Date of Institution : 10.09.2015
Date of Decision : 09.11.2016
Smt. Kamla Kumari w/o Shri Basant Singh, r/o Village Kuthal, P.O. Sach, Tehsil Churah,
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. I.S. Jaryal, AR
For the Respondent : Sh. Sanjeev Singh Rana, Dy. D.A.
AWARD
The reference given below has been received from the appropriate Government for
adjudication:
“Whether the industrial dispute raised by the worker Smt. Kamla Kumari W/O Shri Basant
Singh, R/O Village Kuthal, P.O. Sach, Tehsil Churah, District Chamba, H.P. before the
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Executive Engineer, I&PH/HPPWD Division, Killar, Tehsil Pangi, District Chamba, H.P.
vide demand notice dated 23.10.2011 regarding her alleged illegal termination of services
during September, 2003 suffers from delay and latches? If not, Whether termination of the
services of Smt. Kamla Kumari W/O Shri Basant Singh, R/O Village Kuthal, P.O. Sach,
Tehsil Churah, District Chamba, H.P. by the Executive Engineer, I&PH/HPPWD Division,
Killar, Tehsil Pangi, District Chamba, H.P. during September, 2003 without complying the
provisions of the Industrial Disputes Act, 1947, is legal and justified? If not, what amount of
back wages, seniority, past service benefits and compensation the above aggrieved
workman is entitled to from the above employer?”
2. On receipt of reference from appropriate government, notices were issued to the parties
in pursuance to which claimant/petitioner has filed statement of claim
3. Brief facts leading to institution of the present claim petition by the petitioner above
named reveal that she had been initially engaged as daily waged beldar on muster roll basis in the
month of June, 1994 who continuously worked till September, 2003 in IPH Sub Division, Killar.
Averments made in the petition further revealed that petitioner had worked for 160 days in each
calendar year as prescribed for tribal area of Pangi Tehsil District Chamba and became eligible for
continuous service envisaged under statutory provisions of Section 25-B of the Industrial Disputes
Act, 1947 (hereinafter referred to as 'the Act' for brevity). Averments made in the petition revealed
that the services of petitioner had interrupted by way of intermittent/artificial breaks given by the
respondent/department deliberately and as such breaks are required to be counted as continuous
services for the purposes of calculation of 160 days so as for the applicability of Section 25-B of
the Act. The grievance of petitioner remains that respondent/department had terminated/
disengaged petitioner from daily wage service in the end of September, 2003 by an oral order
without any reason whereas several other co-workers who were junior to petitioner had been
retained on muster roll and thus the action of respondent/department was stated to be unjustified
and malafide. It is alleged that seniority list of daily wage workers working under the respondent
had not been circulated till termination/retrenchment of the petitioner and while retrenching the
services of petitioner, even principle of 'Last come First go' had not been followed by the
department/respondent. The petitioner has named 27 persons who were junior to petitioner and
joined service from 1st August, 1997 to 1st September, 2007. In the end of month of September,
2003 when the services of petitioner were terminated by way of oral order, she was not served with
one month notice of retrenchment and at the same time one month's wages in lieu of notice period
had also not been paid to her and for said reason termination of the services of petitioner was prima
facie illegal and unwarranted. The claimant/petitioner claimed that she had spotless service record
who never been charge-sheeted for any act of indiscipline or negligence or her conduct and even at
the time of verbal termination, no charge-sheet had been served upon her and the at the same time,
no opportunity of hearing had been afforded to her. The petitioner also alleges that she has
remained unemployed ever since her illegal termination from month of September, 2003 till the
date of institution of present claim petition who had been nowhere gainfully employed and was
thus entitled for full back wages. Accordingly alleging respondent to have committed violation of
statutory provision of Section 25-F, Section 25-G and Section 25-H of the Industrial Disputes Act,
1947 and Article 14 and 16 of Constitution of India, the petitioner prays for setting aside oral order
of termination/retrenchment by the respondent in the month of September, 2003. She further prayed
for reinstatement in service w.e.f. month of September, 2003 along-with back wages, seniority
including continuity in service as petitioner has remained unemployed since the date of her illegal
termination. The petitioner has also prayed that period of intermittent/fictional breaks given time
and again during entire service of petitioner between June, 1994 to September, 2003 be counted
160 days continuous service and regularization of the service of petitioner w.e.f. 01.01.2002 having
completed 8 years of service and per the policy of HP Govt. in pursuance to judgment of Hon'ble
Apex Court titled as Rakesh Kumar vs. State of H.P. and to any other relief petitioner is entitled.
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4. The respondent contested claim petition, filed reply inter-alia taken preliminary
objections of maintainability, claim petition being bad on account of delay and laches. On merits
denied that petitioner had worked for more than 160 days in each calendar year rather clarified by
stating that petitioner was engaged as daily waged beldar in 1994 who remained engaged till 2003
but had worked intermittently as petitioner used to come and attend the work at her own sweet will
and convenience. Relying upon the mandays chart, it has been categorically pleaded by the
respondent that petitioner had not completed 160 days in each calendar year as required for tribal
area of Pangi Tehsil. Allegations of fictional breaks given by respondent to the petitioner have been
denied. In so far as engagement of persons junior to petitioner mentioned at serial nos. 1 to 24 and
26 in para no. 4 of the claim petition were appointed as per order of Labour Court and at serial nos.
25 & 27 as harness case. On the plea of termination of service of petitioner, respondent specifically
alleges that petitioner had left the job at her own will therefore serving of notice or pay in lieu
thereof was not required. Reiterating its stand respondent has maintained that petitioner had left the
work of her own sweet will and the persons mentioned in para no.4 are stated to have engaged as
per direction of the Labour Court-cum-Industrial Tribunal Dharamshala as harness case. It is also
contended that if petitioner had been terminated in 2003 she would have definitely raised industrial
dispute immediately and that after seven years petitioner is stated to be agitating the matter which is
bad on account of delay and laches. It is also contended that since the services of petitioner had not
been terminated by the respondent, question of issuance of notice or wages in lieu thereof did not
arise and at the same time, there was no necessity for charge-sheet or issuing any notice of
petitioner after her termination. It is contended that petitioner was agriculturist and gainfully
employed and was thus not entitled for back wages.
5. The petitioner filed rejoinder, reiterated her stand as maintained in the claim petition.
Further asserted that provisions of Limitation Act did not eclipse the claim of petitioner in totality
besides allegation of violation of principle of 'Last come First go' was specifically denied.
6. In order to prove her case, petitioner had examined herself as PW1 tendered/proved her
affidavit Ex. PW1/A under Order 18 Rule 4 CPC, Ex. PW1/B to PW1/L mandays charts of junior
workers 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, mandays chart of other co-
workers Ex. RW1/C, Ex. RW1/D1 to Ex. RW1/D21 copy of orders/awards and closed the
evidence.
7. I have heard the ld. Authorized Representative of petitioner and ld. Dy. D.A.
representing respondent, gone through records of the case carefully relevant for disposed of this
case.
8. From the contentions raised, following issues were framed on 17.12.2015 for
determination which are as under :
1.
Whether the industrial dispute raised by petitioner vide demand notice dated
23.10.2011 qua her termination of service during September, 2003 by respondent
suffers from the vice of delay and laches as alleged? If so, its effect?
...OPP.
2. Whether termination of the services of petitioner by the respondent w.e.f.
September, 2003 is/was illegal and unjustified as alleged?
...OPP.
3. If issue no.1 or issue no.2 or both are proved in affirmative, to what service
benefits the petitioner is entitled to?
...OPP.
4. Whether the claim petition is not maintainable in the present form as alleged? ...OPR.
7782
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Relief.
9. For the reasons detailed here under, my findings on the above issues are as follows:—
Issue No.1 :
Yes
Issue No.2 :
Yes
Issue No.3 :
Discussed
Issue No.4 :
No
Relief. : Petition is partly allowed awarding compensation Rs.75,000/- per operative
part of award.
REASONS FOR FINDINGS
ISSUES NO.1, 2 AND 3
10. All these issues have been taken up together for discussion being interconnected which
can be disposed of simultaneously without repetition of evidence.
11. Relationship of petitioner having been engaged as daily waged beldar by respondent
on muster roll basis in the month of June, 1994 who continuously worked till 2003 at IPH/HPPWD
Sub Division Killar is not in dispute. Admittedly, petitioner was engaged without any written order
or settlement of terms and conditions by the respondent. It is equally not in dispute that no written
order was passed while terminating service of the petitioner as claim of respondent remains that it
had not retrenched petitioner from service who had abandoned the job of her own and used to work
intermittently as per her own wish and convenience. Admittedly, the reference of appropriate govt.
does not relate to plea of fictional breaks but only with regard to petitioner's termination from
service. In the backdrop of foregoing admitted facts on record, claim of petitioner requires to be
adjudicated with a view to determine if petitioner is entitled for relief of reinstatement and back
wages along-with seniority and past service benefits and compensation as claimed by him.
12. Stepping into witness box as PW1 has sworn in affidavit Ex. PW1/A reiterating and
reaffirming her pleadings as stipulated in claim petition. In her affidavit she has claimed to have
worked with the respondent/department for more than 160 days in Pangi Sub Division Chamba
District and remained engaged from June, 1994 to September, 2003. She has also stated on oath
that no notice under Section 25-F of the Act was given by the respondent before terminating her
service and at the same time no compensation in lieu thereof notice period was paid to her and thus
her termination was illegal and void entitling petitioner benefit of reinstatement of service with full
back wages and all the other consequential service benefits. The petitioner has further alleged on
oath that respondent/department after terminating her services in September, 2003 by oral order had
engaged several co-workers who were junior to petitioner were retained in service. Not only this,
the persons who were junior to petitioner are stated to have been regularized in service and thus
respondent had not followed the mandate of Sections 25-G and 25-H of the Act which was
obligatory on its part. The case of petitioner also remains that she had served respondent with due
diligence and had spotless service record as respondent/department had never called any
explanation or raised charge-sheet against her but even while retrenching petitioner from service,
no notice was given. The petitioner has also explained reason for not approaching the authorities
under Labour Act and thereafter before this Tribunal, as there existed no road between Chamba
town to Pangi Tehsil till 2011 and petitioner had moved before the Labour Officer raising demand
notice consequent upon which a failure report was submitted and as the Labour Commissioner did
not make reference for industrial dispute raised by petitioner, the petitioner had moved before the
Hon'able 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.
7783
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13. In so far as plea of abandonment raised by respondent is concerned, the same merits
rejection in view of the fact that respondent had failed to produce any record by which it could be
established that whenever petitioner absented from her duty as also reflected in mandays chart Ex.
RW1/B any notice or letter was ever issued. On this point respondent as RW1 has specifically
admitted that whenever petitioner abandoned the job, no notice had been issued. RW1 specifically
admitted that no departmental inquiry was initiated against petitioner even after September, 2003.
No reason whatsoever has been assigned for such any action or omission on the part of respondent
in not initiating any departmental proceedings or making correspondence calling upon the
petitioner to join service. This prima facie belies the stand taken by the respondent as abandonment
has to be proved like any other fact in issue. The petitioner, on the other hand, as PW1 in cross-
examination has specifically denied that she used to leave the job in between and attended the work
intermittently rather she has claimed that intermit breaks had been deliberately given to her by the
respondent in the service record of petitioner so that petitioner did not complete 160 days of work
as required for Pangi Tehsil area and also for applicability of Section 25-B of the Act. As such, in
absence of any specific and reliable evidence led by respondent, it would be unsafe to hold that
respondent had established plea of abandonment.
14. A bare glance on the mandays chart Ex. RW1/B would reveal that petitioner had worked
for 146 days in the year 1994, 10 days in 1995, 122 days in 2000, 99 days in 2001, 77 days in 2002
and 108 days in 2003 and thus a total of her service in 1994 to 2003 in 6 years she had worked for
562 days in her entire service period. Be it noticed that she had not worked for more than 160 days
and as there is no reference from the Labour Commissioner, Shimla on the point of artificial breaks,
this court is to confine its findings only with regard to alleged illegal termination. It is evident from
mandays chart Ex. RW1/B that in the year 2003 the petitioner had merely worked for 108 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. Authorized Representative for petitioner has contended with vehemence that large
number of workers who were junior to petitioner had been appointed from 01.8.1997 to 07.9.1999
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. PW1/B, Ex.
PW1/C, Ex. PW1/D are the year-wise mandays of daily waged workers who were junior to the
petitioner and had joined in the year 2000 or thereafter whereas Ex. PW1/E to Ex. PW1/L are the
mandays chart of other co-workers. All of these co-workers shown in Ex. PW1/C the year-wise
mandays details of workers of Division HPPWD Killar were certainly junior to petitioner who were
given sufficient work existing in those years more than 200 days in a year whereas the petitioner
had been not given muster roll for the whole month. Ex. RW1/C also established that all the co-
workers shown in this document have worked for more than 160 days in most of the years although
they were junior to petitioner. Evidently, there is no iota of evidence of respondent establishing that
petitioner was called upon to join for service at any time after September, 2003 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.3 of the affidavit
were retained whereas petitioner was senior from these co-workers having joined service in 1994
was terminated and even thereafter respondent omitted to afford opportunity to petitioner for
reemployment for work which also violates the provisions of Section 25-H of the Act. Ld.
Authorized Representative for petitioner has placed reliance upon judgment of Central Bank of
India vs. S. Satyam, 1996 (5) SCC 419 in which Hon'ble Apex Court has held that for the
applicability of Section 25-G and 25-H of the Act, there was no necessity of claimant/petitioner to
have worked for 240 days as in case of provisions of Section 25-F of the Act.
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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/D21. 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/D21 were primarily on the basis of court
orders would not defeat the claim of the petitioner as status of these person being junior to
petitioner does not get negatived. As such, even when petitioner is proved to have not worked for
more than 160 days in preceding 8 years which entitled her for regularization of her service per
government policy, yet respondent is not absolved from its accountability of provisions of Section
25-G and 25-H of the Act and as such it is held that respondent had violated the provisions of
Sections 25-G and 25-H of the Industrial Disputes Act.
17. Ld. Authorized Representative for petitioner has contended that after petitioner's
termination in September, 2003, she had remained unemployed and was not earning anything
thereafter as such was entitled for full back wages. Repudiating the arguments of ld. Authorized
Representative of petitioner, ld. Dy. D.A. for the State has taken this court through cross-
examination of the petitioner who has admitted that she had cultivatable land with her and also
worked a private labourer. Thus, plea of having remained not gainfully employed gets belied
admission of petitioner in cross-examination in which she had maintained that she had been earning
from agricultural land as well as she has been working as daily wager privately. Reliance has been
placed on the judgment of Hon'ble Apex Court North East Karnataka Road Transport Corporation
vs. M. Nagangouda (2007) 10 SCC 765 in which Division Bench comprising of Justice A.R.
Lakshmanan and Justice Altamas Kabir had held that 'term gainfully employment would also
include self employment wherefrom income is generated. It was income either from employment in
an establishment or from self employment merely differentiates the sources from which income is
generated, the end use being the same’. Applying the ratio of judgment of 2007 (supra) to this case
since the petitioner was earning from her agricultural and manual pursuits, the same were sufficient
to maintain her and her family. It is thus held that petitioner was gainfully employed. Be it stated
here that Hon'ble Apex Court in Deepali Gundu Surwase’s case has held that the Labour Court was
not justified in holding that merely because the respondent was receiving agriculture income, she
cannot be treated to be engaged in gainful employment. Since the petitioner had income from
agriculture pursuits for her livelihood it cannot be stated that petitioner was not gainfully employed
and thus would not be entitled full back wages. In view of the forgoing discussion, it is held that the
relationship of workman and employer existed between petitioner and respondent and that
petitioner was illegally retrenched without compliance of Section 25-G and Section 25-H of the Act
although remained gainfully employed after her retrenchment. Thus, applying the ratio of judgment
of Hon'ble Apex Court (2007 supra), it may not be erroneous to hold that petitioner was gainfully
employed and thus would be not entitled for back wages for the period she was out of job on being
terminated by the respondent.
18. Lastly, Ld. Dy. D.A. for State has contended with vehemence that there is inordinate
and explained delay which disentitles petitioner relief claimed for by him. On the other hand, ld.
Authorized Representative for the petitioner has relied upon the judgment of Hon'ble Apex Court
titled Raghubir Singh vs. General Manager, Haryana Roadways, Hissar reported in 2014 Lab IC
4266 (SC) and the relevant paras of the judgment are produced below for reference:
“12. Therefore, in our considered view, the observations made by this Court in the
Rajasthan State Agriculture Marketing Board case (supra) upon which the learned
Additional Advocate General for the State of Haryana has placed reliance cannot be applied
to the fact situation of the case on hand, for the reason that the Labour Court has
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erroneously rejected the reference without judiciously considering all the relevant factors of
the case particularly the points of dispute referred to it and answered the 2nd issue regarding
the reference being barred by limitation but not on the merits of the case. The said decision
has no application to the fact situation and also for the reason the catena of decisions of this
Court referred to supra, wherein this Court has categorically held that the provisions of
Limitation Act under Article 137 has no application to make reference by the appropriate
government to the Labour Court/Industrial Tribunal for adjudication of existing industrial
dispute between workmen and the employer.
13. In the case on hand, no doubt there is a delay in raising the dispute by the appellant;
the Labour Court nevertheless has the power to mould the relief accordingly. At the time of
adjudication, if the dispute referred to the Labour Court is not adjudicated by it, it does not
mean that the dispute ceases to exist. The appropriate government in exercise of its statutory
power under Section 10(1)(c) of the Act can refer the industrial dispute, between the parties,
at any time, to either the jurisdictional Labour Court/Industrial Tribunal as interpreted by
this Court in the Avon Services case referred to supra. Therefore, the State Government has
rightly exercised its power under Section 10(1)(c) of the Act and referred the points of
dispute to the Labour Court as the same are in accordance with the law laid down by this
Court in Avon Services & Sapan Kumar Pandit cases referred to supra.
14. Further, the workman cannot be denied to seek relief only on the ground of delay in
raising the dispute as held in the case of S.M. Nilajkar & Ors. v. Telecom District Manager,
Karnataka[4] it was held by this Court as follows—
“17. It was submitted on behalf of the respondent that on account of delay in raising the
dispute by the appellants the High Court was justified in denying relief to the appellants.
We cannot agree...... In Ratan Chandra Sammanta and Ors. v. Union of India and Ors.
(supra)1993 AIR SCW 2214, it was held that a casual labourer retrenched by the employer
deprives herself of remedy available in law by delay itself, lapse of time results in losing the
remedy and the right as well. The delay would certainly be fatal if it has resulted in material
evidence relevant to adjudication being lost and rendered not available. However, we do not
think that the delay in the case at hand has been so culpable as to disentitle the appellants
for any relief.....” (Emphasis laid by the Court) In view of the legal principles laid down by
this Court in the above judgment, the reference of the industrial dispute made in the case on
hand by the State Government to the Labour Court to adjudicate the existing industrial
dispute between the parties was made within a reasonable time, considering the
circumstances in which the workman was placed, firstly, as there was a criminal case
pending against her and secondly, the respondent had assured the workman that she would
be reinstated after her acquittal from the criminal case. Moreover, it is reasonable to
adjudicate the industrial dispute in spite of the delay in raising and referring the matter,
since there is no mention of any loss or unavailability of material evidence due to the delay.
Thus, we do not consider the delay in raising the industrial dispute and referring the same to
the Labour Court for adjudication as gravely erroneous and it does not debar the workman
from claiming rightful relief from her employer.
15. In the case of Ajaib Singh v. The Sirhind Co-Operative Marketing Cum- Processing
Service Society Limited & Anr.[5] this Court has opined that relief cannot be denied to the
workman merely on the ground of delay, stating that:-
“10. It follows, therefore, that the provisions of Article 137 of the Schedule to Limitation
Act, 1963 are not applicable to the proceedings under the act and that the relief under it
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cannot be denied to the workman merely on the ground of delay. The plea of delay if raised
by the employer is required to be proved as a matter of fact by showing the real prejudice
and not as a merely hypothetical defence. No reference to the labour court can be generally
questioned on the ground of delay alone. Even in a case where the delay in shown to be
existing, the tribunal, labour court or board, dealing with the case can appropriately mould
the relief by declining to grant back wages to the workman till the date she raised the
demand regarding her illegal retrenchment/termination or dismissal. The Court may also in
appropriate cases direct the payment of part of the back wages instead of full back
wages.....” (Emphasis laid by the Court)
16. Hence, we are of the opinion, having regard to the fact and circumstances of the case
that there is no delay or latches on the part of the workman from the date of her acquittal in
the criminal case. Thereafter, upon failure of the respondent in adhering to the assurance
given to the workman that she would be reinstated after her acquittal from the criminal case,
the workman approached the conciliation officer and the State Government to make a
reference to the Labour Court for adjudication of the dispute with regard to the order of
dismissal passed by the respondent. Keeping in mind the date of acquittal of the appellant
and the date on which she approached the conciliation officer by raising the dispute, since
the respondent had not adhered to its assurance, the State Government had rightly referred
the dispute for its adjudication. Therefore it cannot be said that there was a delay on the part
of the appellant in raising the dispute and getting it referred to the Labour Court by the State
Government.
17. Further, the Labour Court on an erroneous assumption of law framed the additional
issue regarding the limitation in raising the dispute and its reference by the State
Government to the Labour Court. Thus, the Labour Court has ignored the legal principles
laid down by this Court in the cases referred to supra. The award passed by the Labour
Court was accepted erroneously by both the learned single Judge and the Division Bench of
the High Court by dismissing the Civil Writ Petition & the Letters Patent Appeal without
examining the case in its proper perspective, keeping in view the power of the State
Government under Section 10(1)(c) and the object and intendment of the Act. Not
adjudicating the existing industrial dispute on merits between the parties referred to it may
lead to disruption of industrial peace and harmony, which is the foremost important aspect
in Industrial Jurisprudence as the same would affect the public interest at large.
19. Ld. counsel 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 2003 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.
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Authorized Representative for petitioner, ld. Dy. D.A. has placed reliance upon the judgment of
Hon'ble Apex Court titled as Assistant Engineer, Rajasthan State Agriculture Marketing Board,
Sub-Division Kota and Mohan Lal [2013 (139) FLR 125], the relevant para of the judgment are
produced below for reference:
Industrial Disputes Act, 1947-Sections 25-F and 10-Limitation Act, 1963- Section
5-Industrial dispute-Termination of service-Finding of Lboaur Court that workman had
completed 240 days in calander year and her termination was in violation o section 25-F of
the I.D.Act- Wrokman worked from 1.11.1984 to 17.2.1986 in all 286 days during
employment. her services terminated on 18.2.1986. Industrial dispute raised after 6 years of
termination. Admitted delay of 6 years not kept in view by the Labour Court-Judicial
discretion exercised by the Labour Court flawed and unsustainable. Reinstatement of the
workman not the appropriate relief. In lieu of reinstatement compensation of Rs.one lac
directed to be paid to the workman by the appellant-employer within six weeks failing
which interest @ workman 9% p.a. will be payable.
[Paras 21 and 22]
Limitation Act, 1963. Section 5-Industrial Disputes Act, 1947-Section 25-F-Termination of
service-Industrial dispute raised after six years-Limitation Act not applicable to reference
made under the I.D. Act-Delay in raising industrial disputes definitely an important
circumstances which the Labour Court must keep in view before granting relief”.
I have gone through the rival contention of the ld. Authorized Representative as well as ld.
Dy. D.A. for State. Keeping in view the mandate of Hon'ble Apex Court in various judgments
referred to above it is held that delay in raising industrial dispute is definitely an important
circumstance and court has to keep in mind while exercising discretion. In para nos. 20 and 21 of
judgment 2013 supra has referred to Gitam Singh’s case reported in 2013 (136) FLR 893 (SC)
titled as Assistant Engineer Rajasthan Development Corporation and another vs. Geetam Singh
observing that before exercising its judicial discretion, the Labour Court has to keep in view 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 the delay in raising industrial
dispute before grant of relief in an industrial dispute. 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 his services have been terminated in 1986 and he 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 6 years and actually worked for 562 days as per mandays chart on
record and that the services of petitioner were disengaged in September, 2003 who worked as non
skilled worker and had raised industrial dispute by issuance of demand notice after about eight
years i.e. demand notice was given on 23.10.2011. It is also pertinent to mention here that
petitioner on the date of filing claim petition was ageing 42 years who has sufficient spell of life to
work and earn her livelihood. Taking into consideration factors mentioned above in pursuance to
judgments of Hon'ble Apex Court petitioner would not be entitled either for reinstatement or for
back wages but compensation a lump-sum would be appropriate relief in view of judgment 2013
(139) FLR 25 (SC). The judgments relied upon by ld. Authorized Representative for petitioner on
the matter of delay and laches is more or less settled law that claim of the petitioner could not be
solely declined on the ground of delay and laches. Similarly, judgment of Hon'ble Apex Court in
2014 titled as Raghubir Singh’s case also does not come to the rescue of the petitioner as in this
judgment also the Hon'ble Apex Court has reiterated the mandate as given by the Hon'ble Apex
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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. Similar view was reiterated by the
Hon'ble Apex Court in judgment titled as Vice Chancellor, Lucknow University, Lucknow, Uttar
Pradesh v. Akhilesh Kumar Khare & another reported in AIR 2015 SC 3473.
21. In view of foregoing discussion, a lump-sum compensation of Rs.75,000/- (Rupees
seventy five 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 and its realization. Issues no.
1,2 and 3 are answered accordingly.
ISSUE NO.4
22. 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
23. As sequel to my findings on foregoing issues, the respondent is hereby directed to pay
the compensation of Rs.75,000/- (Rupees seventy five 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 shall 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.
24. The reference is answered in the aforesaid terms.
25. A copy of this Award be sent to the appropriate Government for publication in the
official gazette.
26. File, after due completion be consigned to the Record Room.
Announced in the open Court today this 9th day of November, 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)
(CAMP AT CHAMBA)
Ref No. : 406/2015
Date of Institution : 10.09.2015
Date of Decision : 09.11.2016
Smt. Kami Devi w/o Shri Bhim Singh, r/o Village and Post Office Rei, Tehsil Pangi,
District Chamba, H.P.
...Petitioner.
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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. I.S. Jaryal, AR
For the Respondent : Sh. Sanjeev Singh Rana, Dy. D.A.
AWARD
The reference given below has been received from the appropriate Government for
adjudication:
“Whether the industrial dispute raised by the worker Smt. Kami Devi W/O Shri Bhim
Singh, R/O Village and Post Office Rei, Tehsil Pangi, District Chamba, H.P. before the
Executive Engineer, I&PH/HPPWD Division, Killar, Tehsil Pangi, District Chamba, H.P.
vide demand notice dated 27.08.2012 regarding her alleged illegal termination of services
during September, 2004 suffers from delay and latches? If not, Whether termination of the
services of Smt. Kami Devi W/O Shri Bhim Singh, R/O Village and Post Office Rei, Tehsil
Pangi, District Chamba, H.P. by the Executive Engineer, I&PH/HPPWD Division, Killar,
Tehsil Pangi, District Chamba, H.P. during September, 2004 without complying the
provisions of the Industrial Disputes Act, 1947, is legal and justified? If not, what amount of
back wages, seniority, past service benefits and compensation the above aggrieved
workman is entitled to from the above employer?”
2.
On receipt of reference from appropriate government, notices were issued to the
parties in pursuance to which claimant/petitioner has filed statement of claim.
3.
Brief facts leading to institution of the present claim petition by the petitioner above
named reveal that she had been initially engaged as daily waged beldar on muster roll basis in the
month of May, 1997 who continuously worked till September, 2004 with the respondent/
department. Averments made in the petition further revealed that petitioner had worked for 160
days in each calendar year as prescribed for tribal area of Pangi Tehsil District Chamba and became
eligible for continuous service envisaged under statutory provisions of Section 25-B of the
Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act' for brevity). Averments made in
the petition revealed that the services of petitioner had interrupted by way of intermittent/artificial
breaks given by the respondent/department deliberately and as such breaks are required to be
counted as continuous services for the purposes of calculation of 160 days so as for the
applicability of Section 25-B of the Act. The grievance of petitioner remains that respondent/
department had terminated/disengaged petitioner from daily wage service in the end of September,
2004 by an oral order without any reason whereas several other co-workers who were junior to
petitioner had been retained on muster roll and thus the action of respondent/department was stated
to be unjustified and malafide. It is alleged that seniority list of daily wage workers working under
the respondent had not been circulated till termination/retrenchment of the petitioner and while
retrenching the services of petitioner, even principle of 'Last come First go' had not been followed
by the department/respondent. The petitioner has named 27 persons who were junior to petitioner
and joined service from 1st August, 1997 to 1st September, 2007. In the end of month of
September, 2004 when the services of petitioner were terminated by way of oral order, she was not
served with one month notice of retrenchment and at the same time one month's wages in lieu of
notice period had also not been paid to her and for said reason termination of the services of
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petitioner was prima facie illegal and unwarranted. The claimant/petitioner claimed that she had
spotless service record who never been charge-sheeted for any act of indiscipline or negligence or
her conduct and even at the time of verbal termination, no charge-sheet had been served upon her
and the at the same time, no opportunity of hearing had been afforded to her. The petitioner also
alleges that she has remained unemployed ever since her illegal termination from month of
September, 2004 till the date of institution of present claim petition who had been nowhere
gainfully employed and was thus entitled for full back wages. Accordingly alleging respondent to
have committed violation of statutory provision of Section 25-F, Section 25-G and Section 25-H of
the Industrial Disputes Act, 1947 and Article 14 and 16 of Constitution of India, the petitioner
prays for setting aside oral order of termination/retrenchment by the respondent in the month of
September, 2004. She further prayed for reinstatement in service w.e.f. month of September, 2004
along-with back wages, seniority including continuity in service as petitioner has remained
unemployed since the date of her illegal termination. The petitioner has also prayed that period of
intermittent/fictional breaks given time and again during entire service of petitioner between May,
1997 to September, 2004 be counted 160 days continuous service and regularization of the service
of petitioner w.e.f. 01.01.2005 having completed 8 years of service and per the policy of HP Govt.
in pursuance to judgment of Hon'ble Apex Court titled as Rakesh Kumar vs. State of H.P. and to
any other relief petitioner is entitled.
4. The respondent contested claim petition, filed reply inter-alia taken preliminary
objections of maintainability, claim petition being bad on account of delay and laches. On merits
denied that petitioner had worked for more than 160 days in each calendar year rather clarified by
stating that petitioner was engaged as daily waged beldar in 1997 who remained engaged till 2004
but had worked intermittently as petitioner used to come and attend the work at her own sweet will
and convenience. Relying upon the mandays chart, it has been categorically pleaded by the
respondent that petitioner had not completed 160 days in each calendar year as required for tribal
area of Pangi Tehsil. Allegations of fictional breaks given by respondent to the petitioner have been
denied. In so far as engagement of persons junior to petitioner mentioned at serial nos. 1 to 24 and
26 in para no. 4 of the claim petition were appointed as per order of Labour Court and at serial nos.
25 & 27 as harness case. On the plea of termination of service of petitioner, respondent specifically
alleges that petitioner had left the job at her own will therefore serving of notice or pay in lieu
thereof was not required. Reiterating its stand respondent has maintained that petitioner had left the
work of her own sweet will and the persons mentioned in para no.4 are stated to have engaged as
per direction of the Labour Court-cum-Industrial Tribunal Dharamshala as harness case. It is also
contended that if etitioner had been terminated in 2004 she would have definitely raised industrial
dispute immediately and that after seven years petitioner is stated to be agitating the matter which is
bad on account of delay and laches. It is also contended that since the services of petitioner had not
been terminated by the respondent, question of issuance of notice or wages in lieu thereof did not
arise and at the same time, there was no necessity for charge-sheet or issuing any notice of
petitioner after her termination. It is contended that petitioner was agriculturist and gainfully
employed and was thus not entitled for back wages.
5. The petitioner filed rejoinder, reiterated her stand as maintained in the claim petition.
Further asserted that provisions of Limitation Act did not eclipse the claim of petitioner in totality
besides allegation of violation of principle of 'Last come First go' was specifically denied.
6. In order to prove her case, petitioner had examined herself as PW1 tendered/proved her
affidavit Ex. PW1/A under Order 18 Rule 4 CPC, Ex. PW1/B to PW1/L mandays charts of junior
workers 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, mandays chart of other co-
workers Ex. RW1/C, Ex. RW1/D1 to Ex. RW1/D21 copy of orders/awards and closed the
evidence.
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7.
I have heard the ld. Authorized Representative of petitioner and ld. Dy. D.A.
representing respondent, gone through records of the case carefully relevant for disposed of this
case.
8. From the contentions raised, following issues were framed on 17.12.2015 for
determination which are as under :
1. Whether the industrial dispute raised by petitioner vide demand notice dated
27.08.2012 qua her termination of service during September, 2004 by respondent
suffers from the vice of delay and laches as alleged? If so, its effect?
...OPP.
2. Whether termination of the services of petitioner by the respondent w.e.f.
September, 2004 is/was illegal and unjustified as alleged?
...OPP.
3.
If issue no.1 or issue no.2 or both are proved in affirmative, to what service
benefits the petitioner is entitled to?
...OPP.
4. Whether the claim petition is not maintainable in the present form as alleged?
...OPR.
Relief.
9. For the reasons detailed here under, my findings on the above issues are as follows:—
Issue No.1 :
Yes
Issue No.2 :
Yes
Issue No.3 :
Discussed
Issue No.4 :
No
Relief. :
Petition is partly allowed awarding compensation Rs.80,000/- per
operative part of award.
REASONS FOR FINDINGS
ISSUES NO.1, 2 AND 3
10. All these issues have been taken up together for discussion being interconnected which
can be disposed of simultaneously without repetition of evidence.
11. Relationship of petitioner having been engaged as daily waged beldar by respondent
on muster roll basis in the month of May, 1997 who continuously worked till 2004 at HPPWD Sub
Division Killar is not in dispute. Admittedly, petitioner was engaged without any written order or
settlement of terms and conditions by the respondent. It is equally not in dispute that no written
order was passed while terminating service of the petitioner as claim of respondent remains that it
had not retrenched petitioner from service who had abandoned the job of her own and used to work
intermittently as per her own wish and convenience. Admittedly, the reference of appropriate govt.
does not relate to plea of fictional breaks but only with regard to petitioner's termination from
service. In the backdrop of foregoing admitted facts on record, claim of petitioner requires to be
adjudicated with a view to determine if petitioner is entitled for relief of reinstatement and back
wages along-with seniority and past service benefits and compensation as claimed by him.
12. Stepping into witness box as PW1 has sworn in affidavit Ex. PW1/A reiterating and
reaffirming her pleadings as stipulated in claim petition. In her affidavit she has claimed to have
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worked with the respondent/department for more than 160 days in Pangi Sub Division Chamba
District and remained engaged from May, 1997 to September, 2004. She has also stated on oath
that no notice under Section 25-F of the Act was given by the respondent before terminating her
service and at the same time no compensation in lieu thereof notice period was paid to her and thus
her termination was illegal and void entitling petitioner benefit of reinstatement of service with full
back wages and all the other consequential service benefits. The petitioner has further alleged on
oath that respondent/department after terminating her services in September, 2004 by oral order had
engaged several co-workers who were junior to petitioner were retained in service. Not only this,
the persons who were junior to petitioner are stated to have been regularized in service and thus
respondent had not followed the mandate of Sections 25-G and 25-H of the Act which was
obligatory on its part. The case of petitioner also remains that she had served respondent with due
diligence and had spotless service record as respondent/department had never called any
explanation or raised charge-sheet against her but even while retrenching petitioner from service,
no notice was given. The petitioner has also explained reason for not approaching the authorities
under Labour Act and thereafter before this Tribunal, as there existed no road between Chamba
town to Pangi Tehsil till 2012 and petitioner had moved before the Labour Officer raising demand
notice consequent upon which a failure report was submitted and as the Labour Commissioner did
not make reference for industrial dispute raised by petitioner, the petitioner had moved before the
Hon'ble High Court by filing CWP where direction was passed for making reference to the Labour
Court due to which delay had occurred and same was satisfactorily explained.
13. In so far as plea of abandonment raised by respondent is concerned, the same merits
rejection in view of the fact that respondent had failed to produce any record by which it could be
established that whenever petitioner absented from her duty as also reflected in mandays chart Ex.
RW1/B any notice or letter was ever issued. On this point respondent as RW1 has specifically
admitted that whenever petitioner abandoned the job, no notice had been issued. RW1 specifically
admitted that no departmental inquiry was initiated against petitioner even after September, 2004.
No reason whatsoever has been assigned for such any action or omission on the part of respondent
in not initiating any departmental proceedings or making correspondence calling upon the
petitioner to join service. This prima facie belies the stand taken by the respondent as abandonment
has to be proved like any other fact in issue. The petitioner, on the other hand, as PW1 in cross-
examination has specifically denied that she used to leave the job in between and attended the work
intermittently rather she has claimed that intermit breaks had been deliberately given to her by the
respondent in the service record of petitioner so that petitioner did not complete 160 days of work
as required for Pangi Tehsil area and also for applicability of Section 25-B of the Act. As such, in
absence of any specific and reliable evidence led by respondent, it would be unsafe to hold that
respondent had established plea of abandonment.
14. A bare glance on the mandays chart Ex. RW1/B would reveal that petitioner had
worked for 36 days in the year 1997, 43 days in 1999, 75 days in 2000, 117.5 days in 2001, 141
days in 2002, 120 days in 2003 and 78 days in 2004 and thus a total of her service in 1997 to 2004
in 7 years she had worked for 610.5 days in her entire service period. Be it noticed that she had not
worked for more than 160 days and as there is no reference from the Labour Commissioner, Shimla
on the point of artificial breaks, this court is to confine its findings only with regard to alleged
illegal termination. It is evident from mandays chart Ex. RW1/B that in the year 2004 the petitioner
had merely worked for 78 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. Authorized Representative for petitioner has contended with vehemence that large
number of workers who were junior to petitioner had been appointed from 01.8.1997 to 07.9.1999
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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. PW1/B, Ex.
PW1/C, Ex. PW1/D are the year-wise mandays of daily waged workers who were junior to the
petitioner and had joined in the year 2000 or thereafter whereas Ex. PW1/E to Ex. PW1/L are the
mandays chart of other co-workers. All of these co-workers shown in Ex. PW1/C the year-wise
mandays details of workers of Division HPPWD Killar were certainly junior to petitioner who were
given sufficient work existing in those years more than 200 days in a year whereas the petitioner
had been not given muster roll for the whole month. Ex. RW1/C also established that all the co-
workers shown in this document have worked for more than 160 days in most of the years although
they were junior to petitioner. Evidently, there is no iota of evidence of respondent establishing that
petitioner was called upon to join for service at any time after September, 2004 even at the time
when junior persons were reengaged. That being so the respondent had certainly violated the
provisions of Section 25-G of the Act as the juniors workers mentioned in para no.3 of the affidavit
were retained whereas petitioner was senior from these co-workers having joined service in 1997
was terminated and even thereafter respondent omitted to afford opportunity to petitioner for
reemployment for work which also violates the provisions of Section 25-H of the Act. Ld.
Authorized Representative for petitioner has placed reliance upon judgment of Central Bank of
India vs. S. Satyam, 1996 (5) SCC 419 in which Hon'ble Apex Court has held that for the
applicability of Section 25-G and 25-H of the Act, there was no necessity of claimant/petitioner to
have worked for 240 days as in case of provisions of Section 25-F of the Act.
16. Repudiating claim of petitioner, the respondent, on the other hand, has made futile
attempt to justify engagement of junior workers and their retention in service on the basis of orders
of Labour Court-cum-Industrial Tribunal as well as Hon'ble High Court of H.P. as reflected in Ex.
RW1/D1 to Ex RW1/D21. 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/D21 were primarily on the basis of court
orders would not defeat the claim of the petitioner as status of these person being junior to
petitioner does not get negatived. As such, even when petitioner is proved to have not worked for
more than 160 days in preceding 8 years which entitled her for regularization of her service per
government policy, yet respondent is not absolved from its accountability of provisions of Section
25-G and 25-H of the Act and as such it is held that respondent had violated the provisions of
Sections 25-G and 25-H of the Industrial Disputes Act.
17. Ld. Authorized Representative for petitioner has contended that after petitioner s
termination in September, 2004, she had remained unemployed and was not earning anything
thereafter as such was entitled for full back wages. Repudiating the arguments of ld. Authorized
Representative of petitioner, ld. Dy. D.A. for the State has taken this court through cross-
examination of the petitioner who has admitted that she had cultivatable land with her and also
worked a private labourer. Thus, plea of having remained not gainfully employed gets belied
admission of petitioner in cross-examination in which she had maintained that she had been earning
from agricultural land as well as she has been working as daily wager privately. Reliance has been
placed on the judgment of Hon'ble Apex Court North East Karnataka Road Transport Corporation
vs. M. Nagangouda (2007) 10 SCC 765 in which Division Bench comprising of Justice A.R.
Lakshmanan and Justice Altamas Kabir had held that 'term gainfully employment would also
include self employment wherefrom income is generated. It was income either from employment in
an establishment or from self employment merely differentiates the sources from which income is
generated, the end use being the same’. Applying the ratio of judgment of 2007 (supra) to this case
since the petitioner was earning from her agricultural and manual pursuits, the same were sufficient
to maintain her and her family. It is thus held that petitioner was gainfully employed. Be it stated
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here that Hon'ble Apex Court in Deepali Gundu Surwase’s case has held that the Labour Court was
not justified in holding that merely because the respondent was receiving agriculture income, she
cannot be treated to be engaged in gainful employment. Since the petitioner had income from
agriculture pursuits for her livelihood it cannot be stated that petitioner was not gainfully employed
and thus would not be entitled full back wages. In view of the forgoing discussion, it is held that the
relationship of workman and employer existed between petitioner and respondent and that
petitioner was illegally retrenched without compliance of Section 25-G and Section 25-H of the Act
although remained gainfully employed after her retrenchment. Thus, applying the ratio of judgment
of Hon'ble Apex Court (2007 supra), it may not be erroneous to hold that petitioner was gainfully
employed and thus would be not entitled for back wages for the period she was out of job on being
terminated by the respondent.
18. Lastly, Ld. Dy. D.A. for State has contended with vehemence that there is inordinate
and explained delay which disentitles petitioner relief claimed for by him. On the other hand, ld.
Authorized Representative for the petitioner has relied upon the judgment of Hon'ble Apex Court
titled Raghubir Singh vs. General Manager, Haryana Roadways, Hissar reported in 2014 Lab IC
4266 (SC) and the relevant paras of the judgment are produced below for reference:
“12. Therefore, in our considered view, the observations made by this Court in the
Rajasthan State Agriculture Marketing Board case (supra) upon which the learned
Additional Advocate General for the State of Haryana has placed reliance cannot be applied
to the fact situation of the case on hand, for the reason that the Labour Court has
erroneously rejected the reference without judiciously considering all the relevant factors of
the case particularly the points of dispute referred to it and answered the 2nd issue regarding
the reference being barred by limitation but not on the merits of the case. The said decision
has no application to the fact situation and also for the reason the catena of decisions of this
Court referred to supra, wherein this Court has categorically held that the provisions of
Limitation Act under Article 137 has no application to make reference by the appropriate
government to the Labour Court/Industrial Tribunal for adjudication of existing industrial
dispute between workmen and the employer.
13. In the case on hand, no doubt there is a delay in raising the dispute by the appellant;
the Labour Court nevertheless has the power to mould the relief accordingly. At the time of
adjudication, if the dispute referred to the Labour Court is not adjudicated by it, it does not
mean that the dispute ceases to exist. The appropriate government in exercise of its statutory
power under Section 10(1)(c) of the Act can refer the industrial dispute, between the parties,
at any time, to either the jurisdictional Labour Court/Industrial Tribunal as interpreted by
this Court in the Avon Services case referred to supra. Therefore, the State Government has
rightly exercised its power under Section 10(1)(c) of the Act and referred the points of
dispute to the Labour Court as the same are in accordance with the law laid down by this
Court in Avon Services & Sapan Kumar Pandit cases referred to supra.
14. Further, the workman cannot be denied to seek relief only on the ground of delay in
raising the dispute as held in the case of S.M. Nilajkar & Ors. v. Telecom District Manager,
Karnataka[4] it was held by this Court as follows—
“17. It was submitted on behalf of the respondent that on account of delay in raising the
dispute by the appellants the High Court was justified in denying relief to the appellants.
We cannot agree...... In Ratan Chandra Sammanta and Ors. v. Union of India and Ors.
(supra)1993 AIR SCW 2214, it was held that a casual labourer retrenched by the employer
deprives herself 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
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evidence relevant to adjudication being lost and rendered not available. However, we do not
think that the delay in the case at hand has been so culpable as to disentitle the appellants
for any relief.....” (Emphasis laid by the Court) In view of the legal principles laid down by
this Court in the above judgment, the reference of the industrial dispute made in the case on
hand by the State Government to the Labour Court to adjudicate the existing industrial
dispute between the parties was made within a reasonable time, considering the
circumstances in which the workman was placed, firstly, as there was a criminal case
pending against her and secondly, the respondent had assured the workman that she would
be reinstated after her acquittal from the criminal case. Moreover, it is reasonable to
adjudicate the industrial dispute in spite of the delay in raising and referring the matter,
since there is no mention of any loss or unavailability of material evidence due to the delay.
Thus, we do not consider the delay in raising the industrial dispute and referring the same to
the Labour Court for adjudication as gravely erroneous and it does not debar the workman
from claiming rightful relief from her employer.
15. In the case of Ajaib Singh v. The Sirhind Co-Operative Marketing Cum- Processing
Service Society Limited & Anr.[5] this Court has opined that relief cannot be denied to the
workman merely on the ground of delay, stating that:—
“10. It follows, therefore, that the provisions of Article 137 of the Schedule to Limitation
Act, 1963 are not applicable to the proceedings under the act and that the relief under it
cannot be denied to the workman merely on the ground of delay. The plea of delay if raised
by the employer is required to be proved as a matter of fact by showing the real prejudice
and not as a merely hypothetical defence. No reference to the labour court can be generally
questioned on the ground of delay alone. Even in a case where the delay in shown to be
existing, the tribunal, labour court or board, dealing with the case can appropriately mould
the relief by declining to grant back wages to the workman till the date she raised the
demand regarding her illegal retrenchment/ termination or dismissal. The Court may also in
appropriate cases direct the payment of part of the back wages instead of full back
wages.....” (Emphasis laid by the Court)
16. Hence, we are of the opinion, having regard to the fact and circumstances of the case
that there is no delay or latches on the part of the workman from the date of her acquittal in
the criminal case. Thereafter, upon failure of the respondent in adhering to the assurance
given to the workman that she would be reinstated after her acquittal from the criminal case,
the workman approached the conciliation officer and the State Government to make a
reference to the Labour Court for adjudication of the dispute with regard to the order of
dismissal passed by the respondent. Keeping in mind the date of acquittal of the appellant
and the date on which she approached the conciliation officer by raising the dispute, since
the respondent had not adhered to its assurance, the State Government had rightly referred
the dispute for its adjudication. Therefore it cannot be said that there was a delay on the part
of the appellant in raising the dispute and getting it referred to the Labour Court by the State
Government.
17. Further, the Labour Court on an erroneous assumption of law framed the additional
issue regarding the limitation in raising the dispute and its reference by the State
Government to the Labour Court. Thus, the Labour Court has ignored the legal principles
laid down by this Court in the cases referred to supra. The award passed by the Labour
Court was accepted erroneously by both the learned single Judge and the Division Bench of
the High Court by dismissing the Civil Writ Petition & the Letters Patent Appeal without
examining the case in its proper perspective, keeping in view the power of the State
Government under Section 10(1)(c) and the object and intendment of the Act. Not
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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. counsel 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.
Authorized Representative for petitioner, ld. Dy. D.A. has placed reliance upon the judgment of
Hon'ble Apex Court titled as Assistant Engineer, Rajasthan State Agriculture Marketing Board,
Sub-Division Kota and Mohan Lal [2013 (139) FLR 125], the relevant para of the judgment are
produced below for reference:
Industrial Disputes Act, 1947-Sections 25-F and 10-Limitation Act, 1963- Section 5-
Industrial dispute-Termination of service-Finding of Lboaur Court that workman had
completed 240 days in calander year and her termination was in violation o section 25-F of
the I.D.Act- Wrokman worked from 1.11.1984 to 17.2.1986 in all 286 days during
employment. her services terminated on 18.2.1986. Industrial dispute raised after 6 years of
termination. Admitted delay of 6 years not kept in view by the Labour Court- Judicial
discretion exercised by the Labour Court flawed and unsustainable. Reinstatement of the
workman not the appropriate relief. In lieu of reinstatement compensation of Rs.one lac
directed to be paid to the workman by the appellant-employer within six weeks failing
which interest @ workman 9% p.a. will be payable.
[Paras 21 and 22]
Limitation Act, 1963. Section 5-Industrial Disputes Act, 1947-Section 25-F-Termination of
service-Industrial dispute raised after six years-Limitation Act not applicable to reference
made under the I.D. Act-Delay in raising industrial disputes definitely an important
circumstances which the Labour Court must keep in view before granting relief”.
I have gone through the rival contention of the ld. Authorized Representative as well as ld.
Dy. D.A. for State. Keeping in view the mandate of Hon'ble Apex Court in various judgments
referred to above it is held that delay in raising industrial dispute is definitely an important
circumstance and court has to keep in mind while exercising discretion. In para nos. 20 and 21 of
judgment 2013 supra has referred to Gitam Singh’s case reported in 2013 (136) FLR 893 (SC)
titled as Assistant Engineer Rajasthan Development Corporation and another vs. Geetam Singh
observing that before exercising its judicial discretion, the Labour Court has to keep in view 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 the delay in raising industrial
dispute before grant of relief in an industrial dispute. 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
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dispute in 1992 whereas his services have been terminated in 1986 and he 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 7 years and actually worked for 610.5 days as per mandays chart on
record and that the services of petitioner were disengaged in September, 2004 who worked as non
skilled worker and had raised industrial dispute by issuance of demand notice after about eight
years i.e. demand notice was given on 27.08.2012. It is also pertinent to mention here that
petitioner on the date of filing claim petition was ageing 45 years who has sufficient spell of life to
work and earn her livelihood. Taking into consideration factors mentioned above in pursuance to
judgments of Hon'ble Apex Court petitioner would not be entitled either for reinstatement or for
back wages but compensation a lump-sum would be appropriate relief in view of judgment 2013
(139) FLR 25 (SC). The judgments relied upon by ld. Authorized Representative for petitioner on
the matter of delay and laches is more or less settled law that claim of the petitioner could not be
solely declined on the ground of delay and laches. Similarly, judgment of Hon'ble Apex Court in
2014 titled as Raghubir Singh’s case also does not come to the rescue of the petitioner as in this
judgment also the Hon'ble Apex Court has reiterated the mandate as given by the Hon'ble Apex
Court in previous judgment in the year 2013 i.e. Assistant Engineer, Rajasthan State Agriculture
Marketing Board, Sub-Division Kota and Mohan Lal’s case. Similar view was reiterated by the
Hon'ble Apex Court in judgment titled as Vice Chancellor, Lucknow University, Lucknow, Uttar
Pradesh v. Akhilesh Kumar Khare & another reported in AIR 2015 SC 3473.
21. In view of foregoing discussion, a lump-sum compensation of Rs.80,000/- (Rupees
eighty 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 and its realization. Issues no. 1, 2 and 3
are answered accordingly.
ISSUE NO.4
22. 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
23. As sequel to my findings on foregoing issues, the respondent is hereby directed to pay
the compensation of Rs. 80,000/- (Rupees eighty 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 shall 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.
24. The reference is answered in the aforesaid terms.
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25. A copy of this Award be sent to the appropriate Government for publication in the
official gazette.
26. File, after due completion be consigned to the Record Room.
Announced in the open Court today this 9th day of November, 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)
(CAMP AT CHAMBA)
Ref No. : 408/2015
Date of Institution : 10.09.2015
Date of Decision : 09.11.2016
Smt. Aaj Dei w/o Shri Govind Chand, r/o Village and Post Office Rei, 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. I.S. Jaryal, AR
For the Respondent : Sh. Sanjeev Singh Rana, Dy. D.A.
AWARD
The reference given below has been received from the appropriate Government for
adjudication:
“Whether the industrial dispute raised by the worker Smt. Aaj Dei W/O Shri Govind Chand,
R/O Village and Post Office Rei, Tehsil Pangi, District Chamba, H.P. before the Executive
Engineer, I&PH/HPPWD Division, Killar, Tehsil Pangi, District Chamba, H.P. vide
demand notice dated 4.4.2012 regarding her alleged illegal termination of service during
September, 2004 suffers from delay and latches? If not, Whether termination of the services
of Smt. Aaj Dei W/O Shri Govind Chand, R/O Village and Post Office Rei, Tehsil Pangi,
District Chamba, H.P. by the Executive Engineer, I&PH/HPPWD Division, Killar, Tehsil
Pangi, District Chamba, H.P. during September, 2004 without complying the provisions of
the Industrial Disputes Act, 1947, is legal and justified? If not, what amount of back wages,
seniority, past service benefits and compensation the above aggrieved workman is entitled
to from the above employer?”
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2. On receipt of reference from appropriate government, notices were issued to the parties
in pursuance to which claimant/petitioner has filed statement of claim.
3. Brief facts leading to institution of the present claim petition by the petitioner above
named reveal that she had been initially engaged as daily waged beldar on muster roll basis in the
month of September, 1995 who continuously worked till September, 2004 with the respondent/
department. Averments made in the petition further revealed that petitioner had worked for 160
days in each calendar year as prescribed for tribal area of Pangi Tehsil District Chamba and became
eligible for continuous service envisaged under statutory provisions of Section 25-B of the
Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act' for brevity). Averments made in
the petition revealed that the services of petitioner had interrupted by way of intermittent/artificial
breaks given by the respondent/department deliberately and as such breaks are required to be
counted as continuous services for the purposes of calculation of 160 days so as for the
applicability of Section 25-B of the Act. The grievance of petitioner remains that respondent/
department had terminated/disengaged petitioner from daily wage service in the end of September,
2004 by an oral order without any reason whereas several other co-workers who were junior to
petitioner had been retained on muster roll and thus the action of respondent/department was stated
to be unjustified and malafide. It is alleged that seniority list of daily wage workers working under
the respondent had not been circulated till termination/retrenchment of the petitioner and while
retrenching the services of petitioner, even principle of 'Last come First go' had not been followed
by the department/ respondent. The petitioner has named 27 persons who were junior to petitioner
and joined service from 1st August, 1997 to 1st September, 2007. In the end of month of
September, 2004 when the services of petitioner were terminated by way of oral order, she was not
served with one month notice of retrenchment and at the same time one month's wages in lieu of
notice period had also not been paid to her and for said reason termination of the services of
petitioner was prima facie illegal and unwarranted. The claimant/petitioner claimed that she had
spotless service record who never been charge-sheeted for any act of indiscipline or negligence or
her conduct and even at the time of verbal termination, no charge-sheet had been served upon her
and the at the same time, no opportunity of hearing had been afforded to her. The petitioner also
alleges that she has remained unemployed ever since her illegal termination from month of
September, 2004 till the date of institution of present claim petition who had been nowhere
gainfully employed and was thus entitled for full back wages. Accordingly alleging respondent to
have committed violation of statutory provision of Section 25-F, Section 25-G and Section 25-H of
the Industrial Disputes Act, 1947 and Article 14 and 16 of Constitution of India, the petitioner
prays for setting aside oral order of termination/retrenchment by the respondent in the month of
September, 2004. She further prayed for reinstatement in service w.e.f. month of September, 2004
along-with back wages, seniority including continuity in service as petitioner has remained
unemployed since the date of her illegal termination. The petitioner has also prayed that period of
intermittent/fictional breaks given time and again during entire service of petitioner between
September, 1995 to September, 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 per the policy of
HP Govt. in pursuance to judgment of Hon'ble Apex Court titled as Rakesh Kumar vs. State of H.P.
and to any other relief petitioner is entitled.
4. The respondent contested claim petition, filed reply inter-alia taken preliminary
objections of maintainability, claim petition being bad on account of delay and laches. On merits
denied that petitioner had worked for more than 160 days in each calendar year rather clarified by
stating that petitioner was engaged as daily waged beldar in 1995 who remained engaged till 2004
but had worked intermittently as petitioner used to come and attend the work at her own sweet will
and convenience. Relying upon the mandays chart, it has been categorically pleaded by the
respondent that petitioner had not completed 160 days in each calendar year as required for tribal
area of Pangi Tehsil. Allegations of fictional breaks given by respondent to the petitioner have been
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denied. In so far as engagement of persons junior to petitioner mentioned at serial nos. 1 to 24 and
26 in para no. 4 of the claim petition were appointed as per order of Labour Court and at serial nos.
25 & 27 as harness case. On the plea of termination of service of petitioner, respondent specifically
alleges that petitioner had left the job at her own will therefore serving of notice or pay in lieu
thereof was not required. Reiterating its stand respondent has maintained that petitioner had left the
work of her own sweet will and the persons mentioned in para no.4 are stated to have engaged as
per direction of the Labour Court-cum-Industrial Tribunal Dharamshala as harness case. It is also
contended that if petitioner had been terminated in 2004 she would have definitely raised industrial
dispute immediately and that after seven years petitioner is stated to be agitating the matter which is
bad on account of delay and laches. It is also contended that since the services of petitioner had not
been terminated by the respondent, question of issuance of notice or wages in lieu thereof did not
arise and at the same time, there was no necessity for charge-sheet or issuing any notice of
petitioner after her termination. It is contended that petitioner was agriculturist and gainfully
employed and was thus not entitled for back wages.
5. The petitioner filed rejoinder, reiterated her stand as maintained in the claim petition.
Further asserted that provisions of Limitation Act did not eclipse the claim of petitioner in totality
besides allegation of violation of principle of 'Last come First go' was specifically denied.
6. In order to prove her case, petitioner had examined herself as PW1 tendered/proved her
affidavit Ex. PW1/A under Order 18 Rule 4 CPC, Ex. PW1/B to PW1/L mandays charts of junior
workers 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, mandays chart of other co-
workers Ex. RW1/C, Ex. RW1/D1 to Ex. RW1/D21 copy of orders/awards and closed the
evidence.
7.
I have heard the ld. Authorized Representative of petitioner and ld. Dy. D.A.
representing respondent, gone through records of the case carefully relevant for disposed of this
case.
8. From the contentions raised, following issues were framed on 17.12.2015 for
determination which are as under :
1. Whether the industrial dispute raised by petitioner vide demand notice dated
04.04.2012 qua her termination of service during September, 2004 by respondent
suffers from the vice of delay and laches as alleged? If so, its effect?
... OPP.
2. Whether termination of the services of petitioner by the respondent w.e.f.
September, 2004 is/was illegal and unjustified as alleged?
...OPP.
3. If issue no.1 or issue no.2 or both are proved in affirmative, to what service
benefits the petitioner is entitled to?
...OPP.
6. Whether the claim petition is not maintainable in the present form as alleged?
...OPR.
Relief.
9. For the reasons detailed here under, my findings on the above issues are as follows:—
Issue No.1 :
Yes
Issue No.2 :
Yes
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Issue No.3 :
Discussed
Issue No.4 :
No
Relief. :
Petition is partly allowed awarding compensation Rs.75,000/- per
operative part of award.
REASONS FOR FINDINGS
ISSUES NO.1, 2 AND 3
10. All these issues have been taken up together for discussion being interconnected which
can be disposed of simultaneously without repetition of evidence.
11. Relationship of petitioner having been engaged as daily waged beldar by respondent on
muster roll basis in the month of September, 1995 who continuously worked till 2004 at HPPWD
Sub Division Killar is not in dispute. Admittedly, petitioner was engaged without any written order
or settlement of terms and conditions by the respondent. It is equally not in dispute that no written
order was passed while terminating service of the petitioner as claim of respondent remains that it
had not retrenched petitioner from service who had abandoned the job of her own and used to work
intermittently as per her own wish and convenience. Admittedly, the reference of appropriate govt.
does not relate to plea of fictional breaks but only with regard to petitioner's termination from
service. In the backdrop of foregoing admitted facts on record, claim of petitioner requires to be
adjudicated with a view to determine if petitioner is entitled for relief of reinstatement and back
wages along-with seniority and past service benefits and compensation as claimed by him.
12. Stepping into witness box as PW1 has sworn in affidavit Ex. PW1/A reiterating and
reaffirming her pleadings as stipulated in claim petition. In her affidavit she has claimed to have
worked with the respondent/department for more than 160 days in Pangi Sub Division Chamba
District and remained engaged from September, 1995 to September, 2004. She has also stated on
oath that no notice under Section 25-F of the Act was given by the respondent before terminating
her service and at the same time no compensation in lieu thereof notice period was paid to her and
thus her termination was illegal and void entitling petitioner benefit of reinstatement of service with
full back wages and all the other consequential service benefits. The petitioner has further alleged
on oath that respondent/department after terminating her services in September, 2004 by oral order
had engaged several co-workers who were junior to petitioner were retained in service. Not only
this, the persons who were junior to petitioner are stated to have been regularized in service and
thus respondent had not followed the mandate of Sections 25-G and 25-H of the Act which was
obligatory on its part. The case of petitioner also remains that she had served respondent with due
diligence and had spotless service record as respondent/department had never called any
explanation or raised charge-sheet against her but even while retrenching petitioner from service,
no notice was given. The petitioner has also explained reason for not approaching the authorities
under Labour Act and thereafter before this Tribunal, as there existed no road between Chamba
town to Pangi Tehsil till 2012 and petitioner had moved before the Labour Officer raising demand
notice consequent upon which a failure report was submitted and as the Labour Commissioner did
not make reference for industrial dispute raised by petitioner, the petitioner had moved before the
Hon'ble High Court by filing CWP where direction was passed for making reference to the Labour
Court due to which delay had occurred and same was satisfactorily explained.
13. In so far as plea of abandonment raised by respondent is concerned, the same merits
rejection in view of the fact that respondent had failed to produce any record by which it could be
established that whenever petitioner absented from her duty as also reflected in mandays chart Ex.
RW1/B any notice or letter was ever issued. On this point respondent as RW1 has specifically
admitted that whenever petitioner abandoned the job, no notice had been issued. RW1 specifically
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admitted that no departmental inquiry was initiated against petitioner even after September, 2004.
No reason whatsoever has been assigned for such any action or omission on the part of respondent
in not initiating any departmental proceedings or making correspondence calling upon the
petitioner to join service. This prima facie belies the stand taken by the respondent as abandonment
has to be proved like any other fact in issue. The petitioner, on the other hand, as PW1 in cross-
examination has specifically denied that she used to leave the job in between and attended the work
intermittently rather she has claimed that intermit breaks had been deliberately given to her by the
respondent in the service record of petitioner so that petitioner did not complete 160 days of work
as required for Pangi Tehsil area and also for applicability of Section 25-B of the Act. As such, in
absence of any specific and reliable evidence led by respondent, it would be unsafe to hold that
respondent had established plea of abandonment.
14. A bare glance on the mandays chart Ex. RW1/B would reveal that petitioner had
worked for 56 days in the year 1995, 30 days in 1997, 99 days in 1998, 79 days in 1999, 128 days
in 2000, 105.5 days in 2001, 146 days in 2002, 118 days in 2003 and 104 days in 2004 and thus a
total of her service in 1995 to 2004 in 9 years she had worked for 761.5 days in her entire service
period. Be it noticed that she had not worked for more than 160 days and as there is no reference
from the Labour Commissioner, Shimla on the point of artificial breaks, this court is to confine its
findings only with regard to alleged illegal termination. It is evident from mandays chart Ex.
RW1/B that in the year 2004 the petitioner had merely worked for 78 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. Authorized Representative for petitioner has contended with vehemence that large
number of workers who were junior to petitioner had been appointed from 01.8.1997 to 07.9.1999
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. PW1/B, Ex.
PW1/C, Ex. PW1/D are the year-wise mandays of daily waged workers who were junior to the
petitioner and had joined in the year 2000 or thereafter whereas Ex. PW1/E to Ex. PW1/L are the
mandays chart of other co-workers. All of these co-workers shown in Ex. PW1/C the year-wise
mandays details of workers of Division HPPWD Killar were certainly junior to petitioner who were
given sufficient work existing in those years more than 200 days in a year whereas the petitioner
had been not given muster roll for the whole month. Ex. RW1/C also established that all the co-
workers shown in this document have worked for more than 160 days in most of the years although
they were junior to petitioner. Evidently, there is no iota of evidence of respondent establishing that
petitioner was called upon to join for service at any time after September, 2004 even at the time
when junior persons were reengaged. That being so the respondent had certainly violated the
provisions of Section 25-G of the Act as the juniors workers mentioned in para no.3 of the affidavit
were retained whereas petitioner was senior from these co-workers having joined service in 1995
was terminated and even thereafter respondent omitted to afford opportunity to petitioner for
reemployment for work which also violates the provisions of Section 25-H of the Act. Ld.
Authorized Representative for petitioner has placed reliance upon judgment of Central Bank of
India vs. S. Satyam, 1996 (5) SCC 419 in which Hon'ble Apex Court has held that for the
applicability of Section 25-G and 25-H of the Act, there was no necessity of claimant/petitioner to
have worked for 240 days as in case of provisions of Section 25-F of the Act.
16. Repudiating claim of petitioner, the respondent, on the other hand, has made futile
attempt to justify engagement of junior workers and their retention in service on the basis of orders
of Labour Court-cum-Industrial Tribunal as well as Hon'ble High Court of H.P. as reflected in Ex.
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RW1/D1 to Ex RW1/D21. 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/D21 were primarily on the basis of court
orders would not defeat the claim of the petitioner as status of these person being junior to
petitioner does not get negatived. As such, even when petitioner is proved to have not worked for
more than 160 days in preceding 8 years which entitled her for regularization of her service per
government policy, yet respondent is not absolved from its accountability of provisions of Section
25-G and 25-H of the Act and as such it is held that respondent had violated the provisions of
Sections 25-G and 25-H of the Industrial Disputes Act.
17. Ld. Authorized Representative for petitioner has contended that after petitioner's
termination in September, 2004, she had remained unemployed and was not earning anything
thereafter as such was entitled for full back wages. Repudiating the arguments of ld. Authorized
Representative of petitioner, ld. Dy. D.A. for the State has taken this court through cross-
examination of the petitioner who has admitted that she had cultivatable land with her and also
worked a private labourer. Thus, plea of having remained not gainfully employed gets belied
admission of petitioner in cross-examination in which she had maintained that she had been earning
from agricultural land as well as she has been working as daily wager privately. Reliance has been
placed on the judgment of Hon'ble Apex Court North East Karnataka Road Transport Corporation
vs. M. Nagangouda (2007) 10 SCC 765 in which Division Bench comprising of Justice A.R.
Lakshmanan and Justice Altamas Kabir had held that 'term gainfully employment would also
include self employment wherefrom income is generated. It was income either from employment in
an establishment or from self employment merely differentiates the sources from which income is
generated, the end use being the same’. Applying the ratio of judgment of 2007 (supra) to this case
since the petitioner was earning from her agricultural and manual pursuits, the same were sufficient
to maintain her and her family. It is thus held that petitioner was gainfully employed. Be it stated
here that Hon'ble Apex Court in Deepali Gundu Surwase’s case has held that the Labour Court was
not justified in holding that merely because the respondent was receiving agriculture income, she
cannot be treated to be engaged in gainful employment. Since the petitioner had income from
agriculture pursuits for her livelihood it cannot be stated that petitioner was not gainfully employed
and thus would not be entitled full back wages. In view of the forgoing discussion, it is held that the
relationship of workman and employer existed between petitioner and respondent and that
petitioner was illegally retrenched without compliance of Section 25-G and Section 25-H of the Act
although remained gainfully employed after her retrenchment. Thus, applying the ratio of judgment
of Hon'ble Apex Court (2007 supra), it may not be erroneous to hold that petitioner was gainfully
employed and thus would be not entitled for back wages for the period she was out of job on being
terminated by the respondent.
18. Lastly, Ld. Dy. D.A. for State has contended with vehemence that there is inordinate
and explained delay which disentitles petitioner relief claimed for by him. On the other hand, ld.
Authorized Representative for the petitioner has relied upon the judgment of Hon'ble Apex Court
titled Raghubir Singh vs. General Manager, Haryana Roadways, Hissar reported in 2014 Lab IC
4266 (SC) and the relevant paras of the judgment are produced below for reference :
“12. Therefore, in our considered view, the observations made by this Court in the
Rajasthan State Agriculture Marketing Board case (supra) upon which the learned
Additional Advocate General for the State of Haryana has placed reliance cannot be applied
to the fact situation of the case on hand, for the reason that the Labour Court has
erroneously rejected the reference without judiciously considering all the relevant 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
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has no application to the fact situation and also for the reason the catena of decisions of this
Court referred to supra, wherein this Court has categorically held that the provisions of
Limitation Act under Article 137 has no application to make reference by the appropriate
government to the Labour Court/Industrial Tribunal for adjudication of existing industrial
dispute between workmen and the employer.
13. In the case on hand, no doubt there is a delay in raising the dispute by the appellant;
the Labour Court nevertheless has the power to mould the relief accordingly. At the time of
adjudication, if the dispute referred to the Labour Court is not adjudicated by it, it does not
mean that the dispute ceases to exist. The appropriate government in exercise of its statutory
power under Section 10(1)(c) of the Act can refer the industrial dispute, between the parties,
at any time, to either the jurisdictional Labour Court/Industrial Tribunal as interpreted by
this Court in the Avon Services case referred to supra. Therefore, the State Government has
rightly exercised its power under Section 10(1)(c) of the Act and referred the points of
dispute to the Labour Court as the same are in accordance with the law laid down by this
Court in Avon Services & Sapan Kumar Pandit cases referred to supra.
14. Further, the workman cannot be denied to seek relief only on the ground of delay in
raising the dispute as held in the case of S.M. Nilajkar & Ors. v. Telecom District Manager,
Karnataka[4] it was held by this Court as follows-
“17. It was submitted on behalf of the respondent that on account of delay in raising the
dispute by the appellants the High Court was justified in denying relief to the appellants.
We cannot agree...... In Ratan Chandra Sammanta and Ors. v. Union of India and Ors.
(supra)1993 AIR SCW 2214, it was held that a casual labourer retrenched by the employer
deprives herself of remedy available in law by delay itself, lapse of time results in losing the
remedy and the right as well. The delay would certainly be fatal if it has resulted in material
evidence relevant to adjudication being lost and rendered not available. However, we do not
think that the delay in the case at hand has been so culpable as to disentitle the appellants
for any relief.....” (Emphasis laid by the Court) In view of the legal principles laid down by
this Court in the above judgment, the reference of the industrial dispute made in the case on
hand by the State Government to the Labour Court to adjudicate the existing industrial
dispute between the parties was made within a reasonable time, considering the
circumstances in which the workman was placed, firstly, as there was a criminal case
pending against her and secondly, the respondent had assured the workman that she would
be reinstated after her acquittal from the criminal case. Moreover, it is reasonable to
adjudicate the industrial dispute in spite of the delay in raising and referring the matter,
since there is no mention of any loss or unavailability of material evidence due to the delay.
Thus, we do not consider the delay in raising the industrial dispute and referring the same to
the Labour Court for adjudication as gravely erroneous and it does not debar the workman
from claiming rightful relief from her employer.
15. In the case of Ajaib Singh v. The Sirhind Co-Operative Marketing Cum-Processing
Service Society Limited & Anr.[5] this Court has opined that relief cannot be denied to the
workman merely on the ground of delay, stating that:—
“10. It follows, therefore, that the provisions of Article 137 of the Schedule to Limitation
Act, 1963 are not applicable to the proceedings under the act and that the relief under it
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
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existing, the tribunal, labour court or board, dealing with the case can appropriately mould
the relief by declining to grant back wages to the workman till the date she raised the
demand regarding her illegal retrenchment/termination or dismissal. The Court may also in
appropriate cases direct the payment of part of the back wages instead of full back
wages.....” (Emphasis laid by the Court)
16. Hence, we are of the opinion, having regard to the fact and circumstances of the case
that there is no delay or latches on the part of the workman from the date of her acquittal in
the criminal case. Thereafter, upon failure of the respondent in adhering to the assurance
given to the workman that she would be reinstated after her acquittal from the criminal case,
the workman approached the conciliation officer and the State Government to make a
reference to the Labour Court for adjudication of the dispute with regard to the order of
dismissal passed by the respondent. Keeping in mind the date of acquittal of the appellant
and the date on which she approached the conciliation officer by raising the dispute, since
the respondent had not adhered to its assurance, the State Government had rightly referred
the dispute for its adjudication. Therefore it cannot be said that there was a delay on the part
of the appellant in raising the dispute and getting it referred to the Labour Court by the State
Government.
17. Further, the Labour Court on an erroneous assumption of law framed the additional
issue regarding the limitation in raising the dispute and its reference by the State
Government to the Labour Court. Thus, the Labour Court has ignored the legal principles
laid down by this Court in the cases referred to supra. The award passed by the Labour
Court was accepted erroneously by both the learned single Judge and the Division Bench of
the High Court by dismissing the Civil Writ Petition & the Letters Patent Appeal without
examining the case in its proper perspective, keeping in view the power of the State
Government under Section 10(1)(c) and the object and intendment of the Act. Not
adjudicating the existing industrial dispute on merits between the parties referred to it may
lead to disruption of industrial peace and harmony, which is the foremost important aspect
in Industrial Jurisprudence as the same would affect the public interest at large.
19. Ld. counsel 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.
Authorized Representative for petitioner, ld. Dy. D.A. has placed reliance upon the judgment of
Hon'ble Apex Court titled as Assistant Engineer, Rajasthan State Agriculture Marketing Board,
Sub-Division Kota and Mohan Lal [2013 (139) FLR 125], the relevant para of the judgment are
produced below for reference:
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Industrial Disputes Act, 1947-Sections 25-F and 10-Limitation Act, 1963-Section 5-
Industrial dispute-Termination of service-Finding of Lboaur Court that workman had
completed 240 days in calander year and her termination was in violation o section 25-F of
the I.D.Act- Wrokman worked from 1.11.1984 to 17.2.1986 in all 286 days during
employment. her services terminated on 18.2.1986. Industrial dispute raised after 6 years of
termination. Admitted delay of 6 years not kept in view by the Labour Court-Judicial
discretion exercised by the Labour Court flawed and unsustainable. Reinstatement of the
workman not the appropriate relief. In lieu of reinstatement compensation of Rs.one lac
directed to be paid to the workman by the appellant-employer within six weeks failing
which interest @ workman 9% p.a. will be payable.
[Paras 21 and 22]
Limitation Act, 1963. Section 5-Industrial Disputes Act, 1947-Section 25-F-Termination of
service-Industrial dispute raised after six years-Limitation Act not applicable to reference
made under the I.D. Act-Delay in raising industrial disputes definitely an important
circumstances which the Labour Court must keep in view before granting relief”.
I have gone through the rival contention of the ld. Authorized Representative as well as ld.
Dy. D.A. for State. Keeping in view the mandate of Hon'ble Apex Court in various judgments
referred to above it is held that delay in raising industrial dispute is definitely an important
circumstance and court has to keep in mind while exercising discretion. In para nos. 20 and 21 of
judgment 2013 supra has referred to Gitam Singh’s case reported in 2013 (136) FLR 893 (SC)
titled as Assistant Engineer Rajasthan Development Corporation and another vs. Geetam Singh
observing that before exercising its judicial discretion, the Labour Court has to keep in view 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 the delay in raising industrial
dispute before grant of relief in an industrial dispute. 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 his services have been terminated in 1986 and he raised industrial dispute
after six years. The Hon'ble Apex Court has held that though compensation awarded by Single
Judge of the Hon'ble High Court was too low and liable to be enhanced by the Division Bench but
surely reinstatement of the workman in the facts and circumstances is not the appropriate relief and
thus Hon'ble Apex Court awarded a lump-sum of Rs.1 lakh along-with interest @ 9% per annum if
the respondent failed to make payment of compensation within six weeks from the date of
judgment. In the case in hand before this court factors which have weighed are that the petitioner in
all remained engaged for about 9 years and actually worked for 761.5 days as per mandays chart on
record and that the services of petitioner were disengaged in September, 2004 who worked as non
skilled worker and had raised industrial dispute by issuance of demand notice after about 7½ years
i.e. demand notice was given on 04.04.2012. It is also pertinent to mention here that petitioner on
the date of filing claim petition was ageing 48 years who has sufficient spell of life to work and
earn her livelihood. Taking into consideration factors mentioned above in pursuance to judgments
of Hon'ble Apex Court petitioner would not be entitled either for reinstatement or for back wages
but compensation a lump-sum would be appropriate relief in view of judgment 2013 (139) FLR 25
(SC). The judgments relied upon by ld. Authorized Representative for petitioner on the matter of
delay and laches is more or less settled law that claim of the petitioner could not be solely declined
on the ground of delay and laches. Similarly, judgment of Hon'ble Apex Court in 2014 titled as
Raghubir Singh’s case also does not come to the rescue of the petitioner as in this judgment also the
Hon'ble Apex Court has reiterated the mandate as given by the Hon'ble Apex Court in previous
judgment in the year 2013 i.e. Assistant Engineer, Rajasthan State Agriculture Marketing Board,
Sub-Division Kota and Mohan Lal’s case. Similar view was reiterated by the Hon'ble Apex Court
in judgment titled as Vice Chancellor, Lucknow University, Lucknow, Uttar Pradesh v. Akhilesh
Kumar Khare & another reported in AIR 2015 SC 3473.
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21. In view of foregoing discussion, a lump-sum compensation of Rs.75,000/- (Rupees
seventy five 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 and its realization. Issues no.
1,2 and 3 are answered accordingly.
ISSUE NO.4
22. 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
23. As sequel to my findings on foregoing issues, the respondent is hereby directed to pay
the compensation of Rs.75,000/- (Rupees seventy five 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 shall 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.
24. The reference is answered in the aforesaid terms.
25. A copy of this Award be sent to the appropriate Government for publication in the
official gazette.
26. File, after due completion be consigned to the Record Room.
Announced in the open Court today this 9th day of November, 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)
(CAMP AT CHAMBA)
Ref No. : 410/2015
Date of Institution : 10.09.2015
Date of Decision : 09.11.2016
Shri Bodh Raj s/o Shri Bansi Lal, r/o Village Kironi Mouch, P.O. Kothi, Tehsil Pangi,
District Chamba, H.P.
...Petitioner.
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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. I.S. Jaryal, AR
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 Bodh Raj S/O Shri Bansi Lal, R/O
Village Kironi Mouch, P.O. Kothi, Tehsil Pangi, District Chamba, H.P. before the
Executive Engineer, I&PH/HPPWD Division, Killar, Tehsil Pangi, District Chamba, H.P.
vide demand notice dated 06.10.2011 regarding his alleged illegal termination of service
during September, 2004 suffers from delay and latches? If not, Whether termination of the
services of Shri Bodh Raj S/O Shri Bansi Lal, R/O Village Kironi Mouch, P.O. Kothi,
Tehsil Pangi, District Chamba, H.P. by the Executive Engineer, I&PH/HPPWD Division,
Killar, Tehsil Pangi, District Chamba, H.P. during September, 2004 without complying the
provisions of the Industrial Disputes Act, 1947, is legal and justified? If not, what amount of
back wages, seniority, past service benefits and compensation the above aggrieved
workman is entitled to from the above employer?”
2. On receipt of reference from appropriate government, notices were issued to the parties
in pursuance to which claimant/petitioner has filed statement of claim.
3. Brief facts leading to institution of the present claim petition by the petitioner above
named reveal that he had been initially engaged as daily waged beldar on muster roll basis in the
month of June, 1994 who continuously worked till September, 2004 with the respondent/
department. Averments made in the petition further revealed that petitioner had worked for 160
days in each calendar year as prescribed for tribal area of Pangi Tehsil District Chamba and became
eligible for continuous service envisaged under statutory provisions of Section 25-B of the
Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act' for brevity). Averments made in
the petition revealed that the services of petitioner had interrupted by way of intermittent/artificial
breaks given by the respondent/department deliberately and as such breaks are required to be
counted as continuous services for the purposes of calculation of 160 days so as for the
applicability of Section 25-B of the Act. The grievance of petitioner remains that respondent/
department had terminated/disengaged petitioner from daily wage service in the end of September,
2004 by an oral order without any reason whereas several other co-workers who were junior to
petitioner had been retained on muster roll and thus the action of respondent/department was stated
to be unjustified and malafide. It is alleged that seniority list of daily wage workers working under
the respondent had not been circulated till termination/retrenchment of the petitioner and while
retrenching the services of petitioner, even principle of 'Last come First go' had not been followed
by the department/respondent. The petitioner has named 27 persons who were junior to petitioner
and joined service from 1st August, 1997 to 1st September, 2007. In the end of month of
September, 2004 when the services of petitioner were terminated by way of oral order, he was not
served with one month notice of retrenchment and at the same time one month's wages in lieu of
notice period had also not been paid to him and for said reason termination of the services of
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petitioner was prima facie illegal and unwarranted. 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
September, 2004 till the date of institution of present claim petition who had been nowhere
gainfully employed and was thus entitled for full back wages. Accordingly alleging respondent to
have committed violation of statutory provision of Section 25-F, Section 25-G and Section 25-H of
the Industrial Disputes Act, 1947 and Article 14 and 16 of Constitution of India, the petitioner
prays for setting aside oral order of termination/retrenchment by the respondent in the month of
September, 2004. He further prayed for reinstatement in service w.e.f. month of September, 2004
along-with back wages, seniority including continuity in service as petitioner has remained
unemployed since the date of his illegal termination. The petitioner has also prayed that period of
intermittent/fictional breaks given time and again during entire service of petitioner between 1994
to September, 2004 be counted 160 days continuous service and regularization of the service of
petitioner w.e.f. 01.01.2002 having completed 8 years of service and per the policy of HP Govt. in
pursuance to judgment of Hon'ble Apex Court titled as Rakesh Kumar vs. State of H.P. and to any
other relief petitioner is entitled.
4. The respondent contested claim petition, filed reply inter-alia taken preliminary
objections of maintainability, claim petition being bad on account of delay and laches. On merits
denied that petitioner had worked for more than 160 days in each calendar year rather clarified by
stating that petitioner was engaged as daily waged beldar in 1995 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. Allegations of fictional breaks given by respondent to the petitioner have been
denied. In so far as engagement of persons junior to petitioner mentioned at serial nos. 1 to 25 in
para no. 4 of the claim petition were appointed as per order of Labour Court and at serial nos. 26 &
27 as harness case. 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.7 are stated to have engaged as
per direction of the Labour Court-cum-Industrial Tribunal Dharamshala as harness case. It is also
contended that if petitioner had been terminated in 2004 he would have definitely raised industrial
dispute immediately and that after ten 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 termination. It is contended that petitioner was agriculturist and gainfully
employed and was thus not entitled for back wages.
5. The petitioner filed rejoinder, reiterated 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.
6. 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, Ex. PW1/B to PW1/L mandays charts of
junior workers 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,
mandays chart of other co-workers Ex. RW1/C, Ex. RW1/D1 to Ex. RW1/D21 copy of orders/
awards and closed the evidence.
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7. I have heard the ld. Authorized Representative of petitioner and ld. Dy. D.A.
representing respondent, gone through records of the case carefully relevant for disposed of this
case.
8. From the contentions raised, following issues were framed on 12.1.2016 for
determination:
1.
Whether the industrial dispute raised by petitioner vide demand notice dated
06.10.2011 qua his termination of service during September, 2004 by respondent
suffers from vice of delay and laches as alleged? If so, its effect?
... OPP.
2.
Whether termination of the services of petitioner by the respondent during
September, 2004 is/was illegal and unjustified as alleged?
...OPP.
3.
If issue no.2 is proved in affirmative, to what service benefits the petitioner is
entitled to?
...OPP.
4. Whether the claim petition is not maintainable in the present form as alleged?
...OPR.
Relief.
9. For the reasons detailed here under, my findings on the above issues are as follows:—
Issue No.1 :
Yes
Issue No.2 :
Yes
Issue No.3 :
Discussed
Issue No.4 :
No
Relief. :
Petition is partly allowed awarding compensation Rs.1,00,000/- per
operative part of award.
REASONS FOR FINDINGS
ISSUES NO.1, 2 AND 3
10. All these issues have been taken up together for discussion being interconnected
which can be disposed of simultaneously without repetition of evidence.
11. Relationship of petitioner having been engaged as daily waged beldar by respondent on
muster roll basis in the year 1995 who continuously worked till 2004 with the respondent/
department 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
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worked with the respondent/department for more than 160 days in Pangi Sub Division Chamba
District and remained engaged from 1995 to September, 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 September, 2004 by oral order had
engaged several co-workers who were junior to petitioner were retained in service. Not only this,
the persons who were junior to petitioner are stated to have been regularized in service and thus
respondent had not followed the mandate of Sections 25-G and 25-H of the Act which was
obligatory on its part. The case of petitioner also remains that he had served respondent with due
diligence and had spotless service record as 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 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 September, 2004.
No reason whatsoever has been assigned for such any action or omission on the part of respondent
in not initiating any departmental proceedings or making correspondence calling upon the
petitioner to join service. This prima facie belies the stand taken by the respondent as abandonment
has to be proved like any other fact in issue. The petitioner, on the other hand, as PW1 in cross-
examination has specifically denied that he used to leave the job in between and attended the work
intermittently rather he has claimed that intermittent 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.
14. A bare glance on the mandays chart Ex. RW1/B would reveal that petitioner had
worked for 50 ½ days in the year 1995, 85 days in 1996, 64 days in 1997, 71 days in 1998, 141
days in 1999, 128 days in 2000, 82 days in 2001, 165 days in 2002, 134 days in 2003 and 105 days
in 2004 and thus a total of his service in 1995 to 2004 in 10 years he had worked for 1025.5 days in
his entire service period. Be it noticed that petitioner had not worked for more than 160 days and as
there is no reference from the Labour Commissioner, Shimla on the point of artificial breaks, this
court is to confine its findings only with regard to alleged illegal termination. It is evident from
mandays chart Ex. RW1/B that in the year 2004 the petitioner had merely worked for 105 days and
thus immediately in preceding 12 calendar months from the month of termination of petitioner had
not rendered service of 160 days so as to meet requirement of law of having continuous service of
one year and thus it was not at all required from respondent to have issued a notice envisaged under
Section 25-F of the Act. As such, the respondent is held to have not violated the provisions of
Section 25-F of the Act.
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15. Ld. Authorized Representative for petitioner has contended with vehemence that large
number of workers who were junior to petitioner had been appointed from 01.8.1997 to 07.9.1999
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. PW1/B, Ex.
PW1/C, Ex. PW1/D are the year-wise mandays of daily waged workers who were junior to the
petitioner and had joined in the year 1995 or thereafter whereas Ex. PW1/E to Ex. PW1/L are the
mandays chart of other co-workers. All of these co-workers shown in Ex. PW1/C the year-wise
mandays details of workers of Division HPPWD Killar were certainly junior to petitioner who were
given sufficient work existing in those years more than 200 days in a year whereas the petitioner
had been not given muster roll for the whole month. Ex. RW1/C also established that all the co-
workers shown in this document have worked for more than 160 days in most of the years although
they were junior to petitioner. Evidently, there is no iota of evidence of respondent establishing that
petitioner was called upon to join for service at any time after September, 2004 even at the time
when junior persons were reengaged. That being so the respondent had certainly violated the
provisions of Section 25-G of the Act as the juniors workers mentioned in para no.3 of the affidavit
were retained whereas petitioner was senior from these co-workers having joined service in 1995
was terminated and even thereafter respondent omitted to afford opportunity to petitioner for
reemployment for work which also violates the provisions of Section 25-H of the Act. Ld.
Authorized Representative for petitioner has placed reliance upon judgment of Central Bank of
India vs. S. Satyam, 1996 (5) SCC 419 in which Hon'ble Apex Court has held that for the
applicability of Section 25-G and 25-H of the Act, there was no necessity of claimant/petitioner to
have worked for 240 days as in case of provisions of Section 25-F of the Act.
16. Repudiating claim of petitioner, the respondent, on the other hand, has made futile
attempt to justify engagement of junior workers and their retention in service on the basis of orders
of Labour Court-cum-Industrial Tribunal as well as Hon'ble High Court of H.P. as reflected in Ex.
RW1/D1 to Ex RW1/D21. 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/D21 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. Authorized Representative for petitioner has contended that after petitioner's
termination in September, 2004, he had remained unemployed and was not earning anything
thereafter as such was entitled for full back wages. Repudiating the arguments of ld. Authorized
Representative of petitioner, ld. Dy. D.A. for the State has taken this court through cross-
examination of the petitioner who has admitted that 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
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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 petitioner relief claimed for by him. On the other hand, ld.
Authorized Representative for the petitioner has relied upon the judgment of Hon'ble Apex Court
titled Raghubir Singh vs. General Manager, Haryana Roadways, Hissar reported in 2014 Lab IC
4266 (SC) and the relevant paras of the judgment are produced below for reference:
“12. Therefore, in our considered view, the observations made by this Court in the
Rajasthan State Agriculture Marketing Board case (supra) upon which the learned
Additional Advocate General for the State of Haryana has placed reliance cannot be applied
to the fact situation of the case on hand, for the reason that the Labour Court has
erroneously rejected the reference without judiciously considering all the relevant factors of
the case particularly the points of dispute referred to it and answered the 2nd issue regarding
the reference being barred by limitation but not on the merits of the case. The said decision
has no application to the fact situation and also for the reason the catena of decisions of this
Court referred to supra, wherein this Court has categorically held that the provisions of
Limitation Act under Article 137 has no application to make reference by the appropriate
government to the Labour Court/Industrial Tribunal for adjudication of existing industrial
dispute between workmen and the employer.
13. In the case on hand, no doubt there is a delay in raising the dispute by the appellant; the
Labour Court nevertheless has the power to mould the relief accordingly. At the time of
adjudication, if the dispute referred to the Labour Court is not adjudicated by it, it does not
mean that the dispute ceases to exist. The appropriate government in exercise of its statutory
power under Section 10(1)(c) of the Act can refer the industrial dispute, between the parties,
at any time, to either the jurisdictional Labour Court/Industrial Tribunal as interpreted by
this Court in the Avon Services case referred to supra. Therefore, the State Government has
rightly exercised its power under Section 10(1)(c) of the Act and referred the points of
dispute to the Labour Court as the same are in accordance with the law laid down by this
Court in Avon Services & Sapan Kumar Pandit cases referred to supra.
14. Further, the workman cannot be denied to seek relief only on the ground of delay in
raising the dispute as held in the case of S.M. Nilajkar & Ors. v. Telecom District Manager,
Karnataka[4] it was held by this Court as follows—
“17. It was submitted on behalf of the respondent that on account of delay in raising the
dispute by the appellants the High Court was justified in denying relief to the appellants.
We cannot agree...... In Ratan Chandra Sammanta and Ors. v. Union of India and Ors.
(supra)1993 AIR SCW 2214, it was held that a casual labourer retrenched by the employer
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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 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.
15. In the case of Ajaib Singh v. The Sirhind Co-Operative Marketing Cum- Processing
Service Society Limited & Anr.[5] this Court has opined that relief cannot be denied to the
workman merely on the ground of delay, stating that:—
“10. It follows, therefore, that the provisions of Article 137 of the Schedule to Limitation
Act, 1963 are not applicable to the proceedings under the act and that the relief under it
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 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
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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. counsel 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.
Authorized Representative for petitioner, ld. Dy. D.A. has placed reliance upon the judgment of
Hon'ble Apex Court titled as Assistant Engineer, Rajasthan State Agriculture Marketing Board,
Sub-Division Kota and Mohan Lal [2013 (139) FLR 125], the relevant para of the judgment are
produced below for reference:
Industrial Disputes Act, 1947-Sections 25-F and 10-Limitation Act, 1963- Section 5-
Industrial dispute-Termination of service-Finding of Lboaur Court that workman had
completed 240 days in calander year and his 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. His services terminated on 18.2.1986. Industrial dispute raised after 6 years of
termination. Admitted delay of 6 years not kept in view by the Labour Court- Judicial
discretion exercised by the Labour Court flawed and unsustainable. Reinstatement of the
workman not the appropriate relief. In lieu of reinstatement compensation of Rs.one lac
directed to be paid to the workman by the appellant-employer within six weeks failing
which interest @ workman 9% p.a. will be payable.
[Paras 21 and 22]
Limitation Act, 1963. Section 5-Industrial Disputes Act, 1947-Section 25-F-Termination of
service-Industrial dispute raised after six years-Limitation Act not applicable to reference
made under the I.D. Act-Delay in raising industrial disputes definitely an important
circumstances which the Labour Court must keep in view before granting relief”.
I have gone through the rival contention of the ld. Authorized Representative as well as ld.
Dy. D.A. for State. Keeping in view the mandate of Hon'ble Apex Court in various judgments
referred to above it is held that delay in raising industrial dispute is definitely an important
circumstance and court has to keep in mind while exercising discretion. In para nos. 20 and 21 of
judgment 2013 supra has referred to Gitam Singh’s case reported in 2013 (136) FLR 893 (SC)
titled as Assistant Engineer Rajasthan Development Corporation and another vs. Geetam Singh
observing that before exercising its judicial discretion, the Labour Court has to keep in view 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 the delay in raising industrial
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dispute before grant of relief in an industrial dispute. 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 his services have been terminated in 1986 and he 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 1025.5 days as per mandays chart
on record and that the services of petitioner were disengaged in September, 2004 who worked as
non skilled worker and had raised industrial dispute by issuance of demand notice after about seven
years i.e. demand notice was given on 06.10.2011. It is also pertinent to mention here that
petitioner on the date of filing claim petition was ageing 33 years who has sufficient spell of life to
work and earn his livelihood. Taking into consideration factors mentioned above in pursuance to
judgments of Hon'ble Apex Court petitioner would not be entitled either for reinstatement or for
back wages but compensation a lump-sum would be appropriate relief in view of judgment 2013
(139) FLR 25 (SC). The judgments relied upon by ld. Authorized Representative for petitioner on
the matter of delay and laches is more or less settled law that claim of the petitioner could not be
solely declined on the ground of delay and laches. Similarly, judgment of Hon'ble Apex Court in
2014 titled as Raghubir Singh’s case also does not come to the rescue of the petitioner as in this
judgment also the Hon'ble Apex Court has reiterated the mandate as given by the Hon'ble Apex
Court in previous judgment in the year 2013 i.e. Assistant Engineer, Rajasthan State Agriculture
Marketing Board, Sub-Division Kota and Mohan Lal’s case. Similar view was reiterated by the
Hon'ble Apex Court in judgment titled as Vice Chancellor, Lucknow University, Lucknow, Uttar
Pradesh v. Akhilesh Kumar Khare & another reported in AIR 2015 SC 3473.
21. In view of foregoing discussion, a lump-sum compensation of Rs.1,00,000/- (Rupees
one lakh 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 and its realization. Issues no. 1, 2 and 3
are answered accordingly.
ISSUE NO.4
22. 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
23. As sequel to my findings on foregoing issues, the respondent is hereby directed to pay
the compensation of Rs.1,00,000/- (Rupees one lakh only) to the petitioner in lieu of the
reinstatement in services as well as the other consequential service benefits. Amount of
compensation so awarded shall 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.
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24. The reference is answered in the aforesaid terms.
25. A copy of this Award be sent to the appropriate Government for publication in the
official gazette.
26. File, after due completion be consigned to the Record Room.
Announced in the open Court today this 9th day of November, 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)
(CAMP AT CHAMBA)
Ref No. : 419/2015
Date of Institution : 10.09.2015
Date of Decision : 09.11.2016
Ms. Sili Devi d/o Shri Sukh Devi, r/o Village and Post Office Shoon, 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. I.S. Jaryal, AR
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 Ms. Sili Dvi D/O Shri Sukh Devi, R/O
Village and Post Office Shoon, 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 02.02.2012 regarding her alleged illegal termination of services during
October, 2004 suffers from delay and latches? If not, Whether termination of the services of
Ms. Sili Dvi D/O Shri Sukh Devi, R/O Village and Post Office Shoon, Tehsil Pangi, District
Chamba, H.P. by the Executive Engineer, 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?”
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2. On receipt of reference from appropriate government, notices were issued to the parties
in pursuance to which claimant/petitioner has filed statement of claim.
3. Brief facts leading to institution of the present claim petition by the petitioner above
named reveal that she had been initially engaged as daily waged beldar on muster roll basis in the
month of May, 1994 who continuously worked till October, 2004 with the respondent/department.
Averments made in the petition further revealed that petitioner had worked for 160 days in each
calendar year as prescribed for tribal area of Pangi Tehsil District Chamba and became eligible for
continuous service envisaged under statutory provisions of Section 25-B of the Industrial Disputes
Act, 1947 (hereinafter referred to as 'the Act' for brevity). Averments made in the petition revealed
that the services of petitioner had interrupted by way of intermittent/artificial breaks given by the
respondent/department deliberately and as such breaks are required to be counted as continuous
services for the purposes of calculation of 160 days so as for the applicability of Section 25-B of
the Act. The grievance of petitioner remains that respondent/department had terminated/
disengaged petitioner from daily wage service in the end of October, 2004 by an oral order without
any reason whereas several other co-workers who were junior to petitioner had been retained on
muster roll and thus the action of respondent/department was stated to be unjustified and malafide.
It is alleged that seniority list of daily wage workers working under the respondent had not been
circulated till termination/retrenchment of the petitioner and while retrenching the services of
petitioner, even principle of 'Last come First go' had not been followed by the department/
respondent. The petitioner has named 27 persons who were junior to petitioner and joined service
from 1st August, 1997 to 1st September, 2007. In the end of month of October, 2004 when the
services of petitioner were terminated by way of oral order, she was not served with one month
notice of retrenchment and at the same time one month's wages in lieu of notice period had also not
been paid to her and for said reason termination of the services of petitioner was prima facie illegal
and unwarranted. The claimant/petitioner claimed that she had spotless service record who never
been charge-sheeted for any act of indiscipline or negligence or her conduct and even at the time of
verbal termination, no charge-sheet had been served upon her and the at the same time, no
opportunity of hearing had been afforded to her. The petitioner also alleges that she has remained
unemployed ever since her illegal termination from month of October, 2004 till the date of
institution of present claim petition who had been nowhere gainfully employed and was thus
entitled for full back wages. Accordingly alleging respondent to have committed violation of
statutory provision of Section 25-F, Section 25-G and Section 25-H of the Industrial Disputes Act,
1947 and Article 14 and 16 of Constitution of India, the petitioner prays for setting aside oral order
of termination/retrenchment by the respondent in the month of September, 2004. She further prayed
for reinstatement in service w.e.f. month of October, 2004 along-with back wages, seniority
including continuity in service as petitioner has remained unemployed since the date of her illegal
termination. The petitioner has also prayed that period of intermittent/fictional breaks given time
and again during entire service of petitioner between May, 1994 to October, 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 per the policy of HP Govt. in pursuance to judgment of Hon'ble
Apex Court titled as Rakesh Kumar vs. State of H.P. and to any other relief petitioner is entitled.
4. The respondent contested claim petition, filed reply inter-alia taken preliminary
objections of maintainability, claim petition being bad on account of delay and laches. On merits
denied that petitioner had worked for more than 160 days in each calendar year rather clarified by
stating that petitioner was engaged as daily waged beldar in 1994 who remained engaged till 2004
but had worked intermittently as petitioner used to come and attend the work at her own sweet will
and convenience. Relying upon the mandays chart, it has been categorically pleaded by the
respondent that petitioner had not completed 160 days in each calendar year as required for tribal
area of Pangi Tehsil. Allegations of fictional breaks given by respondent to the petitioner have been
denied. In so far as engagement of persons junior to petitioner mentioned at serial nos. 1 to 24 and
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26 in para no. 4 of the claim petition were appointed as per order of Labour Court and at serial nos.
25 & 27 as harness case. On the plea of termination of service of petitioner, respondent specifically
alleges that petitioner had left the job at her own will therefore serving of notice or pay in lieu
thereof was not required. Reiterating its stand respondent has maintained that petitioner had left the
work of her own sweet will and the persons mentioned in para no.4 are stated to have engaged as
per direction of the Labour Court-cum-Industrial Tribunal Dharamshala as harness case. It is also
contended that if petitioner had been terminated in 2004 she would have definitely raised industrial
dispute immediately and that after seven years petitioner is stated to be agitating the matter which is
bad on account of delay and laches. It is also contended that since the services of petitioner had not
been terminated by the respondent, question of issuance of notice or wages in lieu thereof did not
arise and at the same time, there was no necessity for charge-sheet or issuing any notice of
petitioner after her termination. It is contended that petitioner was agriculturist and gainfully
employed and was thus not entitled for back wages.
5. The petitioner filed rejoinder, reiterated her stand as maintained in the claim petition.
Further asserted that provisions of Limitation Act did not eclipse the claim of petitioner in totality
besides allegation of violation of principle of 'Last come First go' was specifically denied.
6.
In order to prove her case, petitioner had examined herself as PW1 tendered/proved
her affidavit Ex. PW1/A under Order 18 Rule 4 CPC, Ex. PW1/B to PW1/L mandays charts of
junior workers 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,
mandays chart of other co-workers Ex. RW1/C, Ex. RW1/D1 to Ex. RW1/D21 copy of orders/
awards and closed the evidence.
7.
I have heard the ld. Authorized Representative of petitioner and ld. Dy. D.A.
representing respondent, gone through records of the case carefully relevant for disposed of this
case.
8. From the contentions raised, following issues were framed on 17.12.2015 for
determination which are as under :
1.
Whether the industrial dispute raised by petitioner vide demand notice dated
02.02.2012 qua her termination of service during October, 2004 by respondent
suffers from the vice of delay and laches as alleged? If so, its effect?
...OPP.
2. Whether termination of the services of petitioner by the respondent w.e.f. October,
2004 is/was illegal and unjustified as alleged?
...OPP.
3. If issue no.1 or issue no.2 or both are proved in affirmative, to what service
benefits the petitioner is entitled to?
...OPP.
7. Whether the claim petition is not maintainable in the present form as alleged?
...OPR.
Relief.
9. For the reasons detailed here under, my findings on the above issues are as follows:—
Issue No.1 :
Yes
Issue No.2 :
Yes
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Issue No.3 :
Discussed
Issue No.4 :
No
Relief. :
Petition is partly allowed awarding compensation Rs.1,20,000/- per
operative part of award.
REASONS FOR FINDINGS
ISSUES NO.1, 2 AND 3
10. All these issues have been taken up together for discussion being interconnected which
can be disposed of simultaneously without repetition of evidence.
11. Relationship of petitioner having been engaged as daily waged beldar by respondent on
muster roll basis in the month of May, 1994 who continuously worked till 2004 at HPPWD Sub
Division Killar is not in dispute. Admittedly, petitioner was engaged without any written order or
settlement of terms and conditions by the respondent. It is equally not in dispute that no written
order was passed while terminating service of the petitioner as claim of respondent remains that it
had not retrenched petitioner from service who had abandoned the job of her own and used to work
intermittently as per her own wish and convenience. Admittedly, the reference of appropriate govt.
does not relate to plea of fictional breaks but only with regard to petitioner's termination from
service. In the backdrop of foregoing admitted facts on record, claim of petitioner requires to be
adjudicated with a view to determine if petitioner is entitled for relief of reinstatement and back
wages along-with seniority and past service benefits and compensation as claimed by him.
12. Stepping into witness box as PW1 has sworn in affidavit Ex. PW1/A reiterating and
reaffirming her pleadings as stipulated in claim petition. In her affidavit she has claimed to have
worked with the respondent/department for more than 160 days in Pangi Sub Division Chamba
District and remained engaged from May, 1994 to October, 2004. She has also stated on oath that
no notice under Section 25-F of the Act was given by the respondent before terminating her service
and at the same time no compensation in lieu thereof notice period was paid to her and thus her
termination was illegal and void entitling petitioner benefit of reinstatement of service with full
back wages and all the other consequential service benefits. The petitioner has further alleged on
oath that respondent/department after terminating her services in 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 she had served respondent with due
diligence and had spotless service record as respondent/department had never called any
explanation or raised charge-sheet against her but even while retrenching petitioner from service,
no notice was given. The petitioner has also explained reason for not approaching the authorities
under Labour Act and thereafter before this Tribunal, as there existed no road between Chamba
town to Pangi Tehsil till 2012 and petitioner had moved before the Labour Officer raising demand
notice consequent upon which a failure report was submitted and as the Labour Commissioner did
not make reference for industrial dispute raised by petitioner, the petitioner had moved before the
Hon'ble High Court by filing CWP where direction was passed for making reference to the Labour
Court due to which delay had occurred and same was satisfactorily explained.
13. In so far as plea of abandonment raised by respondent is concerned, the same merits
rejection in view of the fact that respondent had failed to produce any record by which it could be
established that whenever petitioner absented from her duty as also reflected in mandays chart Ex.
RW1/B any notice or letter was ever issued. On this point respondent as RW1 has specifically
admitted that whenever petitioner abandoned the job, no notice had been issued. RW1 specifically
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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 she used to leave the job in between and attended the work
intermittently rather she has claimed that intermit breaks had been deliberately given to her by the
respondent in the service record of petitioner so that petitioner did not complete 160 days of work
as required for Pangi Tehsil area and also for applicability of Section 25-B of the Act. As such, in
absence of any specific and reliable evidence led by respondent, it would be unsafe to hold that
respondent had established plea of abandonment.
14. A bare glance on the mandays chart Ex. RW1/B would reveal that petitioner had
worked for 161 days in the year 1994, 173 days in 1995, 164 days in 1996, 65 days in 1997, 86
days in 1998, 84 days in 1999, 90 days in 2001, 89 days in 2002, 88 days in 2003 and 100 days in
2004 and thus a total of her service in 1994 to 2004 in 10 years she had worked for 1100 days in
her entire service period. Be it noticed that except the years 1997 to 2004 she 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 100 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. Authorized Representative for petitioner has contended with vehemence that large
number of workers who were junior to petitioner had been appointed from 01.8.1997 to 07.9.1999
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. PW1/B, Ex.
PW1/C, Ex. PW1/D are the year-wise mandays of daily waged workers who were junior to the
petitioner and had joined in the year 2000 or thereafter whereas Ex. PW1/E to Ex. PW1/L are the
mandays chart of other co-workers. All of these co-workers shown in Ex. PW1/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.3 of the affidavit were
retained whereas petitioner was senior from these co-workers having joined service in 1994 was
terminated and even thereafter respondent omitted to afford opportunity to petitioner for
reemployment for work which also violates the provisions of Section 25-H of the Act. Ld.
Authorized Representative for petitioner has placed reliance upon judgment of Central Bank of
India vs. S. Satyam, 1996 (5) SCC 419 in which Hon'ble Apex Court has held that for the
applicability of Section 25-G and 25-H of the Act, there was no necessity of claimant/petitioner to
have worked for 240 days as in case of provisions of Section 25-F of the Act.
16. Repudiating claim of petitioner, the respondent, on the other hand, has made futile
attempt to justify engagement of junior workers and their retention in service on the basis of orders
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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/D21. 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/D21 were primarily on the basis of court
orders would not defeat the claim of the petitioner as status of these person being junior to
petitioner does not get negatived. As such, even when petitioner is proved to have not worked for
more than 160 days in preceding 8 years which entitled her for regularization of her service per
government policy, yet respondent is not absolved from its accountability of provisions of Section
25-G and 25-H of the Act and as such it is held that respondent had violated the provisions of
Sections 25-G and 25-H of the Industrial Disputes Act.
17. Ld. Authorized Representative for petitioner has contended that after petitioner's
termination in October, 2004, she had remained unemployed and was not earning anything
thereafter as such was entitled for full back wages. Repudiating the arguments of ld. Authorized
Representative of petitioner, ld. Dy. D.A. for the State has taken this court through cross-
examination of the petitioner who has admitted that she had cultivatable land with her and also
worked a private labourer. Thus, plea of having remained not gainfully employed gets belied
admission of petitioner in cross-examination in which she had maintained that she had been earning
from agricultural land as well as she has been working as daily wager privately. Reliance has been
placed on the judgment of Hon'ble Apex Court North East Karnataka Road Transport Corporation
vs. M. Nagangouda (2007) 10 SCC 765 in which Division Bench comprising of Justice A.R.
Lakshmanan and Justice Altamas Kabir had held that 'term gainfully employment would also
include self employment wherefrom income is generated. It was income either from employment in
an establishment or from self employment merely differentiates the sources from which income is
generated, the end use being the same’. Applying the ratio of judgment of 2007 (supra) to this case
since the petitioner was earning from her agricultural and manual pursuits, the same were sufficient
to maintain her and her family. It is thus held that petitioner was gainfully employed. Be it stated
here that Hon'ble Apex Court in Deepali Gundu Surwase’s case has held that the Labour Court was
not justified in holding that merely because the respondent was receiving agriculture income, she
cannot be treated to be engaged in gainful employment. Since the petitioner had income from
agriculture pursuits for her livelihood it cannot be stated that petitioner was not gainfully employed
and thus would not be entitled full back wages. In view of the forgoing discussion, it is held that the
relationship of workman and employer existed between petitioner and respondent and that
petitioner was illegally retrenched without compliance of Section 25-G and Section 25-H of the Act
although remained gainfully employed after her retrenchment. Thus, applying the ratio of judgment
of Hon'ble Apex Court (2007 supra), it may not be erroneous to hold that petitioner was gainfully
employed and thus would be not entitled for back wages for the period she was out of job on being
terminated by the respondent.
18. Lastly, Ld. Dy. D.A. for State has contended with vehemence that there is inordinate
and explained delay which disentitles petitioner relief claimed for by him. On the other hand, ld.
Authorized Representative for the petitioner has relied upon the judgment of Hon'ble Apex Court
titled Raghubir Singh vs. General Manager, Haryana Roadways, Hissar reported in 2014 Lab IC
4266 (SC) and the relevant paras of the judgment are produced below for reference:
“12. Therefore, in our considered view, the observations made by this Court in the
Rajasthan State Agriculture Marketing Board case (supra) upon which the learned
Additional Advocate General for the State of Haryana has placed reliance cannot be applied
to the fact situation of the case on hand, for the reason that the Labour Court has
erroneously rejected the reference without judiciously considering all the relevant factors of
the case particularly the points of dispute referred to it and answered the 2nd issue regarding
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the reference being barred by limitation but not on the merits of the case. The said decision
has no application to the fact situation and also for the reason the catena of decisions of this
Court referred to supra, wherein this Court has categorically held that the provisions of
Limitation Act under Article 137 has no application to make reference by the appropriate
government to the Labour Court/Industrial Tribunal for adjudication of existing industrial
dispute between workmen and the employer.
13. In the case on hand, no doubt there is a delay in raising the dispute by the appellant; the
Labour Court nevertheless has the power to mould the relief accordingly. At the time of
adjudication, if the dispute referred to the Labour Court is not adjudicated by it, it does not
mean that the dispute ceases to exist. The appropriate government in exercise of its statutory
power under Section 10(1)(c) of the Act can refer the industrial dispute, between the parties,
at any time, to either the jurisdictional Labour Court/Industrial Tribunal as interpreted by
this Court in the Avon Services case referred to supra. Therefore, the State Government has
rightly exercised its power under Section 10(1)(c) of the Act and referred the points of
dispute to the Labour Court as the same are in accordance with the law laid down by this
Court in Avon Services & Sapan Kumar Pandit cases referred to supra.
14. Further, the workman cannot be denied to seek relief only on the ground of delay in
raising the dispute as held in the case of S.M. Nilajkar & Ors. v. Telecom District Manager,
Karnataka[4] it was held by this Court as follows-
“17. It was submitted on behalf of the respondent that on account of delay in raising the
dispute by the appellants the High Court was justified in denying relief to the appellants.
We cannot agree...... In Ratan Chandra Sammanta and Ors. v. Union of India and Ors.
(supra)1993 AIR SCW 2214, it was held that a casual labourer retrenched by the employer
deprives herself of remedy available in law by delay itself, lapse of time results in losing the
remedy and the right as well. The delay would certainly be fatal if it has resulted in material
evidence relevant to adjudication being lost and rendered not available. However, we do not
think that the delay in the case at hand has been so culpable as to disentitle the appellants
for any relief.....” (Emphasis laid by the Court) In view of the legal principles laid down by
this Court in the above judgment, the reference of the industrial dispute made in the case on
hand by the State Government to the Labour Court to adjudicate the existing industrial
dispute between the parties was made within a reasonable time, considering the
circumstances in which the workman was placed, firstly, as there was a criminal case
pending against her and secondly, the respondent had assured the workman that she would
be reinstated after her acquittal from the criminal case. Moreover, it is reasonable to
adjudicate the industrial dispute in spite of the delay in raising and referring the matter,
since there is no mention of any loss or unavailability of material evidence due to the delay.
Thus, we do not consider the delay in raising the industrial dispute and referring the same to
the Labour Court for adjudication as gravely erroneous and it does not debar the workman
from claiming rightful relief from her employer.
15. In the case of Ajaib Singh v. The Sirhind Co-Operative Marketing Cum- Processing
Service Society Limited & Anr.[5] this Court has opined that relief cannot be denied to the
workman merely on the ground of delay, stating that:—
“10. It follows, therefore, that the provisions of Article 137 of the Schedule to Limitation
Act, 1963 are not applicable to the proceedings under the act and that the relief under it
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
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questioned on the ground of delay alone. Even in a case where the delay in shown to be
existing, the tribunal, labour court or board, dealing with the case can appropriately mould
the relief by declining to grant back wages to the workman till the date she raised the
demand regarding her illegal retrenchment/termination or dismissal. The Court may also in
appropriate cases direct the payment of part of the back wages instead of full back
wages.....” (Emphasis laid by the Court)
16. Hence, we are of the opinion, having regard to the fact and circumstances of the case
that there is no delay or latches on the part of the workman from the date of her acquittal in
the criminal case. Thereafter, upon failure of the respondent in adhering to the assurance
given to the workman that she would be reinstated after her acquittal from the criminal case,
the workman approached the conciliation officer and the State Government to make a
reference to the Labour Court for adjudication of the dispute with regard to the order of
dismissal passed by the respondent. Keeping in mind the date of acquittal of the appellant
and the date on which she approached the conciliation officer by raising the dispute, since
the respondent had not adhered to its assurance, the State Government had rightly referred
the dispute for its adjudication. Therefore it cannot be said that there was a delay on the part
of the appellant in raising the dispute and getting it referred to the Labour Court by the State
Government.
17. Further, the Labour Court on an erroneous assumption of law framed the additional
issue regarding the limitation in raising the dispute and its reference by the State
Government to the Labour Court. Thus, the Labour Court has ignored the legal principles
laid down by this Court in the cases referred to supra. The award passed by the Labour
Court was accepted erroneously by both the learned single Judge and the Division Bench of
the High Court by dismissing the Civil Writ Petition & the Letters Patent Appeal without
examining the case in its proper perspective, keeping in view the power of the State
Government under Section 10(1)(c) and the object and intendment of the Act. Not
adjudicating the existing industrial dispute on merits between the parties referred to it may
lead to disruption of industrial peace and harmony, which is the foremost important aspect
in Industrial Jurisprudence as the same would affect the public interest at large.
19. Ld. counsel 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.
Authorized Representative for petitioner, ld. Dy. D.A. has placed reliance upon the judgment of
Hon'ble Apex Court titled as Assistant Engineer, Rajasthan State Agriculture Marketing Board,
Sub-Division Kota and Mohan Lal [2013 (139) FLR 125], the relevant para of the judgment are
produced below for reference:
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Industrial Disputes Act, 1947-Sections 25-F and 10-Limitation Act, 1963- Section 5-
Industrial dispute-Termination of service-Finding of Labour Court that workman had
completed 240 days in calander year and her termination was in violation o section 25-F of
the I.D.Act- Wrokman worked from 1.11.1984 to 17.2.1986 in all 286 days during
employment. her services terminated on 18.2.1986. Industrial dispute raised after 6 years of
termination. Admitted delay of 6 years not kept in view by the Labour Court-Judicial
discretion exercised by the Labour Court flawed and unsustainable. Reinstatement of the
workman not the appropriate relief. In lieu of reinstatement compensation of Rs.one lac
directed to be paid to the workman by the appellant-employer within six weeks failing
which interest @ workman 9% p.a. will be payable.
[Paras 21 and 22]
Limitation Act, 1963. Section 5-Industrial Disputes Act, 1947-Section 25-F-Termination of
service-Industrial dispute raised after six years-Limitation Act not applicable to reference
made under the I.D. Act-Delay in raising industrial disputes definitely an important
circumstances which the Labour Court must keep in view before granting relief”.
I have gone through the rival contention of the ld. Authorized Representative as well as ld.
Dy. D.A. for State. Keeping in view the mandate of Hon'ble Apex Court in various judgments
referred to above it is held that delay in raising industrial dispute is definitely an important
circumstance and court has to keep in mind while exercising discretion. In para nos. 20 and 21 of
judgment 2013 supra has referred to Gitam Singh’s case reported in 2013 (136) FLR 893 (SC)
titled as Assistant Engineer Rajasthan Development Corporation and another vs. Geetam Singh
observing that before exercising its judicial discretion, the Labour Court has to keep in view 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 the delay in raising industrial
dispute before grant of relief in an industrial dispute. 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 his services have been terminated in 1986 and he 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 1100 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 7 years
i.e. demand notice was given on 02.02.2012. It is also pertinent to mention here that petitioner on
the date of filing claim petition was ageing 41 years who has sufficient spell of life to work and
earn her livelihood. Taking into consideration factors mentioned above in pursuance to judgments
of Hon'ble Apex Court petitioner would not be entitled either for reinstatement or for back wages
but compensation a lump-sum would be appropriate relief in view of judgment 2013 (139) FLR 25
(SC). The judgments relied upon by ld. Authorized Representative for petitioner on the matter of
delay and laches is more or less settled law that claim of the petitioner could not be solely declined
on the ground of delay and laches. Similarly, judgment of Hon'ble Apex Court in 2014 titled as
Raghubir Singh’s case also does not come to the rescue of the petitioner as in this judgment also the
Hon'ble Apex Court has reiterated the mandate as given by the Hon'ble Apex Court in previous
judgment in the year 2013 i.e. Assistant Engineer, Rajasthan State Agriculture Marketing Board,
Sub-Division Kota and Mohan Lal’s case. Similar view was reiterated by the Hon'ble Apex Court
in judgment titled as Vice Chancellor, Lucknow University, Lucknow, Uttar Pradesh v. Akhilesh
Kumar Khare & another reported in AIR 2015 SC 3473.
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21. In view of foregoing discussion, a lump-sum compensation of Rs.1,20,000/- (Rupees
one lakh twenty 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 and its realization. Issues no.
1,2 and 3 are answered accordingly.
ISSUE NO.4
22. 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
23. As sequel to my findings on foregoing issues, the respondent is hereby directed to pay
the compensation of Rs.1,20,000/- (Rupees one lakh twenty 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 shall 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.
24. The reference is answered in the aforesaid terms.
25. A copy of this Award be sent to the appropriate Government for publication in the
official gazette.
26. File, after due completion be consigned to the Record Room.
Announced in the open Court today this 9th day of November, 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)
(CAMP AT CHAMBA)
Ref No. : 398/2015
Date of Institution : 10.09.2015
Date of Decision : 09.11.2016
Shri Negi Ram s/o Shri Hira Nand, r/o Village and Post Office Mindal, Tehsil Pangi,
District Chamba, H.P.
...Petitioner.
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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. I.S. Jaryal, AR
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 Negi Ram S/O Shri Hira Nand, r/o
Village and Post Office Mindal, Tehsil Pangi, District Chamba, H.P. before the Executive
Engineer, I&PH/HPPWD Division, Killar, Tehsil Pangi, District Chamba, H.P. vide
demand notice dated 02.02.2012 regarding his alleged illegal termination of service during
July, 1999 suffers from delay and latches? If not, Whether termination of the services of
Shri Negi Ram S/O Shri Hira Nand, r/o Village and Post Office Mindal, Tehsil Pangi,
District Chamba, H.P. by the Executive Engineer, I&PH/HPPWD Division, Killar, Tehsil
Pangi, District Chamba, H.P. during July, 1999 without complying the provisions of the
Industrial Disputes Act, 1947, is legal and justified? If not, what amount of back wages,
seniority, past service benefits and compensation the above aggrieved workman is entitled
to from the above employer?”
2.
On receipt of reference from appropriate government, notices were issued to the
parties in pursuance to which claimant/petitioner has filed statement of claim.
3. Brief facts leading to institution of the present claim petition by the petitioner above
named reveal that he had been initially engaged as daily waged beldar on muster roll basis in the
month of May, 1996 who continuously worked till July, 1999 with the respondent/department.
Averments made in the petition further revealed that petitioner had worked for 160 days in each
calendar year as prescribed for tribal area of Pangi Tehsil District Chamba and became eligible for
continuous service envisaged under statutory provisions of Section 25-B of the Industrial Disputes
Act, 1947 (hereinafter referred to as 'the Act' for brevity). Averments made in the petition revealed
that the services of petitioner had interrupted by way of intermittent/artificial breaks given by the
respondent/department deliberately and as such breaks are required to be counted as continuous
services for the purposes of calculation of 160 days so as for the applicability of Section 25-B of
the Act. The grievance of petitioner remains that respondent/department had terminated/
disengaged petitioner from daily wage service in the end of July, 1999 by an oral order without any
reason whereas several other co-workers who were junior to petitioner had been retained on muster
roll and thus the action of respondent/department was stated to be unjustified and malafide. It is
alleged that seniority list of daily wage workers working under the respondent had not been
circulated till termination/retrenchment of the petitioner and while retrenching the services of
petitioner, even principle of 'Last come First go' had not been followed by the department/
respondent. The petitioner has named 27 persons who were junior to petitioner and joined service
from 1st August, 1997 to 1st September, 2007. In the end of month of July, 1999 when the services
of petitioner were terminated by way of oral order, he was not served with one month notice of
retrenchment and at the same time one month's wages in lieu of notice period had also not been
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paid to him and for said reason termination of the services of petitioner was prima facie illegal and
unwarranted. 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 July, 1999 till the date of institution of
present claim petition who had been nowhere gainfully employed and was thus entitled for full
back wages. Accordingly alleging respondent to have committed violation of statutory provision of
Section 25-F, Section 25-G and Section 25-H of the Industrial Disputes Act, 1947 and Article 14
and 16 of Constitution of India, the petitioner prays for setting aside oral order of termination/
retrenchment by the respondent in the month of July, 1999. He further prayed for reinstatement in
service w.e.f. month of July, 1999 along-with back wages, seniority including continuity in service
as petitioner has remained unemployed since the date of his illegal termination. The petitioner has
also prayed that period of intermittent/fictional breaks given time and again during entire service of
petitioner between 1996 to July, 1999 be counted 160 days continuous service and regularization of
the service of petitioner w.e.f. 01.01.2004 having completed 08 years of service and per the policy
of HP Govt. in pursuance to judgment of Hon'ble Apex Court titled as Rakesh Kumar vs. State of
H.P. and to any other relief petitioner is entitled.
4. The respondent contested claim petition, filed reply inter-alia taken preliminary
objections of maintainability, claim petition being bad on account of delay and laches. On merits
denied that petitioner had worked for more than 160 days in each calendar year rather clarified by
stating that petitioner was engaged as daily waged beldar in 1996 who remained engaged till 1999
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. Allegations of fictional breaks given by respondent to the petitioner have been
denied. In so far as engagement of persons junior to petitioner mentioned at serial nos. 1 to 25 in
para no. 4 of the claim petition were appointed as per order of Labour Court and at serial nos. 26 &
27 as harness case. 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.7 are stated to have engaged as
per direction of the Labour Court-cum-Industrial Tribunal Dharamshala as harness case. It is also
contended that if petitioner had been terminated in 1999 he would have definitely raised industrial
dispute immediately and that after ten 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 termination. It is contended that petitioner was agriculturist and gainfully
employed and was thus not entitled for back wages.
5. The petitioner filed rejoinder, reiterated 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.
6. 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, Ex. PW1/B to PW1/L mandays charts of
junior workers 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,
mandays chart of other co-workers Ex. RW1/C, Ex. RW1/D1 to Ex. RW1/D21 copy of orders/
awards and closed the evidence.
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7. I have heard the ld. Authorized Representative of petitioner and ld. Dy. D.A.
representing respondent, gone through records of the case carefully relevant for disposed of this
case.
8. From the contentions raised, following issues were framed on 17.12.2015 for
determination :
1.
Whether the industrial dispute raised by petitioner vide demand notice dated
02.02.2012 qua his termination of service during July, 1999 by respondent suffers
from vice of delay and laches as alleged? If so, its effect?
...OPP.
2.
Whether termination of the services of petitioner by the respondent during July,
1999 is/was illegal and unjustified as alleged?
...OPP.
5. If issue no.1 or issue no.2 or both are proved in affirmative, to what service
benefits the petitioner is entitled to?
...OPP.
6. Whether the claim petition is not maintainable in the present form as alleged?
...OPR.
Relief.
9. For the reasons detailed here under, my findings on the above issues are as follows:—
Issue No.1 :
Yes
Issue No.2 :
Yes
Issue No.3 :
Discussed
Issue No.4 :
No
Relief. :
Petition is partly allowed awarding compensation Rs.40,000/- per
operative part of award.
REASONS FOR FINDINGS
ISSUES NO.1, 2 AND 3
10. All these issues have been taken up together for discussion being interconnected which
can be disposed of simultaneously without repetition of evidence.
11. Relationship of petitioner having been engaged as daily waged beldar by respondent
on muster roll basis in the year 1996 who continuously worked till 1999 with the respondent/
department 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
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worked with the respondent/department for more than 160 days in Pangi Sub Division Chamba
District and remained engaged from 1996 to July, 1999. 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 July, 1999 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 as 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 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 July, 1999. 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 intermittent 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.
14. A bare glance on the mandays chart Ex. RW1/B would reveal that petitioner had
worked for 165 days in the year 1996, 176 days in 1997, 87 days in 1998 and 62 days in 1999 and
thus a total of his service in 1996 to 1999 in 04 years he had worked for 490 days in his entire
service period. Be it noticed that except the years 1998 and 1999 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 1999 the petitioner had merely worked
for 62 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. Authorized Representative for petitioner has contended with vehemence that large
number of workers who were junior to petitioner had been appointed from 01.8.1997 to 07.9.1999
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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. PW1/B, Ex.
PW1/C, Ex. PW1/D are the year-wise mandays of daily waged workers who were junior to the
petitioner and had joined in the year 1996 or thereafter whereas Ex. PW1/E to Ex. PW1/L are the
mandays chart of other co-workers. All of these co-workers shown in Ex. PW1/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 July, 1999 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.3 of the affidavit were
retained whereas petitioner was senior from these co-workers having joined service in 1996 was
terminated and even thereafter respondent omitted to afford opportunity to petitioner for
reemployment for work which also violates the provisions of Section 25-H of the Act. Ld.
Authorized Representative for petitioner has placed reliance upon 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/D21. 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/D21 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. Authorized Representative for petitioner has contended that after petitioner's
termination in July, 1999, he had remained unemployed and was not earning anything thereafter as
such was entitled for full back wages. Repudiating the arguments of ld. Authorized Representative
of petitioner, ld. Dy. D.A. for the State has taken this court through cross-examination of the
petitioner who has admitted that 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
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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 petitioner relief claimed for by him. On the other hand, ld.
Authorized Representative for the petitioner has relied upon the judgment of Hon'ble Apex Court
titled Raghubir Singh vs. General Manager, Haryana Roadways, Hissar reported in 2014 Lab IC
4266 (SC) and the relevant paras of the judgment are produced below for reference:
“12. Therefore, in our considered view, the observations made by this Court in the
Rajasthan State Agriculture Marketing Board case (supra) upon which the learned
Additional Advocate General for the State of Haryana has placed reliance cannot be applied
to the fact situation of the case on hand, for the reason that the Labour Court has
erroneously rejected the reference without judiciously considering all the relevant factors of
the case particularly the points of dispute referred to it and answered the 2nd issue regarding
the reference being barred by limitation but not on the merits of the case. The said decision
has no application to the fact situation and also for the reason the catena of decisions of this
Court referred to supra, wherein this Court has categorically held that the provisions of
Limitation Act under Article 137 has no application to make reference by the appropriate
government to the Labour Court/Industrial Tribunal for adjudication of existing industrial
dispute between workmen and the employer.
13. In the case on hand, no doubt there is a delay in raising the dispute by the appellant;
the Labour Court nevertheless has the power to mould the relief accordingly. At the time of
adjudication, if the dispute referred to the Labour Court is not adjudicated by it, it does not
mean that the dispute ceases to exist. The appropriate government in exercise of its statutory
power under Section 10(1)(c) of the Act can refer the industrial dispute, between the parties,
at any time, to either the jurisdictional Labour Court/Industrial Tribunal as interpreted by
this Court in the Avon Services case referred to supra. Therefore, the State Government has
rightly exercised its power under Section 10(1)(c) of the Act and referred the points of
dispute to the Labour Court as the same are in accordance with the law laid down by this
Court in Avon Services & Sapan Kumar Pandit cases referred to supra.
14. Further, the workman cannot be denied to seek relief only on the ground of delay in
raising the dispute as held in the case of S.M. Nilajkar & Ors. v. Telecom District Manager,
Karnataka[4] it was held by this Court as follows—
“17. It was submitted on behalf of the respondent that on account of delay in raising the
dispute by the appellants the High Court was justified in denying relief to the appellants.
We cannot agree...... In Ratan Chandra Sammanta and Ors. v. Union of India and Ors.
(supra)1993 AIR SCW 2214, it was held that a casual labourer retrenched by the employer
deprives himself of remedy available in law by delay itself, lapse of time results in losing
the remedy and the right as well. The delay would certainly be fatal if it has resulted in
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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 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.
15. In the case of Ajaib Singh v. The Sirhind Co-Operative Marketing Cum- Processing
Service Society Limited & Anr.[5] this Court has opined that relief cannot be denied to the
workman merely on the ground of delay, stating that:—
“10. It follows, therefore, that the provisions of Article 137 of the Schedule to Limitation
Act, 1963 are not applicable to the proceedings under the act and that the relief under it
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 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
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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. counsel 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 1999 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.
Authorized Representative for petitioner, ld. Dy. D.A. has placed reliance upon the judgment of
Hon'ble Apex Court titled as Assistant Engineer, Rajasthan State Agriculture Marketing Board,
Sub-Division Kota and Mohan Lal [2013 (139) FLR 125], the relevant para of the judgment are
produced below for reference:
Industrial Disputes Act, 1947-Sections 25-F and 10-Limitation Act, 1963-Section 5-
Industrial dispute-Termination of service-Finding of Lboaur Court that workman had
completed 240 days in calander year and his 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. His services terminated on 18.2.1986. Industrial dispute raised after 6 years of
termination. Admitted delay of 6 years not kept in view by the Labour Court-Judicial
discretion exercised by the Labour Court flawed and unsustainable. Reinstatement of the
workman not the appropriate relief. In lieu of reinstatement compensation of Rs.one lac
directed to be paid to the workman by the appellant-employer within six weeks failing
which interest @ workman 9% p.a. will be payable.
[Paras 21 and 22]
Limitation Act, 1963. Section 5-Industrial Disputes Act, 1947-Section 25-F-Termination of
service-Industrial dispute raised after six years-Limitation Act not applicable to reference
made under the I.D. Act-Delay in raising industrial disputes definitely an important
circumstances which the Labour Court must keep in view before granting relief”.
I have gone through the rival contention of the ld. Authorized Representative as well as ld.
Dy. D.A. for State. Keeping in view the mandate of Hon'ble Apex Court in various judgments
referred to above it is held that delay in raising industrial dispute is definitely an important
circumstance and court has to keep in mind while exercising discretion. In para nos. 20 and 21 of
judgment 2013 supra has referred to Gitam Singh’s case reported in 2013 (136) FLR 893 (SC)
titled as Assistant Engineer Rajasthan Development Corporation and another vs. Geetam Singh
observing that before exercising its judicial discretion, the Labour Court has to keep in view 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 the delay in raising industrial
dispute before grant of relief in an industrial dispute. 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
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dispute in 1992 whereas his services have been terminated in 1986 and he 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 04 years and actually worked for 490 days as per mandays chart on
record and that the services of petitioner were disengaged in July, 1999 who worked as non skilled
worker and had raised industrial dispute by issuance of demand notice after about 12 ½ years i.e.
demand notice was given on 02.02.2012. It is also pertinent to mention here that petitioner on the
date of filing claim petition was ageing 37 years who has sufficient spell of life to work and earn
his livelihood. Taking into consideration factors mentioned above in pursuance to judgments of
Hon'ble Apex Court petitioner would not be entitled either for reinstatement or for back wages but
compensation a lump-sum would be appropriate relief in view of judgment 2013 (139) FLR 25
(SC). The judgments relied upon by ld. Authorized Representative for petitioner on the matter of
delay and laches is more or less settled law that claim of the petitioner could not be solely declined
on the ground of delay and laches. Similarly, judgment of Hon'ble Apex Court in 2014 titled as
Raghubir Singh’s case also does not come to the rescue of the petitioner as in this judgment also the
Hon'ble Apex Court has reiterated the mandate as given by the Hon'ble Apex Court in previous
judgment in the year 2013 i.e. Assistant Engineer, Rajasthan State Agriculture Marketing Board,
Sub-Division Kota and Mohan Lal’s case. Similar view was reiterated by the Hon'ble Apex Court
in judgment titled as Vice Chancellor, Lucknow University, Lucknow, Uttar Pradesh v. Akhilesh
Kumar Khare & another reported in AIR 2015 SC 3473.
21. In view of foregoing discussion, a lump-sum compensation of Rs.40,000/- (Rupees
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 and its realization. Issues no. 1, 2 and 3
are answered accordingly.
ISSUE NO.4
22. 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
23. As sequel to my findings on foregoing issues, the respondent is hereby directed to pay
the compensation of Rs. 40,000/- (Rupees 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 shall 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.
24. The reference is answered in the aforesaid terms.
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25. A copy of this Award be sent to the appropriate Government for publication in the
official gazette.
26. File, after due completion be consigned to the Record Room.
Announced in the open Court today this 9th day of November, 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. : 284/2015
Date of Institution : 13.07.2015
Date of Decision : 16.11.2016
Shri Bihari Lal s/o late Shri Dharu, through Secretary, District Committee, All India Trade
Union Congress (AITUC) c/o H.P.S.E.B. Colony Complex Salooni, District Chamba, H.P.
...Petitioner.
Versus
The Registrar, C.S.K. H.P. Krishi Vishva Vidyalaya, Palampur, District Kangra, H.P.
...Respondent.
Reference under Section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner : Sh. Rohit Dutta, Adv.
For the Respondent : Sh. Rahul Gupta, Adv.
AWARD
The reference given below has been received from the appropriate Government for
adjudication:
“Whether the action of the employer i.e. the Registrar, C.S.K. H.P. Krishi Vishva
Vidyalaya, Palampur, District Kangra, H.P. not to regularize the services of Shri Bihari lal
S/O Late Shri Dharu, through Secretary, District Committee, All India Trade Union
Congress (AITUC) C/o H.P.S.E.B Colony Complex Salooni, District Chamba, H.P. who is
working at Research Sub Station Salooni, on completion of continuous service of 8 years, as
per policy of the Himachal Pradesh Government is legal and justified? If Not, what benefits
regarding regularization, back wages, seniority, past service benefits and compensation the
above worker is entitled to from the above employer?”
2. On receipt of reference from appropriate government, notices were issued to the parties
in pursuance to which claimant/petitioner has filed statement of claim.
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3. Brief facts as stipulated in the claim petition revealed that in 1984, land comprised in
Khata/Khatauni no. 7/9 min, Khasra no. 235, total land measuring 2 bighas situated at Mohal
Aheni, Pargana Majir, P.O. & Tehsil Salooni, District Chamba, H.P. belonging to one Dharu Ram
had been acquired by CKS HP Krishi Vishva Vidalaya, Palampur, District Kangra for the purposes
of setting up Research Sub Station at District Chamba. Averments made in the claim petition
revealed that said Dharu Ram the father of claimant/petitioner had sworn an affidavit on 25.3.1996
in favour of the applicant whereby he had no objection if the employment was given to petitioner in
Research Centre Chamba his son in lieu of land purchased by the respondent/university. It is
alleged that sale deed was executed by the father of petitioner in favour of respondent when at the
time acquiring land by the respondent/department that in addition to the compensation for the land
which was to be acquired one person to from each family whose land had been acquired would be
given employment with respondent/department. It further transpires from the claim petition that
affidavits in this regard were obtained on 22.10.1984 whereby duly attested by the Naib Tehsildar
Saluni Chamba in which about 13 owners of two gram panchayats were submitted and in pursuance
to said documents a letter was issued by the Collector for providing job to one of the family
members of the land owners whose land has been acquired. It is further revealed from claim
petition that mutation of the land so acquired by the respondent/department was got attested on
12.6.1990 for which mutation no.291 was attested and was correspondingly reflected in jamabandi.
The grievance of petitioner remains that respondent/department after acquiring the land did not
adhere to its understanding and on account of employment of the claimant/petitioner on one pretext
to others and despite recurrent reminders but nothing fruitful came out. The petitioner alleges to
have get the employment in agriculture with the respondent/department and even on several
occasions he had personally visited the respondent/department but was assured that needful to be
done but action was not taken by the respondent/department qua employment of the petitioner. It is
also alleged that other villagers whose land had acquired by respondent were given employment on
adhoc basis who were now posted in various different place on regular basis. For the discriminatory
attitude of respondent, petitioner had served a legal notice through counsel requesting the
respondent to provide job as agreed by the respondent/department within 60 days from the receipt
of notice. It is alleged that on receiving legal notice, the respondent/department came into action
and issued an office order no.8-1133/94-C.S.K.H.P.K.V (Estt.)/Vol. II, dated 28.6.2002 in favour of
the petitioner engaging him as daily paid labourer for a period of only 89 days from the date
petitioner reported for duty at the Research Sub Station Saluni District Chamba. In pursuance to
issuance of above said notice, petitioner reported for duty at the Research Sub Station, Salooni and
joined the duties, thereafter petitioner had been continuously working with the respondent/
department. It is alleged that in the last 13 years petitioner has regularly worked in the respondent/
department for about 361 days in a year. The grievance of petitioner also remains that even regular
service for more than 13 years he was still not regularized by the respondent/department whereas
Balwant Singh s/o Chetro, Ms. Himani d/o Hans Raj, Jagdish s/o Shri Singh, Man Singh s/o Bhilo
and Ram Kishan s/o Jai Dyal etc. had been regularized by respondent and these workers were
engaged by the respondent on regular basis but the petitioner still continued to be a daily waged
worker and thus action of the respondent is alleged to be discriminatory in the eyes of law. It is also
alleged that respondent had allowed petitioner to work for only 89 days giving fictional break in
service so the petitioner could not complete criteria and thus action of the respondent/department is
stated to be gross violation of the agreement/understanding entered between the father of petitioner
and respondent/department. Thereafter a letter was issued by Secretary, Govt. of H.P. vide no.IPH
(A) 2 (B) dated 1.2.2003 in which it was held that according to various courts a plea of fictional
break was not recognized. It is also alleged that respondent did not take any action qua
regularization of service of petitioner. After demand notice petitioner as well as respondent/
department appeared before Labour Officer-cum-Conciliation Officer and set meetings but did not
yield fruitful benefits consequent upon the matter was forwarded to the Labour Commissioner,
Shimla. The petitioner also alleges that he was unnecessarily harassed by the respondent/
department submitting that he is the sole bread earner of the family look after and claimant/
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petitioner to be a skilled carpenter but this fact was also not taken by the respondent/department.
Accordingly, petitioner has prayed that respondent be directed to regularize the services of
petitioner with immediate effect from back date w.e.f. January, 1994 besides payment of arrears
along-with interest and litigation costs of Rs.80,000/-.
4. The respondent contested claim petition, filed reply inter-alia taken preliminary
objections of locus standi, cause action, petition being barred on account of jurisdiction. On merits
admitted that land of father of petitioner was purchased by respondent along-with 13 owners so as
to set up university research sub station at Salooni and at that time Vice Chancellor of university
had given understanding to Deputy Commissioner, Chamba that one person of each family would
be given employment in the university benefiting to their skill/educational qualification of daily
wages or regular basis depending upon the availability of posts from time to time. It is admitted that
for the first time request of Dharu Ram father of petitioner whose land had been purchased for
establishment of Research Sub Station Salooni was received for providing job to his son Bihari Lal
in the year 1994 but the same was not accompanied with requisite documents and thereafter Bihari
Lal aforestated requested the university to provide job vide his letter dated 21.3.1995. In pursuance
to said request, another letter was sent by the respondent/university calling upon the petitioner to
submit detail of right holders of the land and also affidavits of all the legal heirs of Dharu Ram on
the point of any objection for the offer of appointment given to the petitioner. It is alleged that vide
letters dated 22.5.2000 and 1.6.2000 petitioner moved request letter dated 3.6.2000 vide which he
had stated that in case any of legal heirs of the property would claim right for the employment in
the university, he would resign from the post and his such request was considered and thus engaged
as daily paid labourer at Research Sub Station Salooni vide office order dated 28.6.2002. It is also
alleged that since there were other legal heirs of Dharu Ram had not furnished no objection in
favour of the petitioner as such his case for employment could not be considered. It is also alleged
that on the basis of judgment passed in Civil Suit no.443/1996 dated 31.7.2000 of ld. Civil Judge,
Chamba in similar situated case the petitioner was also offered appointment as stated above. It is
also contended that the State Council of Agricultural, Horticultural and Forestry Education and
Research in its meeting held on 20.2.2010 decided to reduce strength of the university which matter
attained finality in which the council had approved for strength of 1403 workers working under the
university. It is also alleged that while reducing strength of category 'D' staff had approved 250
posts whereas already 927 persons working as category 'D' in the university and even still 693
persons working which is figured much higher than fixed core strength and thus category 'D' had
already been declared surplus and it was not possible to adopt H.P. Govt. policies regarding
regularization of daily paid labourers after 2009-2010 and for said reason surplus could not be
filled up for regularization. It is alleged that case of the petitioner along-with other was taken up
with H.P. Govt. during year 2007 for grant of permission to give them regular appointment in lieu
of land purchased for establishment but same was turned over. It is also maintained that working
days of petitioner right from his engagement had been reflected in the mandays chart correctly.
Accordingly, petition was sought to be dismissed.
5. The petitioner filed rejoinder, reiterated his stand as maintained in the claim petition
denied allegations of non availability of vacancies for the purposes of regularization.
6.
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, Ex. PW1/B copy of jamabandi, Ex. PW1/C
copy of application dated 26.5.1986, Ex. PW1/D copy of application dated 6.12.2008, copy of
letters, office orders and other documents Mark-A to L, Ex. PW1/E copy of mandays chart, Ex.
PW1/F copy of letter dated 28.5.2011, Ex. PW1/G copy of experience certificate and closed
evidence. On the other hand, repudiating the evidence led by the petitioner, respondent examined
Shri Manoj Kumar, Registrar, CSK HPKV Palampur as RW1, tendered/proved his affidavit Ex.
RW1/A, Ex. RW1/B copy of letter dated 17.1.2006, Ex. RW1/C copy of letter dated 10.4.2007, Ex.
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RW1/D copy of notification dated 21.5.2007, Ex. RW1/E copy of seniority list, Ex. RW1/F copy of
mandays chart, Ex. RW1/G copy of office order dated 28.6.2002, Ex. RW1/H copy of judgment
dated 31.7.2005 in Civil Suit no. 443/1996, Ex. RW1/I copy of meeting proceedings dated
20.2.2010, Ex. RW1/J copy of notification, Ex. RW1/K copy of letter dated 21.3.1995, Ex. R1 to
Ex. R3 copies of letters dated 22.5.2000, 1.6.2000 & 22.5.2000 and closed the evidence.
7. I have heard the ld. counsel for the parties, gone through records of the case carefully
relevant for disposed of this case.
8. From the contentions raised, following issues were framed on 15.12.2015 for
determination:
1.
Whether action of the employer i.e. Registrar, C.S.K. H.P. Krishi Vishva
Vidyalaya, Palampur, District Kangra, H.P. not to regularize the services of
petitioner who is working at Research Sub-Station Salooni, on completion of
continuous service of 8 years as per policy of the Himachal Pradesh Govt. is/was
improper and unjustified as alleged?
...OPP.
2.
If issue no.1 is proved in affirmative, to what service benefits the petitioner is
entitled to?
...OPP.
3. Whether petitioner has no locus standi to file the present claim as alleged? ...OPR.
4. Whether the petitioner has no cause of action to file present case as alleged?
...OPR.
5. Whether the claim petition is time barred as alleged. If so, its effect?
...OPR.
Relief.
9. For the reasons detailed here under, my findings on the above issues are as follows:—
Issue No.1 :
Yes
Issue No.2 :
Discussed
Issue No.3 :
No
Issue No.4 :
No
Issue No.5 :
No
Relief. :
Claim Petition is allowed per operative part of award.
REASONS FOR FINDINGS
ISSUES NO.1 TO 4
10. All these issues have been taken up together for discussion being interconnected
which can be disposed of simultaneously without repetition of evidence.
11. It is not in dispute that petitioner was engaged vide Ex. RW1/G dated 28.6.2002 as
DPL by respondent who joined at RSS Chamba on 2.7.2002 and remained in employment upto
January, 2016 till his retirement. It is equally admitted case of the parties that petitioner was
initially engaged for 89 days vide Ex. RW1/G but continued to work under respondent for next 14
years. It is evident from mandays chart Ex. RW1/F that from 2002 to 2014 petitioner had regularly
worked for the entire years however in year 2000 had worked for 181 days from 2.7.2002 to
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31.12.2002 and till the date of filing of petition in 2015 he worked for 230 ½ days from 1.1.2015 to
31.8.2015. The grievance of the petitioner remains that he worked for more that eight years but his
services had not been regularized rather he was appointed as DPL whereas other land owners
whose land was acquired were appointed on adhoc basis have now been regularized. Cross-
examination of Shri Manoj Kumar, RW1 the then Registrar of the revealed that petitioner had
completed eight years of service in the year 2010 and according to the policy of the respondent, the
services of petitioner was to be regularized. Be it noticed that admission of respondent on oath as
stated above clearly support the claim of petitioner qua regularization after eight years of service
and thus parties are factually not in dispute on this score.
12. Before proceeding further, it would be relevant to go through evidence which showed
the manner in which the petitioner was engaged. It is admitted case of the parties that land of one
Dharu Ram, father of petitioner was acquired by the respondent who requested vide his letter in the
year 1994 for providing job to his son, the petitioner in this case besides land of Dharu Ram
acquired by the respondent had been shown in the Ex. PW1/B. Mark-D is the affidavit of Dharu
Ram dated 25.3.1996 vide which he had requested for appointment of petitioner under respondent.
The case of the respondent contrarily remains that when petitioner had approached respondent for
employment, he was demanded details of right holders of land but the petitioner instead of
supplying the details vide letter dated 3.6.2000 intimated if any of the legal heirs of Dharu Ram
would claim right of employment in university, petitioner would resign which was considered by
the university and petitioner was engaged as DPL as stated also on the basis of judgment dated
31.7.2000 Ex. RW1/H of similar nature. The case of petitioner also remains that in 'D' category
employees were in surplus as there were 250 posts which were approved against 927 persons
already working in the university. In so far as four persons as alleged in para no.4 of the claim
petition is concerned, respondent has admitted to have engaged them on adhoc basis who have
consequently been regularized by university but petitioner was employed on daily basis as DPL
RSS Salooni as he was illiterate and had not furnished documents required by respondent
department. Significantly, respondent also admits that in 2007 case of petitioner along-with other
land owners had been sent for regularization for approval of government which was declined
probably on the ground of financial crisis. As such, respondents have put forth multiple stand for
declining petitioner in regular service.
13. Stepping into witness box as PW1, petitioner Shri Bihari Lal has sworn his affidavit
Ex. PW1/A who has maintained that he had been regularly working from 2002 and had worked for
more than 13 years under respondent. He has also deposed on oath that when his services were not
regularized after eight years as required under the rules, he served legal notice on respondent and
on receipt of legal notice, respondent instead of replying the same has engaged petitioner for 89
days as DPL which was accepted by petitioner. The grievance of petitioner remains that he has not
been regularized even after rendering service for 13 years whereas as per policy of the government
petitioner was to be regularized after eight years i.e. in the year 2010. It is also stipulated in the
affidavit that petitioner was scheduled to retire in January, 2016 but respondent had not bothered to
take any action regularizing of the petitioner. Cross-examination of the petitioner reveals that in the
year 1997-1998, he has admitted that on death of father of petitioner, he did not obtain NOC from
other legal heirs although petitioner has admitted that after his appointment no person of DPL
category was regularized by the department. At this stage, it may not be erroneous to state that
respondent had arbitrarily appointed petitioner as DPL whereas other land owners whose land was
acquired were appointed on adhoc basis. Merely because petitioner had accepted offer for being
appointment as DPL in pursuance to legal notice issued to respondent does not take way his right
engaged as adhoc basis. It remains the case of the respondent that respondent was short listed on
the basis of qualification but petitioner did not file any documents. It is relevant to mention here
that petitioner had worked for about 14 years in between but the respondent had never called upon
any explanation qua his work and conduct. Repudiating the evidence led by the petitioner,
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respondent RW1 Shri Manoj Kumar working as Registrar of the respondent has admitted in cross-
examination that from the year 1985 to 1995 petitioner had been corresponding with respondent/
department but respondent had not replied. It is further admitted case of the petitioner by deposing
in cross-examination that father of petitioner had filed affidavit who was to be offered job in
respondent/department. It may be noted that Dharu Ram own land was acquired who wanted his
son Bihari Lal to be appointed. Even respondent has admitted that legal notice dated 16.6.2002
Mark-H was issued. Thus, from admissions made by RW1 in cross-examination particularly
petitioner having completed eight years who was to be regularized not later then in the year 2010
has also admitted the respondent/department had made reference to the HP Government in 2007 for
regularizing petitioner and thus legitimate right of petitioner was declined without any plausible
reason. It is also evident from copies of letters written by petitioner that he had been in touch with
the department for quite long time in connection with his regularization but the same has not been
considered till his retirement in January, 2016.
14. Ld. counsel for petitioner has relied on judgment dated 31.7.2000 titled as Mulakh Raj
vs. Sate of H.P. & Ors. which is Ex. RW1/H having similar facts but did not involve petitioner's
claim. It is evident from the findings on the records judgment referred to above that similar
controversy was resolved by ld. Civil Judge, Chamba who directed the respondent vide mandatory
injunction to engage legal heirs of the deceased whereby respondents were directed to provide job
to one member of the family of petitioner as daily paid labourer (DPL) according to undertaking
given as per letter Ex. P1. This letter further shows that Civil Suit no.443/1996 was decreed in
favour plaintiff Mulkh Raj and one of the member of family whose land had been acquired to be
appointed as daily paid labourer and it seems that after the judgment, petitioner was granted
employment as daily paid labourer and not on adhoc basis. Although, this judgment did not directly
applying to petitioner's case but had similar controversy and on the basis of findings of the
judgment the respondent decided to appoint petitioner in service as daily paid labourer. Letter
Mark-A on record shows correspondence between the Vice Chancellor of H.P. Krishi Vishva
Vidayalaya, Palampur with the Deputy Commissioner, Kangra in which it was specifically
mentioned that one person physically fit of from each family would be employed as daily paid
labourer. If any one of them possesses educational qualification which fits in requisite qualification
for various posts, then they would be considered for regular employment. There was reference of
13 land owners whose land was acquired for RSS Salooni Chamba. The land in question nowhere
shows that who out of land owners would be appointed as daily paid labourer on regular basis but
certainly there was no stipulation of engagement on adhoc basis. In any case, there was no
justification for engaging the petitioner as daily paid labourer who could also be appointed as adhoc
basis as Balwant Singh, Himani, Jagdish, Mansingh and Ram Krishan were appointed. It has been
emphasized by the ld. counsel for respondent that petitioner was time and again asked to furnish
record of right holders in the land but this aspect ceases to have in significance as the father of the
petitioner during his life time has sworn his affidavit requesting the respondent to engage the
petitioner his son, in job. In view of foregoing discussions, the petitioner had right of being
regularized in service after rendering continuous service of eight years as per policy of H.P. Govt.
which was also applicable in case of petitioner. It is also evident from evidence on record that
respondent had not regularized the services of petitioner who had retired in January, 2016 after
rendering 14 years of service. It is admittedly not the case of the respondent that conduct of
petitioner was not satisfactory but said petitioner continued to work with the respondent for about
14 years although he was initially appointed for 89 days in year 2002. From the admission made by
RW1 and averments made in the reply to the petition clearly suggest that even the respondent/
department had been vigorously pursuing case of service of 13 land owners including petitioner for
being regularized but the government has declined the same as has specifically been alleged in
reply of respondent. As such, the petitioner is entitled for regularization after completion of eight
years of service from his initial date of joining in service in 02.7.2002. Accordingly, issue no.1 is
answered in affirmative whereas issues no. 3 and 4 are decided in negative and in favour of
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petitioner and against the respondent. As far as plea of petitioner that he has entitled for back wages
is concerned this has to be denied in view of the fact that petitioner has been paid wages for entire
period he worked as DPL till his retirement. However, on his completion of eight years of service
in the year 2010, he would be regularized and thereafter his scale would be re-fixed and consequent
increment which would fall in his favour revised wages may be calculated which he would entitled.
At this stage, there is no question of back wages as entire wages had been paid and wages of
revised scale could be paid only when petitioner is regularized and new scales for petitioner are
calculated as such petitioner at the movement not entitled for back wages as stated above. For the
aforestated reason issue no.2 is decided as discussed above.
ISSUE NO.5
15. It is settled preposition of law that in case a dispute is referred to for determination, the
Court will have to return a finding on merits and the delay in raising the dispute may be considered
by the Court at the time of granting the final relief, as has been held by our own Hon'ble High
Court in Bhatag Ram's case (2007 LHLJ 903). In Divisional Manager, HPFC & another vs. Garibu
Ram, Latest HLJ 2007 (HP) 1160, the delay of more than 10 years was held to have not come in the
way of the workman whose services were illegally terminated by holding that the provisions of
Limitation Act is not applicable to industrial dispute but however, depending upon the facts and
circumstances of each case, the principle of delay and laches have to be seen and applied. In Deepa
Ram vs. State of H.P. and Ors., 2005 (1) Himachal Law Journal 248, there was a delay of 12 years.
In Ramesh Chand vs. Union of India, CWP No. 812 of 2000, there was a delay of 9 years. In CWP
No. 95 of 2000 titled as Divisional Manager vs. Mohinder Kumar, there was a delay of 14 years. In
Naginder Kumar vs. HPSEB and anr. 2008 (1) SLJ (H.P.) 425, it has been held by the Hon'ble High
Court of H.P. that the Labour Court cannot dismiss the claim on the ground of delay and laches
once the same has been referred by the State Government and the Labour Court is bound to decide
the reference which was made by the State Government and same is required to be adjudicated
upon the merits without touching the aspect of delay and laches. The Hon'ble Apex Court in the
Bombay Gas Co. Ltd. vs. Gopal Bhiva & Ors, AIR 1964 SC 752, has categorically held that as
such of all those employees, who are entitled to take the benefit of Section 33-C (2) may not always
be conscious of their rights and it may not be right to put the restriction of limitation in respect of
claim which they may have to make under the provision and in absence of any provision for
limitation, it may not be open to the Court to introduce the limitation on the ground of fairness and
justice. In Ajayab Singh vs. Sirhind Co-operative Marketing-cum-Processing Society Limited and
Another, (1999) 6 SCC 82, it has been observed by the Hon ble Supreme Court that:
“The provisions of Article 137 of Limitation Act, 1963 are not applicable to the proceeding
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”.
16. No material has been placed on record by the respondents to establish that there was
inordinate delay on the part of the petitioner in raising the dispute in the instant case or that any
prejudice had been caused to respondent rather petitioner has promptly approached to settle his
grievance as he raised industrial dispute during his service before retirement and reference of
appropriate government was received in July, 2015. It has come in the evidence that petitioner was
continuously corresponding with university for regularization. Thus, there was no delay and laches
on part of petitioner. Accordingly, the petition as filed by the petitioner cannot be held to be hit by
the vice of delays and laches as alleged by the respondent. Hence, this issue is answered in negative
in favour of petitioner against the respondent.
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RELIEF
17. As sequel to my findings on foregoing issues, respondent is hereby directed to
regularize the service of petitioner forthwith on completion of continuous service of eight years
from date of initial appointment i.e. 02/7/2002 as per the policy of the government of Himachal
Pradesh and that the conduct of respondent in not regularizing service of petitioner from such a
long time as stated above is improper and unjustified. Accordingly, petitioner is hereby directed to
regularize service of petitioner from the date of completion of more than eight years of service as
stated above with all consequential benefits except back wages which is to be calculated after
regularization in service and after fixation of scales. The parties, however, shall bear their own
costs.
18. The reference is answered in the aforesaid terms.
19. A copy of this Award be sent to the appropriate Government for publication in the
official gazette.
20. File, after due completion be consigned to the Record Room.
Announced in the open Court today this 16th day of November, 2016.
(K.K. SHARMA),
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA, H.P.
Ref: No. : 233/2014
Sh. Gorkh Singh s/o Sh. Dina Nath, Village Ujhan, P.O. Didwin, Tehsil Barsar, Distt.
Hamirpur, H.P.
...Petitioner.
Versus
1. The Registrar Dr.Y.S. Parmar University Horticulture & Forestry Nauni, Distt. Solan,
H.P.
2. The Director, Regional Horticulture and Forestry Research Station Bhota, Distt.
Hamirpur, H.P.
...Respondents.
21-11-2016 Present : Sh. S.S.Sippy, A.R. for the petitioner.
Sh. Karan Pathania, adv. csl. for the respondents.
Heard.
Authorised representative for the petitioner has made statement for withdrawal of
claim petition pending before this Court due to incorrect date of termination mentioned in the claim
petition. He has specifically stated that he wants to agitate again before the Competent Authority
with liberty to file fresh claim. Admitting statement of petitioner as stated above ld. csl. for the
respondent vide separate statement raised no objection if prayer of the petitioner is allowed and
7844
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petition is allowed to be withdrawn. Statements recorded and placed on file. In view of the
statements so made by the parties as stated above, the claim petition/reference no.233/14 is hereby
dismissed as withdrawn with liberty to file afresh claim before the competent authority.
2. Ordered accordingly. The parties to bear their own costs.
3. The reference is answered in the aforesaid terms.
4. A copy of the Order/Award be sent to the appropriate Government for information and
further necessary action at its end.
5. The file, after completion be consigned to the records.
Announced:
21-11.2016
(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, H.P.
Ref: No. : 233/2014
Sh. Gorkh Singh s/o Sh. Dina Nath, Village Ujhan, P.O. Didwin, Tehsil Barsar, Distt.
Hamirpur, H.P.
...Petitioner.
Versus
1. The Registrar Dr.Y.S. Parmar University Horticulture & Forestry Nauni, Distt. Solan,
H.P.
2. The Director, Regional Horticulture and Forestry Research Station Bhota, Distt.
Hamirpur, H.P.
...Respondents.
21-11-2016
Present : Sh. S.S.Sippy, A.R. for the petitioner.
Sh. Karan Pathania, adv. csl. for the respondents.
Heard.
Authorised representative for the petitioner has made statement for withdrawal of
claim petition pending before this Court due to incorrect date of termination mentioned in the claim
petition. He has specifically stated that he wants to agitate again before the Competent Authority
with liberty to file fresh claim. Admitting statement of petitioner as stated above ld. csl. for the
respondent vide separate statement raised no objection if prayer of the petitioner is allowed and
petition is allowed to be withdrawn. Statements recorded and placed on file. In view of the
statements so made by the parties as stated above, the claim petition/reference no.233/14 is hereby
dismissed as withdrawn with liberty to file afresh claim before the competent authority.
2. Ordered accordingly. The parties to bear their own costs.
7845
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3. The reference is answered in the aforesaid terms.
4.
A copy of the Order/Award be sent to the appropriate Government for information
and further necessary action at its end.
5. The file, after completion be consigned to the records.
Announced:
21-11.2016
(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. : 402/2015
Date of Institution : 10.09.2015
Date of Decision : 28.11.2016
Shri Roshan Lal s/o Shri Gurdev, r/o Village Thandal, P.O. Purthi, Tehsil Pangi, District
Chamba, H.P.
...Petitioner.
Versus
Executive Engineer, I&PH/HPPWD Division, Killar, Tehsil Pangi, District Chamba, H.P.
...Respondent.
Reference under Section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner : Sh. I.S. Jaryal, AR
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 Roshan Lal S/O Shri Gurdev, R/O
Village Thandal, Post Office Purthi, Tehsil Pangi, District Chamba, H.P. before the
Executive Engineer, I&PH/HPPWD Division, Killar, Tehsil Pangi, District Chamba, H.P.
vide demand notice dated nil-received on 07.05.2012 regarding his alleged illegal
termination of service during September, 2004 suffers from delay and latches? If not,
Whether termination of the services of Shri Roshan Lal S/O Shri Gurdev, R/O Village
Thandal, Post Office Purthi, Tehsil Pangi, District Chamba, H.P. by the Executive Engineer,
I&PH/HPPWD Division, Killar, Tehsil Pangi, District Chamba, H.P. during September,
2004 without complying the provisions of the Industrial Disputes Act, 1947, is legal and
justified? If not, what amount of back wages, seniority, past service benefits and
compensation the above aggrieved workman is entitled to from the above employer?”
7846
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2. On receipt of reference from appropriate government, notices were issued to the parties
in pursuance to which claimant/petitioner has filed statement of claim.
3. Brief facts leading to institution of the present claim petition by the petitioner above
named reveal that he had been initially engaged as daily waged beldar on muster roll basis in the
month of May, 1990 who continuously worked till September, 2004 with the respondent/
department. Averments made in the petition further revealed that petitioner had worked for 160
days in each calendar year as prescribed for tribal area of Pangi Tehsil District Chamba and became
eligible for continuous service envisaged under statutory provisions of Section 25-B of the
Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act' for brevity). Averments made in
the petition revealed that the services of petitioner had interrupted by way of intermittent/artificial
breaks given by the respondent/department deliberately and as such breaks are required to be
counted as continuous services for the purposes of calculation of 160 days so as for the
applicability of Section 25-B of the Act. The grievance of petitioner remains that respondent/
department had terminated/disengaged petitioner from daily wage service in the end of September,
2004 by an oral order without any reason whereas several other co-workers who were junior to
petitioner had been retained on muster roll and thus the action of respondent/department was stated
to be unjustified and malafide. It is alleged that seniority list of daily wage workers working under
the respondent had not been circulated till termination/retrenchment of the petitioner and while
retrenching the services of petitioner, even principle of 'Last come First go' had not been followed
by the department/respondent. The petitioner has named 27 persons who were junior to petitioner
and joined service from 1st August, 1997 to 1st September, 2007. In the end of month of
September, 2004 when the services of petitioner were terminated by way of oral order, he was not
served with one month notice of retrenchment and at the same time one month's wages in lieu of
notice period had also not been paid to him and for said reason termination of the services of
petitioner was prima facie illegal and unwarranted. 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
September, 2004 till the date of institution of present claim petition who had been nowhere
gainfully employed and was thus entitled for full back wages. Accordingly alleging respondent to
have committed violation of statutory provision of Section 25-F, Section 25-G and Section 25-H of
the Industrial Disputes Act, 1947 and Article 14 and 16 of Constitution of India, the petitioner
prays for setting aside oral order of termination/retrenchment by the respondent in the month of
September, 2004. He further prayed for reinstatement in service w.e.f. month of September, 2004
along-with back wages, seniority including continuity in service as petitioner has remained
unemployed since the date of his illegal termination. The petitioner has also prayed that period of
intermittent/fictional breaks given time and again during entire service of petitioner between 1990
to September, 2004 be counted 160 days continuous service and regularization of the service of
petitioner w.e.f. 01.01.2000 having completed 10 years of service and per the policy of HP Govt. in
pursuance to judgment of Hon'ble Apex Court titled as Mool Raj Upadhayay vs. State of H.P. and
to any other relief petitioner is entitled.
4. The respondent contested claim petition, filed reply inter-alia taken preliminary
objections of maintainability, claim petition being bad on account of delay and laches. On merits
denied that petitioner had worked for more than 160 days in each calendar year rather clarified by
stating that petitioner was engaged as daily waged beldar in 1992 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. Allegations of fictional breaks given by respondent to the petitioner have been
7847
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denied. In so far as engagement of persons junior to petitioner mentioned at serial nos. 1 to 25 in
para no. 4 of the claim petition were appointed as per order of Labour Court and at serial nos. 26 &
27 as harness case. 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.7 are stated to have engaged as
per direction of the Labour Court-cum-Industrial Tribunal Dharamshala as harness case. It is also
contended that if petitioner had been terminated in 2004 he would have definitely raised industrial
dispute immediately and that after ten 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 termination. It is contended that petitioner was agriculturist and gainfully
employed and was thus not entitled for back wages.
5. The petitioner filed rejoinder, reiterated 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.
6. 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, Ex. PW1/B to PW1/L mandays charts of
junior workers and closed evidence. On the other hand, repudiating the evidence led by the
petitioner, respondent examined RW1 Shri D.R. Chauhan, the then Executive Engineer, HPPWD
Division Killar as RW1 tendered/proved mandays chart of petitioner Ex. RW1/B, mandays chart of
other co-workers Ex. RW1/C, Ex. RW1/D1 to Ex. RW1/D21 copy of orders/awards and closed the
evidence.
7. I have heard the ld. Authorized Representative of petitioner and ld. Dy. D.A.
representing respondent, gone through records of the case carefully relevant for disposed of this
case.
8. From the contentions raised, following issues were framed on 17.12.2015 for
determination :
1.
Whether the industrial dispute raised by petitioner vide demand notice dated nil
qua his termination of service during September, 2004 by respondent suffers from
vice of delay and laches as alleged? If so, its effect?
...OPP.
2.
Whether termination of the services of petitioner by the respondent during
September, 2004 is/was illegal and unjustified as alleged?
...OPP.
7.
If issue no.1 or issue no. 2 or both are proved in affirmative, to what service
benefits the petitioner is entitled to?
...OPP.
8.
Whether the claim petition is not maintainable in the present form as alleged?
...OPR.
Relief.
9. For the reasons detailed here under, my findings on the above issues are as follows:—
Issue No.1 :
Yes
Issue No.2 :
Yes
7848
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Issue No.3 :
Discussed
Issue No.4 :
No
Relief. :
Petition is partly allowed awarding compensation Rs.1,75,000/- per
operative part of award.
REASONS FOR FINDINGS
ISSUES NO.1, 2 AND 3
10. All these issues have been taken up together for discussion being interconnected which
can be disposed of simultaneously without repetition of evidence.
11. Relationship of petitioner having been engaged as daily waged beldar by respondent on
muster roll basis in the year 1992 who continuously worked till 2004 with the respondent/
department 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 1992 to September, 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 September, 2004 by oral order had
engaged several co-workers who were junior to petitioner were retained in service. Not only this,
the persons who were junior to petitioner are stated to have been regularized in service and thus
respondent had not followed the mandate of Sections 25-G and 25-H of the Act which was
obligatory on its part. The case of petitioner also remains that he had served respondent with due
diligence and had spotless service record as 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 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
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admitted that no departmental inquiry was initiated against petitioner even after September, 2004.
No reason whatsoever has been assigned for such any action or omission on the part of respondent
in not initiating any departmental proceedings or making correspondence calling upon the
petitioner to join service. This prima facie belies the stand taken by the respondent as abandonment
has to be proved like any other fact in issue. The petitioner, on the other hand, as PW1 in cross-
examination has specifically denied that he used to leave the job in between and attended the work
intermittently rather he has claimed that intermittent 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.
14. A bare glance on the mandays chart Ex. RW1/B would reveal that petitioner had
worked for 161 days in the year 1992, 173 days in 1993, 120 days in 1994, 171 days in 1995, 204
days in 1996, 169 days in 1997, 130 days in 1998, 152 days in 1999, 122 days in 2000, 42 days in
2001, 62 days in 2002, 116 days in 2003 and 99 days in 2004 and thus a total of his service in 1992
to 2004 in 13 years he had worked for 1721 days in his entire service period. Be it noticed that
except the years 1994 and 1998 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 Ex. RW1/B
the mandays chart showing that petitioner to have worked for 107 days only in preceding 12
calendar months from termination and thus had not rendered service of 160 days required to
establish 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. Authorized Representative for petitioner has contended with vehemence that large
number of workers who were junior to petitioner had been appointed from 01.8.1997 to 07.9.1999
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. PW1/B, Ex.
PW1/C, Ex. PW1/D are the year-wise mandays of daily waged workers who were junior to the
petitioner and had joined in the year 1995 or thereafter whereas Ex. PW1/E to Ex. PW1/L are the
mandays chart of other co-workers. All of these co-workers shown in Ex. PW1/C the year-wise
mandays details of workers of Division HPPWD Killar were certainly junior to petitioner who were
given sufficient work existing in those years more than 200 days in a year whereas the petitioner
had been not given muster roll for the whole month. Ex. RW1/C also established that all the co-
workers shown in this document have worked for more than 160 days in most of the years although
they were junior to petitioner. Evidently, there is no iota of evidence of respondent establishing that
petitioner was called upon to join for service at any time after September, 2004 even at the time
when junior persons were reengaged. That being so the respondent had certainly violated the
provisions of Section 25-G of the Act as the juniors workers mentioned in para no.3 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.
Authorized Representative for petitioner has placed reliance upon judgment of Central Bank of
India vs. S. Satyam, 1996 (5) SCC 419 in which Hon'ble Apex Court has held that for the
applicability of Section 25-G and 25-H of the Act, there was no necessity of claimant/petitioner to
have worked for 240 days as in case of provisions of Section 25-F of the Act.
16. Repudiating claim of petitioner, the respondent, on the other hand, has made futile
attempt to justify engagement of junior workers and their retention in service on the basis of orders
7850
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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/D21. 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/D21 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. Authorized Representative for petitioner has contended that after petitioner's
termination in September, 2004, he had remained unemployed and was not earning anything
thereafter as such was entitled for full back wages. Repudiating the arguments of ld. Authorized
Representative of petitioner, ld. Dy. D.A. for the State has taken this court through cross-
examination of the petitioner who has admitted that 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 petitioner relief claimed for by him. On the other hand, ld.
Authorized Representative for the petitioner has relied upon the judgment of Hon'ble Apex Court
titled Raghubir Singh vs. General Manager, Haryana Roadways, Hissar reported in 2014 Lab IC
4266 (SC) and the relevant paras of the judgment are produced below for reference:
“12. Therefore, in our considered view, the observations made by this Court in the
Rajasthan State Agriculture Marketing Board case (supra) upon which the learned
Additional Advocate General for the State of Haryana has placed reliance cannot be applied
to the fact situation of the case on hand, for the reason that the Labour Court has
erroneously rejected the reference without judiciously considering all the relevant factors of
the case particularly the points of dispute referred to it and answered the 2nd issue regarding
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the reference being barred by limitation but not on the merits of the case. The said decision
has no application to the fact situation and also for the reason the catena of decisions of this
Court referred to supra, wherein this Court has categorically held that the provisions of
Limitation Act under Article 137 has no application to make reference by the appropriate
government to the Labour Court/Industrial Tribunal for adjudication of existing industrial
dispute between workmen and the employer.
13. In the case on hand, no doubt there is a delay in raising the dispute by the appellant; the
Labour Court nevertheless has the power to mould the relief accordingly. At the time of
adjudication, if the dispute referred to the Labour Court is not adjudicated by it, it does not
mean that the dispute ceases to exist. The appropriate government in exercise of its statutory
power under Section 10(1)(c) of the Act can refer the industrial dispute, between the parties,
at any time, to either the jurisdictional Labour Court/Industrial Tribunal as interpreted by
this Court in the Avon Services case referred to supra. Therefore, the State Government has
rightly exercised its power under Section 10(1)(c) of the Act and referred the points of
dispute to the Labour Court as the same are in accordance with the law laid down by this
Court in Avon Services & Sapan Kumar Pandit cases referred to supra.
14. Further, the workman cannot be denied to seek relief only on the ground of delay in
raising the dispute as held in the case of S.M. Nilajkar & Ors. v. Telecom District Manager,
Karnataka[4] it was held by this Court as follows-
“17. It was submitted on behalf of the respondent that on account of delay in raising the
dispute by the appellants the High Court was justified in denying relief to the appellants.
We cannot agree...... In Ratan Chandra Sammanta and Ors. v. Union of India and Ors.
(supra)1993 AIR SCW 2214, it was held that a casual labourer retrenched by the employer
deprives himself of remedy available in law by delay itself, lapse of time results in losing
the remedy and the right as well. The delay would certainly be fatal if it has resulted in
material evidence relevant to adjudication being lost and rendered not available. However,
we do not think that the delay in the case at hand has been so culpable as to disentitle the
appellants for any relief.....” (Emphasis laid by the Court) In view of the legal principles laid
down by this Court in the above judgment, the reference of the industrial dispute made in
the case on hand by the State Government to the Labour Court to adjudicate the existing
industrial dispute between the parties was made within a reasonable time, considering the
circumstances in which the workman was placed, firstly, as there was a criminal case
pending against 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.
15. In the case of Ajaib Singh v. The Sirhind Co-Operative Marketing Cum- Processing
Service Society Limited & Anr.[5] this Court has opined that relief cannot be denied to the
workman merely on the ground of delay, stating that:—
“10. It follows, therefore, that the provisions of Article 137 of the Schedule to Limitation
Act, 1963 are not applicable to the proceedings under the act and that the relief under it
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
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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 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. counsel 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.
Authorized Representative for petitioner, ld. Dy. D.A. has placed reliance upon the judgment of
Hon ble Apex Court titled as Assistant Engineer, Rajasthan State Agriculture Marketing Board,
Sub-Division Kota and Mohan Lal [2013 (139) FLR 125], the relevant para of the judgment are
produced below for reference:
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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 his 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. His services terminated on 18.2.1986. Industrial dispute raised after 6 years of
termination. Admitted delay of 6 years not kept in view by the Labour Court-Judicial
discretion exercised by the Labour Court flawed and unsustainable. Reinstatement of the
workman not the appropriate relief. In lieu of reinstatement compensation of Rs. one lac
directed to be paid to the workman by the appellant-employer within six weeks failing
which interest @ workman 9% p.a. will be payable.
[Paras 21 and 22]
Limitation Act, 1963. Section 5-Industrial Disputes Act, 1947- Section 25-F-Termination of
service-Industrial dispute raised after six years-Limitation Act not applicable to reference
made under the I.D. Act-Delay in raising industrial disputes definitely an important
circumstances which the Labour Court must keep in view before granting relief”.
I have gone through the rival contention of the ld. Authorized Representative as well as ld.
Dy. D.A. for State. Keeping in view the mandate of Hon'ble Apex Court in various judgments
referred to above it is held that delay in raising industrial dispute is definitely an important
circumstance and court has to keep in mind while exercising discretion. In para nos. 20 and 21 of
judgment 2013 supra has referred to Gitam Singh’s case reported in 2013 (136) FLR 893 (SC)
titled as Assistant Engineer Rajasthan Development Corporation and another vs. Geetam Singh
observing that before exercising its judicial discretion, the Labour Court has to keep in view 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 the delay in raising industrial
dispute before grant of relief in an industrial dispute. 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 his services have been terminated in 1986 and he 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 13 years and actually worked for 1721 days as per mandays chart
on record and that the services of petitioner were disengaged in September, 2004 who worked as
non skilled worker and had raised industrial dispute by issuance of demand notice after about eight
years i.e. demand notice was given on dated nil. It is also pertinent to mention here that petitioner
on the date of filing claim petition was ageing 48 years who has sufficient spell of life to work and
earn his livelihood. Taking into consideration factors mentioned above in pursuance to judgments
of Hon'ble Apex Court petitioner would not be entitled either for reinstatement or for back wages
but compensation a lump-sum would be appropriate relief in view of judgment 2013 (139) FLR 25
(SC). The judgments relied upon by ld. Authorized Representative for petitioner on the matter of
delay and laches is more or less settled law that claim of the petitioner could not be solely declined
on the ground of delay and laches. Similarly, judgment of Hon'ble Apex Court in 2014 titled as
Raghubir Singh’s case also does not come to the rescue of the petitioner as in this judgment also the
Hon'ble Apex Court has reiterated the mandate as given by the Hon'ble Apex Court in previous
judgment in the year 2013 i.e. Assistant Engineer, Rajasthan State Agriculture Marketing Board,
Sub-Division Kota and Mohan Lal’s case. Similar view was reiterated by the Hon'ble Apex Court
in judgment titled as Vice Chancellor, Lucknow University, Lucknow, Uttar Pradesh v. Akhilesh
Kumar Khare & another reported in AIR 2015 SC 3473.
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21. In view of foregoing discussion, a lump-sum compensation of Rs.1,75,000/- (Rupees
one lakh seventy five 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 and its realization.
Issues no. 1, 2 and 3 are answered accordingly.
ISSUE NO.4
22. 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
23. As sequel to my findings on foregoing issues, the respondent is hereby directed to pay
the compensation of Rs.1,75,000/- (Rupees one lakh seventy five 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 shall 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.
24. The reference is answered in the aforesaid terms.
25. A copy of this Award be sent to the appropriate Government for publication in the
official gazette.
26. File, after due completion be consigned to the Record Room.
Announced in the open Court today this 28th day of November, 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. : 459/2015
Date of Institution : 29.10.2015
Date of Decision : 28.11.2016
Ms. Souni Devi d/o late Shri Bheem Sain, r/o Village V.P.O. Sahali, Tehsil Pangi, District
Chamba, H.P.
...Petitioner.
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Versus
Executive Engineer, Killar Division, H.P.P.W.D. Killar, (Pangi), District Chamba, H.P.
...Respondent.
Reference under Section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner : Sh. I.S. Jaryal, AR
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 Ms. Souni Devi D/O Late Shri Bheem
Sain, R/O V.P.O. Sahali, Tehsil Pangi, District Chamba, H.P. before the Executive
Engineer, Killar Division, H.P.P.W.D. Killar, (Pangi) District Chamba, H.P. vide demand
notice dated 23.7.2008 regarding her alleged illegal termination of service during October,
2001 suffers from delay and latches? If not, Whether termination of the services of Ms.
Souni Devi D/O Late Shri Bheem Sain, R/O V.P.O. Sahali, Tehsil Pangi, District Chamba,
H.P. by the Executive Engineer, Killar Division, H.P.P.W.D. Killar, (Pangi) District
Chamba, H.P. during October, 2001 without complying the provisions of the Industrial
Disputes Act, 1947, is legal and justified? If not, what amount of back wages, seniority, past
service benefits and compensation the above aggrieved workman is entitled to from the
above employer?”
2. On receipt of reference from appropriate government, notices were issued to the parties
in pursuance to which claimant/petitioner has filed statement of claim.
3. Brief facts leading to institution of the present claim petition by the petitioner above
named reveal that she had been initially engaged as daily waged beldar on muster roll basis in the
year 1994 who continuously worked till October, 2001 with the respondent/department. Averments
made in the petition further revealed that petitioner had worked for 160 days in each calendar year
as prescribed for tribal area of Pangi Tehsil District Chamba and became eligible for continuous
service envisaged under statutory provisions of Section 25-B of the Industrial Disputes Act, 1947
(hereinafter referred to as 'the Act' for brevity). Averments made in the petition revealed that the
services of petitioner had interrupted by way of intermittent/artificial breaks given by the
respondent/department deliberately and as such breaks are required to be counted as continuous
services for the purposes of calculation of 160 days so as for the applicability of Section 25-B of
the Act. The grievance of petitioner remains that respondent/department had terminated/disengaged
petitioner from daily wage service in the end of October, 2001 by an oral order without any reason
whereas several other co-workers who were junior to petitioner had been retained on muster roll
and thus the action of respondent/department was stated to be unjustified and malafide. It is alleged
that seniority list of daily wage workers working under the respondent had not been circulated till
termination/retrenchment of the petitioner and while retrenching the services of petitioner, even
principle of 'Last come First go' had not been followed by the department/respondent. The
petitioner has named 28 persons who were junior to petitioner and joined service from 1st August,
1997 to 1st September, 2007. In the end of month of October, 2001 when the services of petitioner
were terminated by way of oral order, she was not served with one month notice of retrenchment
and at the same time one month's wages in lieu of notice period had also not been paid to her and
for said reason termination of the services of petitioner was prima facie illegal and unwarranted.
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The claimant/petitioner claimed that she had spotless service record who never been charge-sheeted
for any act of indiscipline or negligence or her conduct and even at the time of verbal termination,
no charge-sheet had been served upon her and the at the same time, no opportunity of hearing had
been afforded to her. The petitioner also alleges that she has remained unemployed ever since her
illegal termination from month of October, 2001 till the date of institution of present claim petition
who had been nowhere gainfully employed and was thus entitled for full back wages. Accordingly
alleging respondent to have committed violation of statutory provision of Section 25-F, Section 25-
G and Section 25-H of the Industrial Disputes Act, 1947 and Article 14 and 16 of Constitution of
India, the petitioner prays for setting aside oral order of termination/retrenchment by the respondent
in the month of October, 2001. She further prayed for reinstatement in service w.e.f. month of
October, 2001 along-with back wages, seniority including continuity in service as petitioner has
remained unemployed since the date of her illegal termination. The petitioner has also prayed that
period of intermittent/fictional breaks given time and again during entire service of petitioner
between September, 1994 to October, 2001 be counted 160 days continuous service and
regularization of the service of petitioner w.e.f. 01.01.2003 having completed 8 years of service and
per the policy of HP Govt. in pursuance to judgment of Hon'ble Apex Court titled as Rakesh
Kumar vs. State of H.P. and to any other relief petitioner is entitled.
4. The respondent contested claim petition, filed reply inter-alia taken preliminary
objections of maintainability, claim petition being bad on account of delay and laches. On merits
denied that petitioner had worked for more than 160 days in each calendar year rather clarified by
stating that petitioner was engaged as daily waged beldar in 1994 who remained engaged till 2001
but had worked intermittently as petitioner used to come and attend the work at her own sweet will
and convenience. Relying upon the mandays chart, it has been categorically pleaded by the
respondent that petitioner had not completed 160 days in each calendar year as required for tribal
area of Pangi Tehsil. Allegations of fictional breaks given by respondent to the petitioner have been
denied. In so far as engagement of persons junior to petitioner mentioned at serial nos. 1 to 25 in
para no. 4 of the claim petition were appointed as per order of Labour Court and at serial nos. 26 &
27 as harness case. On the plea of termination of service of petitioner, respondent specifically
alleges that petitioner had left the job at her own will therefore serving of notice or pay in lieu
thereof was not required. Reiterating its stand respondent has maintained that petitioner had left the
work of her own sweet will and the persons mentioned in para no.4 are stated to have engaged as
per direction of the Labour Court-cum-Industrial Tribunal Dharamshala as harness case. It is also
contended that if petitioner had been terminated in 2001 she would have definitely raised industrial
dispute immediately and that after seven years petitioner is stated to be agitating the matter which is
bad on account of delay and laches. It is also contended that since the services of petitioner had not
been terminated by the respondent, question of issuance of notice or wages in lieu thereof did not
arise and at the same time, there was no necessity for charge-sheet or issuing any notice of
petitioner after her termination. It is contended that petitioner was agriculturist and gainfully
employed and was thus not entitled for back wages.
5. The petitioner filed rejoinder, reiterated her stand as maintained in the claim petition.
Further asserted that provisions of Limitation Act did not eclipse the claim of petitioner in totality
besides allegation of violation of principle of 'Last come First go' was specifically denied.
6. In order to prove her case, petitioner had examined herself as PW1 tendered/proved her
affidavit Ex. PW1/A under Order 18 Rule 4 CPC, Ex. PW1/B to PW1/L mandays charts of junior
workers and closed evidence. On the other hand, repudiating the evidence led by the petitioner,
respondent examined RW1 Shri D.R. Chauhan, the then Executive Engineer, HPPWD Division
Killar as RW1 tendered/proved mandays chart of petitioner Ex. RW1/B, mandays chart of other co-
workers Ex. RW1/C, Ex. RW1/D1 to Ex. RW1/D21 copy of orders/awards and closed the
evidence.
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7. I have heard the ld. Authorized Representative of petitioner and ld. Dy. D.A.
representing respondent, gone through records of the case carefully relevant for disposed of this
case.
8. From the contentions raised, following issues were framed on 18.5.2016 for
determination which are as under :
1.
Whether the industrial dispute raised by petitioner vide demand notice dated
23.07.2008 qua her termination of service during October, 2001 by respondent
suffers from the vice of delay and laches as alleged? If so, its effect?
...OPP.
2.
Whether termination of the services of petitioner by the respondent w.e.f.
October, 2001 is/was illegal and unjustified as alleged?
...OPP.
3.
If issue no.2 is proved in affirmative, to what service benefits the petitioner is
entitled to?
...OPP.
4. Whether the claim petition is not maintainable in the present form as alleged?
... OPR.
Relief.
9. For the reasons detailed here under, my findings on the above issues are as follows:—
Issue No.1 :
Yes
Issue No.2 :
Yes
Issue No.3 :
Discussed
Issue No.4 :
No
Relief. :
Petition is partly allowed awarding compensation Rs.1,00,000/- per
operative part of award.
REASONS FOR FINDINGS
ISSUES NO.1, 2 AND 3
10. All these issues have been taken up together for discussion being interconnected which
can be disposed of simultaneously without repetition of evidence.
11. Relationship of petitioner having been engaged as daily waged beldar by respondent
on muster roll basis in the 1994 who continuously worked till 2001 at HPPWD Sub Division Killar
is not in dispute. Admittedly, petitioner was engaged without any written order or settlement of
terms and conditions by the respondent. It is equally not in dispute that no written order was passed
while terminating service of the petitioner as claim of respondent remains that it had not retrenched
petitioner from service who had abandoned the job of her own and used to work intermittently as
per her own wish and convenience. Admittedly, the reference of appropriate govt. does not relate to
plea of fictional breaks but only with regard to petitioner's termination from service. In the
backdrop of foregoing admitted facts on record, claim of petitioner requires to be adjudicated with
a view to determine if petitioner is entitled for relief of reinstatement and back wages along-with
seniority and past service benefits and compensation as claimed by him.
12. Stepping into witness box as PW1 has sworn in affidavit Ex. PW1/A reiterating and
reaffirming her pleadings as stipulated in claim petition. In her affidavit she has claimed to have
worked with the respondent/department for more than 160 days in Pangi Sub Division Chamba
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District and remained engaged from 1994 to October, 2001. She has also stated on oath that no
notice under Section 25-F of the Act was given by the respondent before terminating her service
and at the same time no compensation in lieu thereof notice period was paid to her and thus her
termination was illegal and void entitling petitioner benefit of reinstatement of service with full
back wages and all the other consequential service benefits. The petitioner has further alleged on
oath that respondent/department after terminating her services in October, 2001 by oral order had
engaged several co-workers who were junior to petitioner were retained in service. Not only this,
the persons who were junior to petitioner are stated to have been regularized in service and thus
respondent had not followed the mandate of Sections 25-G and 25-H of the Act which was
obligatory on its part. The case of petitioner also remains that she had served respondent with due
diligence and had spotless service record as respondent/department had never called any
explanation or raised charge-sheet against her but even while retrenching petitioner from service,
no notice was given. The petitioner has also explained reason for not approaching the authorities
under Labour Act and thereafter before this Tribunal, as there existed no road between Chamba
town to Pangi Tehsil till 2008 and petitioner had moved before the Labour Officer raising demand
notice consequent upon which a failure report was submitted and as the Labour Commissioner did
not make reference for industrial dispute raised by petitioner, the petitioner had moved before the
Hon'ble High Court by filing CWP where direction was passed for making reference to the Labour
Court due to which delay had occurred and same was satisfactorily explained.
13. In so far as plea of abandonment raised by respondent is concerned, the same merits
rejection in view of the fact that respondent had failed to produce any record by which it could be
established that whenever petitioner absented from her duty as also reflected in mandays chart Ex.
RW1/B any notice or letter was ever issued. On this point respondent as RW1 has specifically
admitted that whenever petitioner abandoned the job, no notice had been issued. RW1 specifically
admitted that no departmental inquiry was initiated against petitioner even after October, 2001. No
reason whatsoever has been assigned for such any action or omission on the part of respondent in
not initiating any departmental proceedings or making correspondence calling upon the petitioner
to join service. This prima facie belies the stand taken by the respondent as abandonment has to be
proved like any other fact in issue. The petitioner, on the other hand, as PW1 in cross-examination
has specifically denied that she used to leave the job in between and attended the work
intermittently rather she has claimed that intermit breaks had been deliberately given to her by the
respondent in the service record of petitioner so that petitioner did not complete 160 days of work
as required for Pangi Tehsil area and also for applicability of Section 25-B of the Act. As such, in
absence of any specific and reliable evidence led by respondent, it would be unsafe to hold that
respondent had established plea of abandonment.
14. A bare glance on the mandays chart Ex. RW1/B would reveal that petitioner had
worked for 133 days in the year 1994, 101.5 days in 1996, 162 days in 1997, 133 days in 1998, 120
days in 1999, 125 days in 2000 and 103 days in 20011 and thus a total of her service in 1994 to
2001 in 7 years she had worked for 877.5 days in her entire service period. Be it noticed that except
the years 1994, 1996 and 1998 to 2001 she 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 Ex. RW1/B
the mandays chart showing that petitioner to have worked for 128 days only in preceding 12
calendar months from termination and thus had not rendered service of 160 days required to
establish 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. Authorized Representative for petitioner has contended with vehemence that large
number of workers who were junior to petitioner had been appointed from 01.8.1997 to 07.9.1999
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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. PW1/B, Ex.
PW1/C, Ex. PW1/D are the year-wise mandays of daily waged workers who were junior to the
petitioner and had joined in the year 2000 or thereafter whereas Ex. PW1/E to Ex. PW1/L are the
mandays chart of other co-workers. All of these co-workers shown in Ex. PW1/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, 2001 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.3 of the affidavit were
retained whereas petitioner was senior from these co-workers having joined service in 1994 was
terminated and even thereafter respondent omitted to afford opportunity to petitioner for
reemployment for work which also violates the provisions of Section 25-H of the Act. Ld.
Authorized Representative for petitioner has placed reliance upon judgment of Central Bank of
India vs. S. Satyam, 1996 (5) SCC 419 in which Hon'ble Apex Court has held that for the
applicability of Section 25-G and 25-H of the Act, there was no necessity of claimant/petitioner to
have worked for 240 days as in case of provisions of Section 25-F of the Act.
16. Repudiating claim of petitioner, the respondent, on the other hand, has made futile
attempt to justify engagement of junior workers and their retention in service on the basis of orders
of Labour Court-cum-Industrial Tribunal as well as Hon'ble High Court of H.P. as reflected in Ex.
RW1/D1 to Ex RW1/D21. 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/D21 were primarily on the basis of court
orders would not defeat the claim of the petitioner as status of these person being junior to
petitioner does not get negatived. As such, even when petitioner is proved to have not worked for
more than 160 days in preceding 8 years which entitled her for regularization of her service per
government policy, yet respondent is not absolved from its accountability of provisions of Section
25-G and 25-H of the Act and as such it is held that respondent had violated the provisions of
Sections 25-G and 25-H of the Industrial Disputes Act.
17. Ld. Authorized Representative for petitioner has contended that after petitioner's
termination in October, 2001, she had remained unemployed and was not earning anything
thereafter as such was entitled for full back wages. Repudiating the arguments of ld. Authorized
Representative of petitioner, ld. Dy. D.A. for the State has taken this court through cross-
examination of the petitioner who has admitted that she had cultivatable land with her and also
worked a private labourer. Thus, plea of having remained not gainfully employed gets belied
admission of petitioner in cross-examination in which she had maintained that she had been earning
from agricultural land as well as she has been working as daily wager privately. Reliance has been
placed on the judgment of Hon'ble Apex Court North East Karnataka Road Transport Corporation
vs. M. Nagangouda (2007) 10 SCC 765 in which Division Bench comprising of Justice A.R.
Lakshmanan and Justice Altamas Kabir had held that 'term gainfully employment would also
include self employment wherefrom income is generated. It was income either from employment in
an establishment or from self employment merely differentiates the sources from which income is
generated, the end use being the same’. Applying the ratio of judgment of 2007 (supra) to this case
since the petitioner was earning from her agricultural and manual pursuits, the same were sufficient
to maintain her and her family. It is thus held that petitioner was gainfully employed. Be it stated
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here that Hon'ble Apex Court in Deepali Gundu Surwase’s case has held that the Labour Court was
not justified in holding that merely because the respondent was receiving agriculture income, she
cannot be treated to be engaged in gainful employment. Since the petitioner had income from
agriculture pursuits for her livelihood it cannot be stated that petitioner was not gainfully employed
and thus would not be entitled full back wages. In view of the forgoing discussion, it is held that the
relationship of workman and employer existed between petitioner and respondent and that
petitioner was illegally retrenched without compliance of Section 25-G and Section 25-H of the Act
although remained gainfully employed after her retrenchment. Thus, applying the ratio of judgment
of Hon'ble Apex Court (2007 supra), it may not be erroneous to hold that petitioner was gainfully
employed and thus would be not entitled for back wages for the period she was out of job on being
terminated by the respondent.
18. Lastly, Ld. Dy. D.A. for State has contended with vehemence that there is inordinate
and explained delay which disentitles petitioner relief claimed for by him. On the other hand, ld.
Authorized Representative for the petitioner has relied upon the judgment of Hon'ble Apex Court
titled Raghubir Singh vs. General Manager, Haryana Roadways, Hissar reported in 2014 Lab IC
4266 (SC) and the relevant paras of the judgment are produced below for reference:
“12. Therefore, in our considered view, the observations made by this Court in the
Rajasthan State Agriculture Marketing Board case (supra) upon which the learned
Additional Advocate General for the State of Haryana has placed reliance cannot be applied
to the fact situation of the case on hand, for the reason that the Labour Court has
erroneously rejected the reference without judiciously considering all the relevant factors of
the case particularly the points of dispute referred to it and answered the 2nd issue regarding
the reference being barred by limitation but not on the merits of the case. The said decision
has no application to the fact situation and also for the reason the catena of decisions of this
Court referred to supra, wherein this Court has categorically held that the provisions of
Limitation Act under Article 137 has no application to make reference by the appropriate
government to the Labour Court/Industrial Tribunal for adjudication of existing industrial
dispute between workmen and the employer.
13. In the case on hand, no doubt there is a delay in raising the dispute by the appellant;
the Labour Court nevertheless has the power to mould the relief accordingly. At the time of
adjudication, if the dispute referred to the Labour Court is not adjudicated by it, it does not
mean that the dispute ceases to exist. The appropriate government in exercise of its statutory
power under Section 10(1)(c) of the Act can refer the industrial dispute, between the parties,
at any time, to either the jurisdictional Labour Court/Industrial Tribunal as interpreted by
this Court in the Avon Services case referred to supra. Therefore, the State Government has
rightly exercised its power under Section 10(1)(c) of the Act and referred the points of
dispute to the Labour Court as the same are in accordance with the law laid down by this
Court in Avon Services & Sapan Kumar Pandit cases referred to supra.
14. Further, the workman cannot be denied to seek relief only on the ground of delay in
raising the dispute as held in the case of S.M. Nilajkar & Ors. v. Telecom District Manager,
Karnataka[4] it was held by this Court as follows—
“17. It was submitted on behalf of the respondent that on account of delay in raising the
dispute by the appellants the High Court was justified in denying relief to the appellants.
We cannot agree...... In Ratan Chandra Sammanta and Ors. v. Union of India and Ors.
(supra)1993 AIR SCW 2214, it was held that a casual labourer retrenched by the employer
deprives herself 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
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evidence relevant to adjudication being lost and rendered not available. However, we do not
think that the delay in the case at hand has been so culpable as to disentitle the appellants
for any relief.....” (Emphasis laid by the Court) In view of the legal principles laid down by
this Court in the above judgment, the reference of the industrial dispute made in the case on
hand by the State Government to the Labour Court to adjudicate the existing industrial
dispute between the parties was made within a reasonable time, considering the
circumstances in which the workman was placed, firstly, as there was a criminal case
pending against her and secondly, the respondent had assured the workman that she would
be reinstated after her acquittal from the criminal case. Moreover, it is reasonable to
adjudicate the industrial dispute in spite of the delay in raising and referring the matter,
since there is no mention of any loss or unavailability of material evidence due to the delay.
Thus, we do not consider the delay in raising the industrial dispute and referring the same to
the Labour Court for adjudication as gravely erroneous and it does not debar the workman
from claiming rightful relief from her employer.
15. In the case of Ajaib Singh v. The Sirhind Co-Operative Marketing Cum-Processing
Service Society Limited & Anr.[5] this Court has opined that relief cannot be denied to the
workman merely on the ground of delay, stating that:—
“10. It follows, therefore, that the provisions of Article 137 of the Schedule to Limitation
Act, 1963 are not applicable to the proceedings under the act and that the relief under it
cannot be denied to the workman merely on the ground of delay. The plea of delay if raised
by the employer is required to be proved as a matter of fact by showing the real prejudice
and not as a merely hypothetical defence. No reference to the labour court can be generally
questioned on the ground of delay alone. Even in a case where the delay in shown to be
existing, the tribunal, labour court or board, dealing with the case can appropriately mould
the relief by declining to grant back wages to the workman till the date she raised the
demand regarding her illegal retrenchment/termination or dismissal. The Court may also in
appropriate cases direct the payment of part of the back wages instead of full back
wages.....” (Emphasis laid by the Court)
16. Hence, we are of the opinion, having regard to the fact and circumstances of the case
that there is no delay or latches on the part of the workman from the date of her acquittal in
the criminal case. Thereafter, upon failure of the respondent in adhering to the assurance
given to the workman that she would be reinstated after her acquittal from the criminal case,
the workman approached the conciliation officer and the State Government to make a
reference to the Labour Court for adjudication of the dispute with regard to the order of
dismissal passed by the respondent. Keeping in mind the date of acquittal of the appellant
and the date on which she approached the conciliation officer by raising the dispute, since
the respondent had not adhered to its assurance, the State Government had rightly referred
the dispute for its adjudication. Therefore it cannot be said that there was a delay on the part
of the appellant in raising the dispute and getting it referred to the Labour Court by the State
Government.
17. Further, the Labour Court on an erroneous assumption of law framed the additional
issue regarding the limitation in raising the dispute and its reference by the State
Government to the Labour Court. Thus, the Labour Court has ignored the legal principles
laid down by this Court in the cases referred to supra. The award passed by the Labour
Court was accepted erroneously by both the learned single Judge and the Division Bench of
the High Court by dismissing the Civil Writ Petition & the Letters Patent Appeal without
examining the case in its proper perspective, keeping in view the power of the State
Government under Section 10(1)(c) and the object and intendment of the Act. Not
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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. counsel 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 2001 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.
Authorized Representative for petitioner, ld. Dy. D.A. has placed reliance upon the judgment of
Hon'ble Apex Court titled as Assistant Engineer, Rajasthan State Agriculture Marketing Board,
Sub-Division Kota and Mohan Lal [2013 (139) FLR 125], the relevant para of the judgment are
produced below for reference:
Industrial Disputes Act, 1947-Sections 25-F and 10-Limitation Act, 1963- Section 5-
Industrial dispute-Termination of service-Finding of Lboaur Court that workman had
completed 240 days in calander year and her termination was in violation o section 25-F of
the I.D. Act-Wrokman worked from 1.11.1984 to 17.2.1986 in all 286 days during
employment. her services terminated on 18.2.1986. Industrial dispute raised after 6 years of
termination. Admitted delay of 6 years not kept in view by the Labour Court- Judicial
discretion exercised by the Labour Court flawed and unsustainable. Reinstatement of the
workman not the appropriate relief. In lieu of reinstatement compensation of Rs.one lac
directed to be paid to the workman by the appellant-employer within six weeks failing
which interest @ workman 9% p.a. will be payable.
[Paras 21 and 22]
Limitation Act, 1963. Section 5-Industrial Disputes Act, 1947-Section 25-F-Termination of
service-Industrial dispute raised after six years-Limitation Act not applicable to reference
made under the I.D. Act-Delay in raising industrial disputes definitely an important
circumstances which the Labour Court must keep in view before granting relief”.
I have gone through the rival contention of the ld. Authorized Representative as well as ld.
Dy. D.A. for State. Keeping in view the mandate of Hon'ble Apex Court in various judgments
referred to above it is held that delay in raising industrial dispute is definitely an important
circumstance and court has to keep in mind while exercising discretion. In para nos. 20 and 21 of
judgment 2013 supra has referred to Gitam Singh’s case reported in 2013 (136) FLR 893 (SC)
titled as Assistant Engineer Rajasthan Development Corporation and another vs. Geetam Singh
observing that before exercising its judicial discretion, the Labour Court has to keep in view 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 the delay in raising industrial
dispute before grant of relief in an industrial dispute. 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
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dispute in 1992 whereas his services have been terminated in 1986 and he 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 7 years and actually worked for 877.5 days as per mandays chart on
record and that the services of petitioner were disengaged in September, 2001 who worked as non
skilled worker and had raised industrial dispute by issuance of demand notice after about seven
years i.e. demand notice was given on 23.7.2008. It is also pertinent to mention here that petitioner
on the date of filing claim petition was ageing 35 years who has sufficient spell of life to work and
earn her livelihood. Taking into consideration factors mentioned above in pursuance to judgments
of Hon'ble Apex Court petitioner would not be entitled either for reinstatement or for back wages
but compensation a lump-sum would be appropriate relief in view of judgment 2013 (139) FLR 25
(SC). The judgments relied upon by ld. Authorized Representative for petitioner on the matter of
delay and laches is more or less settled law that claim of the petitioner could not be solely declined
on the ground of delay and laches. Similarly, judgment of Hon'ble Apex Court in 2014 titled as
Raghubir Singh’s case also does not come to the rescue of the petitioner as in this judgment also the
Hon'ble Apex Court has reiterated the mandate as given by the Hon'ble Apex Court in previous
judgment in the year 2013 i.e. Assistant Engineer, Rajasthan State Agriculture Marketing Board,
Sub-Division Kota and Mohan Lal’s case. Similar view was reiterated by the Hon'ble Apex Court
in judgment titled as Vice Chancellor, Lucknow University, Lucknow, Uttar Pradesh v. Akhilesh
Kumar Khare & another reported in AIR 2015 SC 3473.
21. In view of foregoing discussion, a lump-sum compensation of Rs.1,00,000/- (Rupees
one lakh 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 and its realization. Issues no. 1,2 and 3
are answered accordingly.
ISSUE NO.4
22. 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
23. As sequel to my findings on foregoing issues, the respondent is hereby directed to pay
the compensation of Rs.1,00,000/- (Rupees one lakh only) to the petitioner in lieu of the
reinstatement in services as well as the other consequential service benefits. Amount of
compensation so awarded shall 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.
24. The reference is answered in the aforesaid terms.
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25. A copy of this Award be sent to the appropriate Government for publication in the
official gazette.
26. File, after due completion be consigned to the Record Room.
Announced in the open Court today this 28th day of November, 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. : 455/2015
Date of Institution : 29.10.2015
Date of Decision : 28.11.2016
Smt. Man Dei w/o Shri Jeevan Ram, r/o V.P.O. Purthi, Tehsil Pangi, District Chamba, H.P.
...Petitioner.
Versus
Executive Engineer, Killar Division, I.P.H./H.P.P.W.D. Killar, (Pangi), District Chamba,
H.P.
...Respondent.
Reference under Section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner : Sh. I.S. Jaryal, AR
For the Respondent : Sh. Sanjeev Singh Rana, Dy. D.A.
AWARD
The reference given below has been received from the appropriate Government for
adjudication :
“Whether the industrial dispute raised by the worker Smt. Man Dei W/O Shri Jeevan Ram,
R/O V.P.O. Purthi, Tehsil Pangi, District Chamba, H.p. before the Executive Engineer,
Killar Division, I.P.H./H.P.P.W.D., Killar (Pangi), District Chamba, H.P. vide demand
notice dated 02-02-2012 regarding her alleged illegal termination of services during
September, 2005 suffers from delay and latches? If not, Whether termination of services of
Smt. Man Dei W/O Shri Jeevan Ram, R/O V.P.O. Purthi, Tehsil Pangi, District Chamba,
H.P. by the Executive Engineer, Killar Division, I.P.H./H.P.P.W.D., Killar (Pangi), District
Chamba, H.P. during September, 2005, without complying the provisions of the Industrial
Disputes Act, 1947, is legal and justified? If not, what amount of back wages, seniority, past
service benefits and compensation the above aggrieved workman is entitled to from the
above employer?”
2. On receipt of reference from appropriate government, notices were issued to the parties
in pursuance to which claimant/petitioner has filed statement of claim.
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3. Brief facts leading to institution of the present claim petition by the petitioner above
named reveal that she had been initially engaged as daily waged beldar on muster roll basis in the
year 1998 who continuously worked till September, 2005 with the respondent/department.
Averments made in the petition further revealed that petitioner had worked for 160 days in each
calendar year as prescribed for tribal area of Pangi Tehsil District Chamba and became eligible for
continuous service envisaged under statutory provisions of Section 25-B of the Industrial Disputes
Act, 1947 (hereinafter referred to as 'the Act for brevity). Averments made in the petition revealed
that the services of petitioner had interrupted by way of intermittent/artificial breaks given by the
respondent/department deliberately and as such breaks are required to be counted as continuous
services for the purposes of calculation of 160 days so as for the applicability of Section 25-B of
the Act. The grievance of petitioner remains that respondent/department had terminated/
disengaged petitioner from daily wage service in the end of September, 2005 by an oral order
without any reason whereas several other co-workers who were junior to petitioner had been
retained on muster roll and thus the action of respondent/department was stated to be unjustified
and malafide. It is alleged that seniority list of daily wage workers working under the respondent
had not been circulated till termination/retrenchment of the petitioner and while retrenching the
services of petitioner, even principle of 'Last come First go' had not been followed by the
department/respondent. The petitioner has named 23 persons who were junior to petitioner and
joined service from 1st June, 1998 to 1st September, 2007. In the end of month of September, 2005
when the services of petitioner were terminated by way of oral order, she was not served with one
month notice of retrenchment and at the same time one month's wages in lieu of notice period had
also not been paid to her and for said reason termination of the services of petitioner was prima
facie illegal and unwarranted. The claimant/petitioner claimed that she had spotless service record
who never been charge-sheeted for any act of indiscipline or negligence or her conduct and even at
the time of verbal termination, no charge-sheet had been served upon her and the at the same time,
no opportunity of hearing had been afforded to her. The petitioner also alleges that she has
remained unemployed ever since her illegal termination from month of September, 2005 till the
date of institution of present claim petition who had been nowhere gainfully employed and was
thus entitled for full back wages. Accordingly alleging respondent to have committed violation of
statutory provision of Section 25-F, Section 25-G and Section 25-H of the Industrial Disputes Act,
1947 and Article 14 and 16 of Constitution of India, the petitioner prays for setting aside oral order
of termination/retrenchment by the respondent in the month of September, 2005. She further prayed
for reinstatement in service w.e.f. month of September, 2005 along-with back wages, seniority
including continuity in service as petitioner has remained unemployed since the date of her illegal
termination. The petitioner has also prayed that period of intermittent/fictional breaks given time
and again during entire service of petitioner between 1998 to September, 2005 be counted 160 days
continuous service and regularization of the service of petitioner w.e.f. 01.01.2006 having
completed 8 years of service and per the policy of HP Govt. in pursuance to judgment of Hon'ble
Apex Court titled as Rakesh Kumar vs. State of H.P. and to any other relief petitioner is entitled.
4. The respondent contested claim petition, filed reply inter-alia taken preliminary
objections of maintainability, claim petition being bad on account of delay and laches. On merits
denied that petitioner had worked for more than 160 days in each calendar year rather clarified by
stating that petitioner was engaged as daily waged beldar in 1998 who remained engaged till 2005
but had worked intermittently as petitioner used to come and attend the work at her own sweet will
and convenience. Relying upon the mandays chart, it has been categorically pleaded by the
respondent that petitioner had not completed 160 days in each calendar year as required for tribal
area of Pangi Tehsil. Allegations of fictional breaks given by respondent to the petitioner have been
denied. In so far as engagement of persons junior to petitioner mentioned at serial nos. 1 to 25 in
para no. 4 of the claim petition were appointed as per order of Labour Court and at serial nos. 26 &
27 as harness case. On the plea of termination of service of petitioner, respondent specifically
alleges that petitioner had left the job at her own will therefore serving of notice or pay in lieu
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thereof was not required. Reiterating its stand respondent has maintained that petitioner had left the
work of her own sweet will and the persons mentioned in para no.4 are stated to have engaged as
per direction of the Labour Court-cum-Industrial Tribunal Dharamshala as harness case. It is also
contended that if petitioner had been terminated in 2005 she would have definitely raised industrial
dispute immediately and that after seven years petitioner is stated to be agitating the matter which is
bad on account of delay and laches. It is also contended that since the services of petitioner had not
been terminated by the respondent, question of issuance of notice or wages in lieu thereof did not
arise and at the same time, there was no necessity for charge-sheet or issuing any notice of
petitioner after her termination. It is contended that petitioner was agriculturist and gainfully
employed and was thus not entitled for back wages.
5. The petitioner filed rejoinder, reiterated her stand as maintained in the claim petition.
Further asserted that provisions of Limitation Act did not eclipse the claim of petitioner in totality
besides allegation of violation of principle of 'Last come First go' was specifically denied.
6. In order to prove her case, petitioner had examined herself as PW1 tendered/proved her
affidavit Ex. PW1/A under Order 18 Rule 4 CPC, Ex. PW1/B to PW1/L mandays charts of junior
workers and closed evidence. On the other hand, repudiating the evidence led by the petitioner,
respondent examined RW1 Shri D.R. Chauhan, the then Executive Engineer, HPPWD Division
Killar as RW1 tendered/proved mandays chart of petitioner Ex. RW1/B, mandays chart of other co-
workers Ex. RW1/C, Ex. RW1/D1 to Ex. RW1/D21 copy of orders/awards and closed the
evidence.
7. I have heard the ld. Authorized Representative of petitioner and ld. Dy. D.A.
representing respondent, gone through records of the case carefully relevant for disposed of this
case.
8. From the contentions raised, following issues were framed on 20.4.2016 for
determination which are as under :
1.
Whether the industrial dispute raised by petitioner vide demand notice dated
02-02-2012 qua her termination of service during September, 2005 by respondent
suffers from the vice of delay and laches as alleged? If so, its effect?
...OPP.
2. Whether termination of the services of petitioner by the respondent w.e.f.
September, 2005 is/was illegal and unjustified as alleged?
...OPP.
3. If issue no.2 is proved in affirmative, to what service benefits the petitioner is
entitled to?
... OPP.
4. Whether the claim petition is not maintainable in the present form as alleged?
...OPR.
Relief.
9.
For the reasons detailed here under, my findings on the above issues are as follows:—
Issue No.1 :
Yes
Issue No.2 :
Yes
Issue No.3 :
Discussed
Issue No.4 :
No
Relief. :
Petition is partly allowed awarding compensation Rs.1,20,000/- per
operative part of award.
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REASONS FOR FINDINGS
ISSUES NO.1, 2 AND 3
10. All these issues have been taken up together for discussion being interconnected which
can be disposed of simultaneously without repetition of evidence.
11. Relationship of petitioner having been engaged as daily waged beldar by respondent on
muster roll basis in the 1998 who continuously worked till 2005 at HPPWD Sub Division Killar is
not in dispute. Admittedly, petitioner was engaged without any written order or settlement of terms
and conditions by the respondent. It is equally not in dispute that no written order was passed while
terminating service of the petitioner as claim of respondent remains that it had not retrenched
petitioner from service who had abandoned the job of her own and used to work intermittently as
per her own wish and convenience. Admittedly, the reference of appropriate govt. does not relate to
plea of fictional breaks but only with regard to petitioner's termination from service. In the
backdrop of foregoing admitted facts on record, claim of petitioner requires to be adjudicated with
a view to determine if petitioner is entitled for relief of reinstatement and back wages along-with
seniority and past service benefits and compensation as claimed by him.
12. Stepping into witness box as PW1 has sworn in affidavit Ex. PW1/A reiterating and
reaffirming her pleadings as stipulated in claim petition. In her affidavit she has claimed to have
worked with the respondent/department for more than 160 days in Pangi Sub Division Chamba
District and remained engaged from 1998 to October, 2005. She has also stated on oath that no
notice under Section 25-F of the Act was given by the respondent before terminating her service
and at the same time no compensation in lieu thereof notice period was paid to her and thus her
termination was illegal and void entitling petitioner benefit of reinstatement of service with full
back wages and all the other consequential service benefits. The petitioner has further alleged on
oath that respondent/department after terminating her services in September, 2005 by oral order had
engaged several co-workers who were junior to petitioner were retained in service. Not only this,
the persons who were junior to petitioner are stated to have been regularized in service and thus
respondent had not followed the mandate of Sections 25-G and 25-H of the Act which was
obligatory on its part. The case of petitioner also remains that she had served respondent with due
diligence and had spotless service record as respondent/department had never called any
explanation or raised charge-sheet against her but even while retrenching petitioner from service,
no notice was given. The petitioner has also explained reason for not approaching the authorities
under Labour Act and thereafter before this Tribunal, as there existed no road between Chamba
town to Pangi Tehsil till 2012 and petitioner had moved before the Labour Officer raising demand
notice consequent upon which a failure report was submitted and as the Labour Commissioner did
not make reference for industrial dispute raised by petitioner, the petitioner had moved before the
Hon'ble High Court by filing CWP where direction was passed for making reference to the Labour
Court due to which delay had occurred and same was satisfactorily explained.
13. In so far as plea of abandonment raised by respondent is concerned, the same merits
rejection in view of the fact that respondent had failed to produce any record by which it could be
established that whenever petitioner absented from her duty as also reflected in mandays chart Ex.
RW1/B any notice or letter was ever issued. On this point respondent as RW1 has specifically
admitted that whenever petitioner abandoned the job, no notice had been issued. RW1 specifically
admitted that no departmental inquiry was initiated against petitioner even after September, 2005.
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
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cross-examination has specifically denied that she used to leave the job in between and attended the
work intermittently rather she has claimed that intermit breaks had been deliberately given to her
by the respondent in the service record of petitioner so that petitioner did not complete 160 days of
work as required for Pangi Tehsil area and also for applicability of Section 25-B of the Act. As
such, in absence of any specific and reliable evidence led by respondent, it would be unsafe to hold
that respondent had established plea of abandonment.
14. A bare glance on the mandays chart Ex. RW1/B would reveal that petitioner had
worked for 172 days in the year 1998, 101 days in 1999, 30 days in 2000, 148 days in 2001, 95
days in 2002, 106 days in 2003, 90 days in 2004 and 115 days in 2005 and thus a total of her
service in 1998 to 2005 in 8 years she had worked for 857 days in her entire service period. Be it
noticed that except the years 1999 to 2005 she 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 Ex. RW1/B
the mandays chart showing that petitioner to have worked for 115 days only in preceding 12
calendar months from termination and thus had not rendered service of 160 days required to
establish 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. Authorized Representative for petitioner has contended with vehemence that large
number of workers who were junior to petitioner had been appointed from 01.6.1998 to 01.9.2007
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. PW1/B, Ex.
PW1/C, Ex. PW1/D are the year-wise mandays of daily waged workers who were junior to the
petitioner and had joined in the year 2000 or thereafter whereas Ex. PW1/E to Ex. PW1/L are the
mandays chart of other co-workers. All of these co-workers shown in Ex. PW1/C the year-wise
mandays details of workers of Division HPPWD Killar were certainly junior to petitioner who were
given sufficient work existing in those years more than 200 days in a year whereas the petitioner
had been not given muster roll for the whole month. Ex. RW1/C also established that all the co-
workers shown in this document have worked for more than 160 days in most of the years although
they were junior to petitioner. Evidently, there is no iota of evidence of respondent establishing that
petitioner was called upon to join for service at any time after September, 2005 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.3 of the affidavit
were retained whereas petitioner was senior from these co-workers having joined service in 1998
was terminated and even thereafter respondent omitted to afford opportunity to petitioner for
reemployment for work which also violates the provisions of Section 25-H of the Act. Ld.
Authorized Representative for petitioner has placed reliance upon judgment of Central Bank of
India vs. S. Satyam, 1996 (5) SCC 419 in which Hon'ble Apex Court has held that for the
applicability of Section 25-G and 25-H of the Act, there was no necessity of claimant/petitioner to
have worked for 240 days as in case of provisions of Section 25-F of the Act.
16. Repudiating claim of petitioner, the respondent, on the other hand, has made futile
attempt to justify engagement of junior workers and their retention in service on the basis of orders
of Labour Court-cum-Industrial Tribunal as well as Hon'ble High Court of H.P. as reflected in Ex.
RW1/D1 to Ex RW1/D21. 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/D21 were primarily on the basis of court
orders would not defeat the claim of the petitioner as status of these person being junior to
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petitioner does not get negatived. As such, even when petitioner is proved to have not worked for
more than 160 days in preceding 8 years which entitled her for regularization of her service per
government policy, yet respondent is not absolved from its accountability of provisions of Section
25-G and 25-H of the Act and as such it is held that respondent had violated the provisions of
Sections 25-G and 25-H of the Industrial Disputes Act.
17. Ld. Authorized Representative for petitioner has contended that after petitioner's
termination in September, 2005, she had remained unemployed and was not earning anything
thereafter as such was entitled for full back wages. Repudiating the arguments of ld. Authorized
Representative of petitioner, ld. Dy. D.A. for the State has taken this court through cross-
examination of the petitioner who has admitted that she had cultivatable land with her and also
worked a private labourer. Thus, plea of having remained not gainfully employed gets belied
admission of petitioner in cross-examination in which she had maintained that she had been earning
from agricultural land as well as she has been working as daily wager privately. Reliance has been
placed on the judgment of Hon'ble Apex Court North East Karnataka Road Transport Corporation
vs. M. Nagangouda (2007) 10 SCC 765 in which Division Bench comprising of Justice A.R.
Lakshmanan and Justice Altamas Kabir had held that 'term gainfully employment would also
include self employment wherefrom income is generated. It was income either from employment in
an establishment or from self employment merely differentiates the sources from which income is
generated, the end use being the same’. Applying the ratio of judgment of 2007 (supra) to this case
since the petitioner was earning from her agricultural and manual pursuits, the same were sufficient
to maintain her and her family. It is thus held that petitioner was gainfully employed. Be it stated
here that Hon'ble Apex Court in Deepali Gundu Surwase’s case has held that the Labour Court was
not justified in holding that merely because the respondent was receiving agriculture income, she
cannot be treated to be engaged in gainful employment. Since the petitioner had income from
agriculture pursuits for her livelihood it cannot be stated that petitioner was not gainfully employed
and thus would not be entitled full back wages. In view of the forgoing discussion, it is held that the
relationship of workman and employer existed between petitioner and respondent and that
petitioner was illegally retrenched without compliance of Section 25-G and Section 25-H of the Act
although remained gainfully employed after her retrenchment. Thus, applying the ratio of judgment
of Hon'ble Apex Court (2007 supra), it may not be erroneous to hold that petitioner was gainfully
employed and thus would be not entitled for back wages for the period she was out of job on being
terminated by the respondent.
18. Lastly, Ld. Dy. D.A. for State has contended with vehemence that there is inordinate
and explained delay which disentitles petitioner relief claimed for by him. On the other hand, ld.
Authorized Representative for the petitioner has relied upon the judgment of Hon'ble Apex Court
titled Raghubir Singh vs. General Manager, Haryana Roadways, Hissar reported in 2014 Lab IC
4266 (SC) and the relevant paras of the judgment are produced below for reference:
“12. Therefore, in our considered view, the observations made by this Court in the
Rajasthan State Agriculture Marketing Board case (supra) upon which the learned
Additional Advocate General for the State of Haryana has placed reliance cannot be applied
to the fact situation of the case on hand, for the reason that the Labour Court has
erroneously rejected the reference without judiciously considering all the relevant 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.
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13. In the case on hand, no doubt there is a delay in raising the dispute by the appellant;
the Labour Court nevertheless has the power to mould the relief accordingly. At the time of
adjudication, if the dispute referred to the Labour Court is not adjudicated by it, it does not
mean that the dispute ceases to exist. The appropriate government in exercise of its statutory
power under Section 10(1)(c) of the Act can refer the industrial dispute, between the parties,
at any time, to either the jurisdictional Labour Court/Industrial Tribunal as interpreted by
this Court in the Avon Services case referred to supra. Therefore, the State Government has
rightly exercised its power under Section 10(1)(c) of the Act and referred the points of
dispute to the Labour Court as the same are in accordance with the law laid down by this
Court in Avon Services & Sapan Kumar Pandit cases referred to supra.
14. Further, the workman cannot be denied to seek relief only on the ground of delay in
raising the dispute as held in the case of S.M. Nilajkar & Ors. v. Telecom District Manager,
Karnataka[4] it was held by this Court as follows—
“17. It was submitted on behalf of the respondent that on account of delay in raising the
dispute by the appellants the High Court was justified in denying relief to the appellants.
We cannot agree...... In Ratan Chandra Sammanta and Ors. v. Union of India and Ors.
(supra)1993 AIR SCW 2214, it was held that a casual labourer retrenched by the employer
deprives herself of remedy available in law by delay itself, lapse of time results in losing the
remedy and the right as well. The delay would certainly be fatal if it has resulted in material
evidence relevant to adjudication being lost and rendered not available. However, we do not
think that the delay in the case at hand has been so culpable as to disentitle the appellants
for any relief.....” (Emphasis laid by the Court) In view of the legal principles laid down by
this Court in the above judgment, the reference of the industrial dispute made in the case on
hand by the State Government to the Labour Court to adjudicate the existing industrial
dispute between the parties was made within a reasonable time, considering the
circumstances in which the workman was placed, firstly, as there was a criminal case
pending against her and secondly, the respondent had assured the workman that she would
be reinstated after her acquittal from the criminal case. Moreover, it is reasonable to
adjudicate the industrial dispute in spite of the delay in raising and referring the matter,
since there is no mention of any loss or unavailability of material evidence due to the delay.
Thus, we do not consider the delay in raising the industrial dispute and referring the same to
the Labour Court for adjudication as gravely erroneous and it does not debar the workman
from claiming rightful relief from her employer.
15. In the case of Ajaib Singh v. The Sirhind Co-Operative Marketing Cum-Processing
Service Society Limited & Anr.[5] this Court has opined that relief cannot be denied to the
workman merely on the ground of delay, stating that:—
“10. It follows, therefore, that the provisions of Article 137 of the Schedule to Limitation
Act, 1963 are not applicable to the proceedings under the act and that the relief under it
cannot be denied to the workman merely on the ground of delay. The plea of delay if raised
by the employer is required to be proved as a matter of fact by showing the real prejudice
and not as a merely hypothetical defence. No reference to the labour court can be generally
questioned on the ground of delay alone. Even in a case where the delay in shown to be
existing, the tribunal, labour court or board, dealing with the case can appropriately mould
the relief by declining to grant back wages to the workman till the date she raised the
demand regarding her illegal retrenchment/termination or dismissal. The Court may also in
appropriate cases direct the payment of part of the back wages instead of full back
wages.....” (Emphasis laid by the Court)
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16. Hence, we are of the opinion, having regard to the fact and circumstances of the case
that there is no delay or latches on the part of the workman from the date of her acquittal in
the criminal case. Thereafter, upon failure of the respondent in adhering to the assurance
given to the workman that she would be reinstated after her acquittal from the criminal case,
the workman approached the conciliation officer and the State Government to make a
reference to the Labour Court for adjudication of the dispute with regard to the order of
dismissal passed by the respondent. Keeping in mind the date of acquittal of the appellant
and the date on which she approached the conciliation officer by raising the dispute, since
the respondent had not adhered to its assurance, the State Government had rightly referred
the dispute for its adjudication. Therefore it cannot be said that there was a delay on the part
of the appellant in raising the dispute and getting it referred to the Labour Court by the State
Government.
17. Further, the Labour Court on an erroneous assumption of law framed the additional
issue regarding the limitation in raising the dispute and its reference by the State
Government to the Labour Court. Thus, the Labour Court has ignored the legal principles
laid down by this Court in the cases referred to supra. The award passed by the Labour
Court was accepted erroneously by both the learned single Judge and the Division Bench of
the High Court by dismissing the Civil Writ Petition & the Letters Patent Appeal without
examining the case in its proper perspective, keeping in view the power of the State
Government under Section 10(1)(c) and the object and intendment of the Act. Not
adjudicating the existing industrial dispute on merits between the parties referred to it may
lead to disruption of industrial peace and harmony, which is the foremost important aspect
in Industrial Jurisprudence as the same would affect the public interest at large.
19. Ld. counsel 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 2005 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.
Authorized Representative for petitioner, ld. Dy. D.A. has placed reliance upon the judgment of
Hon'ble Apex Court titled as Assistant Engineer, Rajasthan State Agriculture Marketing Board,
Sub-Division Kota and Mohan Lal [2013 (139) FLR 125], the relevant para of the judgment are
produced below for reference:
Industrial Disputes Act, 1947-Sections 25-F and 10-Limitation Act, 1963-Section 5-
Industrial dispute-Termination of service-Finding of Lboaur Court that workman had
completed 240 days in calander year and her termination was in violation o section 25-F of
the I.D.Act-Wrokman worked from 1.11.1984 to 17.2.1986 in all 286 days during
employment. her services terminated on 18.2.1986. Industrial dispute raised after 6 years of
termination. Admitted delay of 6 years not kept in view by the Labour Court-Judicial
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discretion exercised by the Labour Court flawed and unsustainable. Reinstatement of the
workman not the appropriate relief. In lieu of reinstatement compensation of Rs.one lac
directed to be paid to the workman by the appellant-employer within six weeks failing
which interest @ workman 9% p.a. will be payable.
[Paras 21 and 22]
Limitation Act, 1963. Section 5-Industrial Disputes Act, 1947-Section 25-F-Termination of
service-Industrial dispute raised after six years-Limitation Act not applicable to reference
made under the I.D. Act-Delay in raising industrial disputes definitely an important
circumstances which the Labour Court must keep in view before granting relief”.
I have gone through the rival contention of the ld. Authorized Representative as well as ld.
Dy. D.A. for State. Keeping in view the mandate of Hon'ble Apex Court in various judgments
referred to above it is held that delay in raising industrial dispute is definitely an important
circumstance and court has to keep in mind while exercising discretion. In para nos. 20 and 21 of
judgment 2013 supra has referred to Gitam Singh’s case reported in 2013 (136) FLR 893 (SC)
titled as Assistant Engineer Rajasthan Development Corporation and another vs. Geetam Singh
observing that before exercising its judicial discretion, the Labour Court has to keep in view 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 the delay in raising industrial
dispute before grant of relief in an industrial dispute. 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 his services have been terminated in 1986 and he 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 8 years and actually worked for 857 days as per mandays chart on
record and that the services of petitioner were disengaged in September, 2005 who worked as non
skilled worker and had raised industrial dispute by issuance of demand notice after about seven
years i.e. demand notice was given on 02.02.2012. It is also pertinent to mention here that
petitioner on the date of filing claim petition was ageing 36 years who has sufficient spell of life to
work and earn her livelihood. Taking into consideration factors mentioned above in pursuance to
judgments of Hon'ble Apex Court petitioner would not be entitled either for reinstatement or for
back wages but compensation a lump-sum would be appropriate relief in view of judgment 2013
(139) FLR 25 (SC). The judgments relied upon by ld. Authorized Representative for petitioner on
the matter of delay and laches is more or less settled law that claim of the petitioner could not be
solely declined on the ground of delay and laches. Similarly, judgment of Hon'ble Apex Court in
2014 titled as Raghubir Singh’s case also does not come to the rescue of the petitioner as in this
judgment also the Hon'ble Apex Court has reiterated the mandate as given by the Hon'ble Apex
Court in previous judgment in the year 2013 i.e. Assistant Engineer, Rajasthan State Agriculture
Marketing Board, Sub-Division Kota and Mohan Lal’s case. Similar view was reiterated by the
Hon'ble Apex Court in judgment titled as Vice Chancellor, Lucknow University, Lucknow, Uttar
Pradesh v. Akhilesh Kumar Khare & another reported in AIR 2015 SC 3473.
21. In view of foregoing discussion, a lump-sum compensation of Rs.1,20,000/- (Rupees
one lakh twenty 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 and its realization. Issues no.
1,2 and 3 are answered accordingly.
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ISSUE NO.4
22. 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
23. As sequel to my findings on foregoing issues, the respondent is hereby directed to pay
the compensation of Rs.1,20,000/- (Rupees one lakh twenty 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 shall 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.
24. The reference is answered in the aforesaid terms.
25. A copy of this Award be sent to the appropriate Government for publication in the
official gazette.
26. File, after due completion be consigned to the Record Room.
Announced in the open Court today this 28th day of November, 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. : 271/2015
Date of Institution : 08.7.2015
Date of decision : 28.11.2016
Smt. Sakina Devi w/o late Shri Birbal Siingh, r/o Village Chakaroda, P.O. Khaddhar, Tehsil
Ladbharol, District Mandi, H.P.
...Petitioner.
Versus
The Executive Engineer H.P.P.W.D. (B&R) Division, Joginder Nagar, Distt. Mandi, H.P.
...Respondent.
Reference under section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner : Sh. Suresh Kumar Sharma, Adv.
For the Respondent : Sh. Sanjeev Singh Rana, Dy. D.A.
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AWARD
1. The following reference has been received from the appropriate Government for
adjudication:
“Whether time to time termination of the services of Smt. Sakina Devi W/O Late Shri
Birbal Singh R/O Village Chakaroda, P.O. Khaddhar, Tehsil Ladbharol, District Mandi,
H.P. during January, 1998 to 31-08-2007 by the Executive Engineer, H.P.P.W.D., (B&R)
Division Joginder Nagar, District Mandi, H.P., 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 worker is entitled to from the
above employer?”
2. On receipt of reference from appropriate government, notices were issued to the parties
in pursuance to which claimant/petitioner has filed her statement of claim.
3. Brief facts as set up in the claim petition reveal that petitioner was engaged as daily
rated beldar by respondent w.e.f. 01.01.1998 in its National Highway Division, Joginder Nagar and
later she (petitioner) worked with the respondent in the newly created HPPWD Division in 2004
but she was given fictional breaks from time to time from her initial engagement till 31.8.2007. It is
alleged that she was issued muster rolls for 15 days in a month, though the work was available for
the entire month but, her juniors namely Dalip Singh, Gautam Singh, Geeta Devi, Pradeep Kumar,
Kishhori Lal, Sanjay Kumar, Bhag Mal, Nihal Chand, Anil Kumar and Chanchal were not given
such breaks and they were allowed to complete 240 days in each calendar year and the above
named juniors have now been regularized. It is alleged that the respondent has stopped giving
fictional breaks to the petitioner from 01.9.2007 and thereafter, the petitioner has completed 240
days in each calendar year. Therefore, there has been violation of the provisions of Sections 25-F,
25-G and 25-H of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act, for brevity).
This Court/Tribunal has already decided a similar matter i.e. Reference No.110/2006 titled as
General Secretary vs. Executive Engineer, HPPWD per Award dated 02.11.2010 in favour of the
workmen. The petitioner thus has filed a demand notice with the labour department but matter
could not be reconciled as the petitioner has prayed for giving her the benefit of seniority,
regularization and back wages etc.
4. The respondent contested claim petition, filed separate reply inter-alia taken
preliminary objections of maintainability, petition being bad for non-joinder of necessary parties
and claim petition being bad on account of delay and laches. On merits, engagement of the
petitioner from January, 1999 is admitted. The allegation of giving fictional breaks up-to 31.8.2007
has been specifically denied. It is alleged that the work was made available to the petitioner as per
the requirement and availability of the funds from time to time as per mandays chart annexure-RII
and R-III and that all the workers in the annexure R-III were senior to the petitioner who have since
been regularized. It is further alleged that the disengagement of the workmen on the availability of
the funds and the work was strictly in accordance with the policy of 'last come first go' and thus
allegation of violation of Section 25-F, 25-G and 25-H of the Industrial Disputes Act has been
specifically denied. Thus, relying upon the plea of reference of regularization of petitioner, cause of
action as pleaded in the claim petition filed by petitioner is denied and the petition is sought to be
dismissed.
5. No rejoinder has been filed by petitioner.
6. To prove her case, petitioner had examined herself as PW1 tendered/proved her
affidavit Ex. PW1/ A under Order 18 Rule 4 CPC and closed evidence. On the other hand,
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repudiating the evidence led by petitioner, respondent had examined Shri Rajeev Sharma, the then
Executive Engineer, HPPWD (B&R) Division, Joginder Nagar as RW1, tendered Ex. RW1/A copy
of letter dated 9th December, 2003, Ex. RW1/B regarding creation of PWD Division (B&R)
Joginder Nagar in the year 2004, Ex. RW1/C mandays chart of petitioner, Ex. RW1/D year-wise
working days of daily wage Beldar and closed evidence.
7. I have heard the Authorized Representative/counsel representing petitioner and ld. Dy.
D.A. for respondent, gone through records of the case carefully.
8. From the contentions raised, following issues were framed on 23.4.2016 for
determination :
1.
Whether time to time termination of the services of the petitioner by the
respondent during January, 1998 to 31.8.2007 is/was improper and unjustified as
alleged?
...OPP.
2. If issue no.1 is proved in affirmative, to what service benefits the petitioner is
entitled to?
... OPP.
3. Whether the petition is not maintainable in the present form as alleged?
...OPR.
4. Whether the petition is bad for non-joinder of necessary parties as alleged? ...OPR.
5. Whether the claim petition is bad on account of delay and laches on the part of the
claimant as alleged.
...OPR.
Relief.
9. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my
findings on the aforesaid issues are as follows:—
Issue No.1 :
Yes
Issue No.2 :
Discussed
Issue No.3 :
No
Issue No.4 :
No
Issue No.5 :
No
Relief :
Petition is allowed per operative part of the Award.
REASONS FOR FINDINGS
ISSUES NO. 1 AND 2
10. Both these issues have been taken up together for discussion being interconnected
which can be disposed of simultaneously without repetition of evidence.
11. Factum of petitioner having been appointed as daily waged beldar on muster roll by the
respondent in the year 1999 is not in dispute. It is the admitted case of petitioner that she had
worked since 1999 but she had been deliberately given fictional breaks by respondent so that she
could not complete 240 days to get benefits of Section 25-B of the Act. The plea of respondent, on
the other hand remains that petitioner was still working but had been working intermittently as she
of her own use to not come on her duty besides she willfully absented several times from it.
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12. To appreciate the genuineness of the plea so raised by respondent, suffice would be
to state here that bald assertion of the respondent cannot be accepted that petitioner willfully
absented from her duties as there is nothing corresponding in evidence to show that any letter or
intimation was sent to petitioner for her unauthorized absence from her duties as absence from duty
is serious misconduct, it is projected to be case as if petitioner came of her own and worked at her
whims. The plea of petitioner, on the other hand remains that fictional breaks were deliberately
given to her and that several other persons junior to petitioner namely Smt. Geeta Devi, Dalip
Singh, Goutam Singh and others have been regularized by respondent who were actually not given
fictional breaks at any point of time.
13. Perusal of mandays chart Ex. RW1/C would reveal that in the year 1999 petitioner had
worked for 190 days, 221 days in 2000, 187 days in 2001, 214 days in 2002, 110 days in 2003, 164
days in 2004, 157 days in 2005, 158 days in 2006, 202 days in 2007, 360 days in 2008, 361 days in
2009, 356 days in 2010, 348 days in 2011, 354 days in 2012, 361 days in 2013, 361 days in 2014
and 88 days in 2015. It can be noticed that in the several years petitioner has worked for less than
240 days, whereas for other remaining years she had worked for more than 240 days. Thus, break
in service being within a period of nine years from her termination was definitely a fictional break
as in remaining years she had worked for more than 240 days. The act of the respondent in giving
fictional break is manifestly arbitrary without any basis. Seniority list of regular labourers HPPWD
(B&R) Division has also been relied upon by respondent which is Ex. RW1/D on record in which
all the persons named above are shown to have joined in the years 1999, 2000, 2002, 2003 and
2004 except at serial no. 6 who had joined earlier to petitioner whereas petitioner had joined in
1999. Since respondent had not disputed to have engaged petitioner in the year 1999, she ought to
have been regularized having continuously worked for about 9 years with requisite number of days
required for regularization and there being no fictional break as stated above, which would show
that other persons who had joined along-with her have been regularized but the petitioner has been
deprived of her legitimate right for regularization till now. Although respondent department ipso
facto does not dislodge petitioner from claiming her seniority and continuity in service from her
initial engagement but fictional breaks in no manner would affect or eclipse legitimate right of
regularization in service of petitioner. However, petitioner has admitted in cross-examination that
she had agricultural land and remained employed and as such it could not be stated that certainty
that petitioner was not gainfully employed during the period of fictional breaks.
14. Stepping into the witness box as PW1, petitioner has sworn in detailed affidavit under
Order 18 Rule 4 CPC stipulating therein that she had been engaged and disengaged between 1999
to 2007 by giving fictional break whereas the persons junior to petitioner have been continuously
engaged by department for the whole year who had completed more than 240 days in a calendar
year as they had been invariably issued muster roll for whole of month in these years. In cross-
examination, petitioner has admitted that she has been regularly provided with more than 240 days
of work after 2007 which means the dispute is only for the years 1999 to 2007 as stated in the
affidavit. It needs to be noticed that other co-workers working with petitioner or say who were
junior were given muster roll for full month so that they completed 240 days in a year. RW1 Shri
Rajeev Sharma has admitted in cross-examination that seniority list Ex. RW1/D of all the labourers
who have been shown in the said seniority list were employed after the engagement of the
petitioner except serial no. 6. He has admitted that working of 240 days is to be established by
petitioner to claim benefit of deemed service under Section 25-B of the Act. He has admitted that
petitioner has been engaged in the year 1999 who had not been issued any appointment letter but
denied that petitioner had been deliberately given breaks in the years from 1999 to 2007 but he
could not plead so as no corresponding record has been produced by the respondent to establish that
on absence of petitioner from her duty, any notice was issued for unauthorized absence and the
version of RW1 that petitioner came and worked & go of her own from duty cannot be accepted
which manifestly appear to be afterthought. Moreover, RW1 has admitted that as per record no
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notice was given to petitioner for her absence from duty at any point of time. Since absence from
duty is serous misconduct, and there being nothing on record to show initiation of proceeding, plea
set forth by respondent qua abandonment of job by petitioner intermittently merits rejection. As
such, the plea of fictional break given to the petitioner from the year 1999 to 2007 gets
substantiated not only from documentary evidence on record but from testimony on oath of RW1 as
well. Although, petitioner being in employment at the time of passing of award, being given
fictional breaks as stated above is duly established but petitioner cannot be deprived of her
legitimate right to seek seniority as well as continuity in service form her date of joining along-with
other persons working with him. Thus, petitioner could not have been discriminated arbitrarily who
has certainly been discriminated as stated in foregoing paras. In view of aforesaid discussion, it is
held that time to time termination of the services of the petitioner and giving fictional breaks in
service by the respondent during 1999 to 2007 was certainly illegal and unjustified which
manifestly in contravention of provisions of Section 25-F, 25-G & 25-H of the Act but as the
petitioner is still in employment with the respondent, she is to be given benefit of seniority and
continuity in service except back wages in the circumstances of the case. Issues are accordingly
decided in part in favour of the petitioner and against the respondent.
ISSUE NO.3
15. On the plea 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. Otherwise also, from pleadings and evidence on record, no
inference of claim petition being not maintainable could be raised against claimant/petitioner. As
such, issue in hand is answered in negative against the respondent and in favour of petitioner.
ISSUE NO.4
16. In the light of my findings on the issues no.1 and 2 in foregoing para, it is held that the
Executive Engineer, HPPWD, National Highway Division, Joginder Nagar is not a necessary party
to be impleaded in this case in claim petition as petitioner was initially appointed with respndoent
only PW1 has admitted in cross-examination that petitioner was working with respondent although
she earlier worked with Executive Engineer HPPWD National Highways. Thus, creation of
separate HPWPD division vide office order Ex. RW1/B shall have no serious consequence on
merits of case. Issue in hand is answered in negative in favour of petitioner and against respondent.
ISSUE NO.5
17. Ld. Dy. D.A. representing state respondent has contended that petition so filed was bad
on account of delay and laches. It is evident from findings in foregoing paras that petitioner was
given fictional breaks from 1999 to 31.8.2007 which was not within knowledge of petitioner. It
seems that when workmen junior to petitioner had been regularized, she come to know about
intermittent breaks. The matter was brought to notice of Conciliation Officer where it did not
materialize and consequently Labour Commissioner made reference to this court. Ld. counsel for
petitioner, on the other hand, has maintained that no prejudice had been caused to petitioner.
Moreover, not a single question has been asked by ld. Dy. D.A. on delay to the petitioner. As such,
delay which is not questioned stands explained as stated above. Otherwise also, plea of delay or
limitation would not eclipse claim of petitioner in any manner. It is settled preposition of law that in
case a dispute is referred to for determination, the Court will have to return a finding on merits and
the delay in raising the dispute may be considered by the Court at the time of granting the final
relief, as has been held by our own Hon'ble High Court in Bhatag Ram's case (2007 LHLJ 903). In
Divisional Manager, HPFC & another vs. Garibu Ram, Latest HLJ 2007 (HP) 1160, the delay of
more than 10 years was held to have not come in the way of the workman whose services were
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illegally terminated by holding that the provisions of Limitation Act is not applicable to industrial
dispute but however, depending upon the facts and circumstances of each case, the principle of
delay and laches have to be seen and applied. In Deepa Ram vs. State of H.P. and Ors., 2005 (1)
Himachal Law Journal 248, there was a delay of 12 years. In Ramesh Chand vs. Union of India,
CWP No. 812 of 2000, there was a delay of 9 years. In CWP No. 95 of 2000 titled as Divisional
Manager vs. Mohinder Kumar, there was a delay of 14 years. In Naginder Kumar vs. HPSEB and
anr. 2008 (1) SLJ (H.P.) 425, it has been held by the Hon'ble High Court of H.P. that the Labour
Court cannot dismiss the claim on the ground of delay and laches once the same has been referred
by the State Government and the Labour Court is bound to decide the reference which was made by
the State Government and same is required to be adjudicated upon the merits without touching the
aspect of delay and laches. The Hon'ble Apex Court in the Bombay Gas Co. Ltd. vs. Gopal Bhiva
& Ors, AIR 1964 SC 752, has categorically held that as such of all those employees, who are
entitled to take the benefit of Section 33-C (2) may not always be conscious of their rights and it
may not be right to put the restriction of limitation in respect of claim which they may have to
make under the provision and in absence of any provision for limitation, it may not be open to the
Court to introduce the limitation on the ground of fairness and justice. In Ajayab Singh vs. Sirhind
Co-operative Marketing-cum-Processing Society Limited and Another, (1999) 6 SCC 82, it has
been observed by the Hon'ble Supreme Court that :
“The provisions of Article 137 of Limitation Act, 1963 are not applicable to the proceeding
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”.
18. Be it noticed that no material has been placed on record by the respondent to establish
that there was inordinate delay on the part of the petitioner in raising the dispute in the instant case
or that any prejudice had been caused to respondent. Accordingly, the petition as filed by the
petitioner cannot be held to be hit by the vice of delays and laches as alleged by the respondent.
Hence, this issue is decided against the respondent and is answered accordingly.
RELIEF
19. As sequel to my findings on foregoing issues, it is held that the petitioner is held to be
in continuous uninterrupted service with the respondent from the date of her initial engagement and
that breaks given by the respondent being fictional in nature shall have no effect on the seniority
and continuity of service of the petitioner and her seniority shall be reckoned from her initial date
of engagement. Accordingly, claim of petitioner is hereby allowed in part and reference is
accordingly answered in favour of petitioner. The petitioner shall thus be deemed to be in
continuous service of respondent with all consequential benefits except back wages. She shall,
however, be considered for regularization by respondent at the time when her juniors have been
regularized as per policy governing daily wagers as framed by State Govt. and operative from time
to time. The parties, however, shall bear their own costs.
20. The reference is answered in the aforesaid terms.
21. A copy of this Award be sent to the appropriate Government for publication in the
official gazette.
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22. File, after due completion be consigned to the Record Room.
Announced in the open Court today this 28th day of November, 2016.
(K.K. SHARMA),
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
_________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)
Ref No. : 434/2015
Date of Institution : 05.10.2015
Date of decision : 28.11.2016
Shri Kuldeep Chand s/o Shri Chingu Ram, r/o Village Kaflon, P.O. Gangoti, Tehsil
Ladbharol, District Mandi, H.P.
…Petitioner.
Versus
The Executive Engineer, H.P.P.W.D. (B&R) Division, Joginder Nagar, Distt. Mandi, H.P.
...Respondent.
Reference under section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner : Sh. Suresh Kumar Sharma, Adv.
For the Respondent : Sh. Sanjeev Singh Rana, Dy. D.A.
AWARD
1. The following reference has been received from the appropriate Government for
adjudication :
“Whether time to time termination of the services of Shri Kuldeep Chand S/O Shri Chingu
Ram R/O Village Kaflon, P.O. Gangoti, Tehsil Ladbharol, District Mandi, H.P. during
November, 2001 to 31-08-2007 by the Executive Engineer, B&R Division H.P.P.W.D.,
Joginder Nagar, District Mandi, H.P., 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 worker is entitled to from the
above employer?”
2. On receipt of reference from appropriate government, notices were issued to the parties
in pursuance to which claimant/petitioner has filed his statement of claim.
3.
Brief facts as set up in the claim petition reveal that petitioner was engaged as daily
rated beldar by respondent w.e.f. 01.11.2001 in its National Highway Division, Joginder Nagar and
later he (petitioner) worked with the respondent in the newly created HPPWD Division in 2004 but
he was given fictional breaks from time to time from his initial engagement till 31.8.2007. It is
alleged that he was issued muster rolls for 15 days in a month, though the work was available for
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the entire month but, his juniors namely Dalip Singh, Gautam Singh, Geeta Devi, Pradeep Kumar,
Kishhori Lal, Sanjay Kumar, Bhag Mal, Nihal Chand, Anil Kumar and Chanchal. were not given
such breaks and they were allowed to complete 240 days in each calendar year and the above
named juniors have now been regularized. It is alleged that the respondent has stopped giving
fictional breaks to the petitioner from 01.9.2007 and thereafter, the petitioner has completed 240
days in each calendar year. Therefore, there has been violation of the provisions of Sections 25-F,
25-G and 25-H of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act, for brevity).
This Court/Tribunal has already decided a similar matter i.e. Reference No.110/2006 titled as
General Secretary vs. Executive Engineer, HPPWD per Award dated 02.11.2010 in favour of the
workmen. The petitioner thus has filed a demand notice with the labour department but matter
could not be reconciled as the petitioner has prayed for giving him the benefit of seniority,
regularization and back wages etc.
4. Respondent contested petition, filed separate reply inter-alia taken preliminary
objections of maintainability, petition being bad for non- joinder of necessary parties and claim
petition being bad on account of delay and laches. On merits, engagement of the petitioner from
November, 2001 is admitted. The allegation of giving fictional breaks up-to 31.8.2007 has been
specifically denied. It is alleged that the work was made available to the petitioner as per the
requirement and availability of the funds from time to time as per mandays chart annexure-RII and
R-III and that all the workers in the annexure R-III were senior to the petitioner who have since
been regularized. It is further alleged that the disengagement of the workmen on the availability of
the funds and the work was strictly in accordance with the policy of „last come first go and thus
allegation of violation of Section 25-F, 25-G and 25-H of the Industrial Disputes Act has been
specifically denied. Thus, relying upon the plea of reference of regularization of petitioner, cause of
action as pleaded in the claim petition filed by petitioner is denied and the petition is sought to be
dismissed.
5. The petitioner filed rejoinder, reiterated his stand as maintained in the claim petition.
6. To prove his case, petitioner had examined himself as PW1 tendered/proved his
affidavit Ex. PW1/A under Order 18 Rule 4 CPC and closed evidence. On the other hand,
repudiating the evidence led by petitioner, respondent had examined Shri Rajeev Sharma, the then
Executive Engineer, HPPWD (B&R) Division, Joginder Nagar as RW1, tendered Ex. RW1/A copy
of letter dated 9th December, 2003, Ex. RW1/B regarding creation of PWD Division (B&R)
Joginder Nagar in the year 2004, Ex. RW1/C mandays chart of petitioner, Ex. RW1/D year-wise
working days of daily wage Beldar and closed evidence.
7.
I have heard the Authorized Representative/counsel representing petitioner and ld. Dy.
D.A. for respondent, gone through records of the case carefully.
8. From the contentions raised, following issues were framed on 23.4.2016 for
determination :
1. Whether time to time termination of the services of the petitioner by the
respondent during November, 2001 to 31.8.2007 is/was improper and unjustified
as alleged?
...OPP.
2. If issue no.1 is proved in affirmative, to what service benefits the petitioner is
entitled to?
...OPP.
3. Whether the petition is not maintainable in the present form as alleged?
...OPR.
4. Whether the petition is bad for non-joinder of necessary parties as alleged? ...OPR.
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5. Whether the claim petition is bad on account of delay and laches on the part of the
claimant as alleged.?
...OPR.
Relief.
9. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my
findings on the aforesaid issues are as follows :
Issue No.1 :
Yes
Issue No.2 :
Discussed
Issue No.3 :
No
Issue No.4 :
No
Issue No.5 :
No
Relief :
Petition is allowed per operative part of the Award.
REASONS FOR FINDINGS
ISSUES NO. 1 AND 2
10. Both these issues have been taken up together for discussion being interconnected
which can be disposed of simultaneously without repetition of evidence.
11. Factum of petitioner having been appointed as daily waged beldar on muster roll by
the respondent November, 2001 is not in dispute. It is the admitted case of petitioner that he had
worked since November, 2001 but he had been deliberately given fictional breaks by respondent so
that he could not complete 240 days to get benefits of Section 25-B of the Act. The plea of
respondent, on the other hand remains that petitioner was still working but had been working
intermittently as he of his own use to not come on his duty besides he willfully absented several
times from it.
12. To appreciate the genuineness of the plea so raised by respondent, suffice would be to
state here that bald assertion of the respondent cannot be accepted that petitioner willfully absented
from his duties as there is nothing corresponding in evidence to show that any letter or intimation
was sent to petitioner for his unauthorized absence from his duties as absence from duty is serious
misconduct, it is projected to be case as if petitioner came of his own and worked at his whims. The
plea of petitioner, on the other hand remains that fictional breaks were deliberately given to him
and that several other persons junior to petitioner namely Smt. Geeta Devi, Dalip Singh, Goutam
Singh and others have been regularized by respondent who were actually not given fictional breaks
at any point of time.
13. Perusal of mandays chart Ex. RW1/C would reveal that in the year 2001 petitioner had
worked for 29 days, 172 days in 2002, 167 days in 2003, 169 days in 2004, 165 days in 2005, 150
days in 2006, 232 days in 2007, 353 days in 2008, 357 days in 2009, 363 days in 2010, 363 days in
2011, 363 days in 2012, 365 days in 2013, 363 days in 2014 and 90 days in 2015. It can be noticed
that in the several years petitioner has worked for less than 240 days, whereas for other remaining
years he had worked for more than 240 days. Seniority list of regular labourers HPPWD (B&R)
Division has also been relied upon by respondent which is Ex. RW1/D on record in which all the
persons named above are shown to have joined in the years 2002, 2003 and 2004 except at serial
nos.3,6, and 7 who had joined earlier to petitioner whereas petitioner had joined in 2001. Since
respondent had not disputed to have engaged petitioner in November, 2001, he ought to have been
regularized having continuously worked for about 6 years with requisite number of days required
for regularization and on account of fictional break as stated above, which would show that other
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persons who had joined along-with him have been regularized but the petitioner has been deprived
of his legitimate right for regularization till now. Thus, break in service being within a period of
nine years from his termination was definitely a fictional break as in remaining years he had
worked for more than 240 days. The act of the respondent in giving fictional break is manifestly
arbitrary without any basis. Although respondent department ipso facto does not dislodge petitioner
from claiming his seniority and continuity in service from his initial engagement but fictional
breaks in no manner would affect or eclipse legitimate right of regularization in service of
petitioner. However, petitioner has admitted in cross-examination that he had agricultural land and
remained employed and as such it could not be stated with certainty that petitioner was not
gainfully employed during the period of fictional breaks.
14. Stepping into the witness box as PW1, petitioner has sworn in detailed affidavit under
Order 18 Rule 4 CPC stipulating therein that he had been engaged and disengaged between 2001 to
2007 by giving fictional break whereas the persons junior to petitioner have been continuously
engaged by department for the whole year who had completed more than 240 days in a calendar
year as they had been invariably issued muster roll for whole of month in these years. In cross-
examination, petitioner has admitted that he has been regularly provided with more than 240 days
of work after 2007 which means the dispute is only for the years 2001 to 2007 as stated in the
affidavit. It needs to be noticed that other co-workers working with petitioner or say who were
junior were given muster roll for full month so that they completed 240 days in a year. RW1 Shri
Rajeev Sharma has admitted in cross-examination that seniority list Ex. RW1/D of all the labourers
who have been shown in the said seniority list were employed after the engagement of the
petitioner except serial nos. 3,6 and 7. He has admitted that working of 240 days is to be
established by petitioner to claim benefit of deemed service under Section 25-B of the Act. He has
admitted that petitioner has been engaged in the year 2001 who had not been issued any
appointment letter but denied that petitioner had been deliberately given breaks in the years from
2001 to 2007 but he could not plead so as no corresponding record has been produced by the
respondent to establish that on absence of petitioner from his duty, any notice was issued for
unauthorized absence and the version of RW1 that petitioner came and worked & go of his own
from duty cannot be accepted which manifestly appear to be afterthought. Moreover, RW1 has
admitted that as per record no notice was given to petitioner for his absence from duty at any point
of time. Since absence from duty is serous misconduct, and there being nothing on record to show
initiation of proceeding, plea set forth by respondent qua abandonment of job by petitioner
intermittently merits rejection. As such, the plea of fictional break given to the petitioner from the
year 2001 to 2007 gets substantiated not only from documentary evidence on record but from
testimony on oath of RW1 as well. Although, petitioner being in employment at the time of passing
of award, being given fictional breaks as stated above is duly established but petitioner cannot be
deprived of his legitimate right to seek seniority as well as continuity in service from his date of
joining along-with other persons working with him. Thus, petitioner could not have been
discriminated arbitrarily who has certainly been discriminated as stated in foregoing paras. In view
of aforesaid discussion, it is held that time to time termination of the services of the petitioner and
giving fictional breaks in service by the respondent during 2001 to 2007 was certainly illegal and
unjustified which is manifestly in contravention of provisions of Section 25-F, 25-G & 25-H of the
Act but as the petitioner is still in employment with the respondent, he is to be given benefit of
seniority and continuity in service except back wages in the circumstances of the case. Issues are
accordingly decided in part in favour of the petitioner and against the respondent.
ISSUE NO.3
15. 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. Otherwise also, from pleadings and evidence on
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record, no inference of claim petition being not maintainable could be raised against
claimant/petitioner. As such, issue in hand is answered in negative against the respondent and in
favour of petitioner.
ISSUE NO.4
16. In the light of my findings on the issues no.1 and 2 in foregoing para, it is held that the
Executive Engineer, HPPWD, National Highway Division, Joginder Nagar is not a necessary party
to be impleaded in this case in claim petition as petitioner was initially appointed with respndoent
only PW1 has admitted in cross-examination that petitioner was working with respondent although
he earlier worked with Executive Engineer HPPWD National Highways. Thus, creation of separate
HPWPD division vide office order Ex. RW1/B shall have no serious consequence on merits of
case. Issue in hand is answered in negative in favour of petitioner and against respondent.
ISSUE NO.5
17. Ld. Dy. D.A. representing state respondent has contended that petition so filed was bad
on account of delay and laches. It is evident from findings in foregoing paras that petitioner was
given fictional breaks from 2001 to 2007 which was not within knowledge of petitioner. It seems
that when workmen junior to petitioner had been regularized, he come to know about intermittent
breaks. The matter was brought to notice of Conciliation Officer where it did not materialize and
consequently Labour Commissioner made reference to this court. Ld. counsel for petitioner, on the
other hand, has maintained that no prejudice had been caused to petitioner. Moreover, not a single
question has been asked by ld. Dy. D.A. on delay to the petitioner. As such, delay which is not
questioned stands explained as stated above. Otherwise also, plea of delay or limitation would not
eclipse claim of petitioner in any manner. It is settled preposition of law that in case a dispute is
referred to for determination, the Court will have to return a finding on merits and the delay in
raising the dispute may be considered by the Court at the time of granting the final relief, as has
been held by our own Hon'ble High Court in Bhatag Ram's case (2007 LHLJ 903). In Divisional
Manager, HPFC & another vs. Garibu Ram, Latest HLJ 2007 (HP) 1160, the delay of more than 10
years was held to have not come in the way of the workman whose services were illegally
terminated by holding that the provisions of Limitation Act is not applicable to industrial dispute
but however, depending upon the facts and circumstances of each case, the principle of delay and
laches have to be seen and applied. In Deepa Ram vs. State of H.P. and Ors., 2005 (1) Himachal
Law Journal 248, there was a delay of 12 years. In Ramesh Chand vs. Union of India, CWP No.
812 of 2000, there was a delay of 9 years. In CWP No. 95 of 2000 titled as Divisional Manager vs.
Mohinder Kumar, there was a delay of 14 years. In Naginder Kumar vs. HPSEB and anr. 2008 (1)
SLJ (H.P.) 425, it has been held by the Hon'ble High Court of H.P. that the Labour Court cannot
dismiss the claim on the ground of delay and laches once the same has been referred by the State
Government and the Labour Court is bound to decide the reference which was made by the State
Government and same is required to be adjudicated upon the merits without touching the aspect of
delay and laches. The Hon'ble Apex Court in the Bombay Gas Co. Ltd. vs. Gopal Bhiva & Ors,
AIR 1964 SC 752, has categorically held that as such of all those employees, who are entitled to
take the benefit of Section 33-C (2) may not always be conscious of their rights and it may not be
right to put the restriction of limitation in respect of claim which they may have to make under the
provision and in absence of any provision for limitation, it may not be open to the Court to
introduce the limitation on the ground of fairness and justice. In Ajayab Singh vs. Sirhind Co-
operative Marketing-cum-Processing Society Limited and Another, (1999) 6 SCC 82, it has been
observed by the Hon'ble Supreme Court that:
“The provisions of Article 137 of Limitation Act, 1963 are not applicable to the proceeding
under the ID Act. The relief under the ID Act cannot be denied merely on the ground of
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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”.
18. Be it noticed that no material has been placed on record by the respondent to establish
that there was inordinate delay on the part of the petitioner in raising the dispute in the instant case
or that any prejudice had been caused to respondent. Accordingly, the petition as filed by the
petitioner cannot be held to be hit by the vice of delays and laches as alleged by the respondent.
Hence, this issue is decided against the respondent and is answered accordingly.
RELIEF
19. As sequel to my findings on foregoing issues, petitioner is held to be in continuous
uninterrupted service with the respondent from the date of his initial engagement and that breaks
given by the respondent being fictional in nature shall have no effect on the seniority and continuity
of service of the petitioner and his seniority shall be reckoned from his initial date of engagement.
Accordingly, claim of petitioner is hereby allowed in part and reference is accordingly answered in
favour of petitioner. The petitioner shall thus be deemed to be in continuous service of respondent
with all consequential benefits except back wages. He shall, however, be considered for
regularization by respondent at the time when his juniors have been regularized as per policy
governing daily wagers as framed by State Govt. and operative from time to time. The parties,
however, shall bear their own costs.
20. The reference is answered in the aforesaid terms.
21. A copy of this Award be sent to the appropriate Government for publication in the
official gazette.
22. File, after due completion be consigned to the Record Room.
Announced in the open Court today this 28th day of November, 2016.
(K. K. SHARMA),
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
_________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)
Ref No. : 207/2015
Date of Institution : 15.05.2015
Date of Decision : 29.11.2016
Shri Gassi Lal s/o Shri Prem Chand, r/o Village Hudan Bhatori, 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.
7885
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Reference under Section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner : Sh. Gaurav Sharma, 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 Gassi Lal S/O Shri Prem Chand,
R/O Village Hudan Bhatori, P.O. Killar, Tehsil Pangi, District Chamba, H.P. before the
Executive Engineer, Killar Division, I.&P.H./H.P.P.W.D. Killar, Tehsil Pangi, District
Chamba, H.P. vide demand notice dated 12.01.2012 regarding his alleged illegal
termination of service during September, 2004 suffers from delay and latches? If not,
Whether termination of the services of Shri Shri Gassi Lal S/O Shri Prem Chand, R/O
Village Hudan Bhatori, P.O. Killar, Tehsil Pangi, District Chamba, H.P. by the Executive
Engineer, Killar Division, I.&P.H/H.P.P.W.D. Killar, Tehsil Pangi, District Chamba, H.P.
during September, 2004 without complying the provisions of the Industrial Disputes Act,
1947, is legal and justified? If not, what amount of back wages, seniority, past service
benefits and compensation the above aggrieved workman is entitled to from the above
employer?”
2. On receipt of reference from appropriate government, notices were issued to the parties
in pursuance to which claimant/petitioner has filed statement of claim.
3. Brief facts as enumerated in the present claim petition by the petitioner above named
revealed that he had been initially engaged as daily paid beldar in IPH Department Pangi in the
year 1994 who worked till 2004 with the respondent/department. It is alleged that the petitioner
could not be worked with the respondent in the years 1991, 1993, 1994, 1996 and 1997 respectively
due to which the respondent had not provided him to work although the work was available with
the respondent/department. It is stated that during the service period of petitioner he had worked for
81 days in the year 1990, 57 days in 1992, 28 days in 1995, 74 days in 1998, 139 days in 1999, 55
days in 2000, 104 days in 2001, 109 days in 2002, 68 days in 2003 and 47 days in 2004 with the
respondent. Averments made in the petition further revealed that Pangi is a tribal and snow bound
area and no effective work was available with the respondent w.e.f. November to May but the
petitioner had worked for maximum days and the services of petitioner were dispensed with in the
year 2001 without any reason and prior notice and no procedure had been followed by the
respondent/department. It is alleged that petitioner had worked for more than 100 days during the
months as per availability of work and petitioner is entitled for regularization as per policy of the
government and law laid down by the Hon'ble Apex Court as well as the Hon'ble High Court of
Himachal Pradesh. It is contended that respondent had not followed the provisions of Section 25-F
of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act' for brevity) while
disengaging the services of petitioner. The grievance of petitioner further remains that when the
services of petitioner have been terminated, respondent/department had reengaged persons junior to
the petitioner and respondent had not followed the principle of 'Last come, First go' envisaged
under Section 25-G of the Act. It is stated that petitioner belongs to BPL family and completed 45
years of age no source of income besides after termination of the services of petitioner, he had
approached the respondent time and again but of no avail. He prayed for reengagement of petitioner
in service along-with back wages, and other consequential service benefits.
4. The respondent contested claim petition, filed reply inter-alia taken preliminary
objections of maintainability, claim petition being bad on account of delay and laches. On merits
7886
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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. It is contended that the services of petitioner had not been terminated by the
respondent but petitioner left the job of his own will. It is stated that the petitioner had not
completed 160 days of continuous service in each calendar year and he did not fulfill the criteria as
envisaged under Section 25-B of the Act and also petitioner did not complete criteria for
regularization as petitioner had not worked for 160 days in each calendar year. It is denied that
respondent had never violated the provisions of Section 25-G of the Act. 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. It is also contended that if
petitioner had been terminated in 2001 he would have definitely raised industrial dispute
immediately and that after ten 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 termination. It is contended that petitioner was agriculturist and gainfully employed and
was thus not entitled for back wages.
5. The petitioner filed rejoinder, reiterated his stand as maintained in the claim petition.
6. 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 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 and closed the evidence.
7. I have heard the ld. counsel of petitioner and ld. Dy. D.A. representing respondent,
gone through records of the case carefully relevant for disposed of this case.
8. From the contentions raised, following issues were framed on 27.11.2015 for
determination :
1.
Whether the industrial dispute raised by petitioner vide demand notice dated
12.1.2012 qua his termination of service during September, 2004 by respondent
suffers from the vice of delay and laches as alleged? If so, its effect?
... OPP.
2.
Whether termination of services of the petitioner by the respondent during
September, 2004 is/was illegal and unjustified as alleged?
...OPP.
3. If issue no. 2 is proved in affirmative, to what service benefits the petitioner is
entitled to?
...OPP.
4.
Whether the claim petition is not maintainable in the present form as alleged?
...OPR.
Relief.
9. For the reasons detailed here under, my findings on the above issues are as follows:—
Issue No.1 :
Discussed
Issue No.2 :
No
7887
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Issue No.3 :
No
Issue No.4 :
Yes
Relief. :
Claim petition dismissed per operative part of the Award.
REASONS FOR FINDINGS
ISSUES NO.1 TO 4
10. All these issues have been taken up together for discussion being interconnected which
can be disposed of simultaneously without repetition of evidence.
11. At the outset, it is relevant to mention here that the petitioner has failed to establish
having worked for 160 days continuously preceding his termination even while working in tribal
area of Killar (Pangi). Similarly, petitioner has also failed to establish that junior persons have been
retained in service and the services of petitioner were disengaged in violation of the provisions of
Section 25-G of the Industrial Disputes Act, 1947 as the petitioner has not produced on record any
seniority list establishing that the workers were engaged in particular years as mentioned and they
continued to worked till the termination of the services of petitioner. Equally important to mention
here is that petitioner has failed to establish that the juniors were retained and services of petitioner
had been terminated. As such, there could be no requirement of issuance of notice for
reemployment of petitioner and therefore it cannot be stated that the provisions of Sections 25-G
and 25-H of the Industrial Disputes Act had been violated. To appreciate the pleas of petitioner, it
would be relevant to through the evidence led by petitioner in support of his claim.
12. Stepping into witness box as PW1, petitioner has deposed on oath to have worked for
160 days in each year he remained engaged with respondent which is contrary to stipulation made
in mandays chart Ex. RW1/B showing that petitioner had worked from 1990 till 2004 and in the
year 2004 he has merely worked for 47 days in the months of August and September and prior to it,
he was not engaged by the respondent in the months of January to April however he was engaged
in May and when worked for 10 days, 29 days in June and 29 days in July aggregating to 68 days in
the year 2003. It can be seen from this mandays chart that petitioner had not actually worked 160
days in preceding 12 months of his termination as was required so as to establish for applicability
of Section 25-B of the Industrial Disputes Act and consequently violation of Section 25-F for
having not issued any notice by the respondent before terminating his services. Although, petitioner
on oath has maintained that no notice was issued by the respondent while terminating his services
but it was not the requirement of the law as petitioner had never worked for 160 days preceding his
date of termination although in different years he had worked for number of days but those days
could not be counted for the purpose of 160 days as break period exist in between. The petitioner
has denied in cross-examination that he had left the job of his own but he has not established to
have worked for 160 days as stated above in the tribal area as was required under law. The plea of
abandonment of the termination ceases to have significance as no notice was required to be issued
by the respondent. As such, it may not be erroneous to conclude that respondent was not required to
comply with the provisions of Section 25-F by issuance of legal notice before terminating the
services of petitioner.
13. In so far in the plea of the petitioner having been removed from service by the
respondent and retention of juniors or reengaging them to so that they completed 160 days is
concerned, this plea is also not proved in as much as the petitioner has failed to produce any
seniority list by which it could be established that persons junior to him were appointed by the
respondent/department. In cross-examination of petitioner he has denied that no juniors to him have
not been retained but the plea was taken by petitioner has not been established by reliable evidence
and uncorroborated testimony of the petitioner cannot be relied so as to hold that the respondent
7888
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had retained juniors and regularized them in service by allowing them to complete 160 days in
tribal area of Pangi. No witness had been examined by petitioner to prove that junior to petitioner
was engaged after termination of services of petitioner. At the same time, no documentary evidence
has been led which would further corroborate or support the plea of the petitioner on termination
without notice rather respondent too has pleaded plea of abandonment which is also not proved as
no corresponding evidence has been proved showing issuance of notice on unauthorized absence of
petitioner. Since respondent has failed to prove by cogent and reliable evidence that petitioner
abandoned the job, plea of termination of petitioner can be safely accepted.
14. Be it noticed that there is no merit in the allegation of the petitioner that respondent
had violated the provisions of Section 25-G of the Industrial Disputes Act irrespective of the fact
that there is no requirement of the law that the petitioner should have worked 160 days yet he was
not absolved of responsibility to establish that some junior persons were retained and he was not
offered for reengagement. Accordingly, it is held that the respondent had not violated the
provisions of Section 25-H of the Industrial Disputes Act as principle of 'Last come First go' was
not proved to have been not followed. Since none of the provisions of Section 25-F, 25-G and 25-H
have been violated by the respondent, this Tribunal is left with no option but answer the issues no.2
and 3 in negative.
15. On the point of delay in issuance of legal notice to the respondent, it would be relevant
to mention here that the services of petitioner had been terminated in 2004 whereas petitioner had
issued legal notice dated nil which goes to suggest that petitioner had issued legal notice and there
was no explanation of delay. Keeping in view the mandate of Hon'ble Apex Court in various
judgments wherein it has been held that delay in raising industrial dispute is definitely an important
circumstance to be considered by court but not fatal to claim of petitioner and court has to keep in
mind while exercising discretion as has also been observed in para nos. 20 and 21 of judgment
2013 supra has referred to Gitam Singh’s case reported in 2013 (136) FLR 893 (SC) titled as
Assistant Engineer Rajasthan Development Corporation and another vs. Geetam Singh observing
that before exercising its judicial discretion, the Labour Court has to keep in view all relevant
factors including the mode and manner of appointment, nature of employment, length of service,
the ground on which termination has been done and the delay in raising industrial dispute before
grant of relief in an industrial dispute. But to my mind petitioner has not proved violation of any of
the provisions of Sections 25-F, 25-G and 25-H of the Industrial Disputes Act as stated above and
for that reason he would not be entitled for relief of reinstatement as claimed by the petitioner or
even for lump compensation as has been awarded by this Tribunal in various cases of similar
nature. Thus, the petition is held to be not maintainable as petitioner has failed to establish violation
of the provisions of Section 25-F, 25-G and 25-H of the Industrial Disputes Act by respondent who
is also held not entitled even for lump sum compensation in lieu of service rendered by him. Issue
no.1 is decided as discussed whereas issues no. 2 and 3 are answered in negative and issue no.4
answered in affirmative. All these issues are decided against the petitioner and in favour of
respondent.
RELIEF
16. As a sequel to my findings on foregoing issues, the instant claim petition is dismissed.
In the peculiar circumstances of the case, the parties are left to bear their own costs.
17. The reference is answered in the aforesaid terms.
18. A copy of this Award be sent to the appropriate Government for publication in the
official gazette.
7889
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19. File, after due completion be consigned to the Record Room.
Announced in the open Court today this 29th day of November, 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. : 231/2015
Date of Institution : 27.05.2015
Date of Decision : 29.11.2016
Shri Trilok Singh s/o Shri Gullu Ram, r/o Village Tundru, 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. Gaurav Sharma, 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 Trilok Singh S/O Shri Gullu Ram,
R/O Village Tundru, P.O. Killar, Tehsil Pangi, District Chamba, H.P. before the Executive
Engineer, Killar Division, I.&P.H./H.P.P.W.D. Killar, Tehsil Pangi, District Chamba, H.P.
vide demand notice dated-nil-received on 31.10.2011 regarding his alleged illegal
termination of service during October, 2001 suffers from delay and latches? If not, Whether
termination of the services of Shri Trilok Singh S/O Shri Gullu Ram, R/O Village Tundru,
P.O. Killar, Tehsil Pangi, District Chamba, H.P. by the Executive Engineer, Killar Division,
I.&P.H/H.P.P.W.D. Killar, Tehsil Pangi, District Chamba, H.P. during October 2001
without complying the provisions of the Industrial Disputes Act, 1947, is legal and
justified? If not, what amount of back wages, seniority, past service benefits and
compensation the above aggrieved workman is entitled to from the above employer?”
2. On receipt of reference from appropriate government, notices were issued to the parties
in pursuance to which claimant/petitioner has filed statement of claim.
3. Brief facts as enumerated in the present claim petition by the petitioner above named
revealed that he had been initially engaged as daily paid beldar in IPH Department Pangi in the
7890
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year 1994 and worked as such utpo 2001 without any break. It is stated that during the service
period of petitioner he had worked for 114 days in the year 1994, 107 days in 1995, 95 days in
1996, 162 days in 1997, 117 days in 1998, 113 days in 1999, 107 days in 2000 and 140 days in
2001 with the respondent. Averments made in the petition further revealed that Pangi is a tribal and
snow bound area and no effective work was available with the respondent w.e.f. November to May
but the petitioner had worked for maximum days and the services of petitioner were dispensed with
in the year 2001 without any reason and prior notice and no procedure had been followed by the
respondent/department. It is alleged that petitioner had worked for more than 100 days during the
months as per availability of work and petitioner is entitled for regularization as per policy of the
government and law laid down by the Hon'ble Apex Court as well as the Hon'ble High Court of
Himachal Pradesh. It is contended that respondent had not followed the provisions of Section 25-F
of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act' for brevity) while
disengaging the services of petitioner. The grievance of petitioner further remains that when the
services of petitioner have been terminated, respondent/department had reengaged persons junior to
the petitioner and respondent had not followed the principle of 'Last come, First go' envisaged
under Section 25-G of the Act. It is stated that petitioner belongs to BPL family and completed 45
years of age no source of income besides after termination of the services of petitioner, he had
approached the respondent time and again but of no avail. He prayed for reinstatement in service
along-with back wages, and other consequential service benefits.
4. The respondent contested claim petition, filed reply inter-alia taken preliminary
objections of maintainability, claim petition being bad on account of delay and laches. On merits
denied that petitioner had worked for more than 160 days in each calendar year rather clarified by
stating that petitioner was engaged as daily waged beldar in 1994 who remained engaged till 2001
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. It is contended that the services of petitioner had not been terminated by the
respondent but petitioner left the job of his own will. It is stated that the petitioner had not
completed 160 days of continuous service in each calendar year and he did not fulfill the criteria as
envisaged under Section 25-B of the Act and also petitioner did not complete criteria for
regularization as petitioner had not worked for 160 days in each calendar year. It is denied that
respondent had never violated the provisions of Section 25-G of the Act. 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. It is also contended that if
petitioner had been terminated in 2001 he would have definitely raised industrial dispute
immediately and that after ten 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 termination. It is contended that petitioner was agriculturist and gainfully employed and
was thus not entitled for back wages.
5. The petitioner filed rejoinder, reiterated his stand as maintained in the claim petition.
6.
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 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 and closed the evidence.
7.
I have heard the ld. counsel of petitioner and ld. Dy. D.A. representing respondent,
gone through records of the case carefully relevant for disposed of this case.
7891
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8. From the contentions raised, following issues were framed on 27.11.2015 for
determination :
1.
Whether the industrial dispute raised by petitioner vide demand notice dated nil
qua his termination of service during October, 2001 by respondent suffers from
the vice of delay and laches as alleged? If so, its effect?
...OPP.
2. Whether termination of services of the petitioner by the respondent during
October, 2001 is/was illegal and unjustified as alleged?
...OPP.
3. If issue no. 2 is proved in affirmative, to what service benefits the petitioner is
entitled to?
...OPP.
4.
Whether the claim petition is not maintainable in the present form as alleged?
...OPR.
Relief.
9. For the reasons detailed here under, my findings on the above issues are as follows:—
Issue No.1 :
Discussed
Issue No.2 :
No
Issue No.3 :
No
Issue No.4 :
Yes
Relief. :
Claim petition dismissed per operative part of the Award.
REASONS FOR FINDINGS
ISSUES NO.1 TO 4
10. All these issues have been taken up together for discussion being interconnected which
can be disposed of simultaneously without repetition of evidence.
11. At the outset, it is relevant to mention here that the petitioner has failed to establish
having worked for 160 days continuously preceding his termination even while working in tribal
area of Killar (Pangi). Similarly, petitioner has also failed to establish that junior persons have been
retained in service and the services of petitioner were disengaged in violation of the provisions of
Section 25-G of the Industrial Disputes Act, 1947 as the petitioner has not produced on record any
seniority list establishing that the workers were engaged in particular years and they continued to
worked till the termination of the services of petitioner. Equally important to mention here is that
petitioner has failed to establish that the juniors were retained and services of petitioner had been
terminated. As such, there could be no requirement of issuance of notice for reemployment of
petitioner and therefore it cannot be stated that the provisions of Sections 25-G and 25-H of the
Industrial Disputes Act had been violated. To appreciate the pleas of petitioner, it would be relevant
to through the evidence led by petitioner in support of his claim.
12. Stepping into witness box as PW1, petitioner has deposed on oath to have worked for
160 days in each year he remained engaged with respondent which is contrary to stipulation made
in mandays chart Ex. RW1/B showing that petitioner had worked from 1994 till 2001 and in the
year 2001 he has merely worked for 140 days in the months of June, July, August and September
and prior to it, he was not engaged by the respondent in the months of January to May however he
was engaged in June and when worked for 25 days, 27 days in July, 27 days in August and 28 days
7892
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in September aggregating to 107 days in the year 2000. It can be seen from this mandays chart that
petitioner had not actually worked 160 days in preceding 12 months of his termination as was
required so as to establish for applicability of Section 25-B of the Industrial Disputes Act and
consequently violation of Section 25-F for having not issued any notice by the respondent before
terminating his services. Although, petitioner on oath has maintained that no notice was issued by
the respondent while terminating his services but it was not the requirement of the law as petitioner
had never worked for 160 days preceding his date of termination although in different years he had
worked for number of days but those days could not be counted for the purpose of 160 days as
break period exist in between. The petitioner has denied in cross-examination that he had left the
job of his own but he has not established to have worked for 160 days as stated above in the tribal
area as was required under law. The plea of abandonment of the termination ceases to have
significance as no notice was required to be issued by the respondent. As such, it may not be
erroneous to conclude that respondent was not required to comply with the provisions of Section
25-F by issuance of legal notice before terminating the services of petitioner.
13. In so far in the plea of the petitioner having been removed from service by the
respondent and retention of juniors or reengaging them to so that they completed 160 days is
concerned, this plea is also not proved in as much as the petitioner has failed to produce any
seniority list by which it could be established that persons junior to him were appointed by the
respondent/department. In cross-examination of petitioner he has denied that no juniors to him have
not been retained but the plea was taken by petitioner has not been established by reliable evidence
and uncorroborated testimony of the petitioner cannot be relied so as to hold that the respondent
had retained juniors and regularized them in service by allowing them to complete 160 days in
tribal area of Pangi. No witness had been examined by petitioner to prove that junior to petitioner
was engaged after termination of services of petitioner. At the same time, no documentary evidence
has been led which would further corroborate or support the plea of the petitioner on termination
without notice rather respondent too has pleaded plea of abandonment which is also not proved as
no corresponding evidence has been proved showing issuance of notice on unauthorized absence of
petitioner. Since respondent has failed to prove by cogent and reliable evidence that petitioner
abandoned the job, plea of termination of petitioner can be safely accepted.
14. Be it noticed that there is no merit in the allegation of the petitioner that respondent
had violated the provisions of Section 25-G of the Industrial Disputes Act irrespective of the fact
that there is no requirement of the law that the petitioner should have worked 160 days yet he was
not absolved of responsibility to establish that some junior persons were retained and he was not
offered for reengagement. Accordingly, it is held that the respondent had not violated the
provisions of Section 25-H of the Industrial Disputes Act as principle of 'Last come First go' was
not proved to have been not followed. Since none of the provisions of Section 25-F, 25-G and 25-H
have been violated by the respondent, this Tribunal is left with no option but answer the issues no.2
and 3 in negative.
15. On the point of delay in issuance of legal notice to the respondent, it would be relevant
to mention here that the services of petitioner had been terminated in 2001 whereas petitioner had
issued legal notice dated nil which goes to suggest that petitioner had issued legal notice and there
was no explanation of delay. Keeping in view the mandate of Hon'ble Apex Court in various
judgments wherein it has been held that delay in raising industrial dispute is definitely an important
circumstance to be considered by court but not fatal to claim of petitioner and court has to keep in
mind while exercising discretion as has also been observed in para nos. 20 and 21 of judgment
2013 supra has referred to Gitam Singh’s case reported in 2013 (136) FLR 893 (SC) titled as
Assistant Engineer Rajasthan Development Corporation and another vs. Geetam Singh observing
that before exercising its judicial discretion, the Labour Court has to keep in view all relevant
factors including the mode and manner of appointment, nature of employment, length of service,
7893
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the ground on which termination has been done and the delay in raising industrial dispute before
grant of relief in an industrial dispute. But to my mind petitioner has not proved violation of any of
the provisions of Sections 25-F, 25-G and 25-H of the Industrial Disputes Act as stated above and
for that reason he would not be entitled for relief of reinstatement as claimed by the petitioner or
even for lump compensation as has been awarded by this Tribunal in various cases of similar
nature. Thus, the petition is held to be not maintainable as petitioner has failed to establish violation
of the provisions of Section 25-F, 25-G and 25-H of the Industrial Disputes Act by respondent who
is also held not entitled even for lump sum compensation in lieu of service rendered by him. Issue
no.1 is decided as discussed whereas issues no. 2 and 3 are answered in negative and issue no.4
answered in affirmative. All these issues are decided against the petitioner and in favour of
respondent.
RELIEF
16. As a sequel to my findings on foregoing issues, the instant claim petition is dismissed.
In the peculiar circumstances of the case, the parties are left to bear their own costs.
17. The reference is answered in the aforesaid terms.
18. A copy of this Award be sent to the appropriate Government for publication in the
official gazette.
19. File, after due completion be consigned to the Record Room.
Announced in the open Court today this 29th day of November, 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. : 325/2015
Date of Institution : 21.07.2015
Date of Decision : 29.11.2016
Shri Harnam Singh s/o Shri Duni Chand, r/o Village Bhatwas, 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. Gaurav Sharma, Adv.
For the Respondent : Sh. Sanjeev Singh Rana, Dy. D.A.
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AWARD
The reference given below has been received from the appropriate Government for
adjudication :
“Whether the industrial dispute raised by the worker Shri Harnam Singh S/O Shri Duni
Chand, R/O Village Bhatwas, P.O. Killar, Tehsil Pangi, District Chamba, H.P. before the
Executive Engineer, Killar Division, I.&P.H./H.P.P.W.D. Killar, Tehsil Pangi, District
Chamba, H.P. vide demand notice dated-nil-received on 31.10.2011 regarding his alleged
illegal termination of service during October, 2005 suffers from delay and latches? If not,
Whether termination of the services of Shri Harnam Singh S/O Shri Duni Chand, R/O
Village Bhatwas, P.O. Killar, Tehsil Pangi, District Chamba, H.P. by the Executive
Engineer, Killar Division, I.&P.H/H.P.P.W.D. Killar, Tehsil Pangi, District Chamba, H.P.
during October 2005 without complying the provisions of the Industrial Disputes Act, 1947,
is legal and justified? If not, what amount of back wages, seniority, past service benefits and
compensation the above aggrieved workman is entitled to from the above employer?”
2. On receipt of reference from appropriate government, notices were issued to the parties
in pursuance to which claimant/petitioner has filed statement of claim.
3. Brief facts as enumerated in the present claim petition by the petitioner above named
revealed that he had been initially engaged as daily paid beldar in IPH Department Pangi in the
year 1994 and worked as such utpo 2005 and petitioner had completed more than 160 days of work
with the respondent. Averments made in the petition further revealed that Pangi is a tribal and snow
bound area and no effective work was available with the respondent w.e.f. November to May but
the petitioner had worked for maximum days and the services of petitioner were dispensed with in
the year 2005 without any reason and prior notice and no procedure had been followed by the
respondent/department. It is alleged that petitioner had worked for maximum days during the
months as per availability of work and petitioner is entitled for regularization as per policy of the
government and law laid down by the Hon'ble Apex Court as well as the Hon'ble High Court of
Himachal Pradesh. It is contended that respondent had not followed the provisions of Section 25-F
of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act' for brevity) while
disengaging the services of petitioner. The grievance of petitioner further remains that when the
services of petitioner have been terminated, respondent/department had reengaged persons junior to
the petitioner and respondent had not followed the principle of 'Last come, First go' envisaged
under Section 25-G of the Act. It is stated that petitioner belongs to BPL family and completed 45
years of age no source of income besides after termination of the services of petitioner, he had
approached the respondent time and again but of no avail. He prayed for reinstatement in service
along-with back wages, and other consequential service benefits.
4.
The respondent contested claim petition, filed reply inter-alia taken preliminary
objections of maintainability, claim petition being bad on account of delay and laches. On merits
denied that petitioner had worked for more than 160 days in each calendar year rather clarified by
stating that petitioner was engaged as daily waged beldar in 1995 who remained engaged till 2005
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. It is contended that the services of petitioner had not been terminated by the
respondent but petitioner left the job of his own will. It is stated that the petitioner had not
completed 160 days of continuous service in each calendar year and he did not fulfill the criteria as
envisaged under Section 25-B of the Act and also petitioner did not complete criteria for
regularization as petitioner had not worked for 160 days in each calendar year. It is denied that
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respondent had never violated the provisions of Section 25-G of the Act. 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. It is also contended that if
petitioner had been terminated in 2001 he would have definitely raised industrial dispute
immediately and that after ten 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 termination. It is contended that petitioner was agriculturist and gainfully employed and
was thus not entitled for back wages.
5. The petitioner filed rejoinder, reiterated his stand as maintained in the claim petition.
6. 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 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 and closed the evidence.
7.
I have heard the ld. counsel of petitioner and ld. Dy. D.A. representing respondent,
gone through records of the case carefully relevant for disposed of this case.
8. From the contentions raised, following issues were framed on 27.11.2015 for
determination:
1.
Whether the industrial dispute raised by petitioner vide demand notice dated nil
qua his termination of service during October, 2005 by respondent suffers from
the vice of delay and laches as alleged? If so, its effect?
...OPP.
2. Whether termination of services of the petitioner by the respondent during
October, 2005 is/was illegal and unjustified as alleged?
...OPP.
3. If issue no. 2 is proved in affirmative, to what service benefits the petitioner is
entitled to?
...OPP.
4. Whether the claim petition is not maintainable in the present form as alleged?
...OPR.
Relief.
9.
For the reasons detailed here under, my findings on the above issues are as follows:—
Issue No.1 :
Discussed
Issue No.2 :
No
Issue No.3 :
No
Issue No.4 :
Yes
Relief. :
Claim petition dismissed per operative part of the Award.
REASONS FOR FINDINGS
ISSUES NO.1 TO 4
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. At the outset, it is relevant to mention here that the petitioner has failed to establish
having worked for 160 days continuously preceding his termination even while working in tribal
area of Killar (Pangi). Similarly, petitioner has also failed to establish that junior persons have been
retained in service and the services of petitioner were disengaged in violation of the provisions of
Section 25-G of the Industrial Disputes Act, 1947 as the petitioner has not produced on record any
seniority list establishing that the workers were engaged in particular years as mentioned and they
continued to worked till the termination of the services of petitioner. Equally important to mention
here is that petitioner has failed to establish that the juniors were retained and services of petitioner
had been terminated. As such, there could be no requirement of issuance of notice for
reemployment of petitioner and therefore it cannot be stated that the provisions of Sections 25-G
and 25-H of the Industrial Disputes Act had been violated. To appreciate the pleas of petitioner, it
would be relevant to through the evidence led by petitioner in support of his claim.
12. Stepping into witness box as PW1, petitioner has deposed on oath to have worked for
160 days in each year he remained engaged with respondent which is contrary to stipulation made
in mandays chart Ex. RW1/B showing that petitioner had worked from 1995 till 2005 and in the
year 2005 he has merely worked for 85 days in the months of July, August, September and October
and prior to it, he was not engaged by the respondent in the months of January to May however he
was engaged in June and when worked for 30 days, 31 days in July, 26 days in August and 19 days
in September aggregating to 108 days in the year 2004. It can be seen from this mandays chart that
petitioner had not actually worked 160 days in preceding 12 months of his termination as was
required so as to establish for applicability of Section 25-B of the Industrial Disputes Act and
consequently violation of Section 25-F for having not issued any notice by the respondent before
terminating his services. Although, petitioner on oath has maintained that no notice was issued by
the respondent while terminating his services but it was not the requirement of the law as petitioner
had never worked for 160 days preceding his date of termination although in different years he had
worked for number of days but those days could not be counted for the purpose of 160 days as
break period exist in between. The petitioner has denied in cross-examination that he had left the
job of his own but he has not established to have worked for 160 days as stated above in the tribal
area as was required under law. The plea of abandonment of the termination ceases to have
significance as no notice was required to be issued by the respondent. As such, it may not be
erroneous to conclude that respondent was not required to comply with the provisions of Section
25-F by issuance of legal notice before terminating the services of petitioner.
13. In so far in the plea of the petitioner having been removed from service by the
respondent and retention of juniors or reengaging them to so that they completed 160 days is
concerned, this plea is also not proved in as much as the petitioner has failed to produce any
seniority list by which it could be established that persons junior to him were appointed by the
respondent/department. In cross-examination of petitioner he has denied that no juniors to him have
not been retained but the plea was taken by petitioner has not been established by reliable evidence
and uncorroborated testimony of the petitioner cannot be relied so as to hold that the respondent
had retained juniors and regularized them in service by allowing them to complete 160 days in
tribal area of Pangi. No witness had been examined by petitioner to prove that junior to petitioner
was engaged after termination of services of petitioner. At the same time, no documentary evidence
has been led which would further corroborate or support the plea of the petitioner on termination
without notice rather respondent too has pleaded plea of abandonment which is also not proved as
no corresponding evidence has been proved showing issuance of notice on unauthorized absence of
petitioner. Since respondent has failed to prove by cogent and reliable evidence that petitioner
abandoned the job, plea of termination of petitioner can be safely accepted.
14. Be it noticed that there is no merit in the allegation of the petitioner that respondent
had violated the provisions of Section 25-G of the Industrial Disputes Act irrespective of the fact
that there is no requirement of the law that the petitioner should have worked 160 days yet he was
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not absolved of responsibility to establish that some junior persons were retained and he was not
offered for reengagement. Accordingly, it is held that the respondent had not violated the
provisions of Section 25-H of the Industrial Disputes Act as principle of 'Last come First go' was
not proved to have been not followed. Since none of the provisions of Section 25-F, 25-G and 25-H
have been violated by the respondent, this Tribunal is left with no option but answer the issues no.2
and 3 in negative.
15. On the point of delay in issuance of legal notice to the respondent, it would be relevant
to mention here that the services of petitioner had been terminated in 2005 whereas petitioner had
issued legal notice dated nil which goes to suggest that petitioner had issued legal notice and there
was no explanation of delay. Keeping in view the mandate of Hon ble Apex Court in various
judgments wherein it has been held that delay in raising industrial dispute is definitely an important
circumstance to be considered by court but not fatal to claim of petitioner and court has to keep in
mind while exercising discretion as has also been observed in para nos. 20 and 21 of judgment
2013 supra has referred to Gitam Singh’s case reported in 2013 (136) FLR 893 (SC) titled as
Assistant Engineer Rajasthan Development Corporation and another vs. Geetam Singh observing
that before exercising its judicial discretion, the Labour Court has to keep in view all relevant
factors including the mode and manner of appointment, nature of employment, length of service,
the ground on which termination has been done and the delay in raising industrial dispute before
grant of relief in an industrial dispute. But to my mind petitioner has not proved violation of any of
the provisions of Sections 25-F, 25-G and 25-H of the Industrial Disputes Act as stated above and
for that reason he would not be entitled for relief of reinstatement as claimed by the petitioner or
even for lump compensation as has been awarded by this Tribunal in various cases of similar
nature. Thus, the petition is held to be not maintainable as petitioner has failed to establish violation
of the provisions of Section 25-F, 25-G and 25-H of the Industrial Disputes Act by respondent who
is also held not entitled even for lump sum compensation in lieu of service rendered by him. Issue
no.1 is decided as discussed whereas issues no. 2 and 3 are answered in negative and issue no.4
answered in affirmative. All these issues are decided against the petitioner and in favour of
respondent.
RELIEF
16. As a sequel to my findings on foregoing issues, the instant claim petition is dismissed.
In the peculiar circumstances of the case, the parties are left to bear their own costs.
17. The reference is answered in the aforesaid terms.
18. A copy of this Award be sent to the appropriate Government for publication in the
official gazette.
19. File, after due completion be consigned to the Record Room.
Announced in the open Court today this 29th day of November, 2016.
(K.K. SHARMA),
Presiding Judge,
Labour Court-cum-Industrial Tribunal,
Kangra at Dharamshala, H.P.
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IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)
Ref No. : 341/2015
Date of Institution : 05.08.2015
Date of Decision : 29.11.2016
Ms. Bhag Dei d/o Shri Prem Singh, r/o Village Chhow, P.O. Purthi, 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. I.S. Jaryal, AR
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 Ms. Bhag Dei D/O Shri Prem Singh,
R/O Village Chhow, P.O. Purthi, Tehsil Pangi, District Chamba, H.P. before the Executive
Engineer, HPPWD Division, Killar, Tehsil Pangi, District Chamba, H.P. vide demand
notice dated 02.022012 regarding her alleged illegal termination of service during August,
2004 suffers from delay and latches? If not, Whether termination of the services of Ms.
Bhag Dei D/O Shri Prem Singh, R/O Village Chhow, P.O. Purthi, Tehsil Pangi, District
Chamba, H.P. by the Executive Engineer, HPPWD Division, Killar, Tehsil Pangi, District
Chamba, H.P. during August, 2004 without complying the provisions of the Industrial
Disputes Act, 1947, is legal and justified? If not, what amount of back wages, seniority, past
service benefits and compensation the above aggrieved workman is entitled to from the
above employer?”
2. On receipt of reference from appropriate government, notices were issued to the parties
in pursuance to which claimant/petitioner has filed statement of claim.
3.
Brief facts leading to institution of the present claim petition by the petitioner above
named reveal that she had been initially engaged as daily waged beldar on muster roll basis in the
month of May, 1994 who continuously worked till August, 2004 with the respondent/department.
Averments made in the petition further revealed that petitioner had worked for 160 days in each
calendar year as prescribed for tribal area of Pangi Tehsil District Chamba and became eligible for
continuous service envisaged under statutory provisions of Section 25-B of the Industrial Disputes
Act, 1947 (hereinafter referred to as 'the Act' for brevity). Averments made in the petition revealed
that the services of petitioner had interrupted by way of intermittent/artificial breaks given by the
respondent/department deliberately and as such breaks are required to be counted as continuous
services for the purposes of calculation of 160 days so as for the applicability of Section 25-B of
the Act. The grievance of petitioner remains that respondent/department had terminated/
disengaged petitioner from daily wage service in the end of August, 2004 by an oral order without
any reason whereas several other co-workers who were junior to petitioner had been retained on
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muster roll and thus the action of respondent/department was stated to be unjustified and malafide.
It is alleged that seniority list of daily wage workers working under the respondent had not been
circulated till termination/retrenchment of the petitioner and while retrenching the services of
petitioner, even principle of 'Last come First go' had not been followed by the department/
respondent. The petitioner has named 27 persons who were junior to petitioner and joined service
from 1st August, 1997 to 1st September, 2007. In the end of month of August, 2004 when the
services of petitioner were terminated by way of oral order, she was not served with one month
notice of retrenchment and at the same time one month's wages in lieu of notice period had also not
been paid to her and for said reason termination of the services of petitioner was prima facie illegal
and unwarranted. The claimant/petitioner claimed that she had spotless service record who never
been charge-sheeted for any act of indiscipline or negligence or her conduct and even at the time of
verbal termination, no charge-sheet had been served upon her and the at the same time, no
opportunity of hearing had been afforded to her. The petitioner also alleges that she has remained
unemployed ever since her illegal termination from month of August, 2004 till the date of
institution of present claim petition who had been nowhere gainfully employed and was thus
entitled for full back wages. Accordingly alleging respondent to have committed violation of
statutory provision of Section 25-F, Section 25-G and Section 25-H of the Industrial Disputes Act,
1947 and Article 14 and 16 of Constitution of India, the petitioner prays for setting aside oral order
of termination/retrenchment by the respondent in the month of August, 2004. She further prayed for
reinstatement in service w.e.f. month of August, 2004 along-with back wages, seniority including
continuity in service as petitioner has remained unemployed since the date of her illegal
termination. The petitioner has also prayed that period of intermittent/fictional breaks given time
and again during entire service of petitioner between May, 1994 to August, 2004 be counted 160
days continuous service and regularization of the service of petitioner w.e.f. 01.01.2002 having
completed 8 years of service and per the policy of HP Govt. in pursuance to judgment of Hon'ble
Apex Court titled as Rakesh Kumar vs. State of H.P. and to any other relief petitioner is entitled.
4.
The respondent contested claim petition, filed reply inter-alia taken preliminary
objections of maintainability, claim petition being bad on account of delay and laches. On merits
denied that petitioner had worked for more than 160 days in each calendar year rather clarified by
stating that petitioner was engaged as daily waged beldar in 1994 who remained engaged till 2004
but had worked intermittently as petitioner used to come and attend the work at her own sweet will
and convenience. Relying upon the mandays chart, it has been categorically pleaded by the
respondent that petitioner had not completed 160 days in each calendar year as required for tribal
area of Pangi Tehsil. Allegations of fictional breaks given by respondent to the petitioner have been
denied. In so far as engagement of persons junior to petitioner mentioned at serial nos. 1 to 25 in
para no. 4 of the claim petition were appointed as per order of Labour Court and at serial nos. 26 &
27 as harness case. On the plea of termination of service of petitioner, respondent specifically
alleges that petitioner had left the job at her own will therefore serving of notice or pay in lieu
thereof was not required. Reiterating its stand respondent has maintained that petitioner had left the
work of her own sweet will and the persons mentioned in para no.4 are stated to have engaged as
per direction of the Labour Court-cum-Industrial Tribunal Dharamshala as harness case. It is also
contended that if petitioner had been terminated in 2004 she would have definitely raised industrial
dispute immediately and that after seven years petitioner is stated to be agitating the matter which is
bad on account of delay and laches. It is also contended that since the services of petitioner had not
been terminated by the respondent, question of issuance of notice or wages in lieu thereof did not
arise and at the same time, there was no necessity for charge-sheet or issuing any notice of
petitioner after her termination. It is contended that petitioner was agriculturist and gainfully
employed and was thus not entitled for back wages.
5.
The petitioner filed rejoinder, reiterated her stand as maintained in the claim petition.
Further asserted that provisions of Limitation Act did not eclipse the claim of petitioner in totality
besides allegation of violation of principle of 'Last come First go' was specifically denied.
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6. In order to prove her case, petitioner had examined herself as PW1 tendered/proved her
affidavit Ex. PW1/A under Order 18 Rule 4 CPC, Ex. PW1/B to PW1/L mandays charts of junior
workers 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, mandays chart of other co-
workers Ex. RW1/C, Ex. RW1/D1 to Ex. RW1/D21 copy of orders/awards and closed the
evidence.
7. I have heard the ld. Authorized Representative of petitioner and ld. Dy. D.A.
representing respondent, gone through records of the case carefully relevant for disposed of this
case.
8. From the contentions raised, following issues were framed on 17.12.2015 for
determination which are as under :
1.
Whether the industrial dispute raised by petitioner vide demand notice dated
02.02.2012 qua her termination of service during August, 2004 by respondent
suffers from the vice of delay and laches as alleged? If so, its effect?
...OPP.
2. Whether termination of the services of petitioner by the respondent w.e.f. August,
2004 is/was illegal and unjustified as alleged?
...OPP.
3. If issue no.1 or issue no.2 or both are proved in affirmative, to what service
benefits the petitioner is entitled to?
...OPP.
10. Whether the claim petition is not maintainable in the present form as alleged?
... OPR.
Relief.
9.
For the reasons detailed here under, my findings on the above issues are as follows:—
Issue No.1 :
Yes
Issue No.2 :
Yes
Issue No.3 :
Discussed
Issue No.4 :
No
Relief. :
Petition is partly allowed awarding compensation Rs.1,00,000/- per
operative part of award.
REASONS FOR FINDINGS
ISSUES NO.1, 2 AND 3
10. All these issues have been taken up together for discussion being interconnected which
can be disposed of simultaneously without repetition of evidence.
11. Relationship of petitioner having been engaged as daily waged beldar by respondent on
muster roll basis in the month of May, 1994 who continuously worked till 2004 at HPPWD Sub
Division Killar is not in dispute. Admittedly, petitioner was engaged without any written order or
settlement of terms and conditions by the respondent. It is equally not in dispute that no written
order was passed while terminating service of the petitioner as claim of respondent remains that it
had not retrenched petitioner from service who had abandoned the job of her own and used to work
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intermittently as per her own wish and convenience. Admittedly, the reference of appropriate govt.
does not relate to plea of fictional breaks but only with regard to petitioner s termination from
service. In the backdrop of foregoing admitted facts on record, claim of petitioner requires to be
adjudicated with a view to determine if petitioner is entitled for relief of reinstatement and back
wages along-with seniority and past service benefits and compensation as claimed by him.
12. Stepping into witness box as PW1 has sworn in affidavit Ex. PW1/A reiterating and
reaffirming her pleadings as stipulated in claim petition. In her affidavit she has claimed to have
worked with the respondent/department for more than 160 days in Pangi Sub Division Chamba
District and remained engaged from May, 1994 to August, 2004. She has also stated on oath that no
notice under Section 25-F of the Act was given by the respondent before terminating her service
and at the same time no compensation in lieu thereof notice period was paid to her and thus her
termination was illegal and void entitling petitioner benefit of reinstatement of service with full
back wages and all the other consequential service benefits. The petitioner has further alleged on
oath that respondent/department after terminating her services in August, 2004 by oral order had
engaged several co-workers who were junior to petitioner were retained in service. Not only this,
the persons who were junior to petitioner are stated to have been regularized in service and thus
respondent had not followed the mandate of Sections 25-G and 25-H of the Act which was
obligatory on its part. The case of petitioner also remains that she had served respondent with due
diligence and had spotless service record as respondent/department had never called any
explanation or raised charge-sheet against her but even while retrenching petitioner from service,
no notice was given. The petitioner has also explained reason for not approaching the authorities
under Labour Act and thereafter before this Tribunal, as there existed no road between Chamba
town to Pangi Tehsil till 2012 and petitioner had moved before the Labour Officer raising demand
notice consequent upon which a failure report was submitted and as the Labour Commissioner did
not make reference for industrial dispute raised by petitioner, the petitioner had moved before the
Hon'ble High Court by filing CWP where direction was passed for making reference to the Labour
Court due to which delay had occurred and same was satisfactorily explained.
13. In so far as plea of abandonment raised by respondent is concerned, the same merits
rejection in view of the fact that respondent had failed to produce any record by which it could be
established that whenever petitioner absented from her duty as also reflected in mandays chart Ex.
RW1/B any notice or letter was ever issued. On this point respondent as RW1 has specifically
admitted that whenever petitioner abandoned the job, no notice had been issued. RW1 specifically
admitted that no departmental inquiry was initiated against petitioner even after August, 2004. No
reason whatsoever has been assigned for such any action or omission on the part of respondent in
not initiating any departmental proceedings or making correspondence calling upon the petitioner
to join service. This prima facie belies the stand taken by the respondent as abandonment has to be
proved like any other fact in issue. The petitioner, on the other hand, as PW1 in cross-examination
has specifically denied that she used to leave the job in between and attended the work
intermittently rather she has claimed that intermit breaks had been deliberately given to her by the
respondent in the service record of petitioner so that petitioner did not complete 160 days of work
as required for Pangi Tehsil area and also for applicability of Section 25-B of the Act. As such, in
absence of any specific and reliable evidence led by respondent, it would be unsafe to hold that
respondent had established plea of abandonment.
14. A bare glance on the mandays chart Ex. RW1/B would reveal that petitioner had
worked for 163 days in the year 1994, 114 days in 1995, 123 days in 1996, 135 days in 1997, 89
days in 1998, 70 days in 1999, 77 days in 2001, 41 days in 2002, 59 days in 2003 and 30 days in
2004 and thus a total of her service in 1994 to 2004 in 10 years she had worked for 901 days in her
entire service period. Be it noticed that except the years 1195 to 2004 she had worked for more than
160 days and as there is no reference from the Labour Commissioner, Shimla on the point of
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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 30 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. Ld. Dy. D.A. representing respondent has contended that
in the claim petition Bhag Dei has been shown as daughter of Shri Prem Singh whereas the
mandays chart shows that Bhag Dei as wife of Shri Ram Nath, r/o Village Chhow, P.O. Purthi,
Tehsil Pangi, District Chamba, in mandays chart Ex. RW1/B. Ld. Authorized Representative for
the petitioner on the other hand representing petitioner has contended that as per claim petition the
petitioner was shown unmarried daughter of Shri Prem Singh whereas during the pendency of
claim petition she had got married with Ram Nath. Be it noticed that respondent has failed to
controvert plea of marriage of petitioner during pendency of claim petition and as such, it cannot be
stated that said Bhag Dei is not wife of Shri Ram Nath or that she was not Bhag Dei daughter of
Shri Prem Singh. Thus, Bhag Dei is same person whose service had been terminated by respondent.
15. Ld. Authorized Representative for petitioner has contended with vehemence that large
number of workers who were junior to petitioner had been appointed from 01.8.1997 to 07.9.1999
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. PW1/B, Ex.
PW1/C, Ex. PW1/D are the year-wise mandays of daily waged workers who were junior to the
petitioner and had joined in the year 2000 or thereafter whereas Ex. PW1/E to Ex. PW1/L are the
mandays chart of other co-workers. All of these co-workers shown in Ex. PW1/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 August, 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.3 of the affidavit were
retained whereas petitioner was senior from these co-workers having joined service in 1994 was
terminated and even thereafter respondent omitted to afford opportunity to petitioner for
reemployment for work which also violates the provisions of Section 25-H of the Act. Ld.
Authorized Representative for petitioner has placed reliance upon judgment of Central Bank of
India vs. S. Satyam, 1996 (5) SCC 419 in which Hon'ble Apex Court has held that for the
applicability of Section 25-G and 25-H of the Act, there was no necessity of claimant/petitioner to
have worked for 240 days as in case of provisions of Section 25-F of the Act.
16. Repudiating claim of petitioner, the respondent, on the other hand, has made futile
attempt to justify engagement of junior workers and their retention in service on the basis of orders
of Labour Court-cum-Industrial Tribunal as well as Hon'ble High Court of H.P. as reflected in Ex.
RW1/D1 to Ex RW1/D21. 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/D21 were primarily on the basis of court
orders would not defeat the claim of the petitioner as status of these person being junior to
petitioner does not get negatived. As such, even when petitioner is proved to have not worked for
more than 160 days in preceding 8 years which entitled her for regularization of her service per
government policy, yet respondent is not absolved from its accountability of provisions of Section
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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. Authorized Representative for petitioner has contended that after petitioner's
termination in August, 2004, she had remained unemployed and was not earning anything
thereafter as such was entitled for full back wages. Repudiating the arguments of ld. Authorized
Representative of petitioner, ld. Dy. D.A. for the State has taken this court through cross-
examination of the petitioner who has admitted that she had cultivatable land with her and also
worked a private labourer. Thus, plea of having remained not gainfully employed gets belied
admission of petitioner in cross-examination in which she had maintained that she had been earning
from agricultural land as well as she has been working as daily wager privately. Reliance has been
placed on the judgment of Hon'ble Apex Court North East Karnataka Road Transport Corporation
vs. M. Nagangouda (2007) 10 SCC 765 in which Division Bench comprising of Justice A.R.
Lakshmanan and Justice Altamas Kabir had held that 'term gainfully employment would also
include self employment wherefrom income is generated. It was income either from employment in
an establishment or from self employment merely differentiates the sources from which income is
generated, the end use being the same’. Applying the ratio of judgment of 2007 (supra) to this case
since the petitioner was earning from her agricultural and manual pursuits, the same were sufficient
to maintain her and her family. It is thus held that petitioner was gainfully employed. Be it stated
here that Hon'ble Apex Court in Deepali Gundu Surwase’s case has held that the Labour Court was
not justified in holding that merely because the respondent was receiving agriculture income, she
cannot be treated to be engaged in gainful employment. Since the petitioner had income from
agriculture pursuits for her livelihood it cannot be stated that petitioner was not gainfully employed
and thus would not be entitled full back wages. In view of the forgoing discussion, it is held that the
relationship of workman and employer existed between petitioner and respondent and that
petitioner was illegally retrenched without compliance of Section 25-G and Section 25-H of the Act
although remained gainfully employed after her retrenchment. Thus, applying the ratio of judgment
of Hon'ble Apex Court (2007 supra), it may not be erroneous to hold that petitioner was gainfully
employed and thus would be not entitled for back wages for the period she was out of job on being
terminated by the respondent.
18. Lastly, Ld. Dy. D.A. for State has contended with vehemence that there is inordinate
and explained delay which disentitles petitioner relief claimed for by him. On the other hand, ld.
Authorized Representative for the petitioner has relied upon the judgment of Hon'ble Apex Court
titled Raghubir Singh vs. General Manager, Haryana Roadways, Hissar reported in 2014 Lab IC
4266 (SC) and the relevant paras of the judgment are produced below for reference:
“12. Therefore, in our considered view, the observations made by this Court in the
Rajasthan State Agriculture Marketing Board case (supra) upon which the learned
Additional Advocate General for the State of Haryana has placed reliance cannot be applied
to the fact situation of the case on hand, for the reason that the Labour Court has
erroneously rejected the reference without judiciously considering all the relevant 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
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adjudication, if the dispute referred to the Labour Court is not adjudicated by it, it does not
mean that the dispute ceases to exist. The appropriate government in exercise of its statutory
power under Section 10(1)(c) of the Act can refer the industrial dispute, between the parties,
at any time, to either the jurisdictional Labour Court/Industrial Tribunal as interpreted by
this Court in the Avon Services case referred to supra. Therefore, the State Government has
rightly exercised its power under Section 10(1)(c) of the Act and referred the points of
dispute to the Labour Court as the same are in accordance with the law laid down by this
Court in Avon Services & Sapan Kumar Pandit cases referred to supra.
14. Further, the workman cannot be denied to seek relief only on the ground of delay in
raising the dispute as held in the case of S.M. Nilajkar & Ors. v. Telecom District Manager,
Karnataka[4] it was held by this Court as follows—
“17. It was submitted on behalf of the respondent that on account of delay in raising the
dispute by the appellants the High Court was justified in denying relief to the appellants.
We cannot agree...... In Ratan Chandra Sammanta and Ors. v. Union of India and Ors.
(supra)1993 AIR SCW 2214, it was held that a casual labourer retrenched by the employer
deprives herself of remedy available in law by delay itself, lapse of time results in losing the
remedy and the right as well. The delay would certainly be fatal if it has resulted in material
evidence relevant to adjudication being lost and rendered not available. However, we do not
think that the delay in the case at hand has been so culpable as to disentitle the appellants
for any relief.....” (Emphasis laid by the Court) In view of the legal principles laid down by
this Court in the above judgment, the reference of the industrial dispute made in the case on
hand by the State Government to the Labour Court to adjudicate the existing industrial
dispute between the parties was made within a reasonable time, considering the
circumstances in which the workman was placed, firstly, as there was a criminal case
pending against her and secondly, the respondent had assured the workman that she would
be reinstated after her acquittal from the criminal case. Moreover, it is reasonable to
adjudicate the industrial dispute in spite of the delay in raising and referring the matter,
since there is no mention of any loss or unavailability of material evidence due to the delay.
Thus, we do not consider the delay in raising the industrial dispute and referring the same to
the Labour Court for adjudication as gravely erroneous and it does not debar the workman
from claiming rightful relief from her employer.
15. In the case of Ajaib Singh v. The Sirhind Co-Operative Marketing Cum-Processing
Service Society Limited & Anr.[5] this Court has opined that relief cannot be denied to the
workman merely on the ground of delay, stating that:—
“10. It follows, therefore, that the provisions of Article 137 of the Schedule to Limitation
Act, 1963 are not applicable to the proceedings under the act and that the relief under it
cannot be denied to the workman merely on the ground of delay. The plea of delay if raised
by the employer is required to be proved as a matter of fact by showing the real prejudice
and not as a merely hypothetical defence. No reference to the labour court can be generally
questioned on the ground of delay alone. Even in a case where the delay in shown to be
existing, the tribunal, labour court or board, dealing with the case can appropriately mould
the relief by declining to grant back wages to the workman till the date she raised the
demand regarding her illegal retrenchment/termination or dismissal. The Court may also in
appropriate cases direct the payment of part of the back wages instead of full back
wages.....” (Emphasis laid by the Court)
16. Hence, we are of the opinion, having regard to the fact and circumstances of the case
that there is no delay or latches on the part of the workman from the date of her acquittal in
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the criminal case. Thereafter, upon failure of the respondent in adhering to the assurance
given to the workman that she would be reinstated after her acquittal from the criminal case,
the workman approached the conciliation officer and the State Government to make a
reference to the Labour Court for adjudication of the dispute with regard to the order of
dismissal passed by the respondent. Keeping in mind the date of acquittal of the appellant
and the date on which she approached the conciliation officer by raising the dispute, since
the respondent had not adhered to its assurance, the State Government had rightly referred
the dispute for its adjudication. Therefore it cannot be said that there was a delay on the part
of the appellant in raising the dispute and getting it referred to the Labour Court by the State
Government.
17. Further, the Labour Court on an erroneous assumption of law framed the additional
issue regarding the limitation in raising the dispute and its reference by the State
Government to the Labour Court. Thus, the Labour Court has ignored the legal principles
laid down by this Court in the cases referred to supra. The award passed by the Labour
Court was accepted erroneously by both the learned single Judge and the Division Bench of
the High Court by dismissing the Civil Writ Petition & the Letters Patent Appeal without
examining the case in its proper perspective, keeping in view the power of the State
Government under Section 10(1)(c) and the object and intendment of the Act. Not
adjudicating the existing industrial dispute on merits between the parties referred to it may
lead to disruption of industrial peace and harmony, which is the foremost important aspect
in Industrial Jurisprudence as the same would affect the public interest at large.
19. Ld. counsel 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.
Authorized Representative for petitioner, ld. Dy. D.A. has placed reliance upon the judgment of
Hon'ble Apex Court titled as Assistant Engineer, Rajasthan State Agriculture Marketing Board,
Sub-Division Kota and Mohan Lal [2013 (139) FLR 125], the relevant para of the judgment are
produced below for reference:
Industrial Disputes Act, 1947-Sections 25-F and 10-Limitation Act, 1963-Section 5-
Industrial dispute-Termination of service-Finding of Lboaur Court that workman had
completed 240 days in calander year and her termination was in violation o section 25-F of
the I.D.Act-Wrokman worked from 1.11.1984 to 17.2.1986 in all 286 days during
employment. her services terminated on 18.2.1986. Industrial dispute raised after 6 years of
termination. Admitted delay of 6 years not kept in view by the Labour Court-Judicial
discretion exercised by the Labour Court flawed and unsustainable. Reinstatement of the
workman not the appropriate relief. In lieu of reinstatement compensation of Rs.one lac
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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”.
I have gone through the rival contention of the ld. Authorized Representative as well as ld.
Dy. D.A. for State. Keeping in view the mandate of Hon'ble Apex Court in various judgments
referred to above it is held that delay in raising industrial dispute is definitely an important
circumstance and court has to keep in mind while exercising discretion. In para nos. 20 and 21 of
judgment 2013 supra has referred to Gitam Singh’s case reported in 2013 (136) FLR 893 (SC)
titled as Assistant Engineer Rajasthan Development Corporation and another vs. Geetam Singh
observing that before exercising its judicial discretion, the Labour Court has to keep in view 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 the delay in raising industrial
dispute before grant of relief in an industrial dispute. 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 his services have been terminated in 1986 and he 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 901 days as per mandays chart on
record and that the services of petitioner were disengaged in August, 2004 who worked as non
skilled worker and had raised industrial dispute by issuance of demand notice after about 8 years
i.e. demand notice was given on 02.02.2012. It is also pertinent to mention here that petitioner on
the date of filing claim petition was ageing 44 years who has sufficient spell of life to work and
earn her livelihood. Taking into consideration factors mentioned above in pursuance to judgments
of Hon'ble Apex Court petitioner would not be entitled either for reinstatement or for back wages
but compensation a lump-sum would be appropriate relief in view of judgment 2013 (139) FLR 25
(SC). The judgments relied upon by ld. Authorized Representative for petitioner on the matter of
delay and laches is more or less settled law that claim of the petitioner could not be solely declined
on the ground of delay and laches. Similarly, judgment of Hon'ble Apex Court in 2014 titled as
Raghubir Singh’s case also does not come to the rescue of the petitioner as in this judgment also the
Hon'ble Apex Court has reiterated the mandate as given by the Hon'ble Apex Court in previous
judgment in the year 2013 i.e. Assistant Engineer, Rajasthan State Agriculture Marketing Board,
Sub-Division Kota and Mohan Lal’s case. Similar view was reiterated by the Hon'ble Apex Court
in judgment titled as Vice Chancellor, Lucknow University, Lucknow, Uttar Pradesh v. Akhilesh
Kumar Khare & another reported in AIR 2015 SC 3473.
21. In view of foregoing discussion, a lump-sum compensation of Rs.1,00,000/- (Rupees
one lakh 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 and its realization. Issues no. 1,2 and 3
are answered accordingly.
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ISSUE NO. 4
22. 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
23. As sequel to my findings on foregoing issues, the respondent is hereby directed to pay
the compensation of Rs.1,00,000/- (Rupees one lakh only) to the petitioner in lieu of the
reinstatement in services as well as the other consequential service benefits. Amount of
compensation so awarded shall 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.
24. The reference is answered in the aforesaid terms.
25. A copy of this Award be sent to the appropriate Government for publication in the
official gazette.
26. File, after due completion be consigned to the Record Room.
Announced in the open Court today this 29th day of November, 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. : 446/2015
Date of Institution : 29.10.2015
Date of Decision : 29.11.2016
Shri Gian Chand s/o Shri Sham Lal, r/o Village Kuffa, 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. O.P. Bhardwaj, Adv.
For the Respondent : Sh. Sanjeev Singh Rana, Dy. D.A.
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AWARD
The reference given below has been received from the appropriate Government for
adjudication :
“Whether the industrial dispute raised by the worker Shri Gian Chand S/O Shri Sham Lal,
R/O Village Kuffa, P.O. Killar, Tehsil Pangi, District Chamba, H.P. before the Executive
Engineer, Killar Division, I.P.H./H.P.P.W.D., Killar (Pangi), District Chamba, H.P. vide
demand notice dated 11-04-2012 regarding his alleged illegal termination of services during
December,1992 suffers from delay and latches? If not, Whether termination of services of
Shri Gian Chand, S/O Shri Sham Lal, R/O Village Kuffa, P.O. Killar, Tehsil Pangi, District
Chamba, H.P. by the Executive Engineer, Killar Division, I.P.H./H.P.P.W.D., Killar
(Pangi), District Chamba, H.P. during December, 1992 without complying the provisions of
the Industrial Disputes Act, 1947, is legal and justified? If not, what amount of back wages,
seniority, past service benefits and compensation the above aggrieved workman is entitled
to from the above employer?”
2. On receipt of reference from appropriate government, notices were issued to the parties
in pursuance to which claimant/petitioner has filed statement of claim.
3. Brief facts as enumerated in the present claim petition by the petitioner above named
reveal that he had been initially engaged as daily waged beldar on muster roll basis in the year 1985
who continuously worked till October, 1993 with the respondent. Averments made in the petition
further revealed that petitioner had worked for 160 days in each calendar year as the criteria
prescribed for tribal area of Pangi Tehsil District Chamba and became eligible for continuous
service envisaged under statutory provisions of Section 25-B of the Industrial Disputes Act, 1947
(hereinafter referred to as 'the Act' for brevity). Averments made in the petition revealed that the
services of petitioner had interrupted by way of intermittent/artificial breaks given by the
respondent/department deliberately and as such breaks are required to be counted as continuous
services for the purposes of calculation of 160 days so as for the applicability of Section 25-B of
the Act. The grievance of petitioner remains that respondent/department had terminated/disengaged
petitioner from daily wage service orally without issuing any one month notice in writing indicating
the reason for retrenchment besides no retrenchment compensation was paid to petitioner while
respondent had illegally terminated his service. It is contended that respondent had not followed the
provisions of Section 25-F of the Act while disengaging the services of petitioner. It is stated that
petitioner is very poor and no source of income besides after termination of the services of
petitioner, he had approached the respondent time and again but of no avail. Grievance of petitioner
further remains that when the services of petitioner have been terminated, respondent/department
had reengaged number of new workman from time to time and respondent had not followed the
principle of „Last come, First go' as envisaged under Section 25-G of the Act. It is further alleged
that respondent/department had continuously retained junior to petitioner and who are still in
service with the respondent namely Mohan Lal who appointed in 1990, Suraj Ram in 1997, Chunku
Ram in 2000, Budhi Ram in 2003 and Dev Raj in 2004. 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 October,
1993 till the date of institution of present claim petition who had been nowhere gainfully employed
and was thus entitled for full back wages. Accordingly alleging respondent to have committed
violation of statutory provision of Section 25-F, Section 25-G and Section 25-H of the Industrial
Disputes Act, 1947 and Article 14 and 16 of Constitution of India, the petitioner prays for setting
aside oral order of termination/retrenchment by the respondent in the month of October, 1993. He
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further prayed for reinstatement in service w.e.f. month of October, 1993 along-with back wages,
seniority including continuity in service as petitioner has remained unemployed since the date of
his illegal termination. The petitioner has also prayed that period of intermittent/fictional breaks
given time and again during entire service of petitioner between 1985 to October, 1993 be counted
160 days continuous service and regularization of the service of petitioner w.e.f. 01.01.1996 having
completed 10 years of service and per the policy of HP Govt. in pursuance to law settled by
Hon'ble High Court of H.P. and to any other relief petitioner is entitled.
4. The respondent contested claim petition, filed reply inter-alia taken preliminary
objections of maintainability, claim petition being bad on account of delay and laches. On merits
denied that petitioner had worked for more than 160 days in each calendar year rather clarified by
stating that petitioner was engaged as daily waged beldar in 1989 who remained engaged till 1992
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. Allegations of fictional breaks given by respondent to the petitioner have been
denied. In so far as engagement of persons junior to petitioner mentioned in para no. 10 of the
claim petition were appointed as per order of Labour Court and no other juniors to the petitioner
had been retained in service by the respondent. On the plea of termination of service of petitioner,
respondent specifically alleges that petitioner had left the job at 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 1992 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 termination. It is contended that petitioner was agriculturist and gainfully employed and
was thus not entitled for back wages.
5. The petitioner filed rejoinder, reiterated 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.
6. 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 dated Ex. PW1/B,
copy of reply to the demand notice Ex. PW1/C, copy of order Ex. PW1/D 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/D5 copy of orders/awards and closed the evidence.
7. I have heard the ld. counsel of petitioner and ld. Dy. D.A. representing respondent,
gone through records of the case carefully relevant for disposed of this case.
8. From the contentions raised, following issues were framed on 16.2.2016 for
determination :
1.
Whether the industrial dispute raised by petitioner vide demand notice dated
11.04.2012 qua his termination of service during December, 1992 by respondent
suffers from the vice of delay and laches as alleged? If so, its effect?
...OPP.
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2.
Whether termination of services of the petitioner by the respondent during
December, 1992 is/was illegal and unjustified as alleged?
...OPP.
3. If issue no. 2 is proved in affirmative, to what service benefits the petitioner is
entitled to?
...OPP.
4. Whether the claim petition is not maintainable in the present form as alleged?
...OPR.
Relief.
9. For the reasons detailed here under, my findings on the above issues are as follows:—
Issue No.1 :
Yes
Issue No.2 :
Yes
Issue No.3 :
Discussed
Issue No.4 :
No
Relief. :
Petition is partly allowed awarding compensation Rs.70,000/- per
operative part of award.
REASONS FOR FINDINGS
ISSUES NO.1 TO 3
10. All these issues have been taken up together for discussion being interconnected which
can be disposed of simultaneously without repetition of evidence.
11. Relationship of petitioner having been engaged as daily waged beldar by respondent on
muster roll basis in the year 1988 continuously worked till December, 1992 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 1988 to December, 1992. 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 December, 1992 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 as respondent/department had never called any
explanation or raised charge-sheet against him but even while retrenching petitioner from service,
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no notice was given. The petitioner has also explained reason for not approaching the authorities
under Labour Act and thereafter before this Tribunal, as there existed no road between Chamba
town to Pangi Tehsil till 2012 and petitioner had moved before the Labour Officer raising demand
notice consequent upon which a failure report was submitted and as the Labour Commissioner did
not make reference for industrial dispute raised by petitioner, the petitioner had moved before the
Hon ble High Court by filing CWP where direction was passed for making reference to the
Labour Court due to which delay had occurred and same was satisfactorily explained.
13. In so far as plea of abandonment raised by respondent is concerned, the same merits
rejection in view of the fact that respondent had failed to produce any record by which it could be
established that whenever petitioner absented from 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 December, 1992.
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.
14. A bare glance on the mandays chart Ex. RW1/B would reveal that petitioner had
worked for 134 days in the year 1988, 122 days in 1989, 270 days in 1990, 154 days in 1991 and
214 days in 1992 and thus a total of his service in 1988 to 1992 in 5 years he had worked for 894
days in his entire service period. Be it noticed that except the years 1988 and 1989 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 which shows that in the year 1992
the petitioner had worked for 214 days and thus immediately in preceding 12 calendar months from
the month of termination of petitioner had rendered service of 160 days so as to meet requirement
of law of having continuous service of one year and thus it was required from respondent to have
issued a notice envisaged under Section 25-F of the Act but the respondent had not done the same.
As such, the respondent is held to have 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
December, 1992 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
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mentioned in para no.10 of the affidavit were retained whereas petitioner was senior from these co-
workers having joined service in 1988 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/C1 to Ex RW1/C5. 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/D5 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
December, 1992, he had remained unemployed and was not earning anything thereafter as such 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
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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 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.
15. In the case of Ajaib Singh v. The Sirhind Co-Operative Marketing Cum-Processing
Service Society Limited & Anr.[5] this Court has opined that relief cannot be denied to the
workman merely on the ground of delay, stating that:—
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“10. It follows, therefore, that the provisions of Article 137 of the Schedule to Limitation
Act, 1963 are not applicable to the proceedings under the act and that the relief under it
cannot be denied to the workman merely on the ground of delay. The plea of delay if raised
by the employer is required to be proved as a matter of fact by showing the real prejudice
and not as a merely hypothetical defence. No reference to the labour court can be generally
questioned on the ground of delay alone. Even in a case where the delay in shown to be
existing, the tribunal, labour court or board, dealing with the case can appropriately mould
the relief by declining to grant back wages to the workman till the date 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 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 1992 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.
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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
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
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another vs. Chaman Singh relied by ld. AR for petitioner interpretation of Section 137 of
Limitation Act was involved which provides that Article 137 of Limitation Act did not apply to
industrial disputes. In 2014 (3) Apex Court Judgment 652 (SC) similar view was reiterated which
clearly mandates that claimant/petitioner cannot be denied relief sought for merely on the ground of
delay and laches. That being so, the law remains as it was that ground of delay and laches,
claimant/petitioner cannot be denied relief rather the court has to consider various aspects before
moulding relief and the case in hand it would not be erroneous to mention here that the
claimant/petitioner can be reasonably indemnified by ordering compensation and not by
reinstatement. In so far as judgment of AIR 2015 SC 1373 titled as Mackinon Machenize &
Company Ltd. vs. Mackinon Employees Union is concerned, the Hon'ble Apex Court has held on
closure of unit of company principle of 'Last come First go' was not followed which violated
Section 25-G of Industrial Disputes Act and retrenchment was held illegal entitling petitioner for
retrenchment compensation. Since the facts of case of Mackinon Machenize’s case are different
from case in hand as in former closure of unit of company was involved whereas in case in hand
before this court, there is no closure of company rather it is the department of HPPWD which had
engaged petitioner without following of the procedure although subject to funds and availability of
work but in the case in hand petitioner had abandoned the job who never reported for duty. As
such, when there is no closure of any unit by respondent which the petitioner was engaged,
judgment of Mackinon Machenize cannot be made applicable.
22. After hearing the rival contentions of the parties and case law relied by them, it can be
safely concluded that delay in raising industrial dispute is certainly important aspect/circumstance
which court has to keep in mind while exercising discretion. In para nos. 20 and 21 of the judgment
as referred to in this case reported in 2013 (136) FLR 893 (SC) titled as Assistant Engineer
Rajasthan Development Corporation and another vs. Geetam Singh provides that before exercising
its judicial discretion, the Labour Court or Tribunal has to keep in mind all relevant factors
including the mode and manner of appointment, nature of employment, length of service, the
ground on which termination has been set aside and delay in raising industrial dispute before grant
of relief. It was observed by the Hon'ble Apex Court in judgment (2013 supra) before that workman
had worked for 286 days and had raised industrial dispute in 1992 whereas her services have been
terminated in 1986 and he 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 5 years and
actually worked for 894 days as per mandays chart on record and that the services of petitioner
were disengaged in December, 1992 who worked as non skilled worker and had raised industrial
dispute by issuance of demand notice after about nineteen years. 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.
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23. In view of foregoing discussion, a lump-sum compensation of Rs.70,000/- (Rupees
seventy 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.
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.70,000/- (Rupees seventy 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 29th day of November, 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. : 174/2015
Date of Institution : 04.04.2015
Date of Decision : 29.11.2016
Shri Thanu Lal s/o Shri Thungu Ram, r/o Village and Post Office Rei, Tehsil Pangi, District
Chamba, H.P.
…Petitioner.
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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.
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 Thanu Lal S/O Shri Thungu Ram,
R/O Village and P.O. Rei, 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 18.08.2010 regarding his alleged illegal termination of service w.e.f.
September, 2005 suffers from delay and latches? If not, Whether termination of the service
of Shri Thanu Lal S/O Shri Thungu Ram, R/O Village and P.O. Rei, Tehsil Pangi, District
Chamba, H.P. by the Executive Engineer, H.P.P.W.D. Division, Killar, Tehsil Pangi,
District Chamba, H.P. w.e.f. September, 2005 without complying the provisions of the
Industrial Disputes Act, 1947, is legal and justified? If not, what amount of back wages,
seniority, past service benefits and compensation the above aggrieved workman is entitled
to from the above employer?”
2. On receipt of reference from appropriate government, notices were issued to the parties
in pursuance to which claimant/petitioner has filed statement of claim.
3. Brief facts leading to institution of the present claim petition by the petitioner above
named reveal that he had been initially engaged as daily waged beldar on muster roll basis in the
month of May, 1992 who continuously worked till September, 2005 with the respondent/
department. Averments made in the petition further revealed that petitioner had worked for 160
days in each calendar year as prescribed for tribal area of Pangi Tehsil District Chamba and became
eligible for continuous service envisaged under statutory provisions of Section 25-B of the
Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act' for brevity). Averments made in
the petition revealed that the services of petitioner had interrupted by way of intermittent/artificial
breaks given by the respondent/department deliberately and as such breaks are required to be
counted as continuous services for the purposes of calculation of 160 days so as for the
applicability of Section 25-B of the Act. The grievance of petitioner remains that respondent/
department had terminated/disengaged petitioner from daily wage service in the end of September,
2005 by an oral order without any reason whereas several other co-workers who were junior to
petitioner had been retained on muster roll and thus the action of respondent/department was stated
to be unjustified and malafide. It is alleged that seniority list of daily wage workers working under
the respondent had not been circulated till termination/retrenchment of the petitioner and while
retrenching the services of petitioner, even principle of 'Last come First go' had not been followed
by the department/respondent. The petitioner has named 27 persons who were junior to petitioner
and joined service from 1st August, 1997 to 1st September, 2007. In the end of month of
September, 2005 when the services of petitioner were terminated by way of oral order, he was not
served with one month notice of retrenchment and at the same time one month's wages in lieu of
notice period had also not been paid to him and for said reason termination of the services of
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petitioner was prima facie illegal and unwarranted. 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
September, 2005 till the date of institution of present claim petition who had been nowhere
gainfully employed and was thus entitled for full back wages. Accordingly alleging respondent to
have committed violation of statutory provision of Section 25-F, Section 25-G and Section 25-H of
the Industrial Disputes Act, 1947 and Article 14 and 16 of Constitution of India, the petitioner
prays for setting aside oral order of termination/retrenchment by the respondent in the month of
September, 2005. He further prayed for reinstatement in service w.e.f. month of September, 2005
along-with back wages, seniority including continuity in service as petitioner has remained
unemployed since the date of his illegal termination. The petitioner has also prayed that period of
intermittent/fictional breaks given time and again during entire service of petitioner between 1992
to September, 2005 be counted 160 days continuous service and regularization of the service of
petitioner w.e.f. 01.01.2000 having completed 8 years of service and per the policy of HP Govt. in
pursuance to judgment of Hon'ble Apex Court titled as Rakesh Kumar vs. State of H.P. and to any
other relief petitioner is entitled.
4. The respondent contested claim petition, filed reply inter-alia taken preliminary
objections of maintainability, claim petition being bad on account of delay and laches. On merits
denied that petitioner had worked for more than 160 days in each calendar year rather clarified by
stating that petitioner was engaged as daily waged beldar in 1992 who remained engaged till 2003
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. Allegations of fictional breaks given by respondent to the petitioner have been
denied. In so far as engagement of persons junior to petitioner mentioned at serial nos. 1 to 24 & 26
in para no. 4 of the claim petition were appointed as per order of Labour Court and at serial nos. 25
& 27 as harness case. 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.7 are stated to have engaged as
per direction of the Labour Court-cum-Industrial Tribunal Dharamshala as harness case. It is also
contended that if petitioner had been terminated in 2003 he would have definitely raised industrial
dispute immediately and that after ten 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 termination. It is contended that petitioner was agriculturist and gainfully
employed and was thus not entitled for back wages.
5. The petitioner filed rejoinder, reiterated 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.
6. 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, Ex. PW1/B to PW1/M mandays charts of
junior workers 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,
mandays chart of other co-workers Ex. RW1/C, Ex. RW1/D1 to Ex. RW1/D21 copy of
orders/awards and closed the evidence.
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7. I have heard the ld. Authorized Representative of petitioner and ld. Dy. D.A.
representing respondent, gone through records of the case carefully relevant for disposed of this
case.
8. From the contentions raised, following issues were framed on 12.1.2016 for
determination :
1.
Whether the industrial dispute raised by petitioner vide demand notice dated
18.8.2010 qua his termination of service during September, 2005 by respondent
suffers from vice of delay and laches as alleged? If so, its effect?
... OPP.
2.
Whether termination of the services of petitioner by the respondent during
September, 2005 is/was illegal and unjustified as alleged?
...OPP.
9. If issue no.1 or issue no. 2 or both are proved in affirmative, to what service
benefits the petitioner is entitled to?
...OPP.
10. Whether the claim petition is not maintainable in the present form as alleged?
... OPR.
Relief.
9. For the reasons detailed here under, my findings on the above issues are as follows:—
Issue No.1 :
Discussed
Issue No.2 :
No
Issue No.3 :
No
Issue No.4 :
Yes
Relief. :
Claim petition dismissed per operative part of the Award.
REASONS FOR FINDINGS
ISSUES NO.1 TO 4
10. All these issues have been taken up together for discussion being interconnected which
can be disposed of simultaneously without repetition of evidence.
11. Stepping into witness box as PW1 petitioner has proved on record his affidavit Ex.
PW1/A stipulating therein that he had worked on muster roll on daily wage basis beldar without
any appointment letter from May, 1992 till September, 2005 and in between services of petitioner
had been engaged and reengaged by giving fictional breaks so that he did not complete 160 days
preceding 12 months as well as for regularization of his services. Before accepting the statement
made by the petitioner, it would relevant to refer to mandays chart prepared by Executive Engineer,
Killar Division, HPPWD Killar (Pangi) which shows that petitioner had worked from 1992 to 2003.
A bare glance at the mandays chart would reveal that petitioner had worked for 96 days in the year
2003 and prior to it 79 days in the year 2002 but he had not continuously worked for 160 days as in
the year 2003 he had worked for 96 days. In the months of July, August, September and October,
2002 he was reengaged for period of 79 days i.e. 31 days in August, 25 days in September and 23
days in October in the year 2002. This evidence goes to show that the petitioner had not factually
worked continuously for 160 days as claimed by him. Contrary to the claim of the petitioner as well
as his affidavit Ex. PW1/A showed that petitioner had worked from 1992 to 200 and the reference
received from appropriate government shows that petitioner had worked till September, 2005
which contradictory to claim of petitioner. If the petitioner had worked till 2005 how could he be
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shown to have worked till 2003 which falsified plea of petitioner and for said reason, the reference
is answered in negative because petitioner till the date of order of petition had not prayed for
issuance for corrigendum and appears to be working till 2003 and not 2005. Consequently, this
court cannot go beyond the terms of reference. Delay of seven years in filing the demand notice
cannot be stated to be fatal so as to negate the claim of petitioner in view of various judgments of
Hon'ble Apex Court in which it has been held that delay in raising demand notice would not affect
the right of compensation as this court has to look into merits of this case. Since mandays chart Ex.
RW1/B manifestly shows that petitioner had not worked for 160 days in preceding 12 months from
date of his termination and thus there was no requirement of issuance of any notice envisaged under
Section 25-F of the Industrial Disputes Act at the same time there is no iota of evidence on list of
seniority in favour of petiitoner. Accordingly, it is held that there is no violation of Section 25-F of
the Industrial Disputes Act more particularly provisions of Section 25-B of the Industrial Disputes
Act was not attracted in this case. Similarly, provisions of Sections 25-F of the Industrial Disputes
Act, could not be stated to have been violated as it has not been proved by the petitioner.
12. Ld. Dy. D.A. for respondent has pointed out that petitioner has claimed to have worked
till 2003 and his plea gets falsified from mandays chart Ex. RW1/B. He has also contended that
there could not be explanation of delay as the petitioner continued to work much after 2003. As
such, no conclusion can be drawn for holding delay and laches rather petitioner is held to have
worked much after 2003 and that his claim that notice for termination was issued much late is of no
consequence on the merits of case and for similar reasons, petition is held to be not maintainable.
Issue no.1 is decided as discussed, issues no.2 and 3 are answered negative and issue no.4 is
answered in affirmative in favour of respondent and against the petitioner.
RELIEF
13. As a sequel to my findings on foregoing issues, the instant claim petition is dismissed.
In the peculiar circumstances of the case, the parties are left to bear their own costs.
14. The reference is answered in the aforesaid terms.
15. A copy of this Award be sent to the appropriate Government for publication in the
official gazette.
16. File, after due completion be consigned to the Record Room.
Announced in the open Court today this 29th day of November, 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. : 77/2015
Date of Institution : 25.02.2015
Date of Decision : 29.11.2016
Shri Dev Raj s/o Shri Roshan Lal, r/o Village Tundru, P.O. Killar, Tehsil Pangi, District
Chamba, H.P.
…Petitioner.
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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. Gaurav Sharma, 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 Dev Raj S/O Shri Roshan Lal,
R/O Village Tundru, P.O. Killar, Tehsil Pangi, District Chamba, H.P. before the Executive
Engineer, Killar Division, H.P.P.W.D. Killar, Tehsil Pangi, District Chamba, H.P. vide
demand notice dated nil (received in Labour Office Chamba dated on 25.05.2012) regarding
his alleged illegal termination of service during June, 2004 suffers from delay and latches?
If not, Whether termination of the services of Shri Dev Raj S/O Shri Roshan Lal, R/O
Village Tundru, P.O. Killar, Tehsil Pangi, District Chamba, H.P. by the Executive Engineer,
Killar Division, H.P.P.W.D. Killar, Tehsil Pangi, District Chamba, H.P. during June, 2004
without complying the provisions of the Industrial Disputes Act, 1947, is legal and
justified? If not, what amount of back wages, seniority, past service benefits and
compensation the above aggrieved workman is entitled to from the above employer?”
2. On receipt of reference from appropriate government, notices were issued to the parties
in pursuance to which claimant/petitioner has filed statement of claim.
3. Brief facts as enumerated in the present claim petition by the petitioner above named
revealed that he had been initially engaged as daily paid beldar in IPH Department Pangi in the
year 2001 and worked till the year 2004. Averments made in the petition further revealed that Pangi
is a tribal and snow bound area and no effective work was available with the respondent w.e.f.
November to May but the petitioner had worked for maximum days and the services of petitioner
were dispensed with in the year 2004 without any reason and prior notice and no procedure had
been followed by the respondent/department. It is alleged that petitioner had worked for maximum
days during the months as per availability of work and petitioner is entitled for regularization as per
policy of the government and law laid down by the Hon'ble Apex Court as well as the Hon'ble High
Court of Himachal Pradesh. It is contended that respondent had not followed the provisions of
Section 25-F of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act' for brevity)
while disengaging the services of petitioner. The grievance of petitioner further remains that when
the services of petitioner had been terminated, respondent/department had reengaged persons junior
to the petitioner and respondent had not followed the principle of 'Last come, First go' envisaged
under Section 25-G of the Act. It is stated that petitioner belongs to BPL family and completed 35
years of age and he has no source of income besides after termination of the services of petitioner,
he had approached the respondent time and again but of no avail. He prayed for reinstatement in
service along-with back wages, and other consequential service benefits.
4.
The respondent contested claim petition, filed reply inter-alia taken preliminary
objections of maintainability, claim petition being bad on account of delay and laches. On merits
denied that petitioner had worked for more than 160 days in each calendar year rather clarified by
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stating that petitioner was engaged as daily waged beldar in 2001who 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. It is contended that the services of petitioner had not been terminated by the
respondent but petitioner left the job of his own will. It is stated that the petitioner had not
completed 160 days of continuous service in each calendar year and he did not fulfill the criteria as
envisaged under Section 25-B of the Act and also petitioner did not complete criteria for
regularization as petitioner had not worked for 160 days in each calendar year. It is denied that
respondent had never violated the provisions of Section 25-G of the Act. 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. It is also contended that if
petitioner had been terminated in 2004 he would have definitely raised industrial dispute
immediately and that after eight 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 termination. It is contended that petitioner was agriculturist and gainfully employed and
was thus not entitled for back wages.
5. The petitioner filed rejoinder, reiterated his stand as maintained in the claim petition.
6.
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 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 and closed the evidence.
7. I have heard the ld. counsel of petitioner and ld. Dy. D.A. representing respondent,
gone through records of the case carefully relevant for disposed of this case.
8. From the contentions raised, following issues were framed on 15.1.2016 for
determination :
1.
Whether the industrial dispute raised by petitioner vide demand notice dated nil
qua his termination of service during June, 2004 by respondent suffers from the
vice of delay and laches as alleged? If so, its effect?
... OPP.
2. Whether termination of services of the petitioner by the respondent during June,
2004 is/was illegal and unjustified as alleged?
...OPP.
3. If issue no. 2 is proved in affirmative, to what service benefits the petitioner is
entitled to?
...OPP.
4. Whether the claim petition is not maintainable in the present form as alleged?
...OPR.
Relief.
9. For the reasons detailed here under, my findings on the above issues are as follows:—
Issue No.1 :
Yes
Issue No.2 :
Yes
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Issue No.3 :
Discussed
Issue No.4 :
No
Relief. :
Petition is partly allowed awarding compensation Rs.50,000/- per
operative part of award.
REASONS FOR FINDINGS
ISSUES NO.1 TO 3
10. All these issues have been taken up together for discussion being interconnected which
can be disposed of simultaneously without repetition of evidence.
11. Relationship of petitioner having been engaged as daily waged beldar by respondent on
muster roll basis in the year 2001 continuously worked till 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 and remained engaged from 2001
to May, 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 June, 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 as 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 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 June, 2004. No
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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.
14. A bare glance on the mandays chart Ex. RW1/B would reveal that petitioner had
worked for 97 days in the year 2001, 93 days in 2002, 152 days in 2002 and 90 days in 2004 and
thus a total of his service in 2001 to 2004 in 4 years he had worked for 432 days in his entire
service period. Thus, 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 90 and in the year 2003 petitioner had worked for 152 days and thus
immediately in preceding 12 calendar months from the date of termination of services of petitioner,
he had rendered service of 160 days and petitioner had fulfilled the criteria so as to meet
requirement of law of having continuous service of one year and thus it was 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 violated the provisions of Section 25-F of the Act.
15. Ld. counsel for petitioner has contended that after petitioner's termination in June,
2004, he had remained unemployed and was not earning anything thereafter as such 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.
16. 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.
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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 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.
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15. In the case of Ajaib Singh v. The Sirhind Co-Operative Marketing Cum- Processing
Service Society Limited & Anr.[5] this Court has opined that relief cannot be denied to the
workman merely on the ground of delay, stating that:—
“10. It follows, therefore, that the provisions of Article 137 of the Schedule to Limitation
Act, 1963 are not applicable to the proceedings under the act and that the relief under it
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 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.
17. 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
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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.
18. 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
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”.
19. 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
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judgment of Hon'ble Apex Court in Vice Chancellor, Lucknow University, Lucknow, Uttar Pradesh
v. Akhilesh Kumar Khare & another reported in AIR 2015 SC 3473. It has been contended that
engagement of claimant/petitioner in this case was not through regular mode of recruitment and
applying the ratio of this judgment AIR 2015 SC supra, claim of petitioner for reinstatement can be
negated and thus compensation would be sufficient for redressal of grievance of the
claimant/petitioner. Similarly, in 2016 (1) Him. L.R. 502 titled as State of Himachal Pradesh and
another vs. Chaman Singh relied by ld. AR for petitioner interpretation of Section 137 of
Limitation Act was involved which provides that Article 137 of Limitation Act did not apply to
industrial disputes. In 2014 (3) Apex Court Judgment 652 (SC) similar view was reiterated which
clearly mandates that claimant/petitioner cannot be denied relief sought for merely on the ground of
delay and laches. That being so, the law remains as it was that ground of delay and laches,
claimant/petitioner cannot be denied relief rather the court has to consider various aspects before
moulding relief and the case in hand it would not be erroneous to mention here that the
claimant/petitioner can be reasonably indemnified by ordering compensation and not by
reinstatement. In so far as judgment of AIR 2015 SC 1373 titled as Mackinon Machenize &
Company Ltd. vs. Mackinon Employees Union is concerned, the Hon'ble Apex Court has held on
closure of unit of company principle of 'Last come First go' was not followed which violated
Section 25-G of Industrial Disputes Act and retrenchment was held illegal entitling petitioner for
retrenchment compensation. Since the facts of case of Mackinon Machenize’s case are different
from case in hand as in former closure of unit of company was involved whereas in case in hand
before this court, there is no closure of company rather it is the department of HPPWD which had
engaged petitioner without following of the procedure although subject to funds and availability of
work but in the case in hand petitioner had abandoned the job who never reported for duty. As
such, when there is no closure of any unit by respondent which the petitioner was engaged,
judgment of Mackinon Machenize cannot be made applicable.
20. 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 4 years and
actually worked for 432 days as per mandays chart on record and that the services of petitioner
were disengaged in June, 2004 who worked as non skilled worker and had raised industrial dispute
by issuance of demand notice after about eight years. 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
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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.50,000/- (Rupees
fifty 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.
ISSUE NO.4
21. 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
22. As sequel to my findings on foregoing issues, the respondent is hereby directed to pay
the compensation of Rs.50,000/- (Rupees fifty 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.
23. The reference is answered in the aforesaid terms.
24. A copy of this Award be sent to the appropriate Government for publication in the
official gazette.
25. File, after due completion be consigned to the Record Room.
Announced in the open Court today this 29th day of November, 2016.
(K.K. SHARMA),
Presiding Judge,
Labour Court-cum-Industrial Tribunal,
Kangra at Dharamshala, H.P.
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IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)
Ref No. : 36/2014
Date of Institution : 23.01.2014
Date of Decision : 29.11.2016
Smt. Shubha Rani w/o Shri Avtar Singh, r/o Village and Post Office Jalgran Tabba, Tehsil
& District Una, H.P.
…Petitioner.
Versus
The Managing Director/Employer, M/S Sazler Electronics Limited, V.P.O. Behdala, Una-
Chandigarh Road, Rakkar Colony, Tehsil and District Una, H.P.
...Respondent.
Reference under Section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner : Sh. R.K. Singh Parmar, AR
For the Respondent : Sh. Himanshu Mishra, Adv.
AWARD
The reference given below has been received from the appropriate Government for
adjudication :
“Whether termination of the services of Smt. Shubha Rani W/O Shri Avtar Singh, R/O
V.P.O. Jalgran Tabba, Tehsil & District Una, H.P. w.e.f. 12-08-2012 by the Managing
Director/ Employer, M/S Sazler Electronics Limited, V.P.O. Behdala, Una-Chandigarh
Road, Rakkar Colony, Tehsil and District Una, H.P., 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 worker is entitled to
from the above employer?”
2. On receipt of reference from appropriate government, notices were issued to the parties
in pursuance to which claimant/petitioner has filed statement of claim.
3. Brief facts as set up in the claim petition revealed that the services of petitioner who
was working as operator in the assembly plant of the respondent company had been terminated on
12.8.2012. It is alleged that petitioner was engaged on 11.8.2006 as operator who continuously
rendered service till her termination and during this period petitioner had worked for 240 days in
each year. The grievance of petitioner remains that no charge sheet or show cause notice or
personal hearing had been given and her service had been terminated arbitrarily in whimsical
manner. It is alleged that it was necessary for the respondent company to have issued one month's
notice in advance before termination or pay wages in lieu thereof and thus the termination is prima
facie in violation of the provisions of Section 25-F of the Industrial Disputes Act, 1947 (hereinafter
referred to as 'the Act' for brevity). Similarly, petitioner has also not been paid compensation under
Section 25-F(b) of the Act as compensation had neither been paid nor tendered making termination
prima facie illegal. The action of the respondent/management in terminating service of petitioner as
stated above is stated to be unfair labour practice. It also remains the case of petitioner that after her
termination from service by respondent, the petitioner has remained unemployed throughout and
accordingly, award is prayed to have been passed in favour of petitioner for reinstatement with full
back wages and to any other relief petitioner is found entitled.
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4. The respondent company contested claim petition, filed reply inter-alia taken
preliminary objections of maintainability, suppression of material facts that petitioner herself had
absented from 16.12.2012 to 30.12.2012 and on 1.10.2013 respondent had sent a written letter vide
which legitimate dues of petitioner were disbursed. On merits admitted that petitioner was engaged
as Assembler in the Assembly/Packing Department from 11.8.2006 however denied that all
remaining allegations as set up in the claim petition. It is alleged the behaviour of petitioner was
indifferent in the factory and there were several complaints from co-workers regarding her
misbehaviour and show cause notice was stated to have been served upon her on 6.8.2012 when she
committed misconduct during working hours. It is alleged that after receiving show cause notice,
petitioner at 3:30 PM on 11.8.2012 came to the office of Assistant Manager (Unit Incharge) and in
the presence of co-workers, she misbehaved when again show cause notice was issued on
11.8.2012 calling upon her to explain her conduct. It is alleged that instead of filing reply to the
show cause notice, petitioner started remaining absent from duty without intimation. It is also
alleged that after show cause notice, petitioner threatened the Assistant Manager (Unit Inchart) of
respondent company on 15.9.2012 through mobile no.9882151195 that she would commit suicide
as her husband was torturing her on the incident of petitioner's misconduct in the factory
whereupon a complaint was preferred to SHO Una about the act and conduct of petitioner and
thereafter compromise had taken place between the parties at Police Station on 19.9.2012. On
merits also it has been emphatically denied that services of petitioner were terminated rather she
had resigned from job and she had taken all the dues which were paid to her vide cheque
no.085772000000722 dated 20.12.2013 and said amount was also withdrawn by petitioner and
nothing remains to be paid to her after resignation. It also remains the case of the respondent
company that after she had obtained experience certificate from respondent, she had joined at
Ranger Breweries Limited, Industrial Area, Mehatpur, Una Himachal Pradesh. The petition is
accordingly, sought to be dismissed.
5. The petitioner filed rejoinder, reiterated his stand as maintained in the claim petition.
On merits, admitted that she resigned from job but the same was obtained under pressure.
6. In order to prove her case, petitioner had examined herself as PW1 tendered/proved her
affidavit Ex. PW1/A under Order 18 Rule 4 CPC, copy of compromise Ex. PW1/B and closed
evidence. On the other hand, repudiating the evidence led by the petitioner, respondent examined
RW1 Shri K. Pazhanivel alias Palani Plant Manager of the respondent company proved/tendered
his affidavit Ex. RW1/A, Ex. RW1/B copy of bank statement and closed the evidence.
7. I have heard the ld. counsel of petitioner and ld. Dy. D.A. representing respondent,
gone through records of the case carefully relevant for disposed of this case.
8. From the contentions raised, following issues were framed on 24.2.2015 for
determination :
1.
Whether the termination of the services of the petitioner by the respondent w.e.f.
12.8.2012 is/was improper and unjustified as alleged?
...OPP.
2.
If issue no.1 is proved in affirmative to what service benefits the petitioner is
entitled to?
... OPP.
3.
Whether the claim petition is not maintainable in the present form?
...OPR.
4.
Whether the petitioner has suppressed the true and material facts from the Court
as alleged. If so, its effect?
...OPR.
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5. Whether the petitioner has not approched the Court with clean hands as alleged. If
so, its effect?
...OPR.
Relief.
9. For the reasons detailed here under, my findings on the above issues are as follows:—
Issue No.1 :
No
Issue No.2 :
Discussed
Issue No.3 :
Yes
Issue No.4 :
Yes
Issue No.5 :
Yes
Relief. :
Claim petition dismissed per operative part of the Award.
REASONS FOR FINDINGS
ISSUES NO.1 AND 2
10. Both these issues have been taken up together for discussion being interconnected
which can be disposed of simultaneously without repetition of evidence.
11. Admittedly, petitioner was employed by the respondent on 11.8.2006 as operator at the
Assembly Plant of respondent company. It is also not in dispute that petitioner had continued to
work till 12.8.2012. Stepping into witness box as PW1, petitioner has maintained that she had
worked for more than 240 days in each year and her termination without any notice or
compensation which was required to be paid under Section 25-F of the Act clearly vitiated the right
of petitioner. In her affidavit Ex. PW1/A, petitioner has stated that petitioner had worked for more
240 days in each year preceding her date of actual termination. She has also maintained that no
show cause notice was to be given to her prior to her termination. At the same time, no charge sheet
is stated to have been issued. On the contrary, the claim of respondent remains that the petitioner of
her own had voluntarily resigned after understanding consequences tendered resignation and
received her all dues in full and final settlement. As such, it would be relevant to consider rival
contentions of the parties on merits.
12. Cross-examination of petitioner clearly revealed that respondent company had
paid Rs.8,748/- by crossed cheque issued to her from which had been received also by her. She has
shown ignorance if an amount was credited in her bank account but from the statement of bank
account Ex. RW1/B it is revealed that abovesaid was deposited and disbursed to petitioner.
Significantly, petitioner admitted that she had obtained experience certificate on 1.10.2013 from
respondent company and that she had resigned from service vide resignation letter Ex. R1. Not only
this, she has admitted the plea of respondent which was so stipulated in Ex. R6 her resignation
letter in which she has admitted to have remained absent from duty and that she was leaving the job
from company of her own will, without any force or coercion. From the contents of Ex. R6, plea of
petitioner that she was forced to resign gets falsified. RW1 Shri K. Pazhanivel alias Palani, Plant
Manager has also proved the case of the respondent by tendering his affidavit Ex. RW1/A. Cross-
examination of respondent shows that petitioner remained absented from duty without permission
and remaining absence from duty was misconduct. He has further disclosed in the cross-
examination that the show cause notices Ex.R1 to R3 were given to petitioner but she neither
replied nor acknowledged these notices. This fact further finds support from cross-examination of
PW1 in which she admitted that show cause notice Ex. R1 was given to her but she did not reply
the same. She has also not stated that notice Ex. R2 was not served upon her. She has further
admitted on oath that the contents of notice Ex. R2 dated 14.8.2012 was initially in Hindi and later
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on request of petitioner notice in English was given but she did not reply for reasons best known to
her. Not only this, petitioner has admitted that Ex. R3 dated 30.8.2012 was registered letter Ex. R4
was sent through post but she had refused to receive the registered letter. She has also admitted that
experience certificate Ex. R5 was issued by the respondent company and that immediately after
leaving the job with respondent company she got job in M/s. Ranger Breweries which goes to show
she was unemployed even after working with respondent company @ Rs.4500/- per month. From
aforestated evidence on record, inference of service of petitioner having been terminated without
serving any show cause notice cannot be drawn as petitioner appears to be attending office of her
own and when show cause notices Ex. R1 to R4 were issued, she never replied and explained her
position.
13. Ld. AR for petitioner has also contended that no inference of abandonment of job by
petitioner could be raised from evidence of respondent company but in view of her specific
admission that she had taken all dues and left the respondent company of her own clearly belies the
stand of petitioner. As such, it is held that petitioner has resigned vide resignation letter Ex. R6
without any force or coercion at the instance of respondent company and had taken all dues and
joined another company as stated. In view of foregoing plea of respondent company that petitioner
had abandoned job cannot be legally sustained. In 2015 (4) SCT 60 Service Cases Today and the
relevant paras of the judgment are produced below for reference:
“Constitution of India, 1950, Article 225. Industrial Disputes Act, 947, Section 25F.
Compliance of Impugned order of reinstating respondent no.2. Termination of service
without making compliance of section 25F of the Act. Industrial dispute raised. Defence of
Management was that the workman had himself abandoned his job by remaining absent.
Held, neither any charge sheet issued by petitioner nor sent any notice to the workman for
holding enquiry nor conducted any enquiry nor made compliance of Section 25F of the Act.
Act of management not bonafide. Plea of abandonment not effective. Impugned order held
sustainable. Petition dismissed”.
[Paras 4 and 5]
14. Ld. AR for petitioner has placed reliance upon the judgments of Kulwinder Singh vs.
State of Punjab etc. reported in 2015 (3) SCT 644 and Factories Journal Reports [Vol.88] 516 titled
as Sita Ram vs. Labour Court, Patiala and others. Ld. Authorized Representative for petitioner
relied upon the aforestated judgments which are not applicable to the present case having different
facts. Once it is established that petitioner of her own voluntarily resigned from job vide resignation
letter Ex. P6 dated 1.10.2013 in which petitioner had explained that she of her own had tendered
resignation and she was not interested to do job with the respondent company clearly shows that
she had resigned voluntarily and not by force or corceion. Not only this, petitioner had obtained
experience certificate from respondent company on 01.10.2013 prior to joining other employer as
stated above. On this score also, her plea that she was made to resign forcibly or under pressure
gets belied. Both these issues are decided in favour of respondent and against the petitioner.
ISSUE NO. 3
15. Since petitioner is held to have resigned voluntarily and taken all the dues from
respondent company, it does not lies in her mouth that she was illegally terminated from service. In
the question illegal termination does not arise in this case as highlighted in foregoing paras. Issue is
accordingly answered in negative against petitioner and in favour of respondent.
ISSUES NO. 4 & 5
16. In view of the findings on issues no.1 and 2, it appears that the petitioner has
suppressed the material facts from the Court as well as petitioner had not come to the Court with
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clean hands as the petitioner had not been found a truthful claimant. She has been also shown to be
absent from duty. She has not given reply to the show cause notices Exts. R-1, R-2 and R-3, issued
by the respondent/company regarding her absence from duty. It is not shown that the services of the
petitioner were terminated by the respondent. Rather she had been found to be absent from duty
herself. Therefore, in these circumstances, she is not entitled to any relief, therefore, both these
issues are decided against the petitioner and in favour of the respondent.
RELIEF
17. As a sequel to my findings on foregoing issues, the instant claim petition is dismissed.
In the peculiar circumstances of the case, the parties are left to bear their own costs.
18. The reference is answered in the aforesaid terms.
19. A copy of this Award be sent to the appropriate Government for publication in the
official gazette.
20. File, after due completion be consigned to the Record Room.
Announced in the open Court today this 29th day of November, 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. : 323/2015
Date of Institution : 21.07.2015
Date of Decision : 29.11.2016
Shri Desh Raj s/o Shri Norang, r/o Village Khallu, P.O. Diur, Tehsil Salooni, District
Chamba, H.P.
...Petitioner.
Versus
Executive Engineer, H.P.P.W.D. Division Salooni, Tehsil Salooni, District Chamba, H.P.
...Respondent.
Reference under Section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner : Sh. I.S. Jaryal, AR
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 Desh Raj S/O Shri Norang, R/O
Village Khallu, P.O. Diur, Tehsil Salooni, District Chamba, H.P. before the Executive
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Engineer, H.P.P.W.D. Division Salooni, Tehsil Salooni, District Chamba, H.P. vide demand
notice dated 23.07.2009 regarding his alleged illegal termination of service during year,
2001 suffers from delay and latches? If not, Whether termination of the services of
Shri Desh Raj S/O Shri Norang, R/O Village Khallu, P.O. Diur, Tehsil Salooni, District
Chamba, H.P. by the Executive Engineer, H.P.P.W.D. Division, Salooni, Tehsil Salooni,
District Chamba, H.P. during year, 2001 without complying the provisions of the Industrial
Disputes Act, 1947, is legal and justified? If not, what amount of back wages, seniority, past
service benefits and compensation the above aggrieved workman is entitled to from the
above employer?”
2. On receipt of reference from appropriate government, notices were issued to the parties
in pursuance to which claimant/petitioner has filed statement of claim.
3. Brief facts leading to institution of the present claim petition by the petitioner above
named reveal that he had been initially engaged as daily waged beldar on muster roll basis in the
month of June, 1985 who continuously worked till April, 1987 with the respondent/department.
Averments made in the petition further revealed that the services of petitioner interrupted by giving
him fictional breaks although petitioner had worked for 240 days in each calendar year as well as
benefits of regularization since the juniors of petitioner had been retained in service by the
respondent and thereafter respondent had illegally terminated the services of petitioner in May,
1987. It is further stated that the services of petitioner had been again reengaged in the month of
June, 1994 and he had worked upto August, 1994 and thereafter the services of petitioner were
illegally terminated by the respondent/department and petitioner had filed O.A. before the H.P.
Hon'ble Administrative Tribunal. As per direction of Hon'ble Administrative Tribunal the
respondent had reengaged the petitioner in September, 1994 and he had worked till May/June,
1996. It is alleged that the respondent started giving break in service of petitioner from time to time
and engaged till April, 2001 and the respondent/department had finally terminated the services of
petitioner on May, 2001 whereas several other co-workers who were junior to petitioner had been
retained on muster roll and thus the action of respondent/department was stated to be arbitrary,
unjustified and principle of natural justice but too violation of the Industrial Disputes Act, 1947
(hereinafter referred to as 'the Act' for brevity). It is alleged that seniority list of daily wage workers
working under the respondent had not been circulated till termination/retrenchment of the petitioner
and while retrenching the services of petitioner, even principle of 'Last come First go' had not been
followed by the department/respondent. The petitioner has named 52 persons who were junior to
petitioner and joined service from October, 1992 to 2006. In the end of month of May, 2001 when
the services of petitioner were terminated by way of oral order, he was not served with one month
notice of retrenchment and at the same time one month's wages in lieu of notice period had also not
been paid to him and for said reason termination of the services of petitioner was prima facie illegal
and unwarranted. 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 May, 2001 till the date of institution
of present claim petition who had been nowhere gainfully employed and was thus entitled for full
back wages. Accordingly alleging respondent to have committed violation of statutory provision of
Section 25-F, Section 25-G and Section 25-H of the Industrial Disputes Act, 1947 and Article 14
and 16 of Constitution of India, the petitioner prays for setting aside oral order of termination/
retrenchment by the respondent in the month of May, 2001. He further prayed for reinstatement in
service w.e.f. month of May, 2001 along-with back wages, seniority including continuity in service
as petitioner has remained unemployed since the date of his illegal termination. The petitioner has
also prayed that period of intermittent/fictional breaks given time and again during entire service of
petitioner between 1985 to May, 2001 be counted 240 days continuous service and regularization
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of the service of petitioner w.e.f. 01.01.1995 having completed 10 years of service and per the
policy of HP Govt. in pursuance to judgment of Hon'ble Apex Court titled as Mool Raj Upadhaya
vs. State of H.P. and to any other relief petitioner is entitled.
4.
The respondent contested claim petition, filed reply inter-alia taken preliminary
objections of maintainability, claim petition being bad on account of delay and laches. On merits
admitted that the services of petitioner had been engaged in the month of June, 1985 who remained
engaged till April, 1987 but had worked intermittently as petitioner used to come and attend the
work at his own sweet will and convenience. It is stated that the services of petitioner had been
initially engaged in June, 1985 as daily waged beldar and he worked for 142 days in the year 1985,
174 days in 1986, 80½ days in 1987 and thereafter petitioner had not returned for from 1988 to
1993. It is further stated that in the year 1994 petitioner had worked for 81 days, 303 days in 1995,
207 days in 1996, 125 days in 1997, 169 days in 1999, 77 days in 2000 and 57 days in 2001 and
thereafter petitioner had abandoned the job of his own will without intimating the respondent/
department. It is alleged that as per mandays chart petitioner had worked intermittently as per his
own convenience and will. 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 junior to him were not retained in service after
termination of the services of petitioner. It is 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 termination. It is contended that petitioner was agriculturist and gainfully
employed and was thus not entitled for back wages.
5. The petitioner filed rejoinder, reiterated his stand as maintained in the claim petition.
6. 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, Ex. Mark-A1 to A6 copies of representations,
Ex. PW1/B copy of letter dated 21.5.2011, Ex. PW1/C copy of appeal dated 20.6.2011, Ex. PW1/D
copy of letter dated 15.10.2011, Ex. PW1/E copy of letter dated 5.3.2014 Exts. PW1/F1 to F5
copies of screening committee report, Exts. PW1/F6 to F45 copies of mandays chart of co-workers
and closed evidence. On the other hand, repudiating the evidence led by the petitioner, respondent
examined RW1 Shri D.S. Pathania, the then Executive Engineer, HPPWD Division Salooni as
RW1 tendered/proved his affidavit Ex. RW1/A, Ex. RW1/B mandays chart of petitioner Ex.
RW1/C copy of seniority list of daily waged workers of HPPWD Division Salooni and closed the
evidence.
7.
I have heard the ld. Authorized Representative of petitioner and ld. Dy. D.A.
representing respondent, gone through records of the case carefully relevant for disposed of this
case.
8. From the contentions raised, following issues were framed on 27.11.2015 for
determination :
1.
Whether the industrial dispute raised by petitioner vide demand notice dated
23.07.2009 qua his termination of service during year 2001 by respondent suffers
from vice of delay and laches as alleged? If so, its effect?
...OPP.
2. Whether termination of the services of petitioner by the respondent during year,
2001 is/was illegal and unjustified as alleged?
...OPP.
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11. If issue no.2 is proved in affirmative, to what service benefits the petitioner is
entitled to?
... OPP.
12. Whether the claim petition is not maintainable in the present form as alleged?
... OPR.
Relief.
9. For the reasons detailed here under, my findings on the above issues are as follows:—
Issue No.1 :
Yes
Issue No.2 :
Yes
Issue No.3 :
Discussed
Issue No.4 :
No
Relief. :
Petition is partly allowed awarding compensation Rs.1,75,000/- per
operative part of award.
REASONS FOR FINDINGS
ISSUES NO.1, 2 AND 3
10. All these issues have been taken up together for discussion being interconnected which
can be disposed of simultaneously without repetition of evidence.
11. Relationship of petitioner having been engaged as daily waged beldar by respondent on
muster roll basis in the year 1985 who continuously worked till 2001 with the respondent/
department 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 240 days and remained engaged from 1985
to April, 2001. 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 April, 2001 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 as 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 and petitioner had
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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 2001. 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 intermittent breaks had been deliberately given to him by the respondent
in the service record of petitioner so that petitioner did not complete 240 days of work and also for
applicability of Section 25-B of the Act. As such, in absence of any specific and reliable evidence
led by respondent, it would be unsafe to hold that respondent had established plea of abandonment.
14. A bare glance on the mandays chart Ex. RW1/B would reveal that petitioner had worked for
142 days in the year 1985, 175 days in 1986, 80 ½ days in 1987, 81 days in 1994, 303 days in 1995,
207 days in 1996, 125 days in 1997, 169 days in 1999, 77 days in 2000 and 57 days in 2001 and
thus a total of his service in 1985 to 2001 in 10 years he had worked for 1416 ½ days in his entire
service period. As per mandays chart Ex. RW1/B revealed that claimant/petitioner is shown to have
worked for 134 days in a year preceding his date of termination and thus provisions of Section 25-F
of the Act would not apply in this case. As the petitioner had appointed in 1985 and from 1988 to
1993 petitioner was not in service. Be it noticed that petitioner had not worked for more than 240
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 2001 the petitioner had merely worked for
two months 57 days and thus immediately in preceding 12 calendar months from the month of
termination of petitioner had not rendered service of 240 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. Authorized Representative for petitioner has contended with vehemence that large
number of workers who were junior to petitioner had been appointed 1992 to 2006 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. Ex. PW1/F1 to
PW1/F45 are the year-wise mandays of daily waged workers who were junior to the petitioner and
had joined in the year 1996 or thereafter. As per seniority list Ex. RW1/C stipulated that Madho
Ram at serial no.8, Rattan Chand at 14, Dharam Chand at 15, Sita Ram at 16 and Kewal had been
appointed in the year 1996 respectively whereas petitioner had joined in June, 1985. That being so
it appears to violation of Section 25-G of the Act. In so far as seniority of 45 employees as reflected
Ex. PW1/F1 to Ex. PW1/F45 these official have worked regularly and were consequently
regularized. The main crux of the problem with regard to violation of Section 25-G for which
petitioner was required to establish that some juniors were appointed later and as per seniority list
Ex. RW1/C it is evident that several persons as referred to above had joined at belated stage
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whereas the petitioner was continued in service and he was not regularized by the respondent/
department. As such, during regularization of other co-workers petitioner could be given an
opportunity of being heard by competent authority hence this court left with no option but to hold
that respondent had violated the provisions of Section 25-G and H of the Act. Ld. Authorized
Representative for petitioner has placed reliance upon judgment of Central Bank of India vs. S.
Satyam, 1996 (5) SCC 419 in which Hon'ble Apex Court has held that for the applicability of
Section 25-G and 25-H of the Act, there was no necessity of claimant/petitioner to have worked for
240 days as in case of provisions of Section 25-F of the Act.
16. Repudiating claim of petitioner, the respondent, on the other hand, has made futile
attempt to justify engagement of junior workers and their retention in service on the basis of orders
of Labour Court-cum-Industrial Tribunal as well as on compassionate grounds as reflected in the
seniority list Ex. RW1/C. Thus, plea that persons were directed to be appointed in pursuance to
seniority list Ex. RW1/C were primarily on the basis of court orders as well as on compassionate
ground 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 240 days in preceding 10 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. Authorized Representative for petitioner has contended that after petitioner's
termination in the year 2001, he had remained unemployed and was not earning anything thereafter
as such was entitled for full back wages. Repudiating the arguments of ld. Authorized
Representative of petitioner, ld. Dy. D.A. for the State has taken this court through cross-
examination of the petitioner who has admitted that 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 petitioner relief claimed for by him. On the other hand, ld.
Authorized Representative for the petitioner has relied upon the judgment of Hon'ble Apex Court
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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 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 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.
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15. In the case of Ajaib Singh v. The Sirhind Co-Operative Marketing Cum-Processing
Service Society Limited & Anr.[5] this Court has opined that relief cannot be denied to the
workman merely on the ground of delay, stating that:—
“10. It follows, therefore, that the provisions of Article 137 of the Schedule to Limitation
Act, 1963 are not applicable to the proceedings under the act and that the relief under it
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 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. counsel 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 2001 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
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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.
Authorized Representative for petitioner, ld. Dy. D.A. has placed reliance upon the judgment of
Hon'ble Apex Court titled as Assistant Engineer, Rajasthan State Agriculture Marketing Board,
Sub-Division Kota and Mohan Lal [2013 (139) FLR 125], the relevant para of the judgment are
produced below for reference:
Industrial Disputes Act, 1947-Sections 25-F and 10-Limitation Act, 1963- Section 5-
Industrial dispute-Termination of service-Finding of Lboaur Court that workman had
completed 240 days in calander year and his 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. His services terminated on 18.2.1986. Industrial dispute raised after 6 years of
termination. Admitted delay of 6 years not kept in view by the Labour Court-Judicial
discretion exercised by the Labour Court flawed and unsustainable. Reinstatement of the
workman not the appropriate relief. In lieu of reinstatement compensation of Rs.one lac
directed to be paid to the workman by the appellant-employer within six weeks failing
which interest @ workman 9% p.a. will be payable.
[Paras 21 and 22]
Limitation Act, 1963. Section 5-Industrial Disputes Act, 1947-Section 25-F-Termination of
service-Industrial dispute raised after six years-Limitation Act not applicable to reference
made under the I.D. Act-Delay in raising industrial disputes definitely an important
circumstances which the Labour Court must keep in view before granting relief”.
I have gone through the rival contention of the ld. Authorized Representative as well as ld.
Dy. D.A. for State. Keeping in view the mandate of Hon'ble Apex Court in various judgments
referred to above it is held that delay in raising industrial dispute is definitely an important
circumstance and court has to keep in mind while exercising discretion. In para nos. 20 and 21 of
judgment 2013 supra has referred to Gitam Singh’s case reported in 2013 (136) FLR 893 (SC)
titled as Assistant Engineer Rajasthan Development Corporation and another vs. Geetam Singh
observing that before exercising its judicial discretion, the Labour Court has to keep in view 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 the delay in raising industrial
dispute before grant of relief in an industrial dispute. 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 his services have been terminated in 1986 and he 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 1416½ days as per mandays chart
on record and that the services of petitioner were disengaged in the year 2001 who worked as non
skilled worker and had raised industrial dispute by issuance of demand notice after about eight
years i.e. demand notice was given on 23.07.2009. It is also pertinent to mention here that
petitioner on the date of filing claim petition was ageing 49 years who has sufficient spell of life to
work and earn his livelihood. Taking into consideration factors mentioned above in pursuance to
judgments of Hon'ble Apex Court petitioner would not be entitled either for reinstatement or for
back wages but compensation a lump-sum would be appropriate relief in view of judgment 2013
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(139) FLR 25 (SC). The judgments relied upon by ld. Authorized Representative for petitioner on
the matter of delay and laches is more or less settled law that claim of the petitioner could not be
solely declined on the ground of delay and laches. Similarly, judgment of Hon'ble Apex Court in
2014 titled as Raghubir Singh’s case also does not come to the rescue of the petitioner as in this
judgment also the Hon'ble Apex Court has reiterated the mandate as given by the Hon'ble Apex
Court in previous judgment in the year 2013 i.e. Assistant Engineer, Rajasthan State Agriculture
Marketing Board, Sub-Division Kota and Mohan Lal’s case. Similar view was reiterated by the
Hon'ble Apex Court in judgment titled as Vice Chancellor, Lucknow University, Lucknow, Uttar
Pradesh v. Akhilesh Kumar Khare & another reported in AIR 2015 SC 3473.
21. In view of foregoing discussion, instead of back wages and reinstatement, a lump-sum
compensation of Rs.1,75,000/- (Rupees One Lakh Seventy Five 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 and its realization. Issues no. 1, 2 and 3 are answered accordingly.
ISSUE NO.4
22. 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
23. As sequel to my findings on foregoing issues, the respondent is hereby directed to pay
the compensation of Rs.1,75,000/- (Rupees One Lakh Seventy Five thousand only) to the petitioner
in lieu of the reinstatement in services as well as back wages and the other consequential service
benefits. Amount of compensation so awarded shall 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.
24. The reference is answered in the aforesaid terms.
25. A copy of this Award be sent to the appropriate Government for publication in the
official gazette.
26. File, after due completion be consigned to the Record Room.
Announced in the open Court today this 29th day of November, 2016.
(K.K. SHARMA),
Presiding Judge,
Labour Court-cum-Industrial Tribunal,
Kangra at Dharamshala, H.P.
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IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)
Ref No. : 212/2015
Date of Institution : 25.05.2015
Date of Decision : 29.11.2016
Shri Hem Raj s/o Shri Sahnu Ram, r/o Village Daliund, P.O. Bhadela, Tehsil Salooni,
District Chamba, H.P.
…Petitioner.
Versus
Executive Engineer, H.P.P.W.D. Division Salooni, Tehsil Salooni, District Chamba, H.P.
...Respondent.
Reference under Section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner : Sh. I.S. Jaryal, AR
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 Hem Raj S/O Shri Sahnu Ram,
R/O Village Daliund, P.O. Bhadela, Tehsil Salooni, District Chamba, H.P. before the Executive
Engineer, H.P.P.W.D. Division Salooni, Tehsil Salooni, District Chamba, H.P. vide demand notice
dated nil-received on 25.11.2004 regarding his alleged illegal termination of service during, July,
1998 suffers from delay and latches? If not, Whether termination of the services of Shri Hem Raj
S/O Shri Sahnu Ram, R/O Village Daliund, P.O. Bhadela, Tehsil Salooni, District Chamba, H.P. by
the Executive Engineer, H.P.P.W.D. Division, Salooni, Tehsil Salooni, District Chamba, H.P.
during July, 1998 without complying the provisions of the Industrial Disputes Act, 1947, is legal
and justified? If not, what amount of back wages, seniority, past service benefits and compensation
the above aggrieved workman is entitled to from the above employer?”
2. On receipt of reference from appropriate government, notices were issued to the parties
in pursuance to which claimant/petitioner has filed statement of claim.
3. Brief facts leading to institution of the present claim petition by the petitioner above
named reveal that he had been initially engaged as daily waged beldar on muster roll basis in the
month of December, 1994 who continuously worked till July, 1998 with the respondent/
department. Averments made in the petition further revealed that the services of petitioner
interrupted by giving him fictional breaks although petitioner had worked for 240 days in each
calendar year as well as benefits of regularization since the juniors of petitioner had been retained
in service by the respondent and thereafter respondent had illegally terminated the services of
petitioner in July, 1998. It is alleged that the respondent started giving break in service of petitioner
from time to time and engaged till 1998 and the respondent/department had finally terminated the
services of petitioner on July, 1998 whereas several other co-workers who were junior to petitioner
had been retained on muster roll and thus the action of respondent/department was stated to be
arbitrary, unjustified and principle of natural justice but too violation of the Industrial Disputes Act,
1947 (hereinafter referred to as 'the Act' for brevity). It is alleged that seniority list of daily wage
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workers working under the respondent had not been circulated till termination/retrenchment of the
petitioner and while retrenching the services of petitioner, even principle of 'Last come First go' had
not been followed by the department/respondent. The petitioner has named 40 persons who were
junior to petitioner and joined service from October, 1995 to 2006. In the end of month of July,
1998 when the services of petitioner were terminated by way of oral order, he was not served with
one month notice of retrenchment and at the same time one month's wages in lieu of notice period
had also not been paid to him and for said reason termination of the services of petitioner was
prima facie illegal and unwarranted. 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 July, 1998 till the date
of institution of present claim petition who had been nowhere gainfully employed and was thus
entitled for full back wages. Accordingly alleging respondent to have committed violation of
statutory provision of Section 25-F, Section 25-G and Section 25-H of the Industrial Disputes Act,
1947 and Article 14 and 16 of Constitution of India, the petitioner prays for setting aside oral order
of termination/retrenchment by the respondent in the month of July, 1998. He further prayed for
reinstatement in service w.e.f. month of July, 1998 along-with back wages, seniority including
continuity in service as petitioner has remained unemployed since the date of his illegal
termination. The petitioner has also prayed that period of intermittent/fictional breaks given time
and again during entire service of petitioner between 1994 to July, 1998 be counted 240 days
continuous service and regularization of the service of petitioner w.e.f. 01.01.2003 having
completed 8 years of service and per the policy of HP Govt. in pursuance to judgment of Hon'ble
Apex Court titled as Rakesh Kumar vs. State of H.P. and to any other relief petitioner is entitled.
4. The respondent contested claim petition, filed reply inter-alia taken preliminary
objections of maintainability, claim petition being bad on account of delay and laches. On merits
admitted that the services of petitioner had been engaged in the month of December, 1994 who
remained engaged till July, 1998 but had worked intermittently as petitioner used to come and
attend the work at his own sweet will and convenience. It is stated that the services of petitioner
had been initially engaged in December, 1994 as daily waged beldar and petitioner had worked for
9 ½ days in the year 1994, 200 days in 1995, 268½ days in 1996, 337 days in 1997 and 192 days in
1998 and thereafter petitioner had abandoned the job of his own will without intimating the
respondent/department. It is alleged that as per mandays chart petitioner had worked intermittently
as per his own convenience and will. 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 junior to him were not retained in service after
termination of the services of petitioner. It is 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 termination. It is contended that petitioner was agriculturist and gainfully
employed and was thus not entitled for back wages.
5. The petitioner filed rejoinder, reiterated his stand as maintained in the claim petition.
6. 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, Ex. Mark-A1 to A6 copies of representations,
Ex. PW1/B copy of letter dated 21.9.2007, Ex. PW1/C appeal dated 15.7.2008, Ex. PW1/D copy of
order dated 10.4.2012, Ex. PW1/E copy of representation dated 31.8.2014, Ex. PW1/F copies of
reminder dated 2.10.2014, Ex. PW1/G copy of vacancy position, Exts. PW1/H1 to H5 copies of
screening committee report, Exts. PW1/H6 to H45 copies of seniority list of co-workers and closed
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evidence. On the other hand, repudiating the evidence led by the petitioner, respondent examined
RW1 Shri D.S. Pathania, the then Executive Engineer, HPPWD Division Salooni as RW1
tendered/proved his affidavit Ex. RW1/A, Ex. RW1/B mandays chart of petitioner Ex. RW1/C
copy of seniority list of daily waged workers of HPPWD Division Salooni, Ex. P1 to Ex. P3 copies
of letter dated 10.9.2014, 1.10.2014, 14.10.2014 respectively, Ex. P4 copy of statement of Shri
Hem Raj, Ex. P5 copy of letter dated 14.11.2014 and closed the evidence.
7. I have heard the ld. Authorized Representative of petitioner and ld. Dy. D.A.
representing respondent, gone through records of the case carefully relevant for disposed of this
case.
8.
From the contentions raised, following issues were framed on 27.11.2015 for
determination :
1.
Whether the industrial dispute raised by petitioner vide demand notice dated nil
qua his termination of service during July, 1998 by respondent suffers from vice
of delay and laches as alleged? If so, its effect?
...OPP.
2.
Whether termination of the services of petitioner by the respondent during July,
1998 is/was illegal and unjustified as alleged?
...OPP.
13. If issue no.2 is proved in affirmative, to what service benefits the petitioner is
entitled to?
...OPP.
14. Whether the claim petition is not maintainable in the present form as alleged?
...OPR.
Relief.
9. For the reasons detailed here under, my findings on the above issues are as follows:—
Issue No.1 :
Yes
Issue No.2 :
Yes
Issue No.3 :
Discussed
Issue No.4 :
No
Relief. :
Petition is partly allowed awarding compensation Rs.1,20,000/- per
operative part of award.
REASONS FOR FINDINGS
ISSUES NO.1, 2 AND 3
10. All these issues have been taken up together for discussion being interconnected which
can be disposed of simultaneously without repetition of evidence.
11. Relationship of petitioner having been engaged as daily waged beldar by respondent
on muster roll basis in the year 1994 who continuously worked till 1998 with the respondent/
department 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.
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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 240 days and remained engaged from 1994
to July, 1998. 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 July, 1998 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 as 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 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 1998. 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 intermittent breaks had been deliberately given to him by the respondent
in the service record of petitioner so that petitioner did not complete 240 days of work and also for
applicability of Section 25-B of the Act. As such, in absence of any specific and reliable evidence
led by respondent, it would be unsafe to hold that respondent had established plea of abandonment.
14. A bare glance on the mandays chart Ex. RW1/B would reveal that petitioner had
worked for 9½ days in the year 1994, 200 days in 1995, 268½ days in 1996, 337 days in 1997 and
192 days in 1998 and thus a total of his service in 1994 to 1998 in 5 years he had worked for 1007
days in his entire service period. As per mandays chart Ex. RW1/B petitioner is shown to have
worked for 328 days preceding 12 months from the date of his termination. Since petitioner has
worked for more than 230 days in preceding 12 months, he would entitled protection envisaged
under Section 25-B of the Act. As such, respondent was required to issue show cause notice before
terminating his services as petitioner had worked for more than 240 days of work. At the same time
notice was to be issued and compensation was also to be paid to the petitioner which has not been
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so done by the respondent/department in this case. This fact has been admitted by RW1 in cross-
examination supporting claim of petitioner. Since no notice as required under Section 25-F of the
Act was given respondent is held to have violated Section 25-F of the Act.
15. Ld. Authorized Representative for petitioner has contended with vehemence that large
number of workers who were junior to petitioner had been appointed 1996 to 2006 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. PW1/H6 to PW1/F40
are the year-wise mandays of daily waged workers who were junior to the petitioner and had joined
in the year 1996 or thereafter. Ex. RW1/C is the seniority list of daily wage workers as stipulated in
seniority list Ex. RW1/C is shown to have joined in July 1995 and thereafter. As such, before
engaging new faces, respondent was required to issue notice for reemployment to petitioner but in
this case respondent/department had not done. As such having appointed workers who were junior
as stated above respondent had also violated the provisions of Sections 25-G and 25 H of the Act.
Ld. Authorized Representative for petitioner has placed reliance upon judgment of Central Bank of
India vs. S. Satyam, 1996 (5) SCC 419 in which Hon'ble Apex Court has held that for the
applicability of Section 25-G and 25-H of the Act, there was no necessity of claimant/petitioner to
have worked for 240 days as in case of provisions of Section 25-F of the Act.
16. Repudiating claim of petitioner, the respondent, on the other hand, has made futile
attempt to justify engagement of junior workers and their retention in service on the basis of orders
of Labour Court-cum-Industrial Tribunal as well as on compassionate grounds as reflected in the
seniority list Ex. RW1/C. Thus, plea that persons were directed to be appointed in pursuance to
seniority list Ex. RW1/C were primarily on the basis of court orders as well as on compassionate
ground 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 240 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-F, 25-G and 25-H of the Industrial Disputes Act.
17. Ld. Authorized Representative for petitioner has contended that after petitioner's
termination in the year 1998, he had remained unemployed and was not earning anything thereafter
as such was entitled for full back wages. Repudiating the arguments of ld. Authorized
Representative of petitioner, ld. Dy. D.A. for the State has taken this court through cross-
examination of the petitioner who has admitted that 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
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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 petitioner relief claimed for by him. On the other hand, ld.
Authorized Representative for the petitioner has relied upon the judgment of Hon'ble Apex Court
titled Raghubir Singh vs. General Manager, Haryana Roadways, Hissar reported in 2014 Lab IC
4266 (SC) and the relevant paras of the judgment are produced below for reference:
“12. Therefore, in our considered view, the observations made by this Court in the
Rajasthan State Agriculture Marketing Board case (supra) upon which the learned
Additional Advocate General for the State of Haryana has placed reliance cannot be applied
to the fact situation of the case on hand, for the reason that the Labour Court has
erroneously rejected the reference without judiciously considering all the relevant factors of
the case particularly the points of dispute referred to it and answered the 2nd issue regarding
the reference being barred by limitation but not on the merits of the case. The said decision
has no application to the fact situation and also for the reason the catena of decisions of this
Court referred to supra, wherein this Court has categorically held that the provisions of
Limitation Act under Article 137 has no application to make reference by the appropriate
government to the Labour Court/Industrial Tribunal for adjudication of existing industrial
dispute between workmen and the employer.
13. In the case on hand, no doubt there is a delay in raising the dispute by the appellant;
the Labour Court nevertheless has the power to mould the relief accordingly. At the time of
adjudication, if the dispute referred to the Labour Court is not adjudicated by it, it does not
mean that the dispute ceases to exist. The appropriate government in exercise of its statutory
power under Section 10(1)(c) of the Act can refer the industrial dispute, between the parties,
at any time, to either the jurisdictional Labour Court/Industrial Tribunal as interpreted by
this Court in the Avon Services case referred to supra. Therefore, the State Government has
rightly exercised its power under Section 10(1)(c) of the Act and referred the points of
dispute to the Labour Court as the same are in accordance with the law laid down by this
Court in Avon Services & Sapan Kumar Pandit cases referred to supra.
14. Further, the workman cannot be denied to seek relief only on the ground of delay in
raising the dispute as held in the case of S.M. Nilajkar & Ors. v. Telecom District Manager,
Karnataka[4] it was held by this Court as follows—
“17. It was submitted on behalf of the respondent that on account of delay in raising the
dispute by the appellants the High Court was justified in denying relief to the appellants.
We cannot agree...... In Ratan Chandra Sammanta and Ors. v. Union of India and Ors.
(supra)1993 AIR SCW 2214, it was held that a casual labourer retrenched by the employer
deprives himself of remedy available in law by delay itself, lapse of time results in losing
the remedy and the right as well. The delay would certainly be fatal if it has resulted in
material evidence relevant to adjudication being lost and rendered not available. However,
we do not think that the delay in the case at hand has been so culpable as to disentitle the
appellants for any relief.....” (Emphasis laid by the Court) In view of the legal principles laid
down by this Court in the above judgment, the reference of the industrial dispute made in
the case on hand by the State Government to the Labour Court to adjudicate the existing
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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.
15. In the case of Ajaib Singh v. The Sirhind Co-Operative Marketing Cum-Processing
Service Society Limited & Anr.[5] this Court has opined that relief cannot be denied to the
workman merely on the ground of delay, stating that:—
“10. It follows, therefore, that the provisions of Article 137 of the Schedule to Limitation
Act, 1963 are not applicable to the proceedings under the act and that the relief under it
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 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. counsel 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
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termination of petitioner in this case took place on 1998 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.
Authorized Representative20. Relying upon the aforestated judgment, it has been contended that
claim of petitioner cannot be defeated on the point of delay and laches. Repudiating arguments
advanced by ld. Authorized Representative for petitioner, ld. Dy. D.A. has placed reliance upon the
judgment of Hon'ble Apex Court titled as Assistant Engineer, Rajasthan State Agriculture
Marketing Board, Sub-Division Kota and Mohan Lal [2013 (139) FLR 125], the relevant para of
the judgment are produced below for reference :
Industrial Disputes Act, 1947-Sections 25-F and 10-Limitation Act, 1963-Section 5-
Industrial dispute-Termination of service-Finding of Lboaur Court that workman had
completed 240 days in calander year and his 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. His services terminated on 18.2.1986. Industrial dispute raised after 6 years of
termination. Admitted delay of 6 years not kept in view by the Labour Court- Judicial
discretion exercised by the Labour Court flawed and unsustainable. Reinstatement of the
workman not the appropriate relief. In lieu of reinstatement compensation of Rs.one lac
directed to be paid to the workman by the appellant-employer within six weeks failing
which interest @ workman 9% p.a. will be payable.
[Paras 21 and 22]
Limitation Act, 1963. Section 5-Industrial Disputes Act, 1947-Section 25-F-Termination of
service-Industrial dispute raised after six years- Limitation Act not applicable to reference
made under the I.D. Act-Delay in raising industrial disputes definitely an important
circumstances which the Labour Court must keep in view before granting relief”.
I have gone through the rival contention of the ld. Authorized Representative as well as ld.
Dy. D.A. for State. Keeping in view the mandate of Hon'ble Apex Court in various judgments
referred to above it is held that delay in raising industrial dispute is definitely an important
circumstance and court has to keep in mind while exercising discretion. In para nos. 20 and 21 of
judgment 2013 supra has referred to Gitam Singh’s case reported in 2013 (136) FLR 893 (SC)
titled as Assistant Engineer Rajasthan Development Corporation and another vs. Geetam Singh
observing that before exercising its judicial discretion, the Labour Court has to keep in view 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 the delay in raising industrial
dispute before grant of relief in an industrial dispute. 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 his services have been terminated in 1986 and he 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
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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 05 years and actually worked for 1007 days as per mandays chart
on record and that the services of petitioner were disengaged in the year 1998 who worked as non
skilled worker and had raised industrial dispute by issuance of demand notice after about six years
i.e. demand notice was given in the year 2009. It is also pertinent to mention here that petitioner on
the date of filing claim petition was ageing 38 years who has sufficient spell of life to work and
earn his livelihood. Taking into consideration factors mentioned above in pursuance to judgments
of Hon'ble Apex Court petitioner would not be entitled either for reinstatement or for back wages
but compensation a lump-sum would be appropriate relief in view of judgment 2013 (139) FLR 25
(SC). The judgments relied upon by ld. Authorized Representative for petitioner on the matter of
delay and laches is more or less settled law that claim of the petitioner could not be solely declined
on the ground of delay and laches. Similarly, judgment of Hon'ble Apex Court in 2014 titled as
Raghubir Singh’s case also does not come to the rescue of the petitioner as in this judgment also the
Hon'ble Apex Court has reiterated the mandate as given by the Hon'ble Apex Court in previous
judgment in the year 2013 i.e. Assistant Engineer, Rajasthan State Agriculture Marketing Board,
Sub-Division Kota and Mohan Lal’s case. Similar view was reiterated by the Hon'ble Apex Court
in judgment titled as Vice Chancellor, Lucknow University, Lucknow, Uttar Pradesh v. Akhilesh
Kumar Khare & another reported in AIR 2015 SC 3473.
21. In view of foregoing discussion, instead of back wages and reinstatement, a lump-sum
compensation of Rs.1,20,000/- (Rupees One Lakh Twenty 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 and its realization. Issues no. 1, 2 and 3 are answered accordingly.
ISSUE NO.4
22. 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
23. As sequel to my findings on foregoing issues, the respondent is hereby directed to pay
the compensation of Rs.1,20,000/- (Rupees One Lakh Twenty thousand only) to the petitioner in
lieu of the reinstatement in services as well as back wages and the other consequential service
benefits. Amount of compensation so awarded shall 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.
24. The reference is answered in the aforesaid terms.
25. A copy of this Award be sent to the appropriate Government for publication in the
official gazette.
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26. File, after due completion be consigned to the Record Room.
Announced in the open Court today this 29th day of November, 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. : 346/2014
Date of Institution : 16.12.2014
Date of decision : 29.11.2016
Shri Sunku Ram s/o Shri Sorma Ram, r/o Village Reya, P.O. Bakani, Tehsil & District
Chamba, H.P.
…Petitioner.
Versus
Deputy Director of Agriculture, Chamba, District Chamba, H.P.
…Respondent.
Reference under section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner : Sh. Dharam Malhotra, Adv.
For the Respondent : Sh. Sanjeev Singh Rana, Dy. D.A.
AWARD
1. The following reference has been received from the appropriate Government for
adjudication :
“Whether transfer of the services of Sh. Sunku Ram S/O Sh. Sorma Ram, R/O Village
Reya, P.O. Bakani, Tehsil & District Chamba, H.P. by the i) Deputy Director (Agriculture)
Chamba on 16.8.1997 to Soil Conservation Department, Chamba and thereafter by ii) The Sub-
Divisional Soil Conservation Officer Chamba, Distt. Chamba to Project Officer, DRDA Chamba
during October, 2002 and thereafter again transfer of his service by the iii) Project Officer, DRDA
Chamba vide orders dated 01.2.2011 to O/O The Deputy Director, Agriculture, Chamba wherein
his joining was not accepted by the Deputy Director Agriculture, Chamba on 23.2.2011 and finally
transferring his service to Gram Panchyat Bakani, Tehsil & Distt. Chamba, is legal and justified? If
not, what relief including seniority, service benefits and compensation the above aggrieved
workman is entitled to from the above management?”
2.
On receipt of reference from appropriate government, notices were issued to the
parties in pursuance to which claimant/petitioner has filed his statement of claim.
3. Brief facts of the claim as revealed in claim petition show that petitioner was engaged
as Chowkidar at Bakani Nursery in January, 1995 by Deputy Director, Agriculture Chamba where
he worked continuously till the nursery in question was handed over to Soil Conservation
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Department on 16.8.1997 along with the service of petitioner who was paid wages by Sub
Divisional Soil Conservation Officer, Chamba till October, 2002 and again the nursery in question
was handed over to Project Officer, DRDA along-with assets and liabilities where petitioner had
also continued to work on daily wages without any break. It is alleged that respondent no.1 vide
order no.DRDA-CBA-14136-37 dated 1.2.2011 had ordered petitioner to report to Deputy Director
Agriculture for further assignment with immediate effect and also ordered nursery at Bakani
transferred back to Deputy Director Agriculture along-with assets and liabilities. It further
transpires from the claim petition that petitioner was directed to report for duty before Deputy
Director Agriculture Chamba but his joining was not accepted by Deputy Director Agriculture. It is
alleged that Deputy. Director of Agriculture Himachal Pradesh vide letter no.Agr.(SC) H(F)10-
16/2000-II-264 dated 21.4.2011 informed the respondent that at that stage, it would not be possible
for their department to take over the Bakani nursery as project in question had been terminated in
2002 and that no further funds were available with department to meet out the recurring costs. It is
also alleged that petitioner has not paid wages w.e.f. February, 2011 till date although he was
working continuously and has not been regularized in service despite completion of 10 years of
continuous service i.e. working 240 days in each calendar year. Claiming that as per directions of
Hon ble Apex Court reported in Mool Raj Upadhya vs. State of H.P. & Ors. 1994(2) SLR 377, it
has been contended that after completion of 10 years of continuous service, petitioner was entitled
not only for regularization but also for consequential benefits in terms of regularization policy of
State Government after 10 years of service but his services were not regularized by the respondent,
who had violated the provisions of Section 25-F of the Industrial Disputes Act, 1947 (hereinafter
referred to as 'the Act' for brevity). It is also alleged that non payment of wages and non
regularization of service of petitioner by the respondent is without any notice envisaged under
Section 25-F of the Act. Claiming to have worked since 1995 as Chowkidar at Bakani Nursery for
more than 240 days in a year and petitioner has prayed for wages w.e.f. February, 2011 and
regularization of his service w.e.f. the date of completion of eight years of continuous service. A
demand notice was served but the matter could not be reconciled before Conciliation Officer.
Accordingly, petitioner claims that he be ordered to be paid wages from February, 2011 and
regularization of his service on the post of chowkidar w.e.f. date of daily wage as per policy of the
Government with consequential benefits. The petitioner also prays transferring of services of
petitioner finally to Gram Panchyat, Bakani as previous transfers were neither legal nor justified
and the petitioner be ordered to be granted relief of seniority, service benefits with compensation by
the respondent.
4. The respondent contested claim petition, filed joint reply inter-alia taken preliminary
objections of maintainability. On merits admitted that petitioner was engaged as Chowkidar in July,
1995. It is claimed that petitioner had worked intermittently with the respondent/department from
1995 to April, 1996 who visited his place of work at his own sweet will and did not work in the
year 1997. It has been emphatically denied that the services of petitioner had been handed over to
Soil Conservation Department when the Bakani nursery was handed over to said department. It
further transpires from the reply that respondent no.1 had requested for guidelines to the Director of
Agriculture, Himachal Pradesh dated 11.3.2011 and vide letter no. Agr. SC CBA NWDPRA (Gen)
6/2002 dated 27.11.2002 nursery at Bakani had been handed over to the respondent no.3. It has
been specifically alleged that petitioner was not handed over to respondent no. 3 along-with nursery
as claimed by him as infact petitioner had left the work at his own sweet will. It is also denied that
petitioner has not been paid wages since February, 2011 rather from record of respondent,
petitioner was shown to have worked on contract basis and the wages for said period had already
been paid to him who did not complete 240 days in each calendar year as the petitioner has worked
on contract basis. As such, it is stated that as per record petitioner is stated to have worked on
contract basis from November, 2002 to May, 2011 who was neither entitled for wages nor
regularization in service. It is further stated that the judgment of Hon'ble Apex Court titled as Mool
Raj Upadhaya vs. State of H.P. & Ors. is not applicable to case in hand besides no juniors have
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been engaged at the place of petitioner and that the services of petitioner was not terminated by the
respondent. As such, the respondent claims to have not violated the provisions of Section 25-F,
25-G and 25-H of the Act. Accordingly, petition was sought to be dismissed.
5. The petitioner filed rejoinder, reiterated his stand as maintained in the claim petition.
6. To prove his case, petitioner had examined himself as PW1 tendered/proved his
affidavit Ex. PW1/ A under Order 18 Rule 4 CPC, Ex. PW1/B copy of letter dated 11.3.2011,
Mark-A copy of letter dated 27.11.2002, Mark A1 copy of letter dated 27.11.2002, Ex. Pw1/C copy
of letter dated nil, Mark-B copy of letter dated 2.8.2002, copy of letter dated 13.4.2011 Mark-C,
copy of letter dated 16.10.2002 Mark-D, copy of letter dated 1.2.2011 Mark-E, copy of letter dated
5.3.2011 Mark-F, Copy of letter dated 21.2.2003 Mark-G and closed evidence. On the other hand,
repudiating the evidence led by petitioner, respondent had examined Shri Shiv Kumar Sharma, Dy.
Director of Agriculture Chamba (HP) as RW1, tendered/proved his affidavit Ex. RW1/A, Ex.
RW1/B copy of letter dated 11.3.2011, Ex. RW1/C copy of letter dated 27.11.2002, Ex. RW1/D
copy of letter dated 27.22.2002, Ex. RW1/E to Ex. RW1/G copies of letter dated nil, Ex. RW1/H
copy of letter dated February, Ex. RW1/I copy of letter dated 21.2.2003, Ex. RW1/J copy of letter
dated 5.3.2011, Ex. RW1/K copy of office order dated 1.2.2011, Ex. RW1/L copy of letter dated
116.10.2002, Ex. RW1/M copy of letter dated 13.4.2011, Ex. RW1/N copy of letter dated 2.8.2002,
Ex. RW1/O copy of letter dated nil Ex. RW1/P copy of mandays chart and closed evidence.
7. I have heard the Authorized Representative/counsel representing petitioner and ld. Dy.
D.A. for respondent, gone through records of the case carefully.
8. From the contentions raised, following issues were framed on 22.9.2015 for
determination :
1.
Whether transfer of the services of petitioner by the Deputy Director (Agriculture)
Chamba thereafter by The Sub Divisional Soil Conservation Officer Chamba,
Distt. Chamba again transfer by the Project Officer, DRDA Chamba and finally
transferring petitioner to Gram Panchyat Bakani, Tehsil & Distt. Chamba is/was
illegal and unjustified, as alleged?
...OPP.
2. If issue no.1 is proved in affirmative, to what service benefits the petitioner is
entitled to relief as prayed?
...OPP.
3.
Whether the petition is not maintainable in the present form as alleged? ...OPR.
Relief.
9. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my
findings on the aforesaid issues are as follows:
Issue No.1 :
No
Issue No.2 :
No
Issue No.3 :
Yes
Relief :
Petition is dismissed per operative part of the Award.
REASONS FOR FINDINGS
ISSUES NO. 1, 2 AND 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. At the outset, it is pertinent to mention here that there exist vast difference between
reference received from appropriate government and relief claimed by the petitioner by filing claim
petition on record. It may not be erroneous to mention here that this court is to confine its findings
on reference so received and it cannot travel beyond by the reference. A bare glance at the
reference would show that petitioner was factually aggrieved with his transfer to office of Deputy
Director Agriculture Chamba thereafter on 16.8.1997 Soil Conservation Department, Chamba and
thereafter by Sub-Divisional Soil Conservation Officer Chamba, District Chamba to Project
Officer, DRDA Chamba in 2002 and vide order dated 1.2.2011 and thereafter to Deputy Director
Agriculture Chamba from where he was denied joining duty and finally transferred to Gram
Panchyat Bakani. It is equally important to mention here that Deputy Director Agriculture Chmba
had refused to give joining to the petitioner on reference of Project Officer DRDA stipulating the
reasons for doing so. It would be relevant to refer to Ex. RW1/M letter from Director of Agriculture
Himachal Pradesh to Deputy Commissioner-cum-Chief Executive Officer, DRDA, Chamba in
which it was stated that all assets and liabilities were required to be handed over to Watershed
Committee after completion NWDPRA projects and that two nurseries had been handed over to
DRDA Chamba on special request of DRDA. Ex. RW1/M is transfer of nursery which does not talk
about transfer of petitioner in any manner. Prior to it letter dated 2nd August, 2002 was written by
Deputy Director Agriculture in which proposal for transfer for both the nurseries were sent which
was declined by the DRDA and after that the nursery of Bakani was stated to be not handed over to
DRDA as the project had terminated in 2002.
12. It may not be erroneous to mention here that neither petitioner nor respondent have
proved on record any document reflecting transfer of petitioner from one nursery to other nursery.
Rather there is no transfer order of petitioner on record. Even if nurseries had been transferred with
assets and liabilities, it did not mean that officials of nurseries were transferred. Certainly, burden
of proof in this regard was upon petitioner. Be it noticed that DRDA vide letter Ex. RW1/O has
specifically alleged in letter addressed to Pradhan Gram Panchyat Bakani with cheque amounting
to Rs. 20,000/- was sent as honorarium for Sunku Ram w.e.f. February, 2011 to June 2011 @
Rs.4000/- per month and that his services infact petitioner on resources of Panchyat. This cheque
was encashed by petitioner which clearly suggest that he was paid honorarium and not wages as
claimed by him, the amount so received is honorarium of Rs.20,000/- and not wages. Prior to it,
also he appears to worked only on contract basis. The terms of assets and liabilities of nursery and
his transfer to subsequent department as has come in the evidence could not be construed to mean
that petitioner was also transferred. Ex. RW1/1 further shows payment of Rs.7500/- was paid to
Sunku Ram. The said entry was reiterated in Ex. RW1/M showing payment of Rs.7500/- to
petitioner. Ex. RW1/F is the bill of Sunku Ram from April, 2002 to August 2002 @ Rs.1500/-
aggregating to a sum of Rs.7500/-. The evidence on record clearly shows that petitioner was
working on different amount as remuneration for his work and now in a garb having worked for
different nursery for several years he claimed benefit for regularization and wages from February,
2011 till date which could not be granted in view of the fact that petitioner had not challenged the
transfer order(s) as such in absence of which it would be unsafe to hold that these orders were
illegal and unjustified.
13. Significantly, petitioner had worked from 1997 till 2011 had never challenged the
order before any authority rather his case does not remain that he ever felt aggrieved with the
transfer(s) in preceding 14 years. It seems that the services of petitioner were transferred to
different departments and petitioner continued to work independently after seeking work either in
the shape of honorarium or remuneration for his work. Thus, relief as claimed by petitioner qua
regularization and completing of eight years service is not tenable as there is no corresponding
evidence on record and nothing has been proved on records showing that transfer of petitioner from
Deputy Director Agriculture to Soil Conservation Department and then again Deputy Director who
refused to joining and finally petitioner was transferred to Gram Panchyat Bakani. That being so,
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petitioner could not be entitled for regularization of service as claimed by him as there is nothing in
evidence to show that petitioner had been removed from service without notice under Section 25-F
of the Industrial Disputes Act, 1947. Similarly, proof of mandays chart having worked from 1995
does not confirm any right in this claim petition as it does not show transfer of petitioner in any
manner. Thus transfer orders as highlighted no reference of the appropriate govt. cannot be stated
to illegal or unjustified. In view of the foregoing discussion, issue no.1 is answered in negative that
transfers of petitioner to various departments which was not illegal and unjustified rather petitioner
is held to have never been transferred along-with assets and liabilities of the nursery and for said
reason issue no.2 is answered in negative holding that petitioner is not entitled for service benefits
and also on this score petition is held to be not maintainable. Hence, issue no.3 is decided in favour
of respondent and against the petitioner.
RELIEF
14. As a sequel to my findings on foregoing issues, the instant claim petition is dismissed.
In the peculiar circumstances of the case, the parties are left to bear their own costs.
15. The reference is answered in the aforesaid terms.
16. A copy of this Award be sent to the appropriate Government for publication in the
official gazette.
17. File, after due completion be consigned to the Record Room.
Announced in the open Court today this 29th day of November, 2016.
(K. K. SHARMA),
Presiding Judge,
Labour Court-cum-Industrial Tribunal,
Kangra at Dharamshala, H.P.
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