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'kfuokj] 6 ebZ] 2017@16 oS'kk[k] 1939

fgekpy izns'k ljdkj

LABOUR AND EMPLOYMENT DEPARTMENT

NOTIFICATION

D/Shala, the 23^rd March, 2017

No: Shram (A) 6-2/2014 (Awards).—In exercise of the powers vested under section 17(1)

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

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

25&jkti=@2017&06&05&2017

¼803½

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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

803/16

Jhomfi Ram

E.E. HPPWD, Joginder Nagar

06-01-2017

693/16

Raghubir Singh

M.D./ Employer Valence Healthcare

07-01-2017

618/16

Rajesh Kumar

President/M.D. D.A.V. Committee

07-01-2017

390/15

Rashpala

M/S Bector Food Specilities Ltd.

12-01-2017

489/16

Avtar Singh

Employer, Deepak Fastner Ltd.

13-01-2017

54/15

Jaipal

E.E.HPPWD, Dharampur

13-01-2017

347/14

Ishwar Singh

E.E.HPPWD, Ghumarwin

13-01-2017

59/13

Shyam Singh

G.M.Vamshi Hydro Energies Pvt.Ltd 20-01-2017

73/13

Varun Kumar

- Do-

20-01-2017

10.

74/13

Desh Raj

- Do-

20-01-2017

11.

75/13

Rajesh Kumar

- Do-

20-01-2017

12.

76/13

Purshotam Chand

-Do-

20-01-2017

13.

77/13

Kuldeep Chand

-Do-

20-01-2017

14.

78/13

Bhupender Kumar

-Do-

20-01-2017

15.

80/13

Subhash Chand

-Do-

20-01-2017

16.

81/13

Dev Raj

- Do-

20-01-2017

17.

82/13

Surender Singh

-Do-

20-01-2017

18.

83/13

Onkar Chand

-Do-

20-01-2017

19.

84/13

Pyar Chand

-Do-

20-01-2017

20.

85/13

Dharam Chand

-Do-

20-01-2017

21.

115/13

Kamal Kapoor

-Do-

20-01-2017

22.

116/13

Vijay Kumar

-Do-

20-01-2017

23.

260/14

Darshan Lal

-Do-

20-01-2017

24.

424/15

Ramesh Kumar

E.E. HPPWD, Dharampur

20-01-2017

25.

265/14

Kishan Chand

D.F.O. Dalhousie

21-01-2017

26.

263/14

Karnail Singh

D.F.O. Dalhousie

21-01-2017

27.

264/14

Karam Chand

D.F.O. Dalhousie

21-01-2017

28.

50/08

Raj Kumar

G.M. ACC Barmana Barmana

21-01-2017

29.

105/02

Rajesh Chand

M/S Palampur Co.Op. Tea Factory

21-01-2017

By order,

R. D. DHIMAN, IAS

Pr. Secretary ( Lab. & Emp.).

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

INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA, H.P.

Ref: No. : 803/2016

Sh. Jhomfi Ram s/o Shri Munshi Ram, r/o V.P.O. Chalaharg, Tehsil Joginder Nagar, Distt.

Mandi, H.P.

…Petitioner.

Versus

The Executive Engineer, B&R Division, HPPWD Joginder Nagar, District Mandi, H.P.

...Respondent.

06-01-2017

Present : Petitioner in person.

Sh. Sanjeev Singh Rana, Dy. D.A. for the respondent.

Heard. Petitioner has made a statement for withdrawal of reference pending before this

Court. Statement recorded and placed on file. In view of the statement so made by the petitioner as

stated above, the reference No. 803/16 is hereby dismissed as withdrawn.

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:

06-01.2017

(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. 693/2016

Sh. Raghubir Singh s/o Shri Pritam Singh, r/o Village Bain Attarian, P.O. Kandrouri, Tehsil

Indora, District Kangra, H.P.

…Petitioner.

Versus

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The Managing Director/Employer, M/S Valence Healthcare, Plot No. 8 & 9, New Industrial

Area, Village Bain Attarian, P.O. Kandroti (Near Pathankot), Tehsil Indora, District Kangra, H.P.

...Respondent.

07-01-2017

Present :

None for the petitioner.

None for the respondent.

Labour Officer-cum-Conciliation Officer, Kangra at Dharamshala not present despite due

service. Case called on several times but none has appeared on behalf of the petitioner despite due

knowledge. It is 11.30 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.

_________

07-01-2017

Present : None.

Case has been called again several times but none has appeared on behalf of petitioner. It is

2.45 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:

07-01-2017

(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. 618/2016

Sh. Rajesh Kumar s/o Shri Jaishi Ram, through Shri N.L. Kaundal (A.R./Legal advisor)

BMS, H/Q Balakrupi, P.O. Jalpehar, Tehsil Joginder Nagar, District Mandi.

…Petitioner.

Versus

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The President /Managing Director, D.A.V. College Management Committee, Chitra Gupta

Road, New Delhi.

1. The Principal, D.A.V. Public School, Hamirpur, District Hamirpur, H.P.

....Respondents.

07-01-2017 Present : None for the petitioner.

Sh. Rahul Gupta, adv. csl. for the respondents.

Case called on several times but none has appeared on behalf of the petitioner despite due

service. It is 11.25 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.

_________

07-01-2017 Present :

None for the petitioner.

Sh. Rahul Gupta, adv. csl. for the respondents.

Case has been called again several times but none has appeared on behalf of petitioner. It is

2.40 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:

07-01-2017

(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. 390/2015

Smt. Rashpala d/o Shri Jeet, r/o V.P.O. Jejo Duaba, Tehsil Garhshankar, District

Hoshiarpur, Punjab

…Petitioner.

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Versus

The Employer/Management, M/S Mrs. Bectors Food Specialities Limited, Plot No. 13,

Industrial Area Tahliwal, Tehsil Haroli, Disdtrict Una, H.P.

...Respondent.

12-01-2017 Present :

Petitioner with Sh. R.K. Singh Parmar, A.R.

Sh. R.K. Nag, G.M. Admin. for the respondent company in person

with Sh. Sanjeev Gupta, adv.

Case taken up for conciliation before this Court today, as result of which parties have

amicably settled their dispute Sh. R.K. Nag, General Manager (Admin.) of respondent company

vide separate statement on oath has stated that respondent has entered into compromise with the

petitioner and has agreed to pay petitioner a lump-sum amount of Rs.50,000/-(Rs. Fifty Thousand

only) with undertaking to engage petitioner afresh from 16-01-2017. It has also been stated by Sh.

R.K. Nag that amount of Rs. 50,000/- shall be paid on 16-01-2017 besides the parties shall be

bound by the compromise. Smt. Rashpala petitioner has admitted statement of Sh. N.K. Nag as

correct who is also authorised by the respondent company. Statements recorded and placed on file.

In view of the statements made by the parties, the reference is disposed off as compromised.

Accordingly, respondent company M/S Mrs. Bectors Food Specialities Limited shall pay lump-sum

of Rs. 50,000/- in lieu of all consequential benefits pertaining to reference no. 390/2015 to the

petitioner and nothing shall remain to be paid to petitioner till the date of this award by respondent

and that petitioner shall be appointed afresh on 16-01-2017 and shall also be paid lump-sum Rs.

50,000/- as stated above by the respondent.

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:

12-01-2017

(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. : 489/2016

Sh. Avtar Singh, President, DFL Workers Union, Deepak Fastener Limited, Industrial Area,

Tahliwal, District Una, H.P.

…Petitioner.

Versus

Employer/Factory Manager, Deepak Fastener Limited, Industrial Area, Tahliwal, District

Una, H.P.

...Respondent.

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13-01-2017

Present : Sh. S.K. Sharma, adv. csl. for the petitioner.

Sh. S. K. Nanda, adv. vice of Sh. Jitender Sharma, adv. csl. for the

respondent.

Heard. Ld. csl. for the petitioner has made statement for withdrawal of reference pending

before this Court. Statement recorded and placed on file. In view of the statement so made by the

ld. csl. for the petitioner as stated above, the reference no. 489/16 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.

A copy of the Order/Award be sent to the appropriate Government for information and

further necessary action /publication at its end.

The file, after completion be consigned to the records.

Announced:

13-01.2017

(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. 54/2015

Sh. Jai Pal s/o Shri Bakshi Ram, R/O Village Karyal, P.O. Sadhot, Tehsil Sarkaghat,

District Mandi, H.P.

…Petitioner.

Versus

The Executive Engineer, HPPWD ( B&R) Division, Dharampur, District Mandi, H.P.

...Respondents.

13-01-2017 Present :

None for the petitioner.

Sh. Sanjeev Singh Rana, Dy.D.A. for the respondent.

Case called on several times but none has appeared on behalf of the petitioner despite due

knowledge. It is 11.25 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.

810

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13-01-2017 Present :

None for the petitioner.

Sh. Sanjeev Singh Rana, Dy. D.A. for the respondent.

Case has been called again several times but none has appeared on behalf of petitioner. It is

2.40 P.M. None appearance of petitioner or his counsel 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:

13-01-2017

(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. : 347/2014

Date of Institution : 16.12.2014

Date of decision : 13.01.2017

Shri Ishwar Singh s/o Shri Kanshi Ram, r/o Village Dohru, P.O. Dhadol, Tehsil

Ghumarwin, District Bilaspur, H.P.

…Petitioner.

Versus

The Executive Engineer, Ghumarwin Division, H.P.P.W.D. Ghumarwin, District Bilaspur,

H.P.

…Respondent.

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

For the Petitioner : Sh. S.S. Sippy, AR

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

AWARD

1. The following reference has been received from the appropriate Government for

adjudication:

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"Whether termination of the services of Shri Ishwar Singh S/O Shri Kanshi Ram, R/O

Village Dohru, P.O. Dhadol, Tehsil Ghumarwin, District Bilaspur, H.P. during year 1998 by

the Executive Engineer, Ghumarwin Division, H.P.P.W.D. Ghumarwin, District Bilaspur,

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 from

which date the above worker is entitled to from the above employer?"

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

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

3. Briefly stated the facts as enumerated in the claim petition revealed that petitioner was

engaged as beldar on 17.6.1997 who continued to work upto 31st July, 1998 and his services were

terminated verbally whereupon petitioner moved to the Hon‘ble Administrative Tribunal Shimla

filing O.A. no. 3213/1999 and in pursuance to the order of Hon‘ble Administrative Tribunal

petitioner was ordered to be reengaged and after that petitioner continued to work upto 2001. The

averments made in the claim petition revealed that Award dated 20.12.2008 of this Court

challenged in the Hon'ble High Court of H.P. by filing CWP No.3944/2009 and petitioner had also

filed CWP no.2516/2009 before the Hon'ble High Court seeking to declare his retrenchment from

job illegal. According to petitioner he had worked for 158 days in the year 1997, 137 days in 1998,

47 days in 2000 and 284 in 2001 i.e. the year when his services had been terminated. The name of

petitioner is stated to be existing at serial no.91 of the seniority list. The grievance of petitioner

remains that out of 25 workers, 14 junior were engaged who continued in job. Thus by retaining

persons who were junior to petitioner the principle of 'Last come Fist go' was flouted in flagrant

violation of the provisions of Sections 25-G and 25-H of the Industrial Disputes Act, 1947

(hereinafter referred to as 'the Act' for brevity) when the services of petitioner were terminated.

Similarly, the petitioner claims to have completed 240 days and for said reason, respondent had

also violated the provisions of Section 25-F of the Act as petitioner was never given compensation

or wages in lieu thereof ever since his termination by the respondent however petitioner claims to

have remained unemployed. Accordingly, prayed for reinstatement of the service of petitioner

along-with consequential benefits, seniority and continuity in service.

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

objection of maintainability. On merits stated that petitioner was engaged as beldar (unskilled

labourer) under the scheme of Employment Assurance Scheme only for 100 days. The salary of

petitioner was being paid under the Employment Assurance Scheme (EAS) which was only for 100

days, so question of disengagement after 100 days did not violate legal right of the petitioner.

Admitted that petitioner had worked 158 days in the year 1997 and 137 days during 1998

remaining mandays chart was shown in Annexure R-I. Averments in the reply further revealed that

as per Government policy the EAS especially to down trodden persons the outline and objective of

the scheme (EAS) annexed as Annexure R-II on record thereupon petitioner has filed O.A.

no.3213/1999 before Hon'ble Administrative Tribunal and as per Hon'ble Administrative Tribunal,

respondent was directed to provide service to petitioner but in themmeanwhile respondent had filed

CWP no. 671/2001 before the Hon'ble High Court of H.P. who challenged the order dated

27.9.2000 passed by theHon‘ble Administrative Tribunal, H.P. It is alleged that CWP filed by

respondent was accepted by the Hon'be High Court of H.P. and in pursuance to disengagement of

the petitioner matter brought to this Tribunal while the same was dismissed on 17.1.2006.

Claimant/petitioner has alleged to have filed another CWP no.1291/2006 before the Hon'ble High

Court of H.P. and as per ratio of the Hon'ble High Court remanded the matter to this court for fresh

decision in accordance with law. Again the matter came up for hearing before this Labour Court-

cum-Industrial Tribunal and the same was allowed. The respondent had challenged the order dated

20.12.2008 before the Hon'ble High Court of H.P. and same was registered as CWP no.3944/2009

and same was allowed on 23.6.2010. On merits it is also contended that petitioner has been

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retrenched as per Rules and not whimsically and his termination could not be stated to be illegal

The respondent also alleges that petitioner was gainfully employed as an agriculturist for his

livelihood after retrenchment. It is also contended that since the petitioner was entitled for only 100

days scheme for work, he is not entitling for procedure under Section 25-F of the Industrial

Disputes Act. It is stated that Special Leave Petition (Civil) no. (S) 1923-1926/2015 titled as State

of H.P. & Anr. vs. Roshan Lal etc. vide which the Hon'ble Apex Court has stayed the operation as

policy was merely 100 days under Employment Assurance Scheme beyond which petitioner could

not be engaged. 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, copy of workers who have engaged under EAS

and reengaged as per order of Hon'ble Court Ex. PW1/B, copy of order dated 27.9.2000 passed by

Hon'ble Administrative Tribunal in O.A. no.3213/99, copy of Award dated 20.12.2008 passed by

this Tribunal in Reference no. 497/2004 Ex. PW1/D, copy of judgment dated 23.6.2010 passed in

CWP nos. 2516 &3944 of 2009 Ex. PW1/E, copy of seniority list of daily waged workers engaged

under employment generation scheme Ex. PW1/F, copy of mandays chart of petitioner Ex. PW1/G

and closed evidence. On the other hand, repudiating the evidence led by petitioner, respondent had

examined Shri Prakash Chand the then Executive Engineer, HPPWD Division Ghumarwin as

RW1, tendered/proved his affidavit Ex. RW1/A, copy of outlines and objectives (chapter I to IV)

Exts. RW1/B1 to B4, copy of O.A. no. 3213/1999 Ex. RW1/C, copy of order dated 20.8.2001 Ex.

RW1/D, copy of Award dated 17.1.2006 Ex. RW1/E, copy of Award dated 20.12.2008 Ex. RW1/F,

copy of order dated 23.6.2010 Ex. RW1/G, copy of seniority list Ex. RW1/H, copy of order dated

9.2.2015 Ex. RW1/I, copy of order dated 17.6.2014 Ex. RW1/J1 to Ex. RW1/J4 and closed

evidence.

I have heard the Authorized Representative/counsel representing petitioner and ld. Dy.

D.A. for respondent, gone through records of the case carefully.

From the contentions raised, following issues were framed on 04.07.2015 for

determination:

1. Whether termination of the services of the petitioner by the respondent during

year 1998 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.

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

Relief : Petition is partly allowed per operative part of the Award.

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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. At the outset, it would be apt to refer here that Hon‘ble High Court of H.P. while

disposing of CWP no.2516/2009 filed by present petitioner and CWP no.3944/2009 filed by State

against the Award dated 20.12.2008 has allowed the appeal filed by state setting aside the

impugned Award dated 20.12.2008 however CWP no.2516/2009 filed by workman was dismissed.

It can be noticed from observations made in the operative portion of Ex. PW1/E of the Hon'ble

High Court that order was passed by Hon'ble High Court dated 23.6.2010 shall not stand in the way

of the workman, seeking fresh reference to the Labour Court about the legality of his alleged

termination in the year 1998. At this stage, it would be apt to refer mandays chart Ex. PW1/G

which shows that petitioner had worked for 158 days in the year 1997 and 137 days in 1998.

However, in the year 2000 petitioner had worked for 47 days and in 2001 he had worked 284 days.

Be it stated the reference relates to adjudication of controversy qua the years 1997 and 1998 and

not in 2001. It is significant to mention here that in the years 1997 and 1998 petitioner had worked

for more than 240 days as required for the applicability of provisions of Section 25-B of the Act.

Evidently, there is no notice for termination of services of petitioner and at the same time no

compensation has been paid by the respondent. It is equally important to mention here that

observations of the Hon'ble High Court in its judgment dated 23.6.2010 pertains to controversy qua

termination of the services of petitioner on 11.10.2001 without complying the provisions of the

Industrial Disputes Act. The facts as stipulated in the order of Hon'ble High Court clearly show that

the petitioner claimed to have worked till 2001 and therefore he had completed more than 240 days

but it has to be noticed that petitioner was allowed to continue in job in pursuance to order of H.P.

Administrative Tribunal as stated above which goes to show that petitioner under the colour of

order of Hon‘ble Administrative Tribunal continued to work till 2001. Since the respondent is

stressing engagement of petitioner in specific scheme of 100 days as was also observed by my ld.

predecessor-in-office while passing Award dated 20.12.2008 which was clearly observed in para

no.8 of the Award Ex. PW1/D that had the respondent claimed of having engaged the petitioner

only for 100 days under the aforesaid scheme being the petitioner would not have allowed to work

beyond 100 days from the date of his employment i.e.17.6.1997. It necessarily follows that initially

petitioner was engaged who continued to work till 1998 as stated above and thereafter his services

were terminated under the garb having been employed of special Employment Assurance Scheme

of government but factually this was not the correct position as the petitioner was engaged and

disengaged and thereafter reengaged without clarification as to what scheme he has been appointed

for. Thus, controversy which revolves for adjudication before this Tribunal as termination of

petitioner in the year 1997 and 1998 only.

12. Stepping into witness box as PW1 has maintained as alleged in claim petition. In his

cross-examination, he has denied that he had been employed under special Employment Assurance

Scheme and he had shown his ignorance qua material facts which goes to show that while giving

him employment he had not signed any paper and given any appointment letter. Thus, petitioner

was not knowing as to how and/or in what manner he has been appointed. The petitioner has

admitted that litigation between the parties' upto Hon'ble High Court and Hon'ble Administrative

Tribunal. He has also admitted that matters filed before each either before Hon'ble High Court and

his appeal was dismissed where as the appeal of department was allowed. This admission further

leads to inference that Hon'ble High Court while allowing the appeal had held that petitioner had no

right for engagement so required to be disengaged qua his termination in the year 2001 and not in

1998 for which matter is before this Court. RW1 Shri Prakash Chand, Executive Engineer,

814

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HPPWD Division Ghumarwin while filing affidavit Ex. RW1/A has stated that petitioner was

purely engaged on temporary basis under the Employment Assurance Scheme (EAS) w.e.f.

17.6.1997 who worked for 158 days in the year 1997 and 137 days in 1998 as coupled with

statement as well as mandays chart, it can be safely inferred that petitioner had worked for more

than 240 days immediately preceding 12 calendar months from the date of his termination.

13. The case of respondent, on the other hand, remains that due to non-availability of work

and lack of funds, the petitioner was disengaged and OA no.3213/1999 filed before the Hon'ble

Administrative Tribunal and vide order dated 27.09.2000, Hon‘ble Administrative Tribunal had

directed the respondent to provide service to petitioner but in the meantime respondent had filed

CWP no.3944/2009 before the Hon'ble High Court vide which respondent i.e. department had

challenged the order dated 27.9.2000 passed by Hon‘ble Administrative Tribunal, Shimla and CWP

filed by the respondent was allowed in pursuance to which the present petitioner had been

disengaged who had then filed reference before the Presiding Judge, Labour Court which too was

dismissed on 17.1.2006. RW1 has further stated that petitioner had again filed CWP no.2516/2009

before the Hon'ble High Court seeking direction to remand the matter for fresh decision in

accordance with law and vide Award dated 20.12.2008 claim petition was partly allowed against

which CWP no.3944/1999 was filed by the respondent which was allowed in favour of respondent

and against the petitioner. RW1 also maintained that no provisions of Industrial Disputes Act had

been violated since the petitioner was engaged only for 100 days. Be it noticed that the mandays

chart Ex. PW1/G is demonstrative of petitioner having worked for more than 240 days during the

period of 12 calendar months before the retrenchment in 1998. Section 25-F of the Industrial

Disputes Act, 1947 is reproduced below for reference which reads as under:

“25-F. Conditions precedent to retrenchment of workmen.—No workman employed in

any industry who has been in continuous service for not less than one year under an

employer shall be retrenched by that employer until—

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

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

has been paid in lieu of such notice, wages for the period of the notice:

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

be equivalent to fifteen days' average pay for every completed year of continuous

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

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

the Official Gazette."

14. Admittedly in the cross-examination of RW1 stated that no notice was given to the

petitioner and was not paid any compensation as well. Thus, respondent in dispensing with the

services of petitioner had violated the abovementioned provisions of Section 25-F of the Act.

15. Ld. Authorized Representative for present petitioner has referred to para no.6 of the

affidavit which shows that 25 persons who were junior to the petitioner out of 14 have been

retained in service. Close scrutiny of seniority list of daily waged workers Ex. PW1/F coupled with

list of workers who have been engaged under the Employment Assurance Scheme (EAS)

reengaged as per Hon'be High Court order of Hon'ble Administrative Tribunal on record shows that

all these 25 persons namely Dev Raj and others who figured at serial no.1 to till serial no.25

Lachaman Ram were all engaged in 1997. It is evident from list of 25 persons on record to above

that persons figuring at serial no.12 namely Amar Singh in seniority list submitted in the Hon'ble

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High Court from serial no.1 to 572 and thereafter next 13 persons named Baldev, Aklesh Kumar,

Vishava Dev, Basu Dev, Raj Kumar, Piare Lal, Nikka Ram, Chaman Lal, Anil Kumar, Jagar Nath,

Ram Pal, Ishwar Dass and Lachman Ram were regularized in service. Although, the seniority list

relates to Employment Generation Scheme and Employment Assurance Scheme as stated above,

the petitioner is figuring at serial no.91. Thus, the persons who had joined in the months of June,

July, August, October, November and December, 1997 as per the list of Employment Assurance

Scheme have been regularized in service and petitioner‘s services were terminated. Certainly, the

petitioner was discriminated on the principle of 'Last come First go' envisaged under Section 25-G

of the Act. Section 25-G reproduced as under:

“25-G. Procedure for retrenchment.—Where any workman in an industrial establishment,

who is a citizen of India, is to be retrenched and he belongs to a particular category of

workmen in that establishment, in the absence of any agreement between the employer and

the workman in this behalf, the employer shall ordinarily retrench the workman who was

the last person to be employed in that category, unless for reasons to be recorded the

employer retrenches any other workman".

16. Since petitioner has claimed that all the persons qua junior to him were retained in

service by the respondent and this deposition has not been challenged during the cross-examination

by the respondent same deserves acceptance. Significantly, RW1 in cross-examination has admitted

that according to seniority list petitioner‘s name figured at serial no.91 and 14 workers were junior

to petitioner have been engaged. This fact again been accepted by RW1 in cross-examination which

goes to show that respondent had violated the provisions of Section 25-G of the Act in retaining

junior and retrenching senior in service i.e. principle of 'Last come First go' was not followed.

Accordingly, respondent is held to have violated the provisions of Section 25-G of the Act.

17. Lastly, Authorized Representative for petitioner has argued vehemently that ever since

his termination petitioner has remained unemployed and was entitled for back wages. In cross-

examination, petitioner has admitted that he has cultivable land and was earning his livelihood by

earning in his own land as well as earning through labour. Thus, it cannot be stated that petitioner

was not earning anything during he was out of job. Otherwise also this plea cannot be accepted as

per evidence on record petitioner has remained on roll till 11.10.2001 with the respondent and thus

there could not be stated to have he was remained unemployed ever since 1998. As such, 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. 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. Issue no.1 is thus answered holding that retrenchment of services of petitioner by

respondent during year 1998 was improper and unjustified and the petitioner is entitled to be

reengaged along-with seniority, past service benefits except back wages. Issues no. 1 and 2 are

answered accordingly.

ISSUE NO. 3

18. Since service of petitioner had been illegally terminated by the respondent as well as

violated the provisions of Sections 25-F and 25-G of the Act, claim petition cannot be stated to be

not maintainable. Hence, this issue is decided in favour of petitioner and against respondent.

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RELIEF

19. As sequel to my findings on foregoing issues, the reference/claim petition is allowed

partly. The respondent is hereby directed to re-engage the petitioner forthwith. The petitioner shall

be entitled to seniority and continuity in service from the date of his illegal termination except

back wages. 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 13th day of January, 2017.

(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. : 59/2013

Date of Institution : 17.07.2013

Date of decision : 20.1.2017

Shri Shyam Singh s/o Shri Bahadur Singh, r/o Village Diyala, P.O. Jia, Tehsil Palampur,

District Kangra, H.P.

…Petitioner.

Versus

1. The General Manager, Vamshi Hydro Energies Private Limited, Plot No.229, Phase-I,

Udyognagar, Gurgaon, Haryana c/o BD Sharma Niwas, Shyamnagar, Dharamshala,

H.P. (Principal Employer).

2. Captain Ramesh Chand, Incharge, Sun Securities Services Avenue, Sainikpur,

Secunderabad, Andhra Pradesh c/o Ward No.5, Vinaygali, Village and P.O. & Tehsil

Nurpur, District Kangra, H.P. (Contractor).

3. The General Manager, M/s Lanco Infratech Limited, Plot No.4, Software Unit, Lay

Out HITEC, City Madhapur, Hyderabad, Andhra Pradesh c/o Shri B.D. Sharma Niwas,

Shyamnagar, Dharamshala, H.P. (Contractor).

…Respondents.

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

For the Petitioner : Sh. Gaurav Pathania, Adv.

For the Respondent(s) : Sh. K.K. Chaudhary Adv.

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AWARD

1. The following reference has been received from the appropriate Government for

adjudication:

"Whether termination of the services of Shri Shyam Singh S/O Shri Bahadur Singh,

R/O Village Diyala, P.O. Jia, Tehsil Palampur, District Kangra, H.P. w.e.f. 1-5-2010

by (i) the General Manager, Vamshi Hydro Energies Pvt. Ltd., Plot No.229, Phase-I

Udhyogvihar, Gurgaon, Haryana, C/O B.D.Sharma Niwas, Shyamnagar, Dharamshala,

H.P. (ii) Captain Ramesh Chand, Incharge, Sun Securities Services Avenue, Sainikpur,

Secunderbad, Andhra Pradesh C/O Ward No.5, Vinaygali, Village, P.O. & Tehsil

Nurpur, District Kangra, H.P. without complying with the provisions of the Industrial

Disputes Act, 1947, is legal and justified? If not then whether the workman is entitled

to re-engagement with the above mentioned employer along with back wages and

consequential benefits?"

2. After the receipt of the abovestated reference, a addendum dated 18th December, 2013

was received from the appropriate government which reads as under:

"With reference to this office notification of even number dated 01-07-2013 in respect

of industrial dispute of Shri Shyam Singh, S/O Shri Bahadur Singh, R/O Village

Diyala, P.O. Jia, Tehsil Palampur, District Kangra, H.P. vs. (i) the General Manager,

Vamshi Hydro Energies Pvt. Ltd., Plot No.229, Phase-I Udhyogvihar, Gurgaon,

Haryana, C/O B D Sharma Niwas, Shyamnagar, Dharamshala, H.P. (ii) Captain

Ramesh Chand, Incharge, Sun Securities Services Avenue, Sainikpur, Secunderbad,

Andhra Pradesh C/O Ward No.5, Vinaygali, Village, P.O. & Tehsil Nurpur, District

Kangra, H.P. (contractor) The following party is added as 3rd employer in the ibid

reference, "The General Manager, M/S Lanco Infratech Limited, Plot No.4, Software

Unit, Lay Out HITECH, City Madhapur, Hydrabad, Andhra Pradesh, C/O Shri B D

Sharma Niwas, Shyamnagar, Dharamshala, District Kangra, H.P. (Contractor)"

On receipt of reference as well as addendum from appropriate government, notices

were issued to the parties in pursuance to which claimant/petitioner has filed his statement of claim.

4. Brief facts as set up in the claim petition revealed that State of H.P. had allotted Baner

Hydro Project III to Vamshi Hydro Energies Pvt. Ltd. which was leased out for 40 years.

Averments made in the petition revealed that after opening Baner Hydro Project III, respondent

no.1 had assigned construction work of project respondent no.3 to M/s. Lanco Infratech Ltd. on

contract basis and said company had invited tenders from various companies for supplying

construction materials and labour when M/s. Sun Security Services Head office B II First Avenue

Sanikpuri Sikandra Bad contacted respondent no.3 for supplying the labour and after due

negotiations, contract for labour was assigned to respondent no.2 and after opening the contract,

respondent no. 2 being Sun Security Services had engaged the petitioner on 16.5.2007 as unskilled

labourer on payment of daily wages. The grievances of petitioner and other workers remained that

after the engagement by respondent no. 2 they insisted upon the management to issue appointment

letter and realizing agitation over the petitioner's demand, the management interpolated a labour

contract on 1.5.2007. It is alleged that on 1.3.2010 petitioner was retrenched by the respondent no.2

who through his union made complaint to respondents no. 1 to 3 and Labour Inspector-cum-

Conciliation Officer who did not initiate any action however vide letter no.11-1/85(Lab)ID/Kangra-

2012 dated February, 2012, Labour Commissioner, Govt. of H.P. had directed the Labour Officer,

Dharamshala to have individual worker wise demand notice under Section 2-A of the Act

containing inter alia their actual dates of engagement and termination and send separate reports. On

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21.9.2012 a separate demand notice was sent to the respondents, Labour Officer as well as Labour

Inspector Palampur by the petitioner for his illegal retrenchment from service. It is alleged that on

7.8.2006 petitioner had been appointed as security guard by respondent no.3 and his presence was

marked in the office of respondent no.3 where he worked till 28.2.2010. The grievances of the

petitioner also remains that on 1.3.2010 petitioner was illegally retrenched by the respondent no.2

whereas he was under employment with the respondent no.3 and no notice of retrenchment was

individually served upon the petitioner by the respondents. It is alleged that on 1.5.2007 respondent

no.3 entered into a contract with the respondent no.2 in which petitioner was shown as employee

from 14.12.2008 whereas the petitioner was working with the respondent no.3 since 7.8.2006 and

the respondents no. 2 and 3 while doing so, did not obtain consent of petitioner which the

respondents no.2 and 3 entered into contract which stated to be against the provisions of the Act

and ratio laid down by the Hon'ble Supreme Court in AIR 1970 SC 823 and 1968 SCR (2) 272 as

referred to in claim petition. It is alleged that when petitioner came to know about aforestated

contractorship, the petitioner on 25.9.2008 made demand to respondents to tell as to how their

employment has been changed without their consent and will and thereafter respondent no.3

entered into compromise with union on 16.2.2009 and according to settlement at Sr. no.1, 28

employees were taken who were adjusted in Baner III subject to availability of work and interest

including petitioner but the respondent had violated the said settlement registered on 19.2.2009. It

is alleged that respondent no.2 in order to satisfy his illegal designs got the blank appointment form

signed from the petitioner and other workers which showed falsified record of the services record

maintained by respondent no.2. It is alleged that date of appointment of petitioner and other

workers are contradictory within the records and even compensation and other benefits had not

been accurately computed as per provisions of Section 25-F of the Industrial Disputes Act, 1947

(hereinafter referred to as 'the Act' for brevity). Thus, the retrenchment of petitioner therefore is

stated to be illegal and void abi-initio. The grievance of petitioner also remains that while

terminating the services of petitioner, respondent no.1 had not obtained prior permission from

Government of H.P. The petitioner also alleges that respondents had not prepared seniority list

however junior employees to the petitioner were still working with the petitioner prays that

retrenchment of petitioner and other workers without their consent be declared illegal and wrong

and resultantly the retrenchment of petitioner and other workers illegal which was contrary to

provisions of Section 25-F and 25-N of the Act and retention of junior workers on the roll of

management also violated the provisions of Section 25-G of the Act. Accordingly, prayed for

setting aside illegal retrenchment of petitioner and further prayed for reinstatement and all other

consequential benefits.

5. The respondents no. 1 to 3 contested claim petition, filed joint reply inter-alia taken

preliminary objections of maintainability, acquiescence, petitioner having not come to the court

with clean hands, claim being bad for mis-joinder and non-joinder of the party respondent no.2 and

jurisdiction. On merits admitted that project was assigned to respondent no.1 who engaged

respondent no.3. It is contended that in pursuance to work allotted to respondent no.2 petitioner was

engaged as unskilled labourer on 16.5.2007 however respondents allege that petitioner is stated to

have prepared false documents with intention to mislead this Tribunal. It has been denied that

petitioner was engaged by the respondent no.1 and the same was transferred to respondent no.2 on

1.5.2007 rather after completion of project work, respondent no.3 had issued written order to

respondent no.2 to disengage unskilled labourer as project having no need of said workers and

consequently respondent no.2 i.e. Sun Security Services had paid one month‘s additional salary in

lieu of notice of retrenchment compensation and disengaged the services of petitioner. Hence, the

petitioner has received entire dues from M/s. Sun Security Services the fact that petitioner was as

unskilled labourer on payment of daily wages on 16.5.207 copy of attendance register cum wages

roll duly signed by the petitioner. Thus, petitioner was retrenched from Baner Project III after

completion of the project and while project of respondent no.1 was completed, respondent no.2 had

made one month salary in lieu of retrenchment compensation and due to non availability of work at

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the site. It is also the case of respondent no.2 that he had asked petitioner to join in other projects

but he denied. Accordingly, petition was sought to be dismissed.

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

7. To prove his case, petitioner had examined himself as PW1 tendered/proved his

affidavit Ex. PW1/ A under Order 18 Rule 4 CPC, Mark-A documents relates to the workers, copy

of letter dated 30.4.2007 Mark-B, copy of letter dated 7.3.2012 Mark-C, copy of attendance register

Mark-D, copy of conciliation Mark-E, copy of demand notice dated 23.12.2009 Mark-F, Ex. R1

copy of register of workmen, Ex. R2 copy of application for recruitment, Ex. R3 copy of full and

final settlement, Exts. PA1 to Ex. PA10 copies of statutory rates of contribution, Ex. PA11 to Ex.

PA24 copies of various documents and closed evidence. On the other hand, repudiating the

evidence led by petitioner, respondent had examined Shri Ramesh Chand as RW1, tendered/proved

his affidavit Ex. RW1/A, copy of receipt of full and final settlement Ex. RW1/B, copy of

attendance register Ex. RW1/C, copy of pay roll register Ex. RW1/D, copy of attendance register

Ex. RW1/E, copy of retrenchment notice Ex. RW1/F, copy of notice Ex. RW1/G, Ex. RA copy of

PF number of workers dated 25th April, 2012, copy of Employees PF Scheme, 1952 Ex. RA1, copy

of letter dated 25.4.2010 Ex. RA2, copy of letter Ex. RA3 and closed evidence.

8. I have heard the counsel representing petitioner and ld. counsel. for respondent, gone

through records as well as written arguments of the case carefully.

9. From the contentions raised, following issues were framed on 01.05.2014 for

determination:

1. Whether the termination of the services of petitioner by the respondents w.e.f.

01-05-2010 is/was illegal and unjustified as alleged?

...OPP.

2. Whether the claim petition is not maintainable in the present form?

...OPR.

3. Whether the petitioner is estopped from filing the claim petition by his act and

conduct as alleged. If so, its effect?

...OPR.

4. Whether the petitioner has not come to the Court with clean hands as alleged?

... OPR.

5. Whether the petition is bad for non-joinder of the necessary parties as alleged. If

so, its effect?

... OPR.

6. Whether this Court has no jurisdiction to hear and decide the matter as alleged. If

so, its effect?

...OPR

Relief.

10. 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 : No

Issue No.3 : No

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Issue No.4 : No

Issue No.5 : No

Issue No.6 : No

Relief : Claim petition is partly allowed per operative part of the Award.

REASONS FOR FINDINGS

ISSUE NO. 1

11. It is admitted case of the respondent no.2 who has also filed joint reply to the claim

with respondents no. 1 and 3 that respondent no.1 Vamshi Hydro Energies Pvt. Limited is a

principal employer whereas respondents no. 2 and 3 are the contractors. It is equally admitted case

of the respondent no.2 that he was engaged by respondent no.1 a principal employer and

respondents no.2 and 3 engaged to supply casual labourers. Above stated facts have been revealed

by respondent no.2 as RW1 in crossexamination which has to be read against all the respondents

more particularly when they have filed joint reply having similar stand. Admittedly, petitioner was

disengaged by respondent no.2 preceded notice Ex. RW1/G notifying all the security workmen

deployed in IKU-II, Banner-III, Rait Store and Dharamshala having been declared surplus and were

advised to collect full and final payment including one month‘s notice pay wages and retrenchment

compensation. Ex. RW1/F is the mail dated 14th May, 2010 for disengagement of security

personnel by Sun Security Manpower. In this letter instructions were passed by the management of

respondent no.1 to disengage petitioner by 17.5.2010. The case of the respondent no.2 remains that

since the work of project was complete, retrenchment was necessary whereas the case of petitioner

remains that he was retrenched in violation of provisions of Section 25-F as well as Section 25-N of

the Act in which the permission of the appropriate government was not sought. To appreciate the

merits of the claim of petitioner, it would be relevant to go through his testimony as PW1 petitioner

who has sworn his affidavit Ex. PW1/A, in cross-examination, he has admitted that respondent no.1

has installed project as per instruction of the government and shown ignorance if respondent no.1

had given contract to respondent no.3. Significantly, petitioner has stated that when he was being

called to do work with Sun Security Services respondent no.2 and respondent no.1 as he was

engaged by respondent no. 3 Lanco Infratech Ltd. from whom claim was settled. PW1 has

categorically deposed in affidavit that management of all the respondents was common and

consequent upon award of the project/works and induction of M/s. Lanco Infratech for execution,

the workers were initially engaged by the management of the awardees of works but transferred to

Lanco Infratech Ltd. Another grievance of workers remained that the issuance of appointment

letters whereupon agitated over, the management interpolated a labour contractor of respondent

no.2 (Captain Ramesh Chand) where after on 1.3.2010 petitioner was retrenched by respondent

no.2 when petitioner aggrieved through his union on 17.7.2010 made complaint to respondents no.

1 and 3 as well as Labour Inspector Kangra but no action was taken by any of the parties as stated

above. However, vide letter no.11-185(Lab)ID/Kangra-2012 the Labour Commissioner of

Himachal Pradesh had directed the Labour Officer Dharamshala to have individual worker wise

demand notice under Section 2-A of the Act revealing date of termination and engagement and

separate demand was sent on 21.9.2012 to the respondents.

12. PW1 petitioner has deposed on oath that on 16.5.2007 he was appointed as security

guard by respondent no.3 and his attendance was marked in respondent no.3's office meaning

thereby petitioner claims to have worked for 3 and ½ years continuously with the respondents but

petitioner was illegally retrenched by respondent no.2 who was under the employment of

respondent no. 3. Significantly, PW1 also revealed that on 1st May, 2007, respondent no.3 entered

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into contract with respondent no.2 showing as their employee from 14.12.2008 whereas petitioner

was working with the respondent no.3 since 7.8.2006 and even consent of petitioner was not

obtained by either of the employers. The petitioner and other workers felt aggrieved when learnt

about change of contract and his employment when petitioner through his union made statement to

respondents to show as to how the employment has been changed without their consent whereupon

respondent no.3 entered into written compromise on 16.2.2009 and as per written settlement at

serial no.1, 20 employees were taken to be adjusted with Baner-III according to their ability and

interest and thus respondent no.1 violated the settlement dated 19.2.2009. The petitioner further

alleges that compensation and other benefits given though receipt was not accurately computed as

per Section 25-F of the Act but there was falsification of service record maintained by the

respondent no. 2. Allegation qua non compliance of provisions of Section 25-N of the Act was also

stated to have not been complied with which is in flagrant violation of Section 25-N of the Act as

no permission of retrenchment from government was obtained by the respondents. Moreover,

respondents did not prepare any seniority list and junior employee to the petitioner were still

working with respondent no.1 which is in violation of the provisions of Section 25-G of the Act.

Accordingly, petitioner has reiterated his entire case as narrated in the claim petition. Statement on

oath of (PW1) further revealed that respondent was unregistered contractor and the same was in

breach of Section 12 of the Contract Labour (Regulations & Abolition) Act, 1970 and as such the

principal employer is solely liable for claims filed by the petitioner. Since respondent no.2 was not

authorized to retrench petitioner, the retrenchment was illegal and compromise dated 16.2.2009

with the management which clearly showed that respondents no.1 to 3 had undertaken to absorb the

petitioner and other workers in the project who deliberately violated the compromise so as to avoid

legal liability. It has been emphatically denied that labour work of project was completed in all

respect or that Sun Security Services had been given offer to petitioner to join Sun Security

Services or its another projects. The collective stand of respondents clearly shows that they were

jointly taking action against worker. Before referring to the examination of petitioner, it would be

relevant to go through the documentary evidence adduced by petitioner in support of his claim.

13. As stated above, that the only respondent examined has admitted that respondent no.1

was principal employer and respondents no.2 and 3 were contractors. Ex. PA 19 is application of

registration of establishments employing contract labour which shows that respondent no.3 was the

contractor. In Ex. PA application for respondent Lanco Infratech Ltd. is shown as principal

employer whereas respondent no.2 is shown as contractor. Ex. PA letter dated 30.4.2007 on work

order for provided manpower for projects sites sent by Sun Security Services. Ex. PA 22 is the

copy of compromise dated 25.9.2008 in which demands made by workers union were sent to

Labour Inspector according to which management obtained responsibility to absorb 28 employees

whose services were terminated. Ex. R1 is the register of workers showing petitioner as employee

of the respondents. Ex. R2 is the application for recruitment of Shyam Singh with Sun Security

Services. Similarly Ex. RW1/B is the receipt of full and final settlement of petitioner, this receipt

signed by mother of petitioner shows that Shyam Singh was not paid above amounts so received by

her mother. In any case, receipt did not disclose manner of computation and different head payment

had been made. It is unclear from this receipt that respondents had paid entire retrenchment

compensation as required under Section 25-F of the Act to him. Ex. RW1/G is notice issued by Sun

Security Services to the all concerned workers and security persons. As such from documents

issued by Sun Security Services, it revealed that all aspects of retrenchment compensation had been

paid to petitioner.

14. Ld. counsel for petitioner has taken through details records of various employees

working with Vamshi Hydro Energies Pvt. Ltd. Ex. PA1 to Ex. PA10 which shows that deduction

of GPF were made through Vamshi Hydro Energies Pvt. Ltd. i.e. respondent no.1 which goes to

show that various employees including petitioner had remained on the establishment of respondent

no.1 whose services were terminated during service period. The GPF deposit distincts connect

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name of establishment i.e. of respondent no.1. Ex. RA shows that details of 33 workers regarding

PF Number AP/Hyd/51324. In this document petitioner figured at serial no.25. Ex. PA 1 to Ex. PA

10 shows the annual contribution period from 1st April, 2005 to 31st March, 2010 showing

Employees Provident Fund and The Employees Family Pension Scheme and name of petitioner

was mentioned at serial no.13 i.e. Ex. PA 3. Abovestated, documents prepared by respondent no.1

also establish that petitioner was employee of respondent no.1.

15. In so far as change of employer i.e. respondent no.3 to respondent no.2 is concerned,

this fact has not been disputed by respondents in their reply, but said change of employment could

not be done without consent of the worker as has been held by the Hon'ble Apex Court in judgment

reported in AIR 1989 1577 case titled Jawaharlal Nehru University vs. Dr. K. S. Jawatkar &

Ors., it was observed by the Hon'ble Apex Court 'the contract of service entered into by

respondent was a contract with the appellant university and no law can convert that contract into a

contract between the respondent and Manipur University without automatically making it, either

expressly or by necessary implication, subject to the respondent‘s consent, notwithstanding any

statutory provisions to that effect whether in the Manipur University Act or otherwise. It was

clearly held that no employee could be transferred without his consent between one employer to

another as expressed or implied. Similar view was taken by the Hon'ble Supreme Court reported in

AIR 1970 823 titled Manager, M/S. Pyarchand vs. Omkar Laxman Thange & Ors. The relevant

para of this judgment reproduced below:

''Industrial Dispute. Transfer of employment from one employer to another—such transfer

must be preceded by termination of employment with first employer and a new contract–

Establishment to whom services of employee are lent by employer has no right to dismiss

employee from service".

16. Thus arrangement made by respondent no.3 of its own so as to save situation changed

the employer in which consent of petitioner was not taken and in view of the judgments of Hon'ble

Apex Court reported above the employer could not be changed without consent of petitioner and as

such change of employer as claimed by respondents was not binding on petitioner. Similarly,

attendance of petitioner being marked in the attendance register of respondent no.3 cannot be

treated as acceptance of change of employer rather it was arrangement made by the respondent

no. 3. Another aspect of the matter which has been highlighted in the case is that respondent no.3

was not registered contractor whose act would not bind the principal employer who is not stated to

be registered under Section 12 of the Contract Labour (Regulations & Abolition) Act, 1970. Suffice

would be to state here that respondent no. 2 had made admission on oath the aspect qua relationship

subsisting between respondent no.1 and respondents no. 2 and 3. Therefore, even if the principal

employer contractor are not registered under the relevant provisions of the Contract Labour

(Regulations & Abolition) Act, 1970 they have to face penal consequence envisaged under the Act

as has been held by the Hon'ble Apex Court in Dina Nath vs. National Fertilizers Ltd. (Civil

Appeal No.2355 of 1991) reported in AIR 1992 (SC) 457 & 1992(1) SCC 695 , the relevant para

is reproduced below:

''…Contract labour. principal employer not getting registered under Section 7 and

Contractor not getting licence under Section 12. Persons employed by Principal employer

through Contractor would not become employees of Principal employer. Principal employer

and the Contractor are only liable for prosecution for violation of Sectionis 7 and 12.…"

It was observed that 'Act' merely regulates the employment of contract labour in certain

establishments and provides for its abolition in certain circumstances. The Act does not provide for

total abolition of Contract labour but it provides for abolition by the appropriate government in

appropriate cases under Section 10 of the Regulation and Abolition Act.

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17. Ld. counsel for respondents have relied upon in 1991(1) SCT 156, 1990 (7) SLR 10

titled as Mukhtiar Singh vs. Regional Manager, F.C.I. In this judgment Hon'ble Punjab and

Haryana High Court has held that petitioners were appointed as security guard and FCI had

engaged them through agency of contractors. They were held not employees of the corporation as

no relationship of master and servant existed between them and such termed as contract labour

engaged through contractor. Applying the ratio of above stated judgments it was necessary that

relationship of master and servant must exists directly so as to establish claimant and employer

relationship but case in hand of the respondents hand in gloves in each other are trying to defeat the

claim of the petitioner and other coworkers who had rendered three years service in the projects

awarded to respondent no.1 through respondent no.2 called for retrenchment and appointment and

consequently the Sun Security Services respondent no. 2 had accepted and supplied the labour and

while retrenching also the same process was followed as respondent no.1 and respondent no.3 did

not figure in the retrenchment process but respondent no.2 was following all the instructions of

principal employer in retrenching petitioner in phased manner. As such, judgment of Mukhtiar

Singh’s case (supra) did not apply since all the respondents in connivance with each other were

retrenching workers. This fact shows from the Ex. RW1/G stipulating that Sun Security Service had

notified all Sun Security Service workmen deployment IKU-II, Banner-III, Rait Store and

Dharamshala sites of Lanco Infratech Ltd. to seek their full and final settlement between 30th April

and 1st May. This notification also shows that these stores for the project sites were belonged to

Lanco Infratech Ltd. for the purposes of recruitment where the respondent no. 2 had deployed and

those have been required as the staff gone surplus and no more required. Admittedly, respondent

no. 2 Captain Ramesh Chand Sun Security Services has not whispered even a single word that his

company or other principal employer and contractor had sought permission from appropriate

government in terminating the services of petitioner. Moreover, facts revealed in cross-examination

in manner defeated claim of petitioner.

18. Section 25-N deals with conditions precedent to retrenchment of workmen. It provides

that 'a workman who has been in continuous service for not les than one year under an employer

shall be retrenched by that employer until workman has been given three months notice in writing

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

been paid in lieu of such notice wages for the period of the notice‘. Chapter V-A of the Industrial

Disputes Act deals lay off and retrenchment. Section 25-N clearly deals with permission which is to

be mandatorily obtained from the appropriate government. Before retrenchment in the case in hand,

the respondents have raised multiple plea as they have stated that project was complete and said

petitioner and other workman were surplus and in their action for retrenching the petitioner and all

several workmen and petitioner were declared surplus but there is no iota of evidence on record to

show that petitioner was declared surplus at any point of time. List of contractors as envisaged Ex.

PA 21 provides respondent no.2 had valid licence upto 19.11.2011which goes to show that

contractor was registered as required under law.

19. Enough has been emphasized by ld. counsel for the respondents that petitioner has

received all the full and final settlement claimed from respondents and therefore petitioner cannot

agitate claiming violation of the Section 25-F of the Industrial Disputes Act. In support of their plea

reliance has been placed on receipt Ex. RW1/B which is undated and appears to be having thumb

mark of mother of petitioner which has been admitted by PW1 in cross-examination. This receipt

does not bear any date which could substantiate the plea of respondents that same was full and final

settlement after notification. Moreover, it does not disclose that out of Rs.19635/- what was amount

as retrenchment compensation and how much was salary and other dues payable to the petitioner.

As such, this receipt is not of much help to the respondents on the point of full and final settlement

of retrenchment compensation. This plea that while retrenching one month‘s pay was not made to

him and no more from the respondent side had turn up to depose that the receipt calculated amount

was retrenchment compensation. It has come in the evidence that petitioner has worked from

7.8.2006 and he was appointed by respondent no.2 and his attendance of daily attendance register

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was marked till 28.2.2010 and at the same time petitioner was illegally retrenched. Thus, claim

petition on record filed by petitioner clearly indicates that he had worked for 240 days as required

under law more particularly there is no cross-examination of respondent on this point and thus it

has to be accepted that petitioner had worked for 240 days and at the time termination of services of

petitioner no retrenchment compensation had been paid to him under provisions of Section 25-F of

the Act as well as three months pay in advance for retrenchment within the ambit of Section 25-N

of the Act. Again there is no iota of evidence on record to show that respondents had obtained

permission from the appropriate government as required under Section 25-F of the Act. The jointly

plea of respondents that work of project had got completed and for said reason retrenchment could

be made carries no substance as notice under Section 25-F of Industrial Disputes Act does not

stipulated so. Again the retrenchment being made of the insistence of respondent no. 1 clearly

shows that respondent no. 2 was acting on behalf of respondent no.1 irrespective of fact that

respondent no.2 was engaged by respondent no. 3 who had been engaged by respondent no.1. As

such, retrenchment was made by respondent no. 2 at the behest of respondent no.3 and respondent

no.1 is palpably illegal and wrong which cannot legally sustained within the ambit of Industrial

Disputes Act. In view of foregoing discussions, it is held that the services of petitioner had been

illegally and unjustified manner terminated by respondents w.e.f. 1.5.2010. Accordingly, issue no.1

is decided in favour of petitioner and against the respondents.

ISSUE NO.2

20. The claim petition could also be stated to be not maintainable as against the respondent

as has been argued by ld. counsel for respondents. Observations made in the foregoing paragraphs

clearly legate that respondents having each other recruited petitioner and other co-workmen who

were terminated in one lot without assigning any stipulate reason not even requirement of

provisions of Sections 25-F and 25-N of the Act. As such, petitioner can legitimately agitate his

claim before this Tribunal for redressal of his grievance. Issue no.2 is answered in negative.

ISSUE NO. 3

21. Ld. counsel for the respondents has contended with vehemence that petitioner has

received full and final payment all his claim from respondents company and therefore subsequent

claim petition does not lie. As has been discussed in my findings on foregoing paragraphs that Ex.

RW1/G does not stipulate in specific date when this amount was disbursed to petitioner through his

mother but either receipt does not reveal amount of retrenchment compensation if any paid to the

petitioner which manifestly violates the provisions of Sections 25-F and 25-N of the Act. Thus,

when retrenchment process recoursed to by respondent no. 2 was contrary to the provisions of

Industrial Disputes Act, petitioner was not estopped from seeking reengagement job his claim of

reengagement by filing claim petition in pursuance to reference received from appropriate

government. Issue no. 3 is accordingly decided in negative.

ISSUES NO. 4 & 6

22. These issues were not pressed by the ld. counsel for the respondents and these issues

are decided as unpressed in favour of petitioner and against the respondents.

ISSUE NO. 5

23. It has been contended by ld. counsel for respondents that petition is bad for non joinder

of necessary parties. It has not been pleaded in what manner claim petition is bad for non joinder of

necessary parties. By merely alleging that claim petition is bad for non-joinder of party is not

sufficient as it has to be specifically pleaded as to who were the necessary parties and in the

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absence of same, petition is held not bad for non-joinder of necessary parties, hence, this issue is

answered in negative against respondents and in favour of petitioner.

RELIEF

24. As sequel to my findings on foregoing issues nos. 1 to 6, the reference/claim petition is

allowed partly. The respondent nos.1 to 3 are hereby directed to re-engage the petitioner forthwith.

The petitioner shall be entitled to seniority and continuity in service from the date of his illegal

termination with further direction to all the respondents to pay a sum of Rs.30,000/- jointly and

severally to the petitioner for the mental harassment which has he suffered during the course of

litigation. The amount of compensation so awarded will be paid by the respondents to the petitioner

within three months from today failing which the respondents 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.

25. The reference is answered in the aforesaid terms.

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

official gazette.

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

Announced in the open Court today this 20th day of January, 2017.

(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. : 73/2013

Date of Institution : 01.08.2013

Date of decision : 20.1.2017

Shri Varun Kumar s/o Shri Amar Chand r/o Village Kudan, P.O. Jia, Tehsil Palampur,

District Kangra, H.P.

…Petitioner

Versus

1. The General Manager, Vamshi Hydro Energies Private Limited, Plot No.229, Phase-I,

Udyognagar, Gurgaon, Haryana c/o BD Sharma Niwas, Shyamnagar, Dharamshala, H.P. (Principal

Employer).

Captain Ramesh Chand, Incharge, Sun Securities Services Avenue, Sainikpur,

Secunderabad, Andhra Pradesh c/o Ward No.5, Vinaygali, Village and P.O. & Tehsil Nurpur,

District Kangra, H.P. (Contractor).

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3. The General Manager, M/s Lanco Infratech Limited, Plot No.4, Software Unit, Lay

Out HITEC, City Madhapur, Hyderabad, Andhra Pradesh c/o Shri B.D. Sharma Niwas,

Shyamnagar, Dharamshala, H.P. (Contractor).

…Respondents.

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

For the Petitioner : Sh. Gaurav Pathania, Adv.

For the Respondent(s) : Sh. K. K. Chaudhary Adv.

AWARD

1. The following reference has been received from the appropriate Government for

adjudication:

"Whether termination of the services of Shri Varun Kumar s/o Shri Amar Chand r/o Village

Kudan, P.O. Jia, Tehsil Palampur, District Kangra, H.P. w.e.f.1.5.2010 by (1) the General

Manager, Vamshi Hydro Energies Pvt. Ltd., Plot No. 229, Phase-I Udhyogvihar, Gurgaon,

Haryana, C/O B.D.Sharma Niwas, Shyamnagar, Dharamshala, H.P. (Principal Employer)

(2) Captain Ramesh Chand, Incharge, Sun Securities Services Avenue, Sainikpur,

Secunderbad, Andhra Pradesh C/O Ward No. 5, Vinaygali, Village, P.O. & Tehsil Nurpur,

District Kangra, H.P. (Contractor) 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. After the receipt of the abovestated reference, a addendum dated 18th December, 2013

was received from the appropriate government which reads as under:

"With reference to this office notification of even number dated 25-07-2013 in respect of

industrial dispute of Shri Varun Kumar s/o Shri Amar Chand r/o Village Kudan, P.O. Jia,

Tehsil Palampur, District Kangra, H. P. vs. (1) the General Manager, Vamshi Hydro

Energies Pvt. Ltd., Plot No.229, Phase-I Udhyogvihar, Gurgaon, Haryana, C/O B D Sharma

Niwas, Shyamnagar, Dharamshala, H.P. (2) Captain Ramesh Chand, Incharge, Sun

Securities Services Avenue, Sainikpur, Secunderbad, Andhra Pradesh C/O Ward No. 5,

Vinaygali, Village, P.O. & Tehsil Nurpur, District Kangra, H.P. (contractor) The following

party is added as 3rd employer in the ibid reference, (3) The General Manager, M/S Lanco

Infratech Limited, Plot No.4, Software Unit, Lay Out HITECH, City Madhapur, Hydrabad,

Andhra Pradesh, C/O Shri B D Sharma Niwas, Shyamnagar, Dharamshala, District Kangra,

H.P. (Contractor)"

On receipt of reference as well as addendum from appropriate government, notices

were issued to the parties in pursuance to which claimant/petitioner has filed his statement of claim.

4. Brief facts as set up in the claim petition revealed that State of H.P. had allotted Baner

Hydro Project III to Vamshi Hydro Energies Pvt. Ltd. which was leased out for 40 years.

Averments made in the petition revealed that after opening Baner Hydro Project III, respondent

no.1 had assigned construction work of project to respondent no.3 to M/s. Lanco Infratech Ltd. on

contract basis and said company had invited tenders from various companies for supplying

construction materials and labour when M/s. Sun Security Services Head office B II First Avenue

Sanikpuri Sikandrabad contacted respondent no. 3 for supplying the labour and after due

negotiations, contract for labour was assigned to respondent no. 2 and after opening the contract,

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respondent no.2 Sun Security Services had engaged the petitioner on 28.6.2006 as survey assistant

on payment of daily wages. The grievances of petitioner and other workers remained that after the

engagement by respondent no.2 they insisted upon the management to issue appointment letter and

realizing agitation over the petitioner's demand, the management interpolated a labour contract on

1.5.2007. It is alleged that on 1.5.2010 petitioner was retrenched by the respondent no.2 who

through his union made complaint to respondents no. 1 to 3 and Labour Inspector-cum-Conciliation

Officer who did not initiate any action however vide letter no.11-1/85(Lab)ID/Kangra-2012 dated

February, 2012, Labour Commissioner, Govt. of H.P. had directed the Labour Officer,

Dharamshala to have individual worker wise demand notice under Section 2-A of the Act

containing inter alia their actual dates of engagement and termination and send separate reports. On

21.9.2012 a separate demand notice was sent to the respondents, Labour Officer as well as Labour

Inspector Palampur by the petitioner for his illegal retrenchment from service. It is alleged that on

28.6.2006 petitioner had been appointed as survey assistant by respondent no.3 and his presence

was marked in the office of respondent no.3 where he worked till 30.4.2010. The grievances of the

petitioner also remains that on 1.5.2010 petitioner was illegally retrenched by the respondent no.2

whereas he was under employment with the respondent no.3 and no notice of retrenchment was

individually served upon the petitioner by the respondents. It is alleged that on 1.5.2007 respondent

no. 3 entered into a contract with the respondent no.2 in which petitioner was shown as employee

from 21.3.2007 whereas the petitioner was working with the respondent no.3 since 28.6.2006 and

the respondents no. 2 and 3 while doing so, did not obtain consent of petitioner which the

respondents no.2 and 3 entered into contract which stated to be against the provisions of the Act

and ratio laid down by the Hon‘ble Supreme Court in AIR 1970 SC 823 and 1968 SCR (2) 272 as