jkti=] fgekpy izns'k

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

ohjokj] 22 twu] 2017@1 vk"kk<+] 1939

fgekpy izns'k ljdkj

LABOUR AND EMPLOYMENT DEPARTMENT

NOTIFICATION

D/Shala, the 12^th June, 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

59&jkti=@2017&22&06&2017

¼2305½

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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

395/15

Mansha Devi

E.E. HPPWD, Dharampur

28-03-2017

483/15

Lekh Raj

E.E. HPPWD, Dharampur

28-03-2017

534/15

Bhag Mal

E.E. HPPWD, Dharampur

28-03-2017

584/15

Ruma Devi

E.E. HPPWD, Dharampur

28-03-2017

587/15

Shyam Singh

E.E. HPPWD, Dharampur

28-03-2017

588/15

Baldev Singh

E.E. HPPWD, Dharampur

28-03-2017

480/15

Roop Singh

E.E. HPPWD, Dharampur

28-03-2017

591/15

Lal Singh

E.E. HPPWD, Dharampur

28-03-2017

541/5

Krishan Chand

E.E. HPPWD, Dharampur

29-03-2017

10.

544/15

Krishan Chand

E.E. HPPWD, Dharampur

29-03-2017

11.

546/15

Nokhi Devi

E.E. HPPWD, Dharampur

29-03-2017

539/15

Raj Kumar

E.E. HPPWD, Dharampur

29-03-2017

13.

543/15

Shyam Lal

E.E. HPPWD, Dharampur

29-03-2017

14.

536/15

Sumfali Devi

E.E. HPPWD, Dharampur

29-03-2017

15.

100/16

Parwati Devi

E.E. HPPWD, Dharampur

31-03-2017

16.

48/16

Kamal Raj

E.E. HPPWD, Dharampur

31-03-2017

17.

481/15

Sher Singh

E.E. HPPWD, Dharampur

31-03-2017

18.

589/15

Manohar Lal

E.E. HPPWD, Dharampur

31-03-2017

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 (HP)

Ref No. :

395/2015

Date of Institution : 10.09.2015

Date of Decision :

28.03.2017

Smt. Mansha Devi w/o Shri Hem Singh, r/o Village Dhawali, P.O. Hyun, Tehsil Sarkaghat,

District Mandi, H.P.

….Petitioner.

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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.

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

: Sh. Vijay Kaundal, Adv.

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

AWARD

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

adjudication:

“Whether the industrial dispute raised by the worker Smt. Mansha Devi w/o Shri Hem

Singh, r/o Village Dhawali, P.O. Hyun, 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 23.03.2013 regarding her alleged illegal termination of services during

October, 1999 suffers from delay and latches? If not, Whether termination of services of

Smt. Mansha Devi w/o Shri Hem Singh, r/o Village Dhawali, P.O. Hyun, Tehsil Sarkaghat,

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

Mandi, H.P. during October, 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 in the month of April, 1999 where she

continued to work upto October, 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 month of October, 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 that between 1999 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. 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 23.03.2013 copy of the same was forwarded to Labour Officer, Mandi for further necessary

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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.3041/2015 which had been decided on 7.7.2015 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. October, 1999 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 illegal termination order of petitioner directed the respondent to reinstate the petitioner

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

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 04/1999 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 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 23.4.2016 for

determination:

Whether the industrial dispute raised by petitioner vide demand notice dated

23-03-2013 qua her termination of service during October, 1999 by respondent

suffers from the vice of delay and laches as alleged? If so, its effect?

...OPP.

Whether termination of services of the petitioner by the respondent during

October, 1999 is/was illegal and unjustified as alleged?

...OPP.

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

entitled to?

...OPP.

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

...OPR.

Relief.

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

Issue No.1 : Discussed

Issue No.2 :

Yes

Issue No.3 : Discussed

Issue No.4 : No

Relief. :

Petition is partly allowed awarding compensation Rs.25,000/- 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 1999 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. April, 1999 on muster roll basis as beldar who continued to

work till October, 1999 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 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 8 days in month of

April 1999, 29 days in May, 1999, 30 days in June 1999, 27 days in July 1999, 31 days in August

1999, 20 days in September 1999 and 2 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 147 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.

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

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

established that whenever petitioner absented from 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.

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 the month of October, 1999 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 October, 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

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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

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 Cooperative 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.

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

only for five months who was female non-skilled worker ageing 46 years when her services were

terminated and not likely to get government job at this age and had worked for 147 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 13 years by the petitioner, a lump-sum

compensation of Rs.25,000/- (Rupees twenty five 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 claim petition under Section 10 of the

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

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

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

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

petitioner and against the respondent.

RELIEF

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

the compensation of Rs.25,000/- (Rupees twenty five 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 March, 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. :

483/2015

Date of Institution : 9.11.2015

Date of Decision :

28.03.2017

Shri Lekh Raj s/o Shri Sunder Singh, r/o Village Lawanpur, P.O. Baroti, Tehsil Sarkaghat,

District Mandi, H.P.

….Petitioner.

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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.

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

: Sh. Vijay Kaundal, Adv.

For the Respondent

: Sh. Sanjeev Singh Rana, Dy. D.A.

AWARD

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

adjudication:—

“Whether the industrial dispute raised by the worker Shri Lekh Raj S/O Shri Sunder Singh,

R/O Village Lawanpur, P.O. Baroti, 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 19.10.2009 regarding his alleged illegal termination of services w.e.f.

01.10.2002 suffers from delay and latches? If not, Whether termination of the services of

Shri Lekh Raj S/O Shri Sunder Singh, R/O Village Lawanpur, P.O. Baroti, Tehsil

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

Dharampur, District Mandi, H.P. w.e.f. 01.10.2002 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. 8.12.1998 where he continued to

work upto 30.9.2002 who had completed 240 days. Averments made in the claim petition further

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

verbal order in the year 2002 without prior permission and one month's notice and retrenchment

compensation 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 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, whose names were 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 been 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 an industrial dispute was raised vide demand notice dated

111.4.2009 copy of the same was forwarded to Labour Officer, Mandi for further necessary action.

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It is alleged that Labour Officer, Mandi could not resolve the dispute and failure report under

Section 12(4) of the Industrial Disputes Act and the matter was referred to appropriate government

i.e. Labour Commissioner, Shimla 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.3603/2015 which had been decided on 1.9.2015 directed the Labour Commissioner, Shimla 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 in the year 2002 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, prayer has been made to set aside the

illegal termination order of petitioner directing 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 7/1998 who intermittently worked upto December, 2001. It is alleged that petitioner

has abandoned the job of his own who had not completed 240 days in each calendar year. It is

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

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

petitioner had left the job at his 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 exist inordinate delay in raising industrial dispute. It is alleged that petitioner had left the job

of his 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 his 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 his case, petitioner had examined himself as PW1 tendered/proved his

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 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 Ex. RW1/B and closed the evidence.

7. 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 23.4.2016 for

determination:

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

19.10.2009 qua his termination of service w.e.f. 01.10.2002 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 w.e.f.

01.10.2002 is/was illegal and unjustified as alleged?

...OPP.

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5. If issue no.1 or issue no.2 or both are proved in affirmative, to what service

benefits the petitioner is entitled to?

...OPP.

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

...OPR.

Relief.

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

Issue No.1 : Discussed

Issue No.2 : Yes

Issue No.3 : Discussed

Issue No.4 : No

Relief. :

Petition is partly allowed awarding compensation Rs.75,000/- per

operative part of award.

REASONS FOR FINDINGS

ISSUES NO.1 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 he has prayed for setting aside the retrenchment order in the year 2002 qua his

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 his 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 on daily

wage basis by the respondent w.e.f. 8.12.1998 on muster roll basis as beldar who continued to work

till 30.9.2002 when his services were terminated without 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 his 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 whereas service of petitioner were terminated 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 160 days in the year 1998, 327 days in 1999, 324 days in 2000 and

254 ½ days in 2001. Even if we look at the mandays chart, this would show that immediately

preceding his termination, petitioner has factually worked for 324 days in 2000 and 254 ½ days in

2001 prior to termination. Thus, as per mandays chart Ex. RW1/B that petitioner had worked for

more than 240 days in the year 2001 immediately prior to his retrenchment as stated above. 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

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the claim petition were engaged petitioner was factually not given offer 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 he was available for job who was not appointed however some

persons appointed later were allowed to join in service. As such, action of respondent in doing so

clearly violates Section 25-H of the Industrial Disputes Act.

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 or absented from the job, no notice had been issued. RW1 specifically admitted that no

departmental inquiry was initiated against petitioner even after December, 2001. No reason

whatsoever has been assigned for such inaction 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. Accordingly, in absence of any specific and reliable evidence

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

14. 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 appointed on 23.11.2007, Lekh Raj

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

was given to petitioner for reemployment. Close scrutiny of statement 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 been 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 between 1998 to 1999 provisions of Section

25-G of the Act could not be stated to have been violated. However, when 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 and thus rights of petitioner were jeopardized and thus

respondent had clearly violated Section 25-G of Industrial Disputes Act as has also been held in

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 to petitioner or employees. As such,

plea of petitioner that he was ignored and new hands were allowed to join is liable to be accepted

establishing violation of Section 25-G of the Industrial Disputes 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 December, 2001 be

treated as regular period. It is not understood as to how petitioner could claim such benefit as

petitioner never worked with the respondent/department after his termination as well as there is no

adequate evidence on record suggesting that petitioner had represented the respondent/department

after his termination, although petitioner had issued demand notice i.e. 19.10.2009 after about 8

years and thus judgment of Hon'ble Apex 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. Therefore, the entire period cannot be treated in service. As stated above that petitioner

remained out of job after his termination but there is nothing authenticated in evidence suggesting

that he remained without earning and petitioner as PW1 has nowhere stated that he had opted out

for job when terminated from service. As such, it is held that after his termination petitioner was

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

retrenchment compensation and notice at the time of retrenchment. In view of foregoing

discussions, respondent is held to have violated the provisions of Sections 25-F, 25-G and 25-H of

the Industrial Disputes Act.