jkti=] fgekpy izns'k

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

eaxyokj] 23 ebZ] 2017@2 T;s"B] 1939

fgekpy izns'k ljdkj

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la[;k% ,l0MCY;q0Mh0&lh0¼10½&1@2017-&&jkT;iky] fgekpy izns'k] fo'ks"k fuf/k dh iz'kkldh;

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1280

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1281

jkti=] fgekpy izns'k] 23 ebZ] 2017@2 T;s"B] 1939

LABOUR AND EMPLOYMENT DEPARTMENT

NOTIFICATION

D/Shala, the 15^th May, 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

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

674/16

Kamal Dev Sharma

M.D. DAV New Delhi & others

25-02-2017

676/16

Kuljeet Singh

M.D.DAV New Delhi & others

25-02-2017

234/14

Tarsem Chand

Registrar Y.S.Parmar University

28-02-2017

385/14

Ruma Devi

E.E.HPPWD, Joginder Nagar

28-02-2017

547/15

Neela Devi

E.E.HPPWD, Dharampur

28-02-2017

548/15

Ruma Devi

-do-

28-02-2017

542/15

Karam Singh

-do-

28-02-2017

537/15

Chet Ram

-do-

28-02-2017

538/15

Nek Ram

-do-

28-02-2017

10.

535/15

Munshi Ram

-do-

28-02-2017

11.

549/15

Savitri Devi

-do-

28-02-2017

12.

540/15

Reeta Devi

-do-

28-02-2017

13.

585/15

Nirmla Devi

-do-

28-02-2017

By order,

R. D. DHIMAN, IAS,

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. 674/2016

Sh. Kamal Dev Sharma S/O Late Shri Brij Lal, through Shri N.L. Kaundal (A.R./Legal

advisor) BMS, H/Q Balakrupi, P.O. Jalpehar, Tehsil Joginder Nagar, District Mandi. …Petitioner.

Versus

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

Gupta Road, New Delhi.

1282

jkti=] fgekpy izns'k] 23 ebZ] 2017@2 T;s"B] 1939

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

...Respondents.

25-02-2017

Present : None for the petitioner.

Sh. R.C. Puri, adv. vice of 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.

________

25-02-2017

Present : None for the petitioner.

Sh. R. C. Puri, adv. vice of 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

2.45 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 : 25-02-2017

(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. 676/2016

Sh. Kuljeet Singh s/o Shri Jagdish Chand, through Shri N.L. Kaundal (A.R./Legal advisor)

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

…Petitioner.

Versus

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

Gupta Road, New Delhi.

1283

jkti=] fgekpy izns'k] 23 ebZ] 2017@2 T;s"B] 1939

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

...Respondents.

25-02-2017

Present : None for the petitioner.

Sh. R.C. Puri, adv. vice of 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 11.20 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.

_________

25-02-2017

Present : None for the petitioner.

Sh. R. C. Puri, adv. vice of 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: 25-02-2017

(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. : 234/2014

Sh. Tarsem Chand s/o Sh. Harnam Singh, 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.

1284

jkti=] fgekpy izns'k] 23 ebZ] 2017@2 T;s"B] 1939

The Director, Regional Horticulture and Forestry Research Station Bhota, Distt.

Hamirpur, H.P.

...Respondents.

28-02-2017

Present : Sh. S.S. Sippy, A.R. for the petitioner.

Sh. Karan Pathania, adv. csl. for the respondents.

Corrigendum received. No PW is present. Heard. Authorised representative 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 authorised representative for

the petitioner as stated above, the reference no. 234/14 is hereby dismissed as withdrawn with

liberty to file afresh claim before the competent authority.

Ordered accordingly. The parties to bear their own costs.

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 /publication at its end.

5. The file, after completion be consigned to the records.

Announced : 28-02-2017

(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. : 385/2014

Date of Institution : 16.12.2014

Date of decision : 28.02.2017

Smt. Ruma Devi w/o Shri Devi Singh, r/o Village Jhamehar, P.O. Basona, Tehsil Joginder

Nagar, District Mandi, H.P.

…Petitioner.

Versus

The Executive Engineer, B&R Division H.P.P.W.D., Joginder Nagar, Distt. Mandi, H.P.

…Respondent.

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

For the Petitioner : Sh. N.L. Kaundal, AR

: Sh. Vijay Kaundal, Adv.

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

1285

jkti=] fgekpy izns'k] 23 ebZ] 2017@2 T;s"B] 1939

AWARD

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

adjudication:

“Whether time to time termination of the services of Smt. Ruma Devi, W/O Shri Devi

Singh, R/O Village Jhamehar, P.O. Basona, Tehsil Joginder Nagar, District Mandi, H.P.

during June, 1999 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. Brief facts as set up in the claim petition reveal that the services of petitioner were

engaged by the B&R Department as a daily wager on muster roll basis in the year 1999 who

worked under the Assistant Engineer, HPPWD Sub Division, Joginder Nagar but no appointment

order/letter was issued in her name by the respondent. Averments made in claim petition further

stipulates that the latter used to engage petitioner's for 15 to 20 days every month instead of the full

month and that fictional breaks for 10-15 days in each month were continued to be given by the

respondent till 31.08.2007. Thereafter, as per the instructions issued by the Principal Secretary

(PW) to the Government of Himachal Pradesh per letter dated 14.9.2007, her services were

continuously engaged by the respondent. It is alleged that the respondent had given petitioner

artificial breaks from the year 1999 to 31.08.2007. Not only this, the persons who were working

with her (petitioner) or joined the service after her were not given any break by the respondent

deliberately. At the time while giving artificial/fictional breaks, the principle of 'last come first go'

was also not followed by the respondent and the persons junior to petitioner namely Shri Rajinder

Singh and Sh. Sumer Singh and others worked with the respondent/department without any break

and that the period of artificial breaks is required to be counted as continuous service for the

purpose of the regularization of petitioner's services. It is alleged that the persons junior to

petitioner have been regularized by the respondent earlier to her contrary to the policy of the State.

A similar case titled as Suresh Kumar vs. The Executive Engineer, HPPWD, Division Baijnath

bearing reference No.23/2010 has already been decided in favour of the workman by this Court per

Award dated 28.11.2011 and thus petitioner having completed eight years of continuous service on

30.6.2007 and was liable to be regularized as work charged beldar as per the policy framed/

approved in Rakesh Kumar's case in the pay scale of Rs.4910-10680/- with all other perks and

allowances. It is also contended that petitioner is still working with the respondent/department. The

act and conduct of the respondent is also alleged to be unfair labour practice which also violates

Sections 25-F, 25-G and 25-H of the Industrial Disputes Act, 1947 (14 of 1947, 'the Act' for short).

Respondent contested petition, filed separate reply inter-alia taken preliminary

objections qua non-maintainability as no legal or fundamental right of the petitioner has been

infringed, the petition being hit by the vice of delay and laches and bad for not impleading the State

of Himachal Pradesh and the Executive Engineer, National Highway Division, HPPWD, Joginder

Nagar as parties to the petition. On merits, engagement of the services of the petitioner from

January, 1999 is admitted. However, it has been pleaded that the petitioner was employed by the

Executive Engineer, National Highway Division, HPPWD, Joginder Nagar and that respondent's

office was created in the month of January, 2004 vide notification dated 9th December, 2003. The

office started functioning w.e.f. 2nd January, 2004 and after the creation of his (respondent's)

office, the petitioner and some other workmen were transferred to the newly created Division from

the National Highway Division, Joginder Nagar. The claim of the petitioner prior to 01.1.2004

pertains to the office of the Executive Engineer, National Highway Division, Joginder Nagar, who

is not a party to the case. It has been emphatically denied that if fictional breaks were given to the

1286

jkti=] fgekpy izns'k] 23 ebZ] 2017@2 T;s"B] 1939

petitioner at any point of time rather the services of the petitioner were engaged as per the

availability of the work and funds. As and when the services of the petitioner were engaged in

accordance with her verbal requests from time to time, she was duly made aware regarding the

availability of the work besides maintained that no continuous work for the entire month was

provided to the petitioner who used to report for duty intermittently as per her convenience. The

workmen whose names have been disclosed by the petitioner, worked in continuity and that their

services have been regularized as per the seniority and policy of the State. The policy framed in

Mool Raj Upadhaya's case is stated to be not applicable to the present case as in that case, one time

benefit was given to the employees who had either completed 10 years of continuous service with

240 days in each calendar year as on 31.12.1993 or the employees who had rendered one or more

year of service but had not completed 10 years of service up-to 31.12.1993. It is further asserted

that the services of the petitioner would be regularized as per the policy of the State besides denied

to have indulged in any unfair labour practice and maintained that no provision of the Act has been

violated. Accordingly, cause of action as pleaded in the claim petition filed by petitioner is denied

and the petition is sought to be dismissed.

4. No rejoinder has been filed by the petitioner.

5. To prove her case, petitioner had examined herself as PW1 tendered/proved her

affidavit 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 notification

dated 9th December, 2003, Ex. RW1/B copy of letter dated 2.1.2004 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 the 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 22.04.2016 for

determination:

Whether time to time termination of the services of the petitioner/giving breaks in

service to the petitioner by the respondent during December, 1999 to 31.8.2007

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?

...OPP.

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

...OPR.

4. Whether the claim petition is bad for non-joinder of necessary parties as alleged?

...OPR.

5. Whether the petition is bad on account of delay and laches on the part of applicant

as alleged?

...OPR.

Relief.

For the reasons to be recorded hereinafter while discussing the aforesaid issues, my

findings on the aforesaid issues are as follows:

1287

jkti=] fgekpy izns'k] 23 ebZ] 2017@2 T;s"B] 1939

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

9. Both these issues have been taken up together for discussion being interconnected

which can be disposed of simultaneously without repetition of evidence.

10. Factum of petitioner having been appointed as daily waged beldar on muster roll by the

respondent w.e.f. January, 1999 is not in dispute. It is the admitted case of petitioner that petitioner

had worked since January, 1991 but she had been deliberately given fictional breaks by respondent

so that petitioner did 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 used to not come on her duty besides she willfully absented several

times from her duty. To appreciate the genuineness of the plea so raised by respondent, suffice

would be to state here that bald assertion of the respondent that petitioner willfully absented from

her duties is devoid of merit 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. Rather, it is

projected to be case as if petitioner came of her own for work and left the work of her own sweet

will. The plea of petitioner, on the other hand remains that fictional breaks were given to her and

that several persons junior to her namely Smt. Guddi Devi, Sh. Prithi Chand, Sh. Ravinder Kumar,

Sh. Dalip Singh, Sh. Gautam Ram, Sh. Bhawani Singh and Sh. Ram Dhan have been regularized

by respondent and these persons were actually not given fictional breaks at any point of time.

11. A bare glance on mandays chart Ex. RW1/C would reveal that in the year 1999

petitioner had worked for 148 days, 207 days in the year 2000, 184 days in the year 2001, 184 days

in the year 2002, 175 days in the year 2003, 169 days in the year 2004, 170 days in the year 2005,

164 days in the year 2006, 218 days in the year 2007, 338 days in the year 2008, 320 days in the

year 2009, 312 days in the year 2010, 334 days in the year 2011 and 119 days in the year 2012. It

can be noticed that till 2007 petitioner has worked for less than 240 days whereas for other

remaining years she had worked for more than 240 days. It may be pertinent to state here that vide

letter dated 14.9.2007 direction has been given by government to provide muster roll to all

labourers who have been engaged for 15/20 days or 30 days be provided muster roll for full month

in certain situation but this instruction appears to be have been completely ignored by respondent

department as claimant petitioner was engaged in 199 much prior to year 2007 and had not

completed 10 years who was to be issued muster roll for full month in relaxation of policy as

special case. Thus, break in service being within a period of seven 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

1288

jkti=] fgekpy izns'k] 23 ebZ] 2017@2 T;s"B] 1939

2000, 2002, 2003 and 2004 except at serial nos. 1 to 4 who had joined earlier to petitioner as

workman at serial nos. 5 to 10 joined in the year 2000, 2001, 2002 and 2003 respectively whereas

petitioner had joined in January, 1999. Since respondent had not disputed to have engaged

petitioner in January, 1999, she ought to have been regularized having continuously worked for

about 7 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 and thus fictional breaks in no

manner would affect or eclipse her legitimate right of regularization in service.

12. Stepping into the witness box as PW1, petitioner has sworn 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 her have been continuously engaged

by department for the whole year who had completed more than 240 days in a calendar year. In

cross-examination, she has admitted that she has been provided work more than 240 days of work

after the year 2007 which means the dispute is only for the years 1999 to 2007 as stated in the

affidavit. RW1 Shri Rajeev Sharma has admitted in cross-examination that seniority list Ex.

RW1/D of all the labourers shown in the said seniority list were employed after the engagement of

the petitioner. 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. He has denied that

petitioner had been deliberately given breaks in the years from 1999 to 2007 but he could not prove

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 she came and go of her 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

her absence from duty at any point of time. As such, the plea of fictional break given to the

petitioner from the year 1999 to 2007 get substantiated not only from documentary evidence on

record but from testimony on oath of RW1 as well.

13. Although, petitioner being in employment at the time of passing of having fictional

breaks as stated above is duly established yet she 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 her besides petitioner could not have been discriminated arbitrarily between similarly situated

workmen. No reason whatsoever has been assigned by respondent for not giving any fictional

breaks to others which further shows that plea of non availability of work or the funds as the case

may be was not correct stand of respondent made with the object to defeat the claim of petitioner.

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 from 1999 to 2007 was certainly

illegal and unjustified 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 particularly when she has admitted to have remained

gainfully employed while working as an agriculturist. Issue in question is thus as stated above

decided in part in favour of the petitioner and against the respondent.

ISSUE NO.3

14. 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 contended that present claim

petition is not maintainable as the petitioner had abandoned the job of her own and did not join her

duty despite issuance of muster roll for the relevant period. From the pleadings of the parties and

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evidence on record as discussed in foregoing paras, no inference of claim petition being not

maintainable could be raised instead the same is held to be maintainable. As such, the issue in hand

is decided in favour of the petitioner and against the respondent.

ISSUE NO.4

15. 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. Claim petition as petitioner was initially appointed with respndoent

only PW1 has admitted in cross-examination that she 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/D 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

16. 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”.

17. 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. 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.

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RELIEF

18. As sequel to my findings on foregoing issues, it is held that the petitioner was in

continuous uninterrupted service with the respondent from the date of her initial engagement and

that the 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 petition is hereby allowed 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.

19. The reference is answered in the aforesaid terms.

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

official gazette.

21. File after due completion be consigned to the Record Room.

Announced in the open Court today this 28th day of February, 2017.

(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. : 547/2015

Date of Institution : 04.12.2015

Date of Decision : 28.02.2017

Smt. Neela Devi alias Leela Devi w/o Shri Inder Pal, r/o Village Banjal, P.O. Guin, Tehsil

Sarkaghat, District Mandi, H.P.

…Petitioner.

Versus

Executive Engineer, H.P.P.W.D. Division, Dharampur, Tehsil Sarkaghat, District Mandi,

H.P.

...Respondent.

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

Petitioner : Sh. N.L. Kaundal, AR : Sh. Vijay Kaundal, 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 Smt. Neela Devi alias Leela Devi w/o

Shri Inder Pal, r/o Village Banjal, P.O. Guin, Tehsil Sarkaghat, District Mandi, H.P. before

the Executive Engineer, H.P.P.W.D. Division Dharampur, District Mandi, H.P. vide

demand notice dated 19.02.2013 regarding her alleged illegal termination of services during

year, 2000 suffers from delay and latches? If not, Whether termination of services of Smt.

Neela Devi alias Leela Devi w/o Shri Inder Pal, r/o Village Banjal, P.O. Guin, Tehsil

Sarkaghat, District Mandi, H.P. by the Executive Engineer, H.P.P.W.D. Division

Dharampur, District Mandi, H.P. during year, 2000, 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 stipulated in the claim petition revealed that petitioner had been engaged

by respondent on daily waged basis on muster roll as beldar w.e.f. 16.12.1998 where she continued

to work upto year 2000 who had completed 240 days. Averments made in the claim petition further

revealed that services of the petitioner had unlawfully terminated by the respondent vide verbal

order in the year 2000 without prior permission and one month's notice and retrenchment

compensation as envisaged under Section 25-F of the Industrial Disputes Act, 1947 (hereinafter

referred to as 'the Act' for brevity). It is alleged that respondent had violated the provisions of

Section 25-F of the Act. It further transpires from that between 2000 to 2005 respondent/

department had terminated the services of more than 2000 daily waged workers who were engaged

by the respondent in Dharampur Division from time to time without any purposes. Not only this,

the principle of 'Last come First go' was not followed by the respondent as some juniors namely

S/Sh. Prabhu Ram (1.8.1998), Shasi Pal (6.4.1999) and Roshani Devi (4.7.1999) have been retained

in service whereas the services of petitioner had been dispensed with. The grievance of petitioner

further revealed that after termination of services of petitioner so many new hands had been

engaged by the respondent/department, the names of persons subsequent Mamta Devi on 6.4.2000,

Inder Singh on 1.12.2003, Pradeep Kumar on 23.11.2007, Lekh Raj on 11/2004 and Satya Devi on

27.1.2011 but petitioner had not given any opportunity of reemployment by the respondent

establishing violation of provisions of Section 25-H of the Act. Feeling aggrieved the action of

respondent in terminating the services of petitioner she raised industrial dispute vide demand notice

dated 19.2.2013 copy of the same was forwarded to Labour Officer, Mandi for further necessary

action. It is alleged that Labour Officer, Mandi could not be resolved the dispute and failure report

under Section 12(4) of the Industrial Disputes Act was made and the matter was referred to

appropriate government i.e. Labour Commissioner who declined to refer the case of petitioner for

adjudication. In pursuance to which the petitioner had approached the Hon'ble High Court of H.P.

by filing CWP no.3613/2015 which had been decided on 1.9.2015 directed the Labour

Commissioner to make reference to the Labour Court. The dispute stated to have been not filed on

account of delay and moreover Hon'ble High Court of H.P. has condoned the delay of eight years in

case of Rajneet Singh vs. State of H.P. & Ors. reported in 2015 (145) FLR 722. The petitioner

alleges that respondent in terminating the services of petitioner w.e.f. 2000 without complying with

the necessary provisions of the Industrial Disputes Act, 1947 which was illegal and unjustified and

against the mandatory provisions of the Act. Accordingly, prayed has been made to set aside the

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illegal termination order of petitioner directed the respondent to reinstate the petitioner with full

back wages, seniority, continuity in service with all consequential benefits.

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

objections of maintainability, delay and laches. On merits admitted that petitioner was engaged as

daily wager on 01/1999 and she intermittently worked upto October, 1999. It is alleged that

petitioner has left the job of her own who had not completed 240 days in each calendar year. It is

alleged that petitioner had left the job of her own sweet will and respondent/department had not

violated any provisions of the Industrial Disputes Act. The plea of respondent remained that

petitioner had abandoned the job at her own sweet will. It is maintained that petitioner had left the

job prior to retrenchment of the other workers in the year February, 2004 and July, 2005 and

therefore the question of any illegal act of respondent does not arise. It is also contended by the

respondent that there is inordinate delay in raising industrial dispute. It is alleged that petitioner had

left the job of her own sweet will who was never terminated by the respondent. Alleges that

question of termination of the services of petitioner by the respondent does not arise. Delay in filing

the claim petition is stated to be fatal to the case of petitioner and the petitioner raised her claim

when other workers raised demand notice and that petitioner was gainfully employed as an

agriculturist. Accordingly, petition was sought to be dismissed.

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

6. To prove her case, petitioner had examined herself as PW1 tendered/proved her

affidavit under Order 18 Rule 4 CPC Ex. PW1/A, Ex. PW1/B copy of RTI information dated

13.11.2013, Ex. PW1/C copy of mandays chart of Sh. Shashi Kant. Smt. Neelam Kumari, Clerk in

the office of The E.E. HPPWD Hamirpur examined as PW2 tendered/proved Ex. P1 copy of

regular appointment order of Sanjay Kumar and mandays chart of Ex. P2 and closed evidence. On

the other hand, repudiating the evidence led by the petitioner, respondent examined RW1 Shri

Sudhir Mittal, the then Executive Engineer, HPPWD Division Dharampur as RW1 tendered/proved

his affidavit Ex. RW1/A, mandays chart of petitioner Ex. RW1/B and closed the evidence.

I have heard the ld. Authorized Representative/counsel of petitioner and ld. Dy. D.A.

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

case.

From the contentions raised, following issues were framed on 05.4.2016 for

determination:

1. Whether the industrial dispute raised by petitioner vide demand notice dated

19-02-2013 qua her termination of service during year, 2000 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 year,

2000 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.

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

...OPR.

Relief.

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

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Issue No.1 : Discussed

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 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. It is pertinent to mention here that claim petition before this Court was filed by

petitioner in which she has prayed for setting aside the retrenchment order in the year 2000 qua her

illegal termination and sought direction to the effect that services of petitioner be treated as

continuous service till date with full back wages. It has further been prayed that services of

petitioner be regularized after completion of eight years of service on the basis of policy framed by

the State Govt. with all consequential benefits. Not only this, petitioner also prayed that her case

may also be considered for engagement in service as per policy framed by the State Govt. and to

another relief petitioner is entitled.

12. A bare glance at claim petition would reveal that petitioner was appointed as daily

wage basis with the respondent w.e.f. 16.12.1998 on muster roll basis as beldar who continued to

work till 2000 when her services were terminated without paying any retrenchment compensation

under Section 25-F of the Act. It is claimed that petitioner had completed more than 240 days in

each calendar prior to her termination and that while retrenching the services of petitioner principle

of 'Last come First go' was not followed as Prabhu Ram (1.8.1998), Shasi Pal (6.4.1999), Roshani

Devi (4.7.1999), Mamta Devi (6.4.2000), Inder Singh (1.1.2000) and Hans Raj (6.4.2000) were

retained in service and thus the provisions of Section 25-G of the Act was not followed by the

respondent. Mandays chart Ex. RW1/B on record reveals that petitioner had worked for 29 days in

the month of January 1999, 24 days in February 1999, 01 day in March 1999, 08 days in April,

1999, 31 days in May, 1999, 30 days in June, 1999, 17 days in July, 1999, 29 days in August, 1999,

30 days in September, 1999 and 02 days in October, 1999. Even if we look at the mandays chart,

this would show that immediately preceding her termination petitioner has factually worked for 201

days and not 240 days and therefore provisions of Section 25-F of the Act are not applicable and in

that situation respondent would not be required to either issue notice envisaged under Section 25-F

of the Act or to pay wages in lieu thereof.

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, respondent had not issued any notice

or letter. 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, 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. 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. Hence, violation of

Section 25-F of the Act has not been proved by the petitioner.

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14. In so far as violation of provisions of Section 25-G of the Act is concerned, suffice

would be to state here that Prabhu Ram (1.8.1998), Shasi Pal (6.4.1999), Roshani Devi (4.7.1999),

Mamta Devi (6.4.2000), Inder Singh (1.1.2000) and Hans Raj (6.4.2000) were engaged between

1998 to 2003. In 2004, one Pardeep Kumar s/o Bahadur Singh was appointed on 23.11.2007, Lekh

Raj s/o Ram Saran was appointed on 11/2004 and Satya Devi was engaged on 27.1.2011 but no

opportunity was given to petitioner for reemployment which violates the provisions of Section

25-H of the Act. Close scrutiny of the petitioner in cross-examination would reveal that principle of

'Last come First go' was not followed for all the workmen appointed in between 1998 to 2004

whereas petitioner had been retrenched in 2000 and thereafter several persons were engaged in

service but petitioner has not given any opportunity for reemployment. Since the persons

mentioned in para 4 of claim petition as well as affidavit of petitioner Ex. PW1/A had been

appointed by 1998 to 2000 provisions of Section 25-G of the Act could not be stated to have been

violated. Be it noticed that Pardeep Kumar, Lekh Raj & Satya Devi had been appointed in 2007,

2004 and 2011 respectively. It is pertinent to mention to state here that when persons mentioned in

para no. 5 of the claim petition were engaged and petitioner was not given offered for

reemployment which manifestly violates the provisions of Section 25-H of the Act. From evidence,

it is evidently clear that after termination of petitioner she was available for job who was not

appointed however some persons fresh were allowed to join in service. As such, which is clearly

violation of Section 25-H of the Act.

15. Ld. counsel for the petitioner has contended with vehemence that petitioner be treated

in continuous service for eight years and for said reason the left period after 1999 be treated as

regular period. It is not understood as to how petitioner claim this benefit as petitioner never

worked for 240 days in any 12 months preceding termination and thus judgment of Hon'ble High

Court reported in 2012 (132) FLR 528 (SC) titled as H.S. Rajashekara and State Bank of

Mysore and another does not come to the rescue of the petitioner. Since 240 days were never

completed in a year by the petitioner, it could not be construed in any manner that termination of

petitioner was illegal. Therefore, the entire period cannot be treated in service. As stated above that

petitioner remained out of job after her termination but there is nothing authenticated in evidence

suggesting that she remained without earning and petitioner as PW1 has nowhere stated that she

had opted out for job when terminated from service. As such, it is held that after her termination

she was not in government job and cross-examination of PW1 reveals that she had not been paid

retrenchment compensation and notice at the time of retrenchment. Since the respondent had failed

to prove on record any seniority list by which it would be stated that persons who were junior to

petitioner were retained in service whereas petitioner who was senior to persons mentioned and

thus respondent had clearly violated Section 25-G of Industrial Disputes Act. In view of ratio of

judgment of Hon'ble Apex Court reported in AIR 2015 SC 1373 titled as Mackinon Machenize &

Company Ltd. vs. Mackinon Employees Union which mandatorily requires the employer to

circulate seniority list as prepared. There is no iota of evidence on record remotely suggesting that

respondent had provided seniority list of daily waged workers. As such, plea of petitioner that she

was ignored and new hands were allowed to join is to be accepted. In view of foregoing

discussions, respondent is held to have violated the provisions of Section 25-H of the Act whereas

the petitioner has failed to prove violation of provisions of Section 25-F and 25-G of the Industrial

Disputes Act.

16. Ld. Authorized Representative/counsel for petitioner has placed reliance of judgment

of Hon'ble Apex Court reported in 2016 (151) FLR 1039 titled as Rashtriya Colliery Mazdoor

Sangh and Employers in Relation to Management of Kenduahih Colliery of M/S BCCL and

Ors., in which Hon'ble Apex Court has awarded compensation of Rs.4 lakh to each workman.

Similarly, reliance has placed on judgment of Hon'ble High Court of Punjab & Haryana reported in

2014 LLR 967 titled as Deshsewak Foundry vs. Presiding Officer, Labour Court, Gurdaspur

& Ors., in which compensation of Rs.5 lakh was awarded. In another judgment of Hon'ble High

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Court of Rajasthan, Jaipur Bench reported in 2017 (152) FLR 206, titled as Youth Co-ordinator,

Nehru Yuva Kendra and Labour Court No.2, Jaipur and Anr. in which compensation of Rs.2

lakh was granted to the workman who had merely worked for two years. Thus, above said

judgments disclosing awarding larger amount of compensation which the claimant/petitioner has

prayed for. Ld. Dy. D.A. for State has relied upon judgment of Assistant Engineer Rajasthan

Development Corporation and another vs. Geetam Singh reported in 2013 (136) FLR 893

(SC), in which various criteria to be looked by the Hon'ble Apex Court in awarding compensation.

It has been held 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.

17. Since no straight-jacket formula can be applied for determining compensation as it is

to be awarded on the basis of facts of case. In 2014 LLR 967 Hon'ble High Court of Punjab &

Haryana had awarded compensation of Rs.5 lac to claimant petitioner who was litigating for past

30 years. Similarly, in 2016 (151) FLR 1039 Hon'ble Apex Court awarded compensation to each

worker of Rs.4 lacs. It was observed that many of the workmen were at age of retirement and that

nearly 27 years had elapsed since the time of retrenchment. Moreover, the workers who were

awarded compensation of Rs.4 lac belonged to skilled category of Tyndals. As such, judgment

relied upon by ld. counsel/Authorized Representative for petitioner does not apply to present case

rather applying the criteria laid down by Hon'ble Apex Court in Geetam Singh’s case 2013 (136)

FLR 893 (SC) has been followed and applied.

18. 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 October, 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.

19. Applying the ratio of judgment above stated and that petitioner had rendered service

only for ten months who was female non-skilled worker ageing 48 years when her services were

terminated and not likely to get government job at this age and had worked for 201 days when she

was about to complete 240 days entitling her protection under Section 25-F of Industrial Disputes

Act and demand notice was issued after a period of 14 years by the petitioner, a lump-sum

compensation of Rs.80,000/- (Rupees eighty thousand only) would be a appropriate relief to the

petitioner in lieu of back wages, seniority, past service benefits as well as other consequential

service benefits. 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, 2 and 3 are answered accordingly.

ISSUE NO.4

20. On the plea of non-maintainability of the clam petition onder Section of the Industrial

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

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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

21. 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 back

wages, seniority, past service benefits 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.

22. The reference is answered in the aforesaid terms.

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

official gazette.

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

Announced in the open Court today this 28h day of February, 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. : 548/2015

Date of Institution : 04.12.2015

Date of Decision : 28.02.2017

Smt. Ruma Devi w/o Shri Lachhman, r/o Village Konsal, P.O. Hyun Pehad, Tehsil

Sarkaghat, District Mandi, H.P.

…Petitioner.

Versus

Executive Engineer, H.P.P.W.D. Division, Dharampur, Tehsil Sarkaghat, District Mandi,

H.P.

...Respondent.

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

Petitioner : Sh. N.L. Kaundal, AR

: Sh. Vijay Kaundal, 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 Smt. Ruma Devi w/o Shri Lachhman,

r/o Village Konsal, P.O. Hyun Pehad, Tehsil Sarkaghat, District Mandi, H.P. before the

Executive Engineer, H.P.P.W.D. Division Dharampur, District Mandi, H.P. vide demand

notice dated 19.02.2013 regarding her alleged illegal termination of services during June,

1999 suffers from delay and latches? If not, Whether termination of services of Smt. Ruma

Devi w/o Shri Lachhman, r/o Village Konsal, P.O. Hyun Pehad, Tehsil Sarkaghat, District

Mandi, H.P. by the Executive Engineer, H.P.P.W.D. Division Dharampur, District Mandi,

H.P. during June, 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 as stipulated in the claim petition revealed that petitioner had been engaged

by respondent on daily waged basis on muster roll as beldar w.e.f. 1.1.1999 where she continued to

work upto June, 1999 who had completed 240 days. Averments made in the claim petition further

revealed that services of the petitioner had unlawfully terminated by the respondent vide verbal

order in the year 1999 without prior permission and one month's notice and retrenchment

compensation as envisaged under Section 25-F of the Industrial Disputes Act, 1947 (hereinafter

referred to as 'the Act' for brevity). It is alleged that respondent had violated the provisions of

Section 25-F of the Act. It further transpires from between 2000 to 2005, respondent/department

had terminated the services of more than 2000 daily waged workers who were engaged by the

respondent in Dharampur Division from time to time without any purposes. Not only this, the

principle of 'Last come First go' was not followed by the respondent as some juniors namely