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LABOUR AND EMPLOYMENT DEPARTMENT

NOTIFICATION

Shimla, the 01^stJuly, 2017

No: Shram (A) 6-2/2017 (Awards).—In exercise of the powers vested under section

17 (1) of the Industrial Disputes Act,1947, the Governor Himachal Pradesh is pleased to order

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

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

Pradesh:—

76&jkti=@2017&14&07&2017

¼3787½

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Sr.

Reference/

Application

Title

Section

Ref.66/2013

Sh. Raju Ram V/s M/S Sohan Sons Shimla.

Ref.13/2013

Sh.Rajinder Kumar V/s Ind Sphinx Parwanoo.

Ref.02/2016

Sh. Pyare Lal

V/S The DFO Rohru & Anr.

Ref.140/2010 Army Public School Workers Union V/s Chairman APS

Dagshai District Solan & Anr.

Ref.86/2005

Sh.Shakti Chand & Others V/s M/S Gabrial India Ltd.

Parwanoo District Solan & Anr.

Ref.76/2016

Sh.Jitender Raj V/s Director Horticulture Shimla-2.

Ref.62/2008

President Vigro & Tigaksha Kamgar Sangh & Ors. V/s

Director (operations) M/S Tigaksha Metallic shogi

District Shimla.

Ref.60/2011

Workers Union V/S Base Corporation Ltd. Solan.

Ref.100/2016 Sh. Baldev V/s XEN HPSEB Shimla.

10. Ref.09/2017

Sh. Roop Ram V/s XEN IPH Kasumpti Shimla.

11. Ref.122/2016 Sh. Rakesh Inder Nath V/s Commissioner MC Shimla.

12. Ref.105/2016 Sh. Jai Chand V/S M/S Venus Remedies Ltd. Baddi..

13. Ref.10/2017

Sh. Uttam Chand V/S XEN HPPWD Rampur.

14. Ref.103/2016 Sh. Vineet Kumar V/s M/S Torrent Pharmaceuticals Ltd.

15. App.96/2016

Sh. Preet Pal V/s Dr. Y.S. Parmar Uni. Nauni Solan.

16. Ref.12/2007

The General Secretary Continental Foundation Joint

Venture Workers Union, Kinnaur V/s The Project manager,

Continental foundation Joint Venture, VPO Solding, Kinnaur.

By order,

R.D. Dhiman, IAS

Pr. Secretary ( Lab. & Emp.).

___________

IN THE COURT OF SUSHIL KUKREJA, PRESIDING JUDGE, HP INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Ref no. 66 of 2013.

Instituted on 17.9.2013.

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Decided on 31.5.2017.

Raju Ram S/o Shri Kalu Ram R/o Village Banah, P.O Bihun, Tehsil Jogindernagar,

District Mandi, HP.

Petitioner.

VS.

M/s Sohan & Sons 120 Lower Bazaar, Shimla through its Proprietor/Partner/Manager Shri

Parvinder Singh.

Respondent.

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

For petitioner

Shri Manoj Thakur, Advocate.

For respondent :

Shri Vishal Panwar, Advocate.

AWARD

The reference for adjudication, sent by the appropriate government, is as under:

“Whether termination of the services of Sh. Raju Ram S/O Sh. Kalu Ram, R.O Village,

Banah, P.O. Bihun, Tehsil Joginder Nagar, Distt. Mandi, H.P. (who is working as Salesman since

01.4.1988) by Proprietor, M/S Sohan Sons, 120, Lower Bazar, Shimla w.e.f. 09.9.2012 without

complying with the provisions of the Industrial Disputes Act, 1947 is legal and justified? If not,

what benefits, including reinstatement, amount of back wages, salary, seniority, past service

benefits and compensation the above worker is entitled to from the above employer?”

“Whether claim amounting of Rs. 42,739/- submitted by Sh. Raju Ram S/O Sh. Kalu Ram,

R.O. Village, Banah, P.O. Bihun, Tehsil Joginder Nagar, Distt. Mandi, H.P. as a difference of

less wages paid than the minimum wages fixed from time to time by the Govt. of Himachal

Pradesh to him from 01-“January, 2008 to 9thSeptember, 2012 by the employer, is legal and

justified? If yes, what monetary benefits of rate of interest, he is entitled to fromj above

employer?”

Facts, in brief are that the petitioner was engaged as a salesman by the respondent in its

shop since 1.4.1988 at a monthly salary of `700/- and that w.e.f. 31.12.2007 till 9.9.2012, the

respondent had failed to pay the minimum wages to him, hence, the respondent is liable to pay

` 42,739/- as a difference of less wages paid than the minimum wages fixed from time to time

by the Government of HP and that on 9.9.2012, his services were terminated without any lawful

cause and without any notice as such the action of the respondent is in violation of the Minimum

Wages Act as well as Industrial Disputes Act, 1947 (hereinafter referred to as Act). Against this

back-drop a prayer has been made that the respondent be directed to pay `42,739/- as a

difference of less wages along-with interest @ 12%. It is further prayed that the petitioner be

reinstated in service with all the consequential service benefits including back-wages.

By filing reply, the respondent contested the claim of the petitioner wherein

preliminary objections have been taken regarding maintainability and that the petitioner has

abandoned the job at his own and that he has no locus standi to file the present claim. On merits,

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it has been asserted that w.e.f. the year, 1998, the services of the petitioner had been engaged as

part time helper by the respondent for two hours in a day and he was not a salesman/regular

employee of respondent. It is further asserted that w.e.f. the year, 2007, the behavior of the

petitioner towards other staff/employees and employer remained very rude and many times he took

scuffles with other staff members without any rhyme and reason for which he was warned many

times. w.e.f the year, 2011, the petitioner was getting the monthly salary of ` 4500/- and earlier to

this he was getting monthly salary of `2950/- and the respondent had provided full wages to him

according to the service rendered by him and a payment of `32343/- is due towards the

petitioner as on 30.7.2011 which amount was taken by the petitioner from the respondent as

advance money at different intervals/occasions. It is also asserted that the services of the

petitioner had never been terminated by the respondent who left the job at his own. The

respondent prayed or the dismissal of the claim petition.

By filing rejoinder, the petitioner reiterated his allegations by denying those of the

respondent.

On the pleadings of the parties, the following issues were framed on 6.9.2014.

Whether the termination of the services of the petitioner w.e.f. 9.9.2012 without

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

unjustified as alleged?

OPP……..

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

OPP……….

Whether the claim of the petitioner amounting to ` 42739/- as a difference of less

wages paid than the minimum wages fixed from time to time for the period w.e.f.

1.1.2008 to 9.8.2012 is legal and justified as alleged? If so, to what monetary benefits,

he is entitled to?

OPP……….

Whether this petition is not maintainable?

OPR………..

Relief.

I have heard the learned counsel for the parties and have also gone through the

record of the case carefully.

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

my findings on the aforesaid issues are as under.

Issue no.1

Yes.

Issue no.2

Entitled to lump sum compensation of ` 25000/- ( Twenty Five Thousand

only).

Issue no.3

No.

Issue no.4

No.

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Relief.

Reference partly answered in favour of the petitioner and against the

respondent.

Reasons for findings

Issue no.1

The learned counsel for the petitioner contended that the services of the petitioner

had been terminated illegally without following the mandatory provisions of the Act as neither any

notice was given to the petitioner nor any compensation was paid to him despite the fact that he

had completed more than 240 working days in each calendar year. He further contended that since

the respondent had failed to pay full wages to the petitioner w.e.f. Jan., 2008, hence, he is entitled

for an amount of ` 42739/- as a difference of less wages paid than the minimum wages fixed

from time to time by the Government of HP for the period w.e.f. 1.1.2008 to 9.8.2012.

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

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

He further contended that the respondent had given full wages to the petitioner from time to

time, hence, the payment of ` 42739/- as a difference of less wages paid than the minimum wages

fixed from time to time for the period w.e.f. 1.1.2008 to 9.8.2012 does not arise at all.

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

that he was working as salesman with the respondent w.e.f. 1.4.1988 and the respondent had paid

him full wages upto the year 2007 but w.e.f. the year, 2008, to September, 2012, the respondent had

not paid him full wages and he is entitled to ` 42739/- as a difference of wages w.e.f. the year

2008 to 9.9.2012. He further deposed that on 9.9.2012, he was illegally terminated without

issuance of any notice. He also deposed that he remained un- employed for a period of 4

months w.e.f. 4.9.2012. He also placed on record the bills/cash memo mark A and the certificate

mark B. In cross-examination, he denied that he was engaged as helper. He further denied that he

was drawing the salary as prescribed under the Minimum Wages Act. He also denied that he was

paid wages @ ` 4500/- per month in the year, 2011 and he was given wages @ `2950/- per month

during the year, 2009 to 2011. He denied that he had left the job at his own on 9.9.2012.

11. PW-2 Shri Rajinder Gautam, Labour Inspector has stated that there is no challan with

respect to the payment of less wages to the employees by M/s Sohan Sons, 120 Lower Bazar

Shimla since the year 2008 to September, 2012.

12. The respondent has examined Shri Tejender Singh as RW-1 who stated that the

petitioner was working as a helper in their shop w.e.f. 1988 and he used to work from 10:00 AM to

12:30 PM and the nature of his work was cleaning and opening the bundle of clothes. The

petitioner was getting ` 2950/- per month as wages prior to the year, 2011 which were

increased to ` 4500/- per month and he had worked till 1stweek of September, 2012. The

petitioner was never terminated rather he left the job at his own. He further stated that he had

given an amount of ` 32343/- in advance and also the amount of ` 5200/- in lieu of the leaves

which he had taken in excess w.e.f. 2007 till September, 2012 and the aforesaid amount is due

towards him. In cross-examination, he admitted that the certificate mark B was issued from their

shop in the year, 1995 wherein it has been mentioned that the petitioner has been working as

salesman since 1.4.1988. He denied that the petitioner had been working as salesman since

1.4.1988 till September, 2012. He further denied that a sum of ` 42739/- is required to be paid

to the petitioner as a difference of less wages paid than minimum wages. He also denied that the

petitioner was terminated illegally without complying with the provisions of the Act. He admitted

that there is no document to show that ` 32343/- were given in advance to the petitioner.

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

thereof it has become clear that the petitioner was engaged by the respondent in the year 1988. The

case of the petitioner is that he was engaged as a salesman whereas the case of the respondent is

that the petitioner was never engaged as salesman but from the date of his initial engagement, he

was engaged as a part time helper to work for just two hours in a day. However, during cross-

examination, RW-1 who is the partner of the respondent firm, while appearing into the witness

box has admitted that the certificate mark B has been issued from their shop in the year, 1995

wherein it has been mentioned that the petitioner was working as a salesman since 1.4.1988. The

contents of the certificate mark B are reproduced as under:

“To whom it may concern

This is to certified that Shri Rajinder Singh S/O Sh. Kalu Ram, resident of r/o Village

Banah, P.O. Biun, Tehsil Joginder Nagar, Distt. Mandi, H.P. is working as frash-cum-salesman

w.e.f. 1.4.1988 continuously. During this period his work and conduct has been found satisfactory

and he is hard worker.

I wish him every success in life.

Sd/-

Sohan Sons

Partner. “

14. In his deposition before the Court, the petitioner deposed that his name is Raju

Ram alias Rajinder Singh and in cross-examination, this fact has not been disputed by the

respondent. Therefore, in view of the certificate mark B and also in view of the admission made by

RW-1, the partner of the respondent firm, it has become clear that the petitioner was engaged as

a salesman by the respondent and he had been working as such since 1.4.1988.

15. The further case of the petitioner is that his services were terminated on

9.9.2012 without any reason in violation of the provisions of section 25- F of the Act whereas the

case of the respondent is that the services of the petitioner were never terminated but he had

abandoned the job at his own. However, there is no evidence on record to suggest that the

petitioner had abandoned the job at his own as no notice or letter regarding abandonment of the

job by the petitioner is placed on record by the respondent. In AIR 1979 SC 582 titled as G.T

Lad and others Vs. Chemicals and Fibers India Ltd., it has been held that to constitute

abandonment, there must be total or complete giving up of duties so as to indicate an intention not

to resume the same. The relevant portion of the aforesaid judgment is reproduced as under:

“From the connotations reproduced above it clearly follows that to constitute

abandonment, there must be total or complete giving up of duties so as to indicate an

intention not to resume the same. In Buckingham Co. v. Venkatiah (1964) 4 SC R 265:

(AIR 1964 SC 1272), it was observed by this Court that under common law an inference

that an employee has abandoned or relinquished service is not easily drawn unless from

the length of absence and from other surrounding circumstances an inference to that

effect can be legitimately drawn and it can be assumed that the employee intended to

abandon service. Abandonment or relinquishment of service is always a question of

intention, and normally, such an intention cannot be attributed to an employee without

adequate evidence in that behalf. Thus whether there has been a voluntary abandonment of

service or not is a question of fact which has to be determined in the light of the surrounding

circumstances of each case.”

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In the present case also no evidence has been placed on record by the respondent that

the petitioner had given up his duties with an intention not to resume the same. Hence, in view of

the law laid down (supra), and also in view of the evidence led by the parties, it cannot be said that

the petitioner had left the job at his own.

16. It is not disputed that the petitioner had worked with the respondent w.e.f. 1.4.1988

till the first week of September, 2012. RW-1 in his examination-in-chief deposed before this

Court that the petitioner was working in their shop w.e.f. the year, 1988 and he had worked till

first week of September, 2012. Therefore, since the petitioner had worked continuously with the

respondent w.e.f 1.4.1988 till the first week of September, 2012, it can safely be held that the

petitioner had completed 240 days in each calendar year and also in the twelve months preceding

his termination. The evidence on record reveals that neither any notice had been issued to the

petitioner nor he was paid any compensation. Therefore, before terminating the services of the

petitioner, it was incumbent upon the respondent to have complied with the provisions of section

25-F of the Act which lay down certain conditions precedent to the retrenchment of a workman

(workmen) and requires the employer to comply with those conditions as per clauses (a) to (c)

which are mandatory in nature. However, in the present case, the perusal of the record shows that

the respondent has failed to comply with the provisions of section 25-F of the Act. In (2015) 4

SCC 544, Mackinnon Mackenzie and Company Ltd., Vs. Mackinnon employees Union, the

Hon‟ble Apex Court has held as under:

“34. ………………….The Industrial Court after examining the facts and evidence on

record has rightly answered the question of breach of Section 25F clause (b) in the

negative since no evidence has been produced by the respondent- Union to prove the same

and further no calculation is brought to our notice as to the amount received by way of

retrenchment compensation and also the actual amount sought to have been paid to the

retrenched workmen. Further, with regard to the provision of Section 25F clause (c), the

appellant-Company has not been able to produce cogent evidence that notice in the

prescribed manner has been served by it to the State Government prior to the

retrenchment of the concerned workmen. Therefore, we have to hold that the appellant-

Company has not complied with the conditions precedent to retrenchment as per Section

25F clauses (a) and (c) of the I.D. Act which are mandatory in law.”

17. In the present case also as observed aforesaid, the respondent has failed to comply

with the provisions of section 25-F of the Act before terminating the services of the petitioner.

Hence, In view of the law laid down by the Hon‟ble Supreme Court (supra) and my foregoing

observations, I have no hesitation in holding that the termination of the services of the petitioner

w.e.f. 9.9.2012 by the respondent without complying with the provisions of section 25-F of the

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

against the respondent.

Issue no.2.

18. Since, I have held under issue no. 1 above, that the termination of the services of the

petitioner w.e.f. 9.9.2012 by respondent without complying with the provisions of the Act is not

legal and justified, hence, the question arises as to what service benefits, the petitioner is entitled.

The petitioner was under an obligation to prove by leading cogent evidence that he was not

gainfully employed after the termination of his services. The initial burden is on the

workman/employee to show that he was not gainfully employed as held by the H on’bl e Apex

Court in (2005) 2 Supreme Court Cases 363 titled as Kendriya Vidyalaya Sangathan and

another Vs. S.C Sharma that :

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“16…………..When, the question of determining the entitlement of a person to back-

wages is concerned, the employee has to show that he was not gainfully employed. The

initial burden is on him. After and if he places materials in that regard, the employer can

bring on record materials to rebut the claim…………..”

In the present case, as observed hereinabove, the petitioner has failed to discharge his

burden by placing any material on record that he was not gainfully employed after his

termination rather he himself deposed in his examination-in-chief that he remained un-employed

only for four months with effect from the date of his termination i.e w.e.f. 9.9.2012. Moreover, it is

by now well settled that if the termination of employee is found to be illegal, the relief by way of

reinstatement with back-wages is not automatic. The Hon‟ble Supreme Court in Santosh

Kumar Seal and others reported in 2010 LLR 677: 2010 III CLR 17 SC, has held that relief by

way of reinstatement with back wages is not automatic even if termination of an employee is

found to be illegal or is in contravention of the prescribed procedure and that mandatory

compensation in lieu of reinstatement and back wages in cases of such nature may be appropriate.

19. In Jagbir Singh Vs. Haryana State Agricultural Marketing Board (2009) 15 SCC 327,

the Hon’ble Suprem e Court has held that:

“It is true that the earlier view of this Court articulated in many decisions reflected the

legal position that if the termination of an employee was found to be illegal, the relief of

reinstatement with full back wages would ordinarily follow. However, in recent past, there

has been a shift in the legal position and in a long line of cases, this Court has consistently

taken the view that relief by way of reinstatement with back wages is not automatic and

maybe wholly inappropriate in a given fact situation even though the termination of an

employee is in contravention of the prescribed procedure. Compensation instead of

reinstatement has been held to meet the ends of justice. “

20. In the present case, even though the termination of the petitioner is held to be

illegal but his reinstatement will not be appropriate relief as in view of the allegations and counter

allegations made by the parties, there had been a bad blood between them. The respondent had

alleged in the reply that the behavior of the petitioner towards other staff/employees and employer

remained very rude and many times, he took scuffles with other staff members without any rhyme

and reason and for this disruptive behavior, he was given warnings and asked to mend his

behavior but he never remained loyal to his employer during his service period. Therefore, in such

a situation, it would not be appropriate to make the order of reinstatement in the present case.

Hence, taking into account all the facts and circumstances of the case, the ends of justice would

be met, if the lump sum compensation in lieu of reinstatement and back-wages is awarded to

the petitioner. Therefore, in my view the petitioner is entitled to receive a suitable, appropriate,

just and equitable compensation from the respondent. Since, the respondent is not running a big

industrial establishment and running only a shop, therefore, in such a situation, it would be quite

reasonable and justified if lump sum compensation of ` 25,000/- (Twenty Five Thousand only) is

awarded to the petitioner instead of reinstatement. Consequently, this issue is decided in favour

of the petitioner and against respondent.

Issue no.3.

21. The learned counsel for the petitioner contended that the respondent had not paid to

the petitioner his full wages as prescribed under the Minimum Wages Act 1948 w.e.f. Jan., 2008 as

such the respondent is liable to pay a sum of `42739/- as a difference of wages actually paid than

the minimum wages fixed from time to time by the Government of HP. The case of the petitioner

is that he was engaged as a salesman in the shop of respondent at a monthly salary of ` 700/-.

However, to prove this fact no documentary evidence has been produced by the petitioner that he

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was drawing wages @ `700/- per month. The petitioner has failed to place on record the details

as to how he has arrived at a figure of `42,739/- as a difference of less wages actually paid

than the minimum wages fixed from time to time. Despite repeated opportunities for evidence,

the petitioner has failed to produce on record the notifications issued by the State Government

from time to time fixing the minimum wages for the period w.e.f. 1.1.2008 to 9.9.2012. The

petitioner has even failed to prove on record that he was being paid less wages then the minimum

wages fixed by the government from time to time. PW-2, the own witness of the petitioner has

deposed before this Court that the respondent was never challaned with respect to the payment

of less wages to its employee since the year, 2008 to September, 2012. It is a settled law that

obligation to lead evidence to establish an allegation made by a party is upon the party making the

allegation. The test would be as to who would fail if no evidence is led. The party making the

allegations and seeking the redressal must seek an opportunity to lead evidence. Therefore, in the

absence of any evidence on record, it cannot be said that the petitioner was being paid less

wages than the minimum wages fixed by the Government from time to time and that the

petitioner is entitled to `42739/- as a difference of less wages. Accordingly, this issue is decided

in favour of respondent and against the petitioner.

Issue no.4.

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

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

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

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

the respondent.

Relief.

As a sequel to my findings on the aforesaid issues, the claim of the petitioner is partly

allowed and as such the respondent is directed to pay ` 25,000/- (` Twenty Five Thousand only)

as lump sum compensation to the petitioner within a period of three months from today failing

which the same shall carry interest @ 9% per annum from the date of award till its realisation.

The reference is answered accordingly. Let a copy of this award be sent to the appropriate

government for publication in official gazette. File, after completion be consigned to records.

Announced in the open Court today on this 31^stDay of May, 2017.

(Praveen)

By order,

(Sushil Kukreja)

Presiding Judge,

Industrial Tribunal-cum- Labour Court, Shimla.

___________

IN THE COURT OF SUSHIL KUKREJA, PRESIDING JUDGE, HP INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Ref no. 13 of 2013.

Instituted on 22.4.2013.

Decided on 31.5.2017.

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Rajinder Kumar Bhardwaj S/o Shri Basu Dev Bhardwaj R/o Village Lalsa, P.O Dansa,

Tehsil Rampur, District Shimla, HP.

Petitioner.

VS.

M/s Ind Sphinx Precision Ltd. 28, Sector-5 Parwanoo, District Solan, HP through its

Managing Director.

Respondent.

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

For petitioner

Shri R.K Khidtta, Advocate.

For respondent :

Shri Rahul Mahajan, Advocate.

AWARD

The reference for adjudication, sent by the appropriate government, is as under:

"Whether termination of services of Shri Rajender Kumar Bhardwaj Village Lalsa, P.O

Dansa, Tehsil Rampur, District Shimla HP by the management of M/s Ind-sphinx Precision Ltd.,

28 Sector-5, Parwanoo, Tehsil Kasauli, District Solan, HP w.e.f. 22.12.2011 without following the

provisions of the Industrial Disputes Act 1947 is legal and justified? If not, what relief

including reinstatement in service, back wages, seniority, service benefits and compensation the

above aggrieved workman is entitled to from the above management?”

In nutshell the case of the petitioner is that he was engaged as operator by the

respondent company in the maintenance department unit-A on 4.12.2006 and was confirmed

w.e.f. 4.6.2007 and he worked as such till 22.12.2011. It is further stated that the work and

conduct of the petitioner remained always upto the mark of the concerned official and he

worked with full dedication and even he was given number of appreciation letters and was also

given special increment and on 1.1.2008, he was shifted to unit-B and due to short circuit in the

factory, his both hands had burnt and he also received injuries in other parts of the body and even

on his request, the company had failed to fill up the accident form. It is also stated that the

petitioner remained under treatment for one and half month and did not receive any benefits from

ESI and due to injuries, he started feeling ill and on the request for sick leave, the company

started creating pressure upon the petitioner to resign from the post and when he did not accept

the demand of the company, his services were terminated w.e.f. 12.8.2008 on false allegations.

That against the illegal termination, the petitioner raised demand notice/complaint to the Labour-

cum-Conciliation Officer, Solan and during conciliation the company agreed to take back the

petitioner and since the company was not happy with the settlement, the services of the petitioner

were transferred from unit B to unit A and he was shifted from maintenance department to

production department where the performance of the petitioner was intentionally assessed on the

lower side by the concerned official and some time he was not paid increments. The

management started leveling false allegations upon the petitioner and issued false warning letters

and even he was served show cause notice dated 22.7.2010 and ultimately false chargesheet

dated 17.9.2010 was served upon him which was duly replied by the petitioner and thereafter the

company appointed Ms. Rosy Atoria as an enquiry officer, who right from the very first day

started favouring the company and had not appreciated the version, witnesses and documents

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produced by the petitioner and from the very beginning the enquiry officer acted as per the

wishes of the company and ensure the removal of the petitioner from the services of the company.

After the enquiry, the company issued show cause notice to the petitioner which was duly

replied by him and ultimately the services of the petitioner were terminated vide letter dated

22.12.2011 and that too during the pendency of the conciliation proceedings before the

Conciliation Officer which is totally illegal an thereafter the petitioner raised the demand notice. It

is stated that the enquiry conducted by the enquiry officer is illegal and contrary to the

provisions of Standing Orders and also against the principles of natural justice as the enquiry

officer had not followed the principles of natural justice. That the termination of the petitioner

tantamount to unfair labour practice of which he is victim and the action of the respondent company

is totally against the provisions of the Industrial Disputes Act, 1947 (hereinafter referred to as Act).

It is further stated that the petitioner is unemployed w.e.f. 22.12.2011 and is nowhere gainfully

employed as such the respondent company is bound to pay full salary to him. That due to the

violation of the provisions of the Act, the conciliation officer had refused to grant the permission to

dismiss the services of the petitioner. Against this back-drop a prayer has been made that

dismissal of the petitioner w.e.f. 22.12.2011 be quashed and set aside and the respondent be

directed to reinstate the petitioner in service with all the consequential service benefits.

By filing reply, the respondent contested the claim of the petitioner wherein

preliminary objections have been taken that the petition is neither competent nor maintainable.

On merits, it has been asserted that the services of the petitioner have been terminated on

22.12.2011 after conducting a just, fair and proper enquiry in respect of charges leveled vide

charge sheet dated 17.9.2010 for the misconduct of repeated absenteeism, unauthorized extension

of leave, refusal for accepting of official communications and repeated poor performance which

stood duly proved in the enquiry and the enquiry was conducted by the enquiry officer in a just

fair and proper manner as per the procedure prescribed in the standing orders of the respondent

and as per the principal of natural justice and fair hearing. It is further asserted that the

performance of the petitioner was very poor and he had been issued various communications/letters

to improve his performance but when he failed to improve his performance, charge sheet dated

17.9.2010 was issued to him and even he suffered burn injuries on account of his own act and

conduct and not on account of short circuit in the factory. It is denied that the petitioner

requested the respondent to fill-up the accident form to get accidental benefits from ESI. It is also

denied that after suffering injuries, the petitioner started feeling ill and had requested for sick

leave and the respondent started creating pressure upon him to resign. It is asserted that the

demand notice raised by the petitioner was totally false and frivolous and vide settlement dated

23.8.2008, the petitioner joined his duties during the 2ndhalf of 21.8.2008 and thereafter he

himself absented from duty and the enquiry officer was an independent and impartial person who

gave all the opportunities to allow the petitioner to put forth his case, to cross-examine the

witnesses of the respondent and to bring his own witnesses. It is further asserted that the

petitioner was given enquiry report along-with 2^nd show cause notice and he asked the copy of

Hindi enquiry report which was also given to him and the reply to 2ndshow cause notice was

given by the petitioner which was not found satisfactory and thereafter his services were

terminated on 22.12.2011 and an amount of ` 9609/- towards full & final settlement was

remitted to him. The respondent prayed for the dismissal of the claim petition.

By filing rejoinder, the petitioner reaffirmed his allegations by denying those of the

respondent.

On the pleadings of the parties, the following issues were framed on 23.10.2013.

Whether the services of the petitioner w.e.f. 22.12.2011 were illegally terminated

without complying with the provisions of the Industrial Disputes Act, 1947 as alleged?

OPP……..

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

OPP……….

Whether this petition is neither competent nor maintainable as alleged in

preliminary objections no. 1 & 2?

OPR………..

Relief.

I have heard the learned counsel for the parties and have also gone through the

record of the case carefully.

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

my findings on the aforesaid issues are as under.

Issue no.1

Decided accordingly.

Issue no.2

Entitled to reinstatement in service with seniority and continuity but without

back-wages.

Issue no.3

No.

Relief.

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

Reasons for findings

Issues no.1.

The learned counsel for the petitioner contended that the charges leveled against the

petitioner are totally false and baseless and the enquiry officer had not conducted the enquiry

against the petitioner in a fair and proper manner. He further contended that at the time of the

termination of the services of the petitioner, the conciliation proceedings were pending before the

Labour-cum-Conciliation Officer and since no permission/approval was taken by the respondent

from the competent authority as such there has been violation of section 33 of the Act. He also

contended that the punishment of dismissal of the services imposed upon the petitioner is

disproportionate to the gravity of misconduct and the same deserves to be set aside.

On the other hand, Ld. counsel for the respondent contended that the charges leveled

against the petitioner vide charge sheet dated 17.9.2010 are true and correct and a proper

domestic enquiry was conducted against him by following the principles of natural justice. He

further contended that no proceedings were pending at the time of dismissal of the services of the

petitioner and there has been no violation of section 33 of the Act.

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

that he was appointed as an operator by the respondent company on 4.12.2006 vide appointment

letter Ex. PW-1/A and vide letter Ex. PW-1/B, his services had been confirmed on 4.6.2007

and he worked till 22.12.2011. He further deposed that his service record remained good for

which he was given appreciation letters and increments vide letters Ex. PW-1/C to Ex. PW-1/E. He

also deposed that when he was working in Unit B on 3.2.2008, then he received burn injuries due

to the short circuit during the course of employment on 3.2.2008 for which he remained under

treatment for one and half months. He also deposed that no accidental benefits were given to him

by the company through ESI. He also deposed that due to the burn injuries, he started feeling

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unwell and the company refused to sanction him leaves and asked him to tender resignation and

his services were terminated on 12.2.2008. He also stated that then he raised demand notice upon

which a settlement Ex. PW-1/F was arrived at between the parties before the Labour-cum-

Conciliation Officer in terms of which the respondent company had reinstated him in service.

He also deposed that since the company was not happy with the settlement then he was

transferred from Unit B to Unit A where his performance was intentionally assessed on the

lower side and the company started leveling false allegations against him. He also deposed

that ultimately a show cause notice dated 22.7.2010 was issued to him and then chargesheet

dated 17.9.2010 was issued and thereafter Ms. Rosy Attoria was appointed as an enquiry officer.

He also deposed that the enquiry was not conducted against him in a fair and proper manner and

he was not allowed to put up his defence. He also deposed that w.e.f. the date of his termination,

he is not gainfully employed. In cross-examination, he admitted that the respondent had issued

him a warning letter dated 20.8.2010 Ex. R-2 and letter dated 26.8.2010 Ex. R-3 to improve his

performance. He also admitted that he appeared before the enquiry officer on 4.12.2010 but

denied that the enquiry officer had explained the entire procedure to him. He admitted his

signatures in the enquiry proceedings dated 4.12.2010. He further admitted that during the

enquiry proceedings the documents were received by him on 17.10.2010 vide Ex. R-18 which was

duly signed by him. He also admitted that the certified standing orders of the company were also

received by him vide letter Ex. R-19. He admitted that he participated in the entire enquiry

proceedings and had cross-examined the management witnesses and that he was also cross-

examined on behalf of management. He further admitted that he received all the enquiry

proceedings and had also submitted his statement in writing which is Ex. R-21 and had also

annexed the documents with the same. He also admitted that a show cause notice was issued to

him along-with enquiry report and he had also submitted reply Ex. R-22. He admitted that he

was doing agriculture work to earn livelihood.

11. PW-2, Surinder Singh Bisht, Labour Inspector produced on record the demand notice

dated 15.12.2010 Ex. PW-2/A, notice issued by the Labour Inspector-cum- Conciliation Officer

Parwanoo Ex. PW-2/B, reply filed by the company Ex. PW-2/C, conciliation proceedings held in

letter dated 15.12.2010 Ex. PW-2/D, letter dated 13.3.2011Ex. PW-2/E and Ex. PW-2/F. He

deposed that the conciliation officer had prepared his report on 20.4.2011 which was not sent to

the appropriate government. In cross-examination, he admitted that the conciliation officer had

not sent to the report to the appropriate government and volunteered that the same was not sent

because no action was taken against the petitioner in the domestic enquiry and he was advised to

raise the demand notice as and when some action would be taken against him.

12. The respondents examined four RWs in all. RW-1 Shri Pitamber Dutt Sharma, Labour

Inspector Parwanoo has produced the record of conciliation proceedings in respect of demand

notice dated 15.12.2010 raised by Rajinder Kumar Bhardwaj Ex. RW-1/A which were concluded

on 20.4.2011. In cross-examination, he admitted that the record which he had brought had not

been prepared by him and that the Labour Inspector is bound to sent the failure report to the

appropriate government. He further admitted that no failure report was sent to the appropriate

government but volunteered that since the petitioner was not terminated as per Ex. RW-1/A,

therefore, the demand notice raised by the petitioner was considered as pre-mature.

13. RW-2 Shri Devinder Kumar, Clerk O/o Labour Officer Solan has brought the

record of demand notice dated 23.12.2011 Ex. PW-1/N and the failure report under section 12

(4) of the Act with respect to the aforesaid demand notice Ex. RW-2/A. In cross-examination, he

admitted that the proceedings were not concluded on 3.3.2012 and that after the conclusion of the

proceedings, the report is sent to the appropriate government.

14. RW-3, Shri Pradeep Sharma, Senior General Manager and Factory Manager of

respondent company tendered his affidavit Ex. RW-3/A in evidence wherein he reiterated almost

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all the averments as made in the reply. He also tendered in evidence the copy of authority letter Ex.

RX-1, letters dated 21.7.2010, 22.7.2010 and 26.8.2010 Ex. RX-2 to Ex. RX-4, 2ndshow cause

notice dated 18.3.2011 Ex. RX-5 along-with enquiry report in English Ex. RX-6 and its Hindi

version Ex. RX-7, charge sheet dated 17.9.2010 Ex. RX-8, accident report Ex. RX-9, letter dated

29.1.2012 mark RA-1, letter dated 3.11.2010 mark RA-2, letter dated 3.9.2010 mark RA-3,

certified standing orders along-with addition mark RA-4, letter dated 17.9.2010 mark RA-5,

letter dated 15.12.2010 mark RA-6, letter dated 28.2.2011 mark RA-7 and letter dated 25.7.2010

mark RA-8. In cross-examination he admitted that the petitioner was engaged as an operator in

maintenance unit-A on 4.12.2006 vide appointment letter Ex. PW-1/A and vide letter Ex. PW-1/B,

his services were confirmed w.e.f. 4.6.2007 and he worked till 22.12.2011. He further admitted that

number of appreciation letters and increment letters were issued to the petitioner during his service.

He also admitted that special increment is granted to the workers, whose performance is extra

ordinary and that special increment was granted to the petitioner in May, 2010. He admitted

that the petitioner was shifted to unit-B w.e.f. 1.1.2008. He further admitted that both the hands of

the petitioner were burnt and he also suffered injuries on the other parts of the body during the

course of employment. He denied that the injuries were caused due to the short circuit. He admitted

that accident report is filled up whenever an accident takes place in the factory and the report is

forwarded to ESI authority. He further admitted that accident report was not forwarded to ESI or

any other authority. He denied that the petitioner used to remain ill due to the burn injury and for

that reason he had to apply for medical leave. He admitted that before Labour-cum- Conciliation

Officer, they have agreed to keep him back in service vide settlement Ex. PW-1/M. He admitted

that thereafter the petitioner was shifted from maintainace department to production department

but he denied that he was shifted with a view to victimize him. He admitted that reply to show

cause notice Ex. PW-1/J was filed by the petitioner. He denied that the enquiry officer had not

conducted the enquiry in proper and fair manner. He admitted that reply to 2ndshow cause notice

was filed by the petitioner. He admitted that no permission was taken by the respondent from

Labour-cum-Conciliation Officer, Labour Court or any other authority.

15. RW-4, Ms. Rosy Atoria, Enquiry officer has stated that she was appointed as an

enquiry officer vide letter dated 3.11.2010 Ex. RW-2/A. She further stated that she wrote letter Ex.

R-17 to the petitioner as well as to the respondent intimating the date of enquiry and the enquiry

was started on 4.12.2010 on which date Mr. Hukum Chand from management side and the

petitioner appeared in person and on the first date the petitioner was explained the procedure of

enquiry and he was told about his rights and vide letter mark RA dated 3.12.2010, he was

supplied about 18 documents which were made part of record. She also stated that enquiry

proceedings dated 4.12.2010 Ex. RW-2/B, dated 18.12.2010 Ex. RW- 2/C, dated 25.12.2010 Ex.

RW-2/E, dated 28.12.2010 Ex. RW-2/F dated 31.12.2010 Ex. RW-2/G, dated 15.1.2011 Ex.

RW-2/H are in her hand and the same bears the signatures of petitioner as well as

management representative and vide enquiry proceedings Ex. RW-2/J and Ex. RW-2/K, all the

MWs were cross-examined by the petitioner himself and on 5.2.2011, the petitioner gave his

statement Ex. R-21 in writing and he also submitted the documents which were made part of the

record. On 9.2.2011 vide Ex. RW-2/M, the petitioner was cross- examined and thereafter the

enquiry proceedings were closed and she submitted the enquiry report Ex. RX-6 on 5.3.2011.

She also stated that the enquiry was conducted in a fair and proper manner as per the principles

of natural justice and the procedure prescribed in certified standing orders. In cross-examination,

she denied that the petitioner had opposed his appointment as enquiry officer on the very first

date and that she started the enquiry proceedings without getting the certified standing orders of

the company. She further denied that procedure was not explained before starting the enquiry

and that the petitioner was not permitted to be represented by defence assistant. She denied that

the enquiry was got conducted by her at the instance of management. She denied that the

petitioner was not allowed to lead his defence evidence and that the principles of natural justice

were not followed in the enquiry proceedings.

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

thereof, it has become clear that the petitioner joined the respondent company as an operator on

4.12.2006 and thereafter was confirmed on 4.6.2007. It is also an admitted fact that initially on

12.8.2008, the services of the petitioner were terminated by the respondent, however, on the

demand notice having been raised by the petitioner before the Labour-cum-Conciliation Officer,

Solan, an amicable settlement dated 23.8.2008 was arrived at between the parties and the

petitioner was taken back in service by the respondent and the petitioner again joined his duties

with the respondent. It is also a matter of record that on 17.9.2010, a charge sheet was issued

to the petitioner for having committed misconduct of repeated absenteeism, unauthorized

extension of leave, refusal for accepting of official communications and repeated poor

performance. The charge sheet dated 17.9.2010 was replied to by the petitioner vide letter dated

13.10.2010. Since, the explanation of the petitioner was not found satisfactory, an enquiry was

ordered to be conducted against him and vide letter dated 3.11.2010, Ms. Rosy Attoria was

appointed as an enquiry officer to enquire into the charges leveled against the petitioner vide

chargesheet dated 17.9.2010. The petitioner participated in the enquiry and after the conclusion

of the proceedings, the enquiry officer submitted the enquiry report wherein the charges leveled

against the petitioner stood duly proved and the services of the petitioner were terminated on

22.12.2011.

17. The learned counsel for the petitioner first contended that the charges leveled against

the petitioner are totally false and baseless and a false chargesheet was issued to the petitioner.

However, to substantiate the aforesaid contention, the petitioner has failed to lead any cogent and

satisfactory evidence on record. It was for the petitioner to prove by leading cogent and

satisfactory evidence on record that the charges leveled against him vide chargesheet dated

17.9.2010 are totally false and baseless. However, except for the bald statement of the

petitioner no other evidence has been led by him to prove this fact. Therefore, in the absence of

any cogent and satisfactory evidence on record led by the petitioner before this Court, it cannot be

said that the charges leveled against him are totally false and baseless.

18. The learned counsel for the petitioner next contended that the enquiry officer has not

conducted the enquiry in a fair and proper manner and the principles of natural justice were also

not followed during the enquiry proceedings. He further contended that the petitioner was not

afforded proper opportunity to cross-examine the management witnesses and he was also not

allowed to lead evidence in his defence. In K.L Tripathi Vs. State Bank of India and ors. AIR

1984 SC 273 while dealing with the concept of natural justice in the back-drop of departmental

proceedings, it has been held as under:

"It is true that all actions against a party which involve penal or adverse consequences

must be in accordance with the principles of natural justice but whether any particular

principle of natural justice would be applicable to a particular situation or the question

whether there has been any infraction of the application of that principle, has to be

judged, in the light of facts and circumstances of each particular case. The basic

requirement is that there must be fair play in action and the decision must be arrived at in a

just and objective manner with regard to the relevance of the materials and reasons. We

must reiterate again that the rules of natural justice are flexible and cannot be put on any

rigid formula. In order to sustain a complaint of violation of principles of natural justice on

the ground of absence of opportunity of cross-examination, it has to be established that

prejudice has been caused to the appellant by the procedure followed.”

In Maharashtra State Board of Secondary and Higher Secondary Education v. K.S.

Gandhi and Others, (1991) 2 SCC 716, the Hon'ble Apex Court laid down that strict rules of the

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Evidence Act, and the standard of proof envisaged therein do not apply to departmental

proceedings or domestic tribunal. The relevant para of the aforesaid judgment is reproduced as

under:

“37. It is open to the authorities to receive and place on record all the necessary,

relevant, cogent and acceptable material facts though not proved strictly in conformity

with the Evidence Act. The material must be germane and relevant to the facts in

issue. In grave cases like forgery, fraud, conspiracy, misappropriation, etc. seldom

direct evidence would be available. Only the circumstantial evidence would furnish

the proof, but inference from the evidence and circumstances must be carefully

distinguished from conjectures or speculation. There must be evidence direct or

circumstantial to deduce necessary inferences in proof of the facts in issue. There can

be no inferences unless there are objective facts, direct or circumstantial from

which to infer the other fact which it is sought to establish.………

The standard of proof is not proof beyond reasonable doubt but the preponderance of

probabilities tending to draw an inference that the fact must be more probable. The

aforesaid decision was relied upon by the H on’bl e Supreme Court in AIR

2005 S.C 570 titled as Cholan Roadways Ltd. Vs. G Thirugnanasambandam,

wherein it has been observed as under:

“17. There cannot, however, be any doubt whatsoever that the principle of natural

justice are required to be complied with in a domestic enquiry. It is, however,

well-known that the said principle cannot be stretched too far nor can be applied in a

vacuum.”

“18……………………………………..”

19. It is further trite that the standard of proof required in a domestic enquiry vis-à-vis a

criminal trial is absolutely different. Whereas in the former 'preponderance of

probability' would suffice; in the latter, 'proof beyond all reasonable doubt' is

imperative.”

19. From the aforesaid decisions of the Hon'ble Supreme Court, it has become quite clear

that in a domestic enquiry, the principles of natural justice are to be observed on certain

parameters and the enquiry is to be fairly and properly conducted. That apart, the proof in a

domestic enquiry stands on a different platform that is required in a court of law and strict rules of

Evidence Act do not apply to domestic enquiry. Now, in the light of the aforesaid decisions of the

Hon‟ble Supreme Court, it has to be seen in the present case as to whether there was any violation of

principles of natural justice in the enquiry held against the petitioner. While appearing into the

witness box as PW-1, the petitioner deposed before this Court that the enquiry conducted against

him was unilateral and was not conducted in a fair and proper manner and the enquiry officer had

not given him an opportunity to put up his defence and she used to write the proceedings at her

own. However, in cross-examination, he admitted that he had not made any complaint to the

higher authorities that the procedure was not explained to him by the enquiry officer. He also

admitted that the documents were received by him in the enquiry on 17.10.2010. He also

admitted that the certified standing orders of the company were also received by him. He

further admitted that he joined the enquiry proceedings on each and every date and had also

cross-examined the witnesses of the management. He admitted that all the proceedings of the

enquiry have been signed and received by him. He further admitted that he had submitted his

statement in defence in writing the copy of which is Ex. R-21 and had also annexed the documents

along-with the same. The enquiry officer Ms. Rosy Attoria appeared in the witness box as RW-4

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and she categorically deposed that on the first date of enquiry, the petitioner was explained about

the procedure of the enquiry and he was told about his rights. She also stated that the documents

as well as the certified standing orders were also supplied to him. She further stated that all the

management witnesses were cross-examined by the petitioner himself and thereafter the petitioner

gave his statement in writing which is Ex. R-21 and also submitted the documents. She also stated

that the petitioner was also asked to bring any other evidence but he refused to bring the same and

after the cross-examination of the petitioner, the enquiry proceedings were closed and thereafter

she submitted the enquiry report Ex. R-6 on 5.3.2011. She deposed that the enquiry proceedings of

each day were supplied to the petitioner and he appended his signatures acknowledging the

receipt of the same. She also stated that the enquiry was conducted in a fair and proper manner and

as per the procedure prescribed in the standing orders. The enquiry officer was cross-examined at

length by the learned counsel for the petitioner however nothing favourable could be elicited

from her lengthy cross-examination. During the cross- examination, she admitted that a worker

has a right to be represented by a defence assistant but she categorically denied that the petitioner

was not permitted to be represented through defence assistant and she volunteered that the

petitioner himself opted not to be represented by defence assistant. She admitted that after the

closer of the evidence of the management the petitioner was not asked to submit his list of

witnesses but she volunteered that after the statement of the petitioner, he was asked to bring

any other evidence but he refused. She denied that the petitioner was not allowed to lead his

defence evidence. She also denied that the principles of natural justice were not followed in the

enquiry proceedings. The perusal of the enquiry report Ex. RX-6 and the enquiry proceedings

shows that the enquiry was conducted in a fair and proper manner and there was no violation

of principles of natural justice. The onus was upon the petitioner to prove that the enquiry was not

conducted in a fair and proper manner. It is a settled law that obligation to lead evidence to

establish an allegation made by a party is upon the party making the allegation. The test would be

as to who would fail if no evidence is led. The party making the allegations and seeking the

redressal must seek an opportunity to lead evidence. In the present case, the petitioner has pleaded

that the enquiry was not conducted against him in a fair and proper manner. However, to

substantiate these allegations, except for his bald statement, no other evidence has been led by

the petitioner. Therefore, in the absence of any material on record and in the absence of any cogent

evidence adduced by the petitioner, it cannot be said that the enquiry was not conducted in a fair

and proper manner and there had been any violation of principles of natural justice as contended

by the learned counsel for the petitioner.

20. The learned counsel for the petitioner next contended that there has been a violation

of section 33 of the Act in dismissing the services of the petitioner as at the time of termination of

the services of the petitioner, the conciliation proceedings were pending before the Labour-cum-

Conciliation Officer with respect to the demand notice dated 15.12.2010. To substantiate his

contention, the learned counsel for the petitioner relied upon the statement of PW-2, Shri Surender

Singh, the then Labour Inspector, Parwanoo who produced on record demand notice dated

15.12.2010 Ex. PW-2/A, notice issued by the Labour-cum-Conciliation Officer, Parwanoo Ex. PW-

2/B, reply filed by the company Ex. PW- 2/C, conciliation proceedings Ex. PW-2/D and he further

stated that the report was prepared by the conciliation officer on 20.7.2011 but the same was not

sent to the appropriate government. Therefore, the learned counsel for the petitioner contended

that since the proceedings were pending between the parties before the Labour-cum-Conciliation

Officer, Parwanoo and as per the provisions of section 33 of the Act, the respondent has not taken

any permission/approval from the competent authority as such in the present case there is violation

of section 33 of the Act. However, the learned counsel for the respondent contended that no

industrial dispute was pending at the time of dismissal of the services of the petitioner as such there

is no violation of section 33 of the Act. The perusal of demand notice Ex. PW-2/A shows that

a letter was written by the petitioner to the Assistant Manager (HR) of the respondent company on

15.12.2010 with the allegation that he was being victimized by the officials of the company and

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he also apprehended that he may be removed from service. The copy of the aforesaid letter has been

sent to various authorities including the Labour Inspector, Parwanoo, who on the aforesaid

letter, issued notice Ex. PW-2/B to the Factory Manager of the respondent company to appear

before him. RW-1 has produced on record the conciliation proceedings Ex. RW-1/A in respect of

the aforesaid demand notice dated 15.12.2010 and he stated that the conciliation proceedings were

concluded on 20.4.2011. In cross-examination, he admitted that no failure report was sent to the

appropriate government and volunteered that since the petitioner was not terminated therefore the

demand notice raised by him was considered as pre-mature. PW-2 also admitted in cross-

examination that the failure report was not sent to the appropriate government because at that

time no action was taken against the petitioner and the petitioner was advised that whenever

some action would be taken against him, then he can raise the demand notice. The perusal of

the proceedings Ex. RW-1/A also shows that the workman was advised to raise appropriate

demand notice as and when any improper action is taken against him. The relevant portion of the

conciliation proceedings dated 20.4.2011 are reproduced as under:

“Enquiry report reveals that enquiry officer has sent the report to the management for

consideration. As till date no punishment has been awarded to the workman by the management

in consideration of enquiry report, hence workman is advised to raise a proper demand notice as

and when any improper action is taken against him by the management”.

Therefore, in view of the conciliation proceedings dated 20.4.2011, it can be safely held

that the conciliation proceedings stood concluded on 20.4.2011 with respect to the demand notice

dated 15.12.2010 raised by the petitioner and since the demand notice raised by the petitioner was

considered as pre-mature, he was advised to raise the proper demand notice as and when any

action was taken against him by the respondent. It is not disputed that the services of the

petitioner were terminated on 22.12.2011 after the conclusion of conciliation proceedings.

Hence, it cannot be said that any conciliation proceedings were pending between the parties at the

time of the termination of the services of the petitioner. Therefore, it cannot be said that the

respondent company had violated the provisions of section 33 of the Act while terminating the

services of the petitioner.

21. The learned counsel for the petitioner lastly contended that the punishment of

dismissal of the services of the petitioner is disproportionate to the gravity of misconduct. The

charges leveled against the petitioner vide chargesheet dated 17.9.2010 were regarding repeated

absenteeism, unauthorized extension of leave, refusal for accepting of official communications

and repeated poor performance. The charges against the petitioner stood proved and his services

had been dispensed with w.e.f. 22.12.2011. In the opinion of this Court, the dismissal of a

workman on the allegations leveled in the chargesheet dated 17.9.2010 is excessively high and

grossly disproportionate to the gravity of misconduct. The charges leveled against the petitioner

cannot be regarded as an act of grave misconduct. In (2005) 3 S.C.C 134, Mahindra and

Mahindra Ltd. Vs. N.B Narawade, it has been held by the Hon'ble Supreme Court that after

introduction of section 11 –A in the Industrial Disputes Act certain amount of discretion is vested

with the Labour Court/ Tribunal in interfering with the quantum of punishment whereby the

concerned workman is found guilty of the misconduct. The relevant portion of the aforesaid

judgment is reproduced as under:

“20. It is no doubt true that after introduction of Section 11-A in the Industrial Disputes

Act, certain amount of discretion is vested with the labour court/Industrial Tribunal in

interfering with the quantum of punishment awarded by the Management where the workman

concerned is found guilty of misconduct. The said area of discretion has been very well defined

by the various judgments of this Court referred to hereinabove and it is certainly not unlimited as

has been observed by the Division Bench of the High Court. The discretion which can be exercised

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under Section 11-A is available only on the existence of certain factors like punishment being

disproportionate to the gravity of misconduct so as to disturb the conscience of the court, or

the existence of any mitigating circumstances which requires the reduction of the sentence, or the

past conduct of the workman which may persuade the Labour Court to reduce the punishment. In

the absence of any such factor existing, the Labour Court cannot by way of sympathy alone

exercise the power under Section 11-A of the Act and reduce the punishment.” (emphasis supplied).

22. In the present case, it is a matter of record that the past service record of the petitioner

was clean and no other misconduct had been pointed out against him and he was given number of

appreciation letters and was also given special increment. The record reveals that the petitioner

received burn injuries during the course of employment due to which he had to remain under

treatment and after suffering injuries he started feeling unwell and therefore at times, he had to

apply for leave and had to remain absent from his duties. The record further reveals that the

petitioner was shifted from maintenance to production department. Admittedly, the petitioner had

been engaged as an operator and not in a sensitive post and this is not the case of dishonesty,

misappropriation or using abusive language against the superior officers which require an

extreme penalty of dismissal. Hence, in view of the entire evidence led by the parties and also in

view of the facts and circumstances of the present case, this Court is of the opinion that the

quantum of punishment imposed upon the petitioner was too harsh and wholly disproportionate to

his act of misconduct. Therefore, looking into the charges leveled against the petitioner vide

chargesheet dated 17.9.2010 and keeping in view his past service record, the punishment of

dismissal of the services of the petitioner w.e.f. 22.12.2011 is hereby set aside and quashed.

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

Issue no.2.

23. Since, I have held under issue no.1 above that the action of the respondent to

terminate the services of the petitioner w.e.f. 22.12.2011 is illegal and unjustified, hence, the

petitioner is held entitled to reinstatement in service with seniority and continuity.

24. Now, the question which arises for consideration, before this Court is as to whether

the petitioner is entitled to full back wages as contended by the learned counsel for the petitioner.

In (2009) 1 SCC 20, Kanpur Electricity Supply Company Limited Vs. Shamim Mirza, the Hon‟

ble Supreme Court has held that once the order of termination of services of an employee is set-

aside, ordinarily, the relief of reinstatement is available to him. However, the entitlement of an

employee to get reinstated does not necessarily result in payment of full or partial back-wages,

which is independent of reinstatement. It has further been held by the H on’bl e Supreme Court

in 2010 (1) SLJ S.C 70, M/s Ritu Marbals Vs. Prabhakant Shukla that full back wages cannot

be granted mechanically, upon an order of termination be declared illegal. It is further held that

reinstatement must not be accompanied by payment of full back wages even for the period when

the workman remained out of service and contributed little or nothing to the Industry.

25. Moreover, the petitioner was under an obligation to prove by leading cogent evidence

that he was not gainfully employed after the termination of her services. The initial burden is on

the workman/employee to show that she was not gainfully employed as held by the Hon’ble

Apex Court in (2005) 2 Supreme Court Cases 363 titled as Kendriya Vidyalaya Sangathan and

another Vs. S.C Sharma that:

“16…………..When, the question of determining the entitlement of a person to back-

wages is concerned, the employee has to show that he was not gainfully employed. The

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initial burden is on him. After and if he places materials in that regard, the employer can

bring on record materials to rebut the claim…………..”

26. In the present case, the petitioner has failed to discharge his burden by placing any

material on record that he was not gainfully employed after his termination/disengagement. Rather,

he admitted in cross-examination that he had been doing agriculture work to earn livelihood for

himself as well as his family members. In (2007) 10 SCC 765, North East Karnatka Road

Transport Corporation Vs. M. Nagangouda, it has been held by the Hon'ble Supreme Court that

gainful employment would also include self employment. The relevant portion of the aforesaid

judgment is reproduced as under:

“On the said question, we are unable to accept the reasoning of the Labour Court that the

income received by the respondent from agricultural pursuits could not be equated with

income from gainful employment in any establishment. In our view, "gainful employment"

would also include self employment wherefrom income is generated. Income either from

employment in an establishment or from self employment merely differentiates the sources

from which income is generated, the end use being the same. Since the respondent was

earning some amount from his agricultural pursuits to maintain himself, the Labour

Court was not justified in holding that merely because the respondent was receiving

agricultural income, he could not be treated to be engaged in "gainful employment".

(Emphasis supplies).

Therefore, in view of the aforesaid judgments of the Hon'ble Supreme Court, coupled with the

fact that the petitioner had been doing the agricultural work for livelihood, I have no hesitation in

holding that the petitioner is not entitled to any back-wages. Hence, this issue is decided partly

in favour of the petitioner and against the respondent.

Issue No.3.

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

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

government to this Court for adjudication. I find nothing wrong with this petition which is legally

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

respondent.

Relief

As a sequel to my above discussion and findings on issues no.1 to 3, the claim of the

petitioner succeeds and is hereby partly allowed and the petitioner is ordered to be reinstated in

service forthwith with seniority and continuity. However the petitioner is not entitled to back

wages and as such the reference is answered in favour of the petitioner and against the respondent.

Let a copy of this award be sent to the appropriate government for publication in official

gazette. File, after completion, be consigned to records.

Announced in the open Court today on this 31^stDay of May, 2017.

(Parveen)

By order,

(Sushil Kukreja)

Presiding Judge,

Industrial Tribunal-cum- Labour Court, Shimla.

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IN THE COURT OF SUSHIL KUKREJA, PRESIDING JUDGE, HP INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Ref no. 02 of 2016.

Instituted on 1.1.2016.

Decided on 15.5.2017.

Pyare Lal S/o Shri Himpur, R/o Village Pujarli, P.O Kawar, Tehsil dodra Kawar,

District Shimla, HP.

Petitioner.

VS.

The Divisional Forest Officer, Rohru, Division Rohru District Shimla, HP.

Range Officer Kawar (Forest Department) Tehsil Dodra Kawar, District Shimla, HP.

Respondents.

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

For petitioner

: Shri Vasu Sood, Advocate.

For respondent : Ms. Reena Chauhan, Dy. DA.

AWARD

The reference for adjudication, sent by the appropriate government, is as under:

”Whether termination of the services of Shri Pyare Lal S/o Sjhri Himpur, R/o Village

Pujarli, P.O Kawar, Tehsil Dodra Kawar, District Shimla, H.P by the Divisional Forest

Officer, Rohroo Forest Division, Rohroo District Shimla, HP during December, 2007

without complying with the provisions of the Industrial Disputes Act, 1947 is legal and

justified? If not, keeping in view the delay of about 5 years in raising the industrial dispute,

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

aggrieved workman is entitled to from the above employer?”

Briefly, the case of the petitioner is that w.e.f. March, 1997, he was appointed as

beldar on daily wages basis and worked as such till Feb., 2007 and thereafter his services were

terminated without any reason and without serving any prior notice as required under the

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

worked at various places under respondents and after his termination, many juniors/fresh hands

have been retained/engaged by the respondents in violation of the provisions of section 25-G and

25-H of the Act. The petitioner had completed 240 days in twelve calendar months preceding his

termination and his services were not reinstated despite several requests. Against this back-drop a

prayer has been made that the respondents be directed to re-instate the petitioner in service

along-with all consequential benefits including back-wages.

By filing reply, the respondents contested the claim of the petitioner wherein

preliminary objections have been taken qua estoppel, time barred and that the petitioner failed to

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qualify the screening test for which he was called for. On merits, it has been asserted that the

petitioner was engaged on daily wages in April, 1997 and worked upto December, 2007. It is

denied that the services of the petitioner were terminated illegally. It is asserted that the petitioner

used to abandon the job at his own and as such there was no need to serve any notice and even

opportunity for consideration of his case was given to the petitioner for regularization in Feb.

2010 but he was found unfit by the Screening Committee. It is denied that junior/fresh persons

to the petitioner have been retained/engaged by the department in violation of the provisions of

section 25-G and 25-H of the Act. It is admitted that the petitioner had completed 240 days in

twelve calendar months It is also asserted that the petitioner has raised the present dispute after

a gap of five years and failed to show any reason for his inordinate delay of five years.

Rejoinder not filed. On the pleadings of the parties, the following issues were

framed on 5.9.2016.

Whether the termination of the services of the petitioner during December, 2007 by

the respondents without complying with the provisions of the Industrial Disputes Act, 1947 is

illegal and unjustified as alleged?

OPP……..

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

is entitled?

OPP……….

Whether the present petition is time barred as alleged?

OPR……….

Whether the petitioner is estopped to file the present petition on account of his act,

conduct, deeds, acquiesces as alleged?

OPR………..

Relief.

I have heard the learned counsel for the parties and have also gone through the

record of the case carefully.

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

my findings on the aforesaid issues are as under.

Issue no.1

Yes.

Issue no.2

Entitled to reinstatement in service with seniority and continuity but without

back- wages.

Issue no.3

No.

Issue no.4

No.

Relief.

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

operative part of award.

Reasons for findings

Issues no.1 & 3.

Being interlinked and correlated, both these issues are taken up together for decision.

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The learned counsel for the petitioner contended that the services of the petitioner

had been terminated by the respondents illegally without serving him any notice as required under

section 25-F of the Act especially when he had completed more than 240 days in each calendar

year. He further contended that the junior persons to the petitioner are still working with the

respondents department and fresh workers have been engaged in violation of the provisions of

section 25-G and 25-H of the Act.

On the other hand, Ld. Dy. DA for the respondents contended that the services of the

petitioner had never been terminated by the respondents who had left the job at his own and even

the opportunity was given to the petitioner for consideration of his case for regularization in Feb.,

2010 but he was not found fit by the Screening Committee. She further contended that no junior

to the petitioner had been retained and no fresh hands had been engaged by the respondents,

hence, he is not entitled to any relief.

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

tendered in evidence his affidavit Ex. PW-1/A wherein he reiterated almost all the averments as

stated in the claim petition. He also tendered in evidence the copy of judgment passed in CWP

no. 4324 dated 18.11.2015 mark P-1 and list of juniors mark P-2. In cross- examination, he

denied that the department had never terminated his services and he had left the job at his own.

He admitted that in the year, 2010, his case for regularization was considered by the screening

Committee but he was found unfit. He denied that no junior was retained by the respondents. He

admitted that he had raised the present dispute after a period of 5 years. He denied that the

persons mentioned in his affidavit were appointed in the year, 1997 and that no person appointed

in the year, 1997 has been retained or regularized.

11. The respondents have examined one Shri Bishan Singh, Range Forest Officer Dodra

Kawar, as RW-1, who tendered in evidence his affidavit Ex. RW-1/A wherein he reiterated almost

all the averments as stated in the reply. He also tendered in evidence copy of mandays chart Ex.

RW-1/B, copy of result sheet of screening committee held on 9.2.2010 Ex. RW-1/C. In cross-

examination, he admitted that the petitioner was engaged in the year, 1997 and he worked till the

year, 2007 and that the petitioner had completed 240 days in each calendar year except the year,

1998. He denied that the services of the petitioner were terminated in the year, 2007. He admitted

that no notice was issued to the petitioner for resumption of his duties. He denied that the

persons mentioned at serial no. 4 and 6 onwards in Ex. RW-1/B are juniors to the petitioner. He

further denied that fresh hands were engaged.

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

thereof, the first question which arises for consideration before this Court is as to whether the

petition is time barred. It is not in dispute that the petitioner had worked till December, 2007

with the respondents and he raised the industrial dispute after a gap of about 5 years. The law on

the point is well settled that no limitation is prescribed either under the Industrial Disputes Act

or under the Limitation Act for raising the Industrial Dispute. The Hon‟ble Supreme Court in its

various judgments has held that the relief under the Industrial Disputes Act cannot be denied to the

workman merely on the ground of delay. It has been held by the Hon‟ble Supreme Court in in

(1999) 6 SCC 82, titled as Ajayab Singh Vs. Sirhind Co-operative Marketing –cum- processing

Service Society Limited and Another. that:-

“The provisions of Article 137 of Limitation Act, 1963 are not applicable to the

proceedings under the ID Act. The relief under the ID Act cannot be denied merely on

the ground of delay. The plea of delay if raised by the employer is required to be

proved as a matter of fact by showing the real prejudice and not as a merely

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hypothetical defence. No reference to the Labour Court can be generally questioned on

the ground of delay alone”

It has also been held by the Hon‟ble Supreme Court in Gurmail Singh Vs. Principal

Government College of Education and others, (2009) 9 SCC 496 that mere delay in challenging

the termination would not be a bar to the adjudication of the matter but could only deprive the

appellant of his back wages for the period of delay in raising the termination issue. In a latest

judgment, the H on ’ble S u p reme Court in 2014, 10 SCC 301 titled as Raghubir Singh

Vs. General Manager, Haryana Roadways

Hissar has held that Limitation Act has no application to reference made by the

appropriate government to Labour Court/Industrial Tribunal for adjudication of existing

industrial dispute. The relevant portion of the aforesaid judgment is reproduced as under:

“16 Further, the workman cannot be denied to seek relief only on the ground of delay

in raising the dispute as held in the case of S.M. Nilajkar & Ors. v. Telecom District

Manager, Karnataka it was held by this Court as follows:

“17. It was submitted on behalf of the respondent that on account of delay in raising the

dispute by the appellants the High Court was justified in denying relief to the

appellants. We cannot agree...... In Ratan Chandra Sammanta and Ors. v. Union of

India and Ors. (supra)1993 AIR SCW 2214, it was held that a casual labourer

retrenched by the employer deprives himself of remedy available in law by delay

itself, lapse of time results in losing the remedy and the right as well. The delay

would certainly be fatal if it has resulted in material evidence relevant to

adjudication being lost and rendered not available. However, we do not think

that the delay in the case at hand has been so culpable as to disentitle the appellants

for any relief.....” (Emphasis supplied).

17 In view of the legal principles laid down by this Court in the above judgment,

the reference of the industrial dispute made in the case on hand by the State

Government to the Labour Court to adjudicate the existing industrial dispute

between the parties was made within a reasonable time, considering the

circumstances in which the workman was placed, firstly, as there was a criminal

case pending against him and secondly, the respondent had assured the workman that

he would be reinstated after his acquittal from the criminal case. Moreover, it is

reasonable to adjudicate the industrial dispute in spite of the delay in raising and

referring the matter, since there is no mention of any loss or unavailability of

material evidence due to the delay. Thus, we do not consider the delay in raising the

industrial dispute and referring the same to the Labour Court for adjudication as

gravely erroneous and it does not debar the workman from claiming rightful relief

from his employer”.

Therefore, the aforesaid law declared by the Hon‟ble Supreme Court in various context makes

the legal position clear that there is no limitation prescribed either under the Industrial Disputes

Act or under the Limitation Act for raising the industrial dispute. The provision of Article 137 of

the schedule to the Indian Limitation Act, 1963 is not applicable to the proceedings under the Act

and the relief under the Industrial Disputes Act cannot be denied to the workman merely on the

ground of delay.

13. In the back-ground of the aforesaid legal position, now coming to the facts of the

present case. The services of the petitioner were terminated in December, 2007. Thereafter, the

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petitioner raised the Industrial Dispute and vide order dated 18.11.2015 passed by the Hon‟ble

High Court in CWP no. 4324 of 2015, it was directed that the matter be referred to the Labour

Court for adjudication and as such the present reference has been received by this Court for

adjudication. Since, the petitioner has kept the dispute alive, therefore, he cannot be blamed for

delay. Moreover, it is not the case of the respondents that due to the delay in raising the industrial

dispute, there is any loss or unavailability of material evidence. Hence, it cannot be said that

delay in raising the industrial dispute is fatal to the reference and as such the petitioner cannot

be debarred from claiming the relief from his employer and mere delay in challenging the

termination would not be a bar to the adjudication of the present dispute which has been referred to

this Court by the appropriate government.

14. The learned ADA for the respondents next contended that the petitioner had

left the job at his own after December, 2007. However, there is no iota of evidence on record

which could go to show that the petitioner had left the job on his own as no notice or letter

regarding abandonment of the job by the petitioner is placed on record by the respondents. Even

RW-1 Shri Bishan Singh, Range Forest Officer has admitted in cross-examination that no notice

was issued to the petitioner to resume the duties. Therefore, in the absence of any evidence on

record, inference cannot be drawn that the petitioner had abandoned the job. Reliance is placed

on decision reported in AIR 1979 SC 582 case titled as G.T Lad and others Vs. Chemicals and

Fibers India Ltd. where it has been held that under common law an inference that an

employee has abandoned or relinquished service is not easily drawn unless from the length of

absence and from other surrounding circumstances an inference to that effect can be legitimately

drawn and it can be assumed that the employee intended to abandon service. The relevant

paragraph of the aforesaid judgment is reproduced as under: