jkti=] fgekpy izns'k

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'kqØokj] 8 flrEcj] 2017@17 Hkknzin] 1939

fgekpy izns'k ljdkj

LABOUR AND EMPLOYMENT DEPARTMENT

NOTIFICATION

D/Shala, the 19^th July, 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

120&jkti=@2017&08&09&2017

¼5563½

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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

409/15

Ramesh Kumar

E.E. HPPWD, Killar

24-06-2017

422/15

Karam Chand

E.E. HPPWD, Killar

24-06-2017

413/15

Puran Chand

E.E. HPPWD, Killar

24-06-2017

392/15

Rasalu/Risalu

E.E. HPPWD, Killar

24-06-2017

414/15

Paras Ram

E.E. HPPWD, Killar

24-06-2017

412/15

Kuldeep

E.E. HPPWD, Killar

24-06-2017

391/15

Inder Singh

E.E. HPPWD, Killar

24-06-2017

486/15

Rajinder

E.E. HPPWD, Killar

24-06-2017

515/15

Ram Singh

E.E. I&PH/HPPWD, Killar

24-06-2017

10.

514/15

Thakur Dass

E.E. I&PH/HPPWD, Killar

24-06-2017

11.

586/15

Krishan Dev

E.E. HPPWD, Dharampur

24-06-2017

524/16

Ram Singh

E.E. HPPWD, Dharampur

24-06-2017

13.

523/16

Sheela Devi

E.E. HPPWD, Dharampur

24-06-2017

14.

522/16

Arun Kumar

E.E. HPPWD, Dharampur

24-06-2017

15.

527/16

Chameli Devi

E.E. HPPWD, Dharampur

24-06-2017

16.

520/16

Kamla Devi

E.E. HPPWD, Dharampur

24-06-2017

17.

521/16

Kamli Devi

E.E. HPPWD, Dharampur

24-06-2017

18.

33/15

Narvada Devi

E.E. HPPWD, Joginder Nagar

24-06-2017

19.

468/15

Tulsi Ram

D.F. O Lahoul

24-06-2017

20.

466/15

Hemant Kumar

D.F.O. Lahoul

24-06-2017

21.

465/15

Tej Singh

D.F. O Lahoul

24-06-2017

22.

467/15

Leela Mani

D.F.O. Lahoul

24-06-2017

23.

469/15

Daulat Ram

D.F. O Lahoul

24-06-2017

24.

582/15

Inder Singh

E.E. HPPWD, Dharampur

24-06-2017

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25.

186/16

Mehar Chand

E.E. HPPWD, Dharampur

24-06-2017

26.

188/16

Rajinder Pal

E.E. HPPWD, Dharampur

24-06-2017

27.

187/16

Lek Raj

E.E. HPPWD, Dharampur

24-06-2017

28.

471/15

Balo Devi

E.E. HPPWD, Dharampur

24-06-2017

29.

46/16

Mohammad Khan

E.E. HPPWD, Dharampur

24-06-2017

30.

590/15

Mahinder Singh

E.E. HPPWD, Dharampur

24-06-2017

31.

470/15

Lekh Raj

E.E. HPPWD, Dharampur

24-06-2017

32.

472/15

Prem Singh

E.E. HPPWD, Dharampur

24-06-2017

33.

482/15

Sanjeev Kumar

E.E. HPPWD, Dharampur

24-06-2017

34.

319/15

Deepi Devi

E.E. HPPWD, Dharampur

24-06-2017

35.

112/15

Kashmir Singh

E.E. HPPWD, Dharampur

24-06-2017

By order,

R. D. DHIMAN, IAS

Pr. Secretary ( Lab. & Emp.).

______________

IN THE COURT OF RAJESH TOMAR, PRESIDING JUDGE, LABOUR

COURT-CUM-INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)

Ref No. : 409/2015

Date of Institution

: 10.09.2015

Date of decision : 24.06.2017

Shri Ramesh Kumar S/O Shri Guman Chand, R/O Village Guwari, P.O. Tarella, Tehsil

Churah, District Chamba, H.P.

. .Petitioner.

Versus

The Executive Engineer, Killar Division, H.P.P.W.D. Killar, Tehsil Pangi, District

Chamba, H.P.

. .Respondent.

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

For the Petitioner: Sh. Dharam Malhotra, Adv. For the Respondent: Sh. Sanjeev Singh Rana,

Dy. D.A.

AWARD

The following reference has been received from the appropriate Government for

adjudication:

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“Whether the industrial dispute raised by the worker Shri Ramesh Kumar S/O

Shri Guman Chand, R/O Village Guwari, P.O. Tarella, Tehsil Churah, District

Chamba, H.P. before the Executive Engineer, Killar Division H.P.P.W.D. Killar,

Tehsil Pangi, District Chamba, H.P. vide demand notice dated 05.05.2011 regarding

his alleged illegal termination of service during May, 2004 suffers from delay and

latches? If not, Whether termination of the services of Ramesh Kumar S/O Shri

Guman Chand, R/O Village Guwari, P.O. Tarella, Tehsil Churah, District Chamba,

H.P. by the Executive Engineer, Killar Division H.P.P.W.D. Killar, Tehsil Pangi,

District Chamba, H.P. during May, 2004 without complying the provisions of the

Industrial Disputes Act, 1947, is legal and justified? If not, what amount of

back wages, seniority, past service benefits and compensation the above aggrieved

workman is entitled to from the above employer?”

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

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

Facts germane for the disposal of the present reference are thus that claimant/petitioner

was engaged as daily waged beldar in the month of August, 2001 at HPPWD Sub Division Shor,

Division Killar Tehsil Pangi by the respondent where he worked continuously till the year 2004

when his services were disengaged. It further transpires from the claim petition that petitioner

requested respondent several times to reengage him but respondent despite availability of work

and funds did reengage the petitioner. It is further alleged that respondent had engaged several

persons junior to petitioner in the year 2005 to 2010 and thus respondent had completely ignored

the mandate of Sections 25-F, 25-G and 25-H of the Industrial Disputes Act, 1947. It is

further alleged that in the 1^st week of October, 2010 respondent finally refused to reengage the

services of petitioner when demand notice was issued in May, 2011 and after conciliation, the

appropriate government had declined to make reference as the petitioner had approached the

authorities after about six years where after petitioner had filed CWP No.2909/2015 in the

Hon’ble High Court of H.P. and vide judgment dated 1.7.2015 Labour Commissioner was

directed to refer to dispute to this court within a period of six week holding that dispute

raised in this writ petition stood already determined. The grievance of petitioner remains that the

respondent had not served any notice under Section 25-F of the Industrial Disputes Act while

disengaging petitioner from services and at the same time salary in lieu of notice period was

also not given. It is alleged that petitioner had completed respective post of beldar for more

than 160 days continuously preceding 12 calendar months in the tribal area of Pangi and break if

any occurred due to stormy weather condition and as such the petitioner was entitled to be

reinstated. Thus, petitioner seeks relief of reengagement as well as regularization and all other

consequential service benefits.

The lis was resisted and contested by filing inter-alia reply taken preliminary

objections of maintainability, claim petition being bad on account of delay and laches. On merits

stated that petitioner was engaged as daily waged beldar in 2001 who worked intermittently upto

2004 and left the job at its own sweet will and came at work with his own convenience. It has been

emphatically denied that petitioner had completed 160 days of each calendar year as required for

the tribal area of Pangi Tehsil as is evident from the mandays chart. Thus, respondent denying

to have engaged juniors as contended petitioner is alleged to have not complete even a period of

160 days in preceding one year from the date of his disengagement and for the aforesaid reasons,

petitioner is not entitled to relief under Sections 25-F, 25- G and 25-H of the Industrial Disputes

Act. Accordingly, petition was sought to be dismissed.

The rejoinder has been filed while controverting the averments as maintained in the

claim petition.

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In order to prove his case, petitioner had examined himself as (PW1) tendered/proved

his affidavit (PW1/A) under Order 18 Rule 4 CPC and closed evidence. On the other hand,

repudiating the evidence led by petitioner, respondent had examined Shri D. R. Chauhan,

Executive Engineer as (RW1) tendered/proved his affidavit (RW1/A) and (RW1/B) copy of

mandays chart of petitioner and closed evidence.

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

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

On elucidating the pleading of parties at rival contentions raised before me, following

issues were framed on 16.2.2016 for determination:

Whether the industrial dispute raised by petitioner vide demand notice dated 05-

05-2011 qua his termination of service during May , 2004 by respondent suffers

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

. .OPP.

Whether termination of the services of petitioner by the respondent w.e.f. May,

2004 is/was illegal and unjustified as alleged?

. .OPP.

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

entitled to?

. .OPP.

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

. .OPR.

Relief.

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

findings on the aforesaid issues are as follows:

Issue No.1

: No

Issue No.2

: Yes

Issue No.3

: Discussed

Issue No.4

: No

Relief

: Petition is partly allowed awarding compensation Rs.50,000/- per

operative part of the 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. At the very outset, there is no denial to the factum that the relationship of

petitioner having been engaged as daily waged beldar by respondent on muster roll basis in the

year 2001 who continuously worked till 2004 with the respondent/department is not in dispute.

Admittedly, petitioner was engaged without any written order or settlement of terms and

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conditions by the respondent. It is equally not in dispute that no written order was passed

while terminating service of the petitioner as claim of respondent remains that it had not

retrenched petitioner from service who had abandoned the job of his own and used to work

intermittently as per his own wish and convenience. Admittedly, the reference of appropriate

govt. does not relate to plea of fictional breaks but only with regard to petitioner’s termination

from service. In the backdrop of foregoing admitted facts on record, claim of petitioner

requires to be adjudicated with a view to determine if petitioner is entitled for relief of

reinstatement and back wages along-with seniority and past service benefits and compensation as

claimed by him.

12. In petitioner’s evidence, stepping into witness box as (PW1) has sworn in affidavit

(PW1/A) reiterating and reaffirming his pleadings as stipulated in claim petition. In his affidavit

he has claimed to have worked with the respondent/department for more than 160 days in Pangi

Sub Division Chamba District and remained engaged from 2001 to 2004. He has also stated on oath

that no notice under Section 25-F of the Act was given by the respondent before terminating his

service and at the same time no compensation in lieu thereof notice period was paid to him and

thus his termination was illegal and void entitling petitioner benefit of reinstatement of service

with full back wages and all the other consequential service benefits. The petitioner has

further alleged on oath that respondent/department after terminating his services in the year 2004

by oral order had engaged several co-workers who were junior to petitioner were retained in

service. Not only this, the persons who were junior to petitioner are stated to have been

regularized in service and thus respondent had not followed the mandate of Sections 25-G and

25-H of the Act which was obligatory on its part. The case of petitioner also remains that he had

served respondent with due diligence and had spotless service record as respondent/department

had never called any explanation or raised charge- sheet against him but even while

retrenching petitioner from service, no notice was given. The petitioner has also explained

reason for not approaching the authorities under Labour Act and thereafter before this

Tribunal and petitioner had moved before the Labour Officer raising demand notice consequent

upon which a failure report was submitted and as the Labour Commissioner did not make

reference for industrial dispute raised by petitioner, the petitioner had moved before the Hon’ble

High Court by filing CWP where direction was passed for making reference to the Labour

Court due to which delay had occurred and same was satisfactorily explained.

13. It is particular to point out here that the plea of abandonment raised by respondent is

concerned, the same merits rejection in view of the fact that respondent had failed to produce

any record by which it could be established that whenever petitioner absented from his duty as

also reflected in mandays chart (RW1/B) any notice or letter was ever issued. On this point

respondent as (RW1) has specifically admitted that whenever petitioner abandoned the job, no

notice had been issued. (RW1) specifically admitted that no departmental inquiry was initiated

against petitioner even after May, 2004. No reason whatsoever has been assigned for such

any action or omission on the part of respondent in not initiating any departmental

proceedings or making correspondence calling upon the petitioner to join service. This prima

facie belies the stand taken by the respondent as abandonment has to be proved like any other

fact in issue. The petitioner, on the other hand, as (PW1) in cross-examination has specifically

denied that he used to leave the job in between and attended the work intermittently rather

he has claimed that intermittent breaks had been deliberately given to him by the respondent in

the service record of petitioner so that petitioner did not complete 160 days of work as required

for Pangi Tehsil area and also for applicability of Section 25-B of the Act. As such, in absence of

any specific and reliable evidence led by respondent, it would be unsafe to hold that respondent

had established plea of abandonment.

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14. Verily, an overall assessment, analysis and synthesis of the mandays chart

(RW1/B) would reveal that petitioner had worked for 55 days in the year 2001, 176 days in 2002,

84 days in 2003 and 43 days in 2004 and thus a total of his service in 2001 to 2004 in 04 years he

had worked for 358 days in his entire service period. Be it noticed that except the years 2001,

2003 and 2004 petitioner had worked for more than 160 days and as there is no reference from the

Labour Commissioner, Shimla on the point of artificial breaks, this court is to confine its

findings only with regard to alleged illegal termination. It is evident from mandays chart

(RW1/B) that in the year 2004 the petitioner had merely worked for 43 days and thus

immediately in preceding 12 calendar months from the month of termination of petitioner had not

rendered service of 160 days so as to meet requirement of law of having continuous service of

one year and thus it was not at all required from respondent to have issued a notice envisaged

under Section 25-F of the Act. As such, the respondent is held to have not violated the

provisions of Section 25-F of the Act.

15. Ld. counsel for petitioner has contended with vehemence that large number of

workers who were junior to petitioner had been appointed and these workers have been retained

in service and regularized. The grievance of petitioner remains that principle of ‘Last come

First go’ was not followed as the juniors were retained and services of petitioner despite being

senior was terminated without any valid reason. Evidently, there is no iota of evidence of

respondent establishing that petitioner was called upon to join for service at any time after May,

2004 even at the time when junior persons were reengaged. That being so the respondent had

certainly violated the provisions of Section 25-G of the Act Ld. Authorized Representative for

petitioner has placed reliance upon judgment of Central Bank of India vs. S. Satyam, 1996 (5)

SCC 418 in which Hon’ble Apex Court has held that for the applicability of Section 25-G and

25-H of the Act, there was no necessity of claimant/petitioner to have worked for 240 days as

in case of provisions of Section 25-F of the Act.

16. Per contra, repudiating claim of petitioner, the respondent, on the other hand, has

made futile attempt to justify engagement of junior workers 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 he was

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. 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 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 2015 (4)SCC 544 titled as Mackinon Machenize &

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

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

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

petitioner that he 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-G and 25-

H of the Industrial Disputes Act. As such, even when petitioner is proved to have not worked for

more than 160 days in preceding four years which entitled him for regularization of his service

per government policy, yet respondent is not absolved from its accountability of provisions of

Section 25-G and 25-H of the Act and as such it is held that respondent had violated the

provisions of Sections 25-G and 25-H of the Industrial Disputes Act.

17. Ld. counsel for petitioner has contended that after petitioner’s termination in May,

2004, he had remained unemployed and was not earning anything thereafter as such was entitled for

full back wages. Repudiating the arguments of ld. Authorized Representative of petitioner, ld.

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Dy. D.A. for the State has taken this court through cross-examination of the petitioner who has

admitted that he had cultivatable land with him and also worked a private labourer. Thus, plea of

having remained not gainfully employed gets belied admission of petitioner in cross-examination

in which he had maintained that he had been earning from agricultural land as well as he has been

working as daily wager privately. Reliance has been placed on the judgment of Hon’ble Apex

Court North East Karnataka Road Transport Corporation vs. M. Nagangouda (2007) 10

SCC 765 in which Division Bench comprising of Justice A.R. Lakshmanan and Justice

Altamas Kabir had held that ‘term gainfully employment would also include self

employment wherefrom income is generated. It was income either from employment in an

establishment or from self employment merely differentiates the sources from which income is

generated, the end use being the same’. Applying the ratio of judgment of 2007 (supra) to this case

since the petitioner was earning from his agricultural and manual pursuits, the same were

sufficient to maintain him and his family. It is thus held that petitioner was gainfully

employed. Be it stated here that Hon’ble Apex Court in Deepali Gundu Surwase’s case has

held that the Labour Court was not justified in holding that merely because the respondent was

receiving agriculture income, he cannot be treated to be engaged in gainful employment.

Since the petitioner had income from agriculture pursuits for his livelihood it cannot be stated

that petitioner was not gainfully employed and thus would not be entitled full back wages. In

view of the forgoing discussion, it is held that the relationship of workman and employer existed

between petitioner and respondent and that petitioner was illegally retrenched without

compliance of Section 25-G and Section 25-H of the Act although remained gainfully

employed after his retrenchment. Thus, applying the ratio of judgment of Hon’ble Apex

Court (2007 supra), it may not be erroneous to hold that petitioner was gainfully employed and

thus would be not entitled for back wages for the period he was out of job on being terminated

by the respondent.

18. Another submission, ld. Dy. D.A. for State has contended with all vehemence that

there is an inordinate and explained delay which disentitles petitioner relief claimed for by him.

On the other hand, ld. Authorized Representative for the petitioner has relied upon the judgment of

Hon’ble Apex Court titled Raghubir Singh vs. General Manager, Haryana Roadways, Hissar

reported in 2014 (10) SCC 301 and the relevant paras of the judgment are produced below for

reference:

“12. Therefore, in our considered view, the observations made by this Court in

the Rajasthan State Agriculture Marketing Board case (supra) upon which the

learned Additional Advocate General for the State of Haryana has placed reliance

cannot be applied to the fact situation of the case on hand, for the reason that the

Labour Court has erroneously rejected the reference without judiciously considering

all the relevant factors of the case particularly the points of dispute referred to it and

answered the 2nd issue regarding the reference being barred by limitation but not

on the merits of the case. The said decision has no application to the fact situation

and also for the reason the catena of decisions of this Court referred to supra,

wherein this Court has categorically held that the provisions of Limitation Act under

Article 137 has no application to make reference by the appropriate government

to the Labour Court/Industrial Tribunal for adjudication of existing industrial

dispute between workmen and the employer.

13. In the case on hand, no doubt there is a delay in raising the dispute by the

appellant; the Labour Court nevertheless has the power to mould the relief

accordingly. At the time of adjudication, if the dispute referred to the Labour

Court is not adjudicated by it, it does not mean that the dispute ceases to exist. The

appropriate government in exercise of its statutory power under Section 10(1)(c) of

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the Act can refer the industrial dispute, between the parties, at any time, to either

the jurisdictional Labour Court/Industrial Tribunal as interpreted by this Court in

the Avon Services case referred to supra. Therefore, the State Government has

rightly exercised its power under Section 10(1)(c) of the Act and referred the points

of dispute to the Labour Court as the same are in accordance with the law laid

down by this Court in Avon Services & Sapan Kumar Pandit cases referred to supra.

14. Further, the workman cannot be denied to seek relief only on the ground of delay

in raising the dispute as held in the case of S.M. Nilajkar & Ors. v. Telecom District

Manager, Karnataka[4] it was held by this Court as follows-

“17. It was submitted on behalf of- the respondent that on account of delay in

raising the dispute by the appellants the High Court was justified in denying

relief to the appellants. We cannot agree...... In Ratan Chandra Sammanta and

Ors. v. Union of India and Ors. (supra)1993 AIR SCW 2214, it was held that

a casual labourer retrenched by the employer deprives himself of remedy

available in law by delay itself, lapse of time results in losing the remedy and

the right as well. The delay would certainly be fatal if it has resulted in material

evidence relevant to adjudication being lost and rendered not available. However,

we do not think that the delay in the case at hand has been so culpable as to

disentitle the appellants for any relief.....” (Emphasis laid by the Court) In view

of the legal principles laid down by this Court in the above judgment, the

reference of the industrial dispute made in the case on hand by the State

Government to the Labour Court to adjudicate the existing industrial dispute

between the parties was made within a reasonable time, considering the

circumstances in which the workman was placed, firstly, as there was a

criminal case pending against him and secondly, the respondent had assured

the workman that he would be reinstated after his acquittal from the

criminal case. Moreover, it is reasonable to adjudicate the industrial dispute in

spite of the delay in raising and referring the matter, since there is no mention of

any loss or unavailability of material evidence due to the delay. Thus, we do

not consider the delay in raising the industrial dispute and referring the same

to the Labour Court for adjudication as gravely erroneous and it does not

debar the workman from claiming rightful relief from his employer.

15. In the case of Ajaib Singh v. The Sirhind Co- Operative Marketing Cum-

Processing Service Society Limited & Anr.[5] this Court has opined that relief

cannot be denied to the workman merely on the ground of delay, stating that:—

“10. It follows, therefore, that the provisions of Article 137 of the Schedule to

Limitation Act, 1963 are not applicable to the proceedings under the act and

that the relief under it cannot be denied to the workman merely on the ground

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

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

hypothetical defence. No reference to the labour court can be generally

questioned on the ground of delay alone. Even in a case where the delay in

shown to be existing, the tribunal, labour court or board, dealing with the case

can appropriately mould the relief by declining to grant back wages to the

workman till the date

raised

the

demand

regarding his illegal

retrenchment/ termination or dismissal. The Court may also in appropriate cases

direct the payment of part of the back wages instead of full back wages.....”

(Emphasis laid by the Court)

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16. Hence, we are of the opinion, having regard to the fact and circumstances of

the case that there is no delay or latches on the part of the workman from the date of

his acquittal in the criminal case. Thereafter, upon failure of the respondent in

adhering to the assurance given to the workman that he would be reinstated after his

acquittal from the criminal case, the workman approached the conciliation officer

and the State Government to make a reference to the Labour Court for

adjudication of the dispute with regard to the order of dismissal passed by the

respondent. Keeping in mind the date of acquittal of the appellant and the date on

which he approached the conciliation officer by raising the dispute, since the

respondent had not adhered to its assurance, the State Government had rightly

referred the dispute for its adjudication. Therefore it cannot be said that there was a

delay on the part of the appellant in raising the dispute and getting it referred to the

Labour Court by the State Government.

17. Further, the Labour Court on an erroneous assumption of law framed the

additional issue regarding the limitation in raising the dispute and its reference by

the State Government to the Labour Court. Thus, the Labour Court has ignored the

legal principles laid down by this Court in the cases referred to supra. The award

passed by the Labour Court was accepted erroneously by both the learned single

Judge and the Division Bench of the High Court by dismissing the Civil Writ

Petition & the Letters Patent Appeal without examining the case in its proper

perspective, keeping in view the power of the State Government under Section

10(1)(c) and the object and intendment of the Act. Not adjudicating the existing

industrial dispute on merits between the parties referred to it may lead to disruption

of industrial peace and harmony, which is the foremost important aspect in

Industrial Jurisprudence as the same would affect the public interest at large.

19. Furthermore, ld. Dy. D.A. representing respondent department has also contended

with vehemence that claim petition is barred by limitation on account of delay and laches.

It has been pointed that termination of petitioner in this case took place on 2004 and the

industrial dispute was raised after several years of retrenchment. Repudiating the argument by

ld. Dy. D.A., ld. counsel for the petitioner has placed reliance upon judgment reported in 2007

LHLJ 90 3 Hon’ble Hi gh Cou rt of H.P. Bhatag Ram ’s case in which it has been held that

delay in raising dispute may be considered by court at the time of granting final relief however

in various other judgments even longer delay has been condoned. In Divisional Manager, HPFC

& another vs. Garibu Ram, Latest HLJ 2007 (HP) 1160, delay of more than 10 years was

condoned besides Hon’ble High Court has held that principle of Limitation Act is not

applicable to the industrial dispute. Similar view was taken by Hon’ble Apex Court in Ajayab

Singh vs. Sirhind Co-operative Marketing-cum-Processing Society Limited and Another,

(1999) 6 SCC 82 in which it has been held that the principle of Limitation Act, 1963 did not

apply to the proceeding under the Industrial Disputes Act.

20. On elucidation of the above mentioned judgments, it has been contended that claim of

petitioner cannot be defeated on the point of delay and laches. Repudiating arguments advanced

by ld. Authorized Representative for petitioner, ld. Dy. D.A. has placed reliance upon the

judgment of Hon’ble Apex Court titled as Assistant Engineer, Rajasthan State Agriculture

Marketing Board, Sub-Division Kota and Mohan Lal 2013 (9) SCR 91, the relevant para of

the judgment are produced below for reference:

21. Now, if the facts of the present case are seen, the position that emerges is this:

the workman worked as a work-charged employee for a period from 1.11.1984 to

17.2.1986 (in all he worked for 286 days during his employment). The services of

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the workman were terminated with effect from 18.2.1986. The workman raised the

industrial dispute in 1992, i.e. after 6 years of termination. The Labour Court did

not keep in view admitted delay of 6 years in raising the industrial dispute by the

workman. The judicial discretion exercised by the Labour Court is, thus, flawed

and unsustainable. The Division Bench of the High Court was clearly in error in

restoring the award of the Labour Court whereby reinstatement was granted to

the workman. Though, the compensation awarded by the Single Judge was too

low and needed to be enhanced by the Division Bench but surely reinstatement of the

workman in the facts and circumstances is not the appropriate relief.

22. In our opinion, interest of justice will be subserved if in lieu of reinstatement,

the compensation of Rs.1,00,000/- (one lac) is paid by the appellant (employer) to

the respondent (workman). We order accordingly. Such payment shall be made by

the appellant to the respondent within six weeks from today failing which the same

will carry interest @ 9% per annum………”

21. Thus from a careful examination of the entire gamut of the case leading to the

peculiar facts and circumstances vis-à-vis having gone through the rival contention of the ld.

counsel as well as ld. Dy. D.A. for State. Keeping in view the mandate of Hon’ble Apex

Court in various judgments referred to above it is held that delay in raising industrial dispute is

definitely an important circumstance and court has to keep in mind while exercising discretion. In

para nos. 20 and 21 of judgment 2013 supra has referred to Gitam Singh’s case reported in 2013

5 SCC 136 titled as Assistant Engineer Rajasthan Development Corporation and another vs.

Geetam Singh observing that before exercising its judicial discretion, the Labour Court has to

keep in view all relevant factors including the mode and manner of appointment, nature of

employment, length of service, the ground on which termination has been set aside and the delay

in raising industrial dispute before grant of relief in an industrial dispute. It was observed by the

Hon’ble Apex Court in judgment (2013 supra) before that workman had worked for 286 days

and had raised industrial dispute in 1992 whereas his services have been terminated in 1986 and

he raised industrial dispute after six years. The Hon’ble Apex Court has held that though

compensation awarded by Single Judge of the Hon’ble High Court was too low and liable to be

enhanced by the Division Bench but surely reinstatement of the workman in the facts and

circumstances is not the appropriate relief and thus Hon’ble Apex Court awarded a lump-sum of

Rs.1 lakh along-with interest @ 9% per annum if the respondent failed to make payment of

compensation within six weeks from the date of judgment. In the case in hand before this court

factors which have weighed are that the petitioner in all remained engaged for about 4 years

and actually worked for 358 days as per mandays chart on record and that the services of

petitioner were disengaged in May, 2004 who worked as non skilled worker and had raised

industrial dispute by issuance of demand notice after about 7 years i.e. demand notice was given

on 05.05.2011. It is also pertinent to mention here that petitioner on the date of filing claim petition

was ageing 32 years who has sufficient spell of life to work and earn his livelihood. Taking into

consideration factors mentioned above in pursuance to judgments of Hon’ble Apex Court

petitioner would not be entitled either for reinstatement or for back wages but compensation a

lump-sum would be appropriate relief in view of judgment 2013 (9) SCR 91. The judgments relied

upon by ld. counsel for the petitioner on the matter of delay and laches is more or less settled law

that claim of the petitioner could not be solely declined on the ground of delay and laches.

Similarly, judgment of Hon’ble Apex Court in 2014 titled as Raghubir Singh’s case also does

not come to the rescue of the petitioner as in this judgment also the Hon’ble Apex Court has

reiterated the mandate as given by the Hon’ble Apex Court in previous judgment in the year

2013 i.e. Assistant Engineer, Rajasthan State Agriculture Marketing Board, Sub-Division Kota

and Mohan Lal’s case. Similar view was reiterated by the Hon’ble Apex Court in judgment titled as

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Vice Chancellor, Lucknow University, Lucknow, Uttar Pradesh v. Akhilesh Kumar Khare &

another reported in 2016 (1) SCC 521

22. For the foregoing reasons, a lump-sum compensation of Rs.50,000/- (Rupees

fifty thousand only) would be an appropriate relief to which the petitioner is entitled in the facts

and circumstances of the case as stated above. It is further made clear that amount of

compensation shall be paid within four months from the date of Award failing which the petitioner

would be entitled for interest @ 9% per annum from date of Award and its realization. Issues no.

1, 2 and 3 are answered accordingly.

ISSUE NO.4

23. 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

24. As a sequittor to my findings on foregoing issues, the respondent is hereby

directed to pay the compensation of Rs.50,000/- (Rupees fifty thousand only) to the petitioner in

lieu of the reinstatement in services as well as the other consequential service benefits.

Amount of compensation so awarded 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.

25. The reference is answered in the aforesaid terms.

26. Let one authenticated copy of this Award be sent to the appropriate Government for

publication in the official gazette.

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

Announced in the open Court on this 24^th day of June, 2017.

(RAJESH TOMAR),

Presiding Judge,

Labour Court-cum-Industrial

Tribunal, Kangra at Dharamshala, H.P.

____________

IN THE COURT OF RAJESH TOMAR, PRESIDING JUDGE, LABOUR COURT-CUM-

INDUSTRIAL TRIBUNAL,KANGRA AT DHARAMSHALA (HP)

Ref No. : 422/2015

Date of Institution

: 10.09.2015

Date of decision : 24.06.2017

Shri Karam Chand s/o Shri Shiv Dayal, r/o Village Suilla, P.O. Tarella, Tehsil Churah,

District Chamba, H.P.

. .Petitioner.

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Versus

The Executive Engineer, Killar Division, H.P.P.W.D. Killar, Tehsil Pangi, District

Chamba, H.P.

. .Respondent.

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

For the Petitioner:

Sh. Dharam Malhotra, Adv.

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

AWARD

The following reference has been received from the appropriate Government for

adjudication:

“Whether the industrial dispute raised by the worker Shri Karam Chand S/O Shri

Shiv Dayal, R/O Village Suilla, P.O. Tarella, Tehsil Churah, District Chamba, H.P.

before the Executive Engineer, Killar Division, H.P.P.W.D. Killar, Tehsil Pangi,

District Chamba, H.P. vide demand notice dated 05.05.2011 regarding his alleged

illegal termination of services during May, 2004 suffers from delay and latches? If

not, Whether termination of the services of Shri Karam Chand S/O Shri Shiv

Dayal, R/O Village Suilla, P.O. Tarella, Tehsil Churah, District Chamba, H.P. by

the Executive Engineer, Killar Division, H.P.P.W.D. Killar, Tehsil Pangi, District

Chamba, H.P. during May, 2004 without complying the provisions of the Industrial

Disputes Act, 1947, is legal and justified? If not, what amount of back wages,

seniority, past service benefits and compensation the above aggrieved workman is

entitled to from the above employer?”