jkti=] fgekpy izns'k

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

ohjokj] 18 tuojh] 2018@28 ikS"k] 1939

fgekpy izns'k ljdkj

LABOUR AND EMPLOYMENT DEPARTMENT

NOTIFICATION

Dated: the 11^th September, 2017

No: Shram (A) 6-2/2014 (Awards) D/Shala.—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

217&jkti=@2017&18&01&2018

¼9773½

9774

jkti=] fgekpy izns'k] 18 tuojh] 2018@28 ikS"k] 1939

Court D/Shala on the website of the Department of Labour & Employment Government of

Himachal Pradesh:—

Sr.

No.

Ref. No.

Petitioner

Respondent

Date of Award/

Order

563/16

Bhag Singh

E.E. HPPWD, Dharampur &

others

20-07-2017

567/16

Kali Dass

E.E. HPPWD, Dharampur &

others

20-07-2017

568/16

Bimla Devi

E.E. HPPWD, Dharampur &

others

20-07-2017

622/16

Amar Chand

E.E. HPPWD, Dharampur &

others

20-07-2017

608/16

Panjku Ram

En-in-Chief & others

20-07-2017

610/16

Malka Devi

En-in-Chief & others

20-07-2017

611/16

Veena Devi

En-in-Chief & others

20-07-2017

612/16

Rajinder Kumar

En-in-Chief & others

20-07-2017

613/16

Jamuna Devi

En-in-Chief & others

20-07-2017

10.

605/16

Badamu Devi

En-in-Chief & others

20-07-2017

11.

668/16

Amriti Devi

En-in-Chief & others

20-07-2017

211/16

Leela Devi

E.E., HPPWD, Dharampur

27-07-2017

13.

602/15

Satyawar

E.E., HPPWD, Killar

28-07-2017

14.

08/16

Bargat Raj

E.E., HPPWD, Killar

28-07-2017

15.

13/16

Ajeet Kumar

E.E., HPPWD, Killar

28-07-2017

16.

15/16

Sher Singh

E.E., HPPWD, Killar

28-07-2017

17.

67/16

Jagdish Kumar

E.E., HPPWD, Killar

28-07-2017

18.

68/16

Prem Raj

E.E., HPPWD, Killar

28-07-2017

19.

510/15

Bhag Singh

E.E., HPPWD, Killar

28-07-2017

20.

493/15

Dev Raj

E.E., HPPWD, Killar

28-07-2017

21.

495/15

Chaman Singh

E.E., HPPWD, Killar

28-07-2017

9775

jkti=] fgekpy izns'k] 18 tuojh] 2018@28 ikS"k] 1939

22.

497/15

Devki

E.E., HPPWD, Killar

28-07-2017

23.

488/15

Shakuntla

E.E., HPPWD, Killar

28-07-2017

24.

512/15

Laxmi Devi

E.E., HPPWD, Killar

28-07-2017

25.

491/15

Rajinder Singh

E.E., HPPWD, Killar

28-07-2017

26.

500/15

Dev Raj

E.E., HPPWD, Killar

28-07-2017

27.

128/16

Guddi

E.E., I&PH/HPPWD, Killar

31-07-2017

By order,

Sd/-

R. D. DHIMAN, IAS,

Pr. Secretary ( Lab. & Emp.).

_______________

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

INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)

Ref No. : 563/2016

Date of Institution : 24.08.2016

Date of Decision : 20.07.2017

Shri Bhag Singh s/o Shri Saktiya Ram, r/o Village & P.O. Dhawali, Tehsil

Sarkaghat, District Mandi, H.P.

. .Petitioner.

Versus

The Engineer-in-Chief, HPPWD, US Club, Shimla

The Executive Engineer, HPPWD Division, Dharampur, District Mandi, H.P.

. .Respondents.

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

For the Petitioner

: Sh. N.L. Kaundal, AR

: Sh. Vijay Kaundal, Adv.

For the Respondent(s)

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

AWARD

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

adjudication:

9776

jkti=] fgekpy izns'k] 18 tuojh] 2018@28 ikS"k] 1939

“Whether alleged termination of services of Sh. Bhag Singh S/o Sh. Saktiya Ram Village &

P.O. Dhawali, Tehsil, Sarkaghat, Distt. Mandi, H.P. during 11/2001. by (1) the Engineer-

in-Chief HPPWD, Nirman Bhawan, Shimla, (2) the Executive Engineer, HPPWD,-

Division Dharampur, Distt. Mandi, H.P. who had worked as beldar on daily wages basis

during 9/1998 to 11/2001, only for 1004 days, and has raised his industrial dispute

vide demand notice dated 2.3.2015 after 14 years, allegedly without complying with the

provisions of the Industrial Disputes Act, 1947 is legal and justified? If not, keeping in

view of working period as above and delay of more than 16 years in raising the industrial

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

the above ex-worker is entitled to from the above employers & management?”

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

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

Brief facts as stipulated in the claim petition revealed that petitioner had been

engaged by respondent on daily waged basis on muster roll as beldar w.e.f. September, 1998

where he continued to work upto November, 2005 who had completed 240 days. Averments

made in the claim petition further revealed that services of the petitioner had been terminated by

the respondent vide verbal order w.e.f. November, 2005 without notice pay as well as

retrenchment compensation under the provisions of the Industrial Disputes Act, 1947

(hereinafter referred to as "the Act‟ for brevity). It is alleged that respondent had violated the

provisions of Section 25-F of the Act. Not only this, the principle of "Last come First go‟ was not

followed by the respondent as some juniors namely S/Sh. Shasi Pal (6.4.1999), Mamta Devi

(6.4.2000), Roshani Devi (4.7.1999) and Inder Singh (1.1.2000) were retained in service whereas

the service of petitioner had been terminated. The grievance of petitioner further remains that

after termination of services of petitioner so many new hands had been engaged by the

respondent/department, whose names were Pradeep Kumar on 02.05.2008, Vipin Kumar on

1.7.2008, Lekh Raj on 25.8.2008 and Ruma Devi on 25.5.2014 but petitioner had not been

given any opportunity of reemployment by the respondent prior to appointing above named

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

action of respondent in terminating the services of petitioner an industrial dispute was raised vide

demand notice dated 4.3.2015 copy of the same was forwarded to Labour Officer, Mandi for

further necessary action. It is alleged that Labour Officer, Mandi could not resolve the dispute

who submitted failure report under Section 12(4) of the Industrial Disputes Act and the matter was

referred to appropriate government i.e. Labour Commissioner, Shimla who declined to refer the

case of petitioner for adjudication in pursuance to which the petitioner had approached Hon‟ble

High Court of H.P. by filing CWP no.8315/2012 which had been decided on 20.12.2012 directing

the Labour Commissioner Shimla to make reference to the Labour Court. The dispute stated to

have been not filed on account of delay and moreover Hon'ble High Court of H.P. has

condoned the delay of eight years in case of Rajneet Singh vs. State of H.P. & Ors. reported in

2015 (145) FLR 722. The petitioner alleges that respondent in terminating the services of

petitioner w.e.f. 2005 without compliance with mandatory provision of Industrial Disputes Act

was illegal and unjustified. Accordingly, prayer has been made to set aside the illegal

termination order of petitioner directing the respondent to reinstate the petitioner with full back

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

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

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

as daily wager on 9/1998 who intermittently worked upto 11/2001. It is alleged that petitioner

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

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

9777

jkti=] fgekpy izns'k] 18 tuojh] 2018@28 ikS"k] 1939

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

petitioner had left the job at his own sweet will. Moreover there exist inordinate delay in raising

industrial dispute. It is alleged that petitioner had left the job of his own sweet will who was never

terminated by the respondent. It is alleges that question of termination of the services of petitioner

by the respondent does not arise. Delay in filing the claim petition is stated to be fatal to the case

of petitioner and the petitioner raised his claim when other workers raised demand notice and that

petitioner was gainfully employed as an agriculturist after leaving the job. Accordingly,

petition was sought to be dismissed.

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

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

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

13.11.2013, Ex. PW1/C copy of mandays chart of Sh. Shashi Kant, copy of seniority list Ex.

PW1/D, copy of letter dated 18.3.2015 Ex. PW1/E and closed evidence. On the other hand,

repudiating the evidence led by the petitioner, respondent examined RW1 Shri Pramod Kashyap,

the then Executive Engineer, HPPWD Division Dharampur as RW1 tendered/proved his affidavit

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

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

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

this case.

From the contentions raised, following issues were framed on 12.01.2017 for

determination:

Whether termination of services of the claimant/petitioner by the respondents during

11/2001 and raised his industrial dispute vide demand notice dated 4.3.2015 is/was

illegal and unjustified as alleged?

. .OPP.

If issue no.1 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?

. .OPR.

Whether the claim petition suffers from the vice of delay and laches as alleged.

If so, its effect?

. .OPR.

Relief.

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

Issue No.1 : Yes

Issue No.2 : Discussed

Issue No.3 : No

Issue No.4 : No

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

operative part of award.

9778

jkti=] fgekpy izns'k] 18 tuojh] 2018@28 ikS"k] 1939

REASONS FOR FINDINGS

ISSUES NO.1, 2 AND 4

10. All these issues have been taken up together for discussion being interconnected

which can be disposed of simultaneously without repetition of evidence.

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

petitioner in which he has prayed for setting aside the retrenchment order w.e.f. November, 2001

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

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

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

framed by the State Govt. with all consequential benefits. Not only this, petitioner also prayed

that his case may also be considered for engagement in service as per policy framed by the State

Govt. and to another relief petitioner is entitled.

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

wage basis with the respondent in the month of September, 1998 on muster roll basis as

beldar who continued to work till November, 2001 when his services were terminated in

violation of Section 25-F of the Act as it is unclear from evidence if compensation under Section

25-F was factually received by petitioner. While retrenching the services of petitioner principle of

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

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

(6.4.2000) were retained in service and thus the provisions of Section 25-G of the Act was not

followed by the respondent. Mandays chart Ex. RW1/B on record reveals that petitioner had

worked for 115 days in the year 1998, 263 days in 1999, 303 days in 2000 and 323 days in

2001. Even if we look at the mandays chart, this would show that immediately preceding his

termination in 2001, petitioner has factually worked for 303 days in 2000 and 323 days in 2001

aggregating to 626 days prior to termination. A bare glance at the mandays chart Ex. RW1/B

would reveal that petitioner had worked for more than 240 days ever since September, 1998 till

November, 2001 immediately prior to his retrenchment as stated above. A bare glance at the

mandays chart Ex. RW1/B would reveal petitioner had worked for more than 240 days ever

since September, 1998 till November, 2001 immediately prior to his retrenchment as stated

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

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

mentioned in para no. 2 of the affidavit Ex. PW1/A were engaged petitioner was factually not

given offer for reemployment which manifestly violates the provisions of Section 25-H of the

Act. From evidence, it is evidently clear that after termination of petitioner he was available

for job who was not appointed however some persons fresh were allowed to join in service.

As such, action of respondent in doing so clearly violates Section 25-H of the Industrial

Disputes Act.

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

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

established that whenever petitioner absented from his duty, respondent had issued any notice or

letter. On this point respondent as RW1 has specifically admitted that whenever petitioner

abandoned the job, no notice had been issued. RW1 specifically admitted that no departmental

inquiry was initiated against petitioner even after November, 2001. No reason whatsoever has

been assigned for such an 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

9779

jkti=] fgekpy izns'k] 18 tuojh] 2018@28 ikS"k] 1939

other fact in issue. As such, in absence of any specific and reliable evidence led by respondent, it

would be unsafe to hold that respondent had established plea of abandonment.

14. Ld. Authorized Representative 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. Ex. PW1/D is the seniority list of

daily wages beldar in respect of Dharampur Division who had completed eight years of as on

31.3.2008 and some of them were junior to the petitioner and had joined after termination of the

services of petitioner. Some of these co-workers shown in Ex. PW1/D the seniority list details of

workers of Division HPPWD Dharampur were certainly junior to petitioner figured at serial nos.

646 and 652 respectively who were given sufficient work existing in those years more than 240

days in a year whereas the petitioner had been not given muster roll for the whole month.

Evidently, there is no iota of evidence of respondent establishing that petitioner was called

upon to join for service at any time after September, 1999 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 as the juniors workers mentioned in the affidavit were retained whereas petitioner was

senior from these co-workers having joined service in 1998 was terminated and even thereafter

respondent omitted to afford opportunity to petitioner for reemployment for work which also

violates the provisions of Section 25-H of the Act.

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

treated in continuous service for eight years and for said reason the left period after November,

2001 be treated as regular period. It is not understood as to how petitioner could claim such

benefit as petitioner never worked with the respondent/department after his termination as well as

there is no adequate evidence on record suggesting that petitioner had represented the

respondent/department after his termination, although petitioner had issued demand notice i.e.

4.3.2015 after about fourteen years and thus judgment of Hon'ble Apex Court reported in

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

another does not come to the rescue of the petitioner. Therefore, the entire period cannot be

treated in service. As stated above that petitioner remained out of job after his termination but

there is nothing authenticated in evidence suggesting that he remained without earning moreso

when he himself admitted in cross-examination that he had cultivable land and also earned by

working as labourer. It is maintained if, he did not get any government job however petitioner

has revealed in cross-examination that he had not been given notice as well as retrenchment

compensation as required to be paid. In view of foregoing discussions, respondent is held to have

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

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

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

Colliery Mazdoor Sangh and Employers in Relation to Management of Kenduahih

Colliery of M/S BCCL and Ors., in which Hon'ble Apex Court has awarded compensation of

Rs.4 lakh to each workman. Similarly, reliance has placed on judgment of Hon'ble High Court

of Punjab & Haryana reported in 2014 LLR 967 titled as Deshsewak Foundry vs. Presiding

Officer, Labour Court, Gurdaspur & Ors., in which compensation of Rs.5 lakh was

awarded. In another judgment of Hon‟ble High Court of Rajasthan, Jaipur Bench reported in 2017

(152) FLR 206, titled as Youth Co-ordinator, Nehru Yuva Kendra and Labour Court

No.2, Jaipur and Anr. in which compensation of Rs.2 lakh was granted to the workman

who had merely worked for two years. Thus, above said judgments disclosing awarding larger

amount of compensation which the claimant/petitioner has prayed for. Ld. Dy. D.A. for State

has relied upon judgment of Assistant Engineer Rajasthan Development Corporation and

9780

jkti=] fgekpy izns'k] 18 tuojh] 2018@28 ikS"k] 1939

another vs. Geetam Singh reported in 2013 (136) FLR 893 (SC), in which various criteria

to be looked by Labour Court in awarding compensation. It has been held that before

exercising its judicial discretion, the Labour Court has to keep in view all relevant factors

including the mode and manner of appointment, nature of employment, length of service, the

ground on which termination has been set aside and the delay in raising industrial dispute

before grant of relief in an industrial dispute and in this judgment Hon'ble Apex Court had

awarded compensation of Rs.1,00,000/- only in lieu of reinstatement and consequential

benefits to a retrenched employee who had issued demand notice after about six years.

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

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

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

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

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

and that nearly 27 years had elapsed since the time of retrenchment. Moreover, the workers

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

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

present case rather applying the criteria laid down by Hon'ble Apex Court in Geetam Singh’s

case 2013 (136) FLR 893 (SC) has to be followed and applied.

18. Ld. counsel representing respondent department has also contended with

vehemence that claim petition is barred by limitation on account of delay and laches. It has been

pointed that termination of petitioner in this case took place on November, 2001 and the industrial

dispute was raised after several years of retrenchment. Repudiating the argument by ld. counsel,

ld. AR for the petitioner has placed reliance upon judgment reported in 2007 LHLJ 903

Hon’ble High Court of H.P. (Bhatag Ram’s case) in which it has been held that delay in raising

dispute may be considered by court at the time of granting final relief however in various other

judgments even longer delay has been condoned. In Divisional Manager, HPFC & another

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

besides Hon'ble High Court has held that principle of Limitation Act is not applicable to the

industrial dispute. Similar view was taken by Hon'ble Apex Court in Ajayab Singh vs.

Sirhind Co- operative Marketing-cum-Processing Society Limited and Another, (1999) 6

SCC 82 in which it has been held that the principle of Limitation Act, 1963 did not apply to the

proceeding under the Industrial Disputes Act.

19. Ld. Dy. D.A. has representing State/respondents has vehemently contended that

claimant/petitioner is not entitled for any relief either by way of reinstatement or compensation

in view of judgment of Hon'ble Apex Court reported in AIR 2016 SC 2984 titled as

Prabhakar v. Joint Director Sericulture Department and another. Relying upon the aforesaid

judgment, it has been contended that while making reference to the Labour Court by the

Government, the competent authority has to see that there is existence of an industrial dispute

or apprehension of an industrial dispute and if there is no live dispute or if dispute was no

longer existing reference could not be made at belated stage. On the other hand, ld. Authorized

Representative for the petitioner has contended that the judgment of Hon'ble Apex Court referred

to above does not come to the rescue to the respondents moreso when government itself made

reference and has not challenged the correctness of reference before the Hon'ble High Court. I

have carefully gone through the judgment referred to above and of the view that the contention

of the ld. Dy. D.A. is fallacious. It would be relevant to refer to para 7 of the judgment in which

the Hon'ble Apex Court has categorically held that the issue which fell for determination is

whether reference of such a belated claim was appropriate. It was further observed that order of

reference cannot be made mechanically without forming an opinion as referred to in the other

9781

jkti=] fgekpy izns'k] 18 tuojh] 2018@28 ikS"k] 1939

paragraphs of the judgment and order of making reference is open to judicial review if it is shown

that the appropriate government had no material before it or it has not applied its mind to the

material before it or has not taken into consideration certain vital facts which it ought to have

taken into consideration. In paragraph 23 Sub para (8) of the judgment of Hon'ble Apex Court in

which it has been specially observed that the High Court can exercise its powers under Article

226 of the Constitution to consider the question of the very jurisdiction of the Labour Court. It

was submitted before the Hon'ble Apex Court that once a reference has been made under Section

10 of the Industrial Disputes Act, Labour Court has to decide the same and the High Court in

writ jurisdiction cannot interfere in the proceedings of the Labour Court which was found be not

correct proposition but certainly correctness of reference under Section 10 of Industrial

Disputes Act is not in challenge before this Court. Reliance has been made on another

judgment of Hon'ble Apex Court reported in (2000) 1 SCC 371, National Engg. Industries

Ltd. v. State of Rajasthan in judgment of 2016 (supra). In Sapan Kumar Pandit’s (2000),

case it was held that the period of making of reference is co- extensive with the existence of

dispute, meaning thereby that the dispute should be alive on the day when the decision was taken

to make a reference or to refuse to make reference. Although, Hon'ble Apex Court has made

elaborated discussions qua consideration before making reference which is not issue before this

Court. The judgment referred in 2016 primarily reveals guidelines how reference under Section

10 of Industrial Disputes Act is to be made by competent authority under the Industrial Disputes

Act. In the judgment, there is no stipulation of violation of any other provisions of Industrial

Disputes Act in which had been denied either for relief of reinstatement or compensation. As such,

this judgment of (2016) does not apply to the present case which deals primarily with reference

under Section 10 of Industrial Disputes Act and not for wrongful termination under Section

25 of Industrial Disputes Act. Moreover, the facts of case before the Hon'ble Apex Court are altogether

different from case in hand as in case before Hon'ble Apex Court petitioner was educated person

working as clerk whereas the claimant before this Court is uneducated unskilled labourer besides

being an illiterate villager who had been engaged as labourer to manual work by respondents. On

this score also facts of case are different. Not only this, law of limitation is held to be not

applicable in view of observation made in para (18) of judgment (2016) supra. Accordingly, it is

held that judgment of 2016 does not apply to the present case having different facts as well as law.

20. Applying the ratio of aforesaid judgments more specifically judgment reported in

2013 (136) FLR 893 SC (supra) and that petitioner had rendered total service for four years

who was non-skilled worker ageing 55 years when his services were illegally terminated who

is not likely to get government job at this age and had factually worked for 1004 days in four

years when he had already completed 240 days entitling him protection envisaged under

Section 25-F of Industrial Disputes Act irrespective of fact that demand notice was issued after

a period of nine years by the petitioner, but keeping in view peculiar facts and

circumstances as stated above a lump-sum compensation of Rs.50,000/- (Rupees fifty thousand

only) would be appropriate relief to the petitioner in lieu of back wages, seniority, past service

benefits as well as other consequential service benefits. It is further made clear that amount of

compensation shall be paid within four months and from the date of receipt of Award failing

which the petitioner would be entitled for interest @ 9% per annum from date of Award till its

realization. Issues no. 1, 2 and 4 are answered accordingly.

ISSUE NO.3

21. 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

9782

jkti=] fgekpy izns'k] 18 tuojh] 2018@28 ikS"k] 1939

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

petitioner and against the respondent.

RELIEF

22. As sequel 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

back wages, seniority, past service benefits as well as the other consequential service benefits.

Amount of compensation so awarded shall be paid by the respondent to the petitioner within four

months and from the date of receipt of Award failing which the respondents shall be liable to pay

the interest @ 9% per annum on the said amount from the date of award till the date of its

realization. In the peculiar circumstances of the case, the parties are left to bear their own costs.

23. The reference is answered in the aforesaid terms.

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

the official gazette.

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

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

(K. K. SHARMA),

Presiding Judge,

Labour Court-cum-Industrial Tribunal, Kangra at Dharamshala, H.P.

____________

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

INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)

Ref No. : 567/2016

Date of Institution : 24.08.2016

Date of Decision : 20.07.2017

Shri Kali Dass s/o Shri Hari Singh, r/o Village Dedhal, P.O. Sidhpur, Tehsil

Sarkaghat, District Mandi, H.P.

. .Petitioner.

Versus

The Engineer-in-Chief HPPWD, Nirman Bhawan, Shimla.

The Executive Engineer, HPPWD Division, Dharampur, Tehsil Sarkaghat, District

Mandi, H.P. . .Respondents.

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

For the Petitioner

: Sh. N.L. Kaundal, AR

: Sh. Vijay Kaundal, Adv.

9783

jkti=] fgekpy izns'k] 18 tuojh] 2018@28 ikS"k] 1939

For the Respondent(s)

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

AWARD

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

adjudication:

“Whether alleged termination of services of Sh. Kali Dass S/o Sh. Hari Singh Vill.

Dedhal, PO Sidhpur, Tehsil Sarkaghat, Distt. Mandi, H.P. during 11/2005 by (1) the

Engineer-in-Chief HPPWD, Nirman Bhawan, Shimla, (2) the Executive Engineer,

HPPWD,-Division Dharampur, Distt. Mandi, H.P. who had worked as beldar on daily

wages basis during 5/1998 to 11/2005 only for 2641 days, and has raised his industrial

dispute vide demand notice dated 19.12.2014 after 9 years, allegedly without complying

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

keeping in view of working period as above and delay of more than 9 years in raising

the industrial dispute, what amount of back wages, seniority, past service benefits and

compensation the above ex-worker is entitled to from the above employers/management?”

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

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

Brief facts as stipulated in the claim petition revealed that petitioner had been

engaged by respondent on daily waged basis on muster roll as beldar w.e.f. May, 1998 where

he continued to work upto November, 2005 who had completed 240 days. Averments made in

the claim petition further revealed that services of the petitioner had been terminated by the

respondent vide verbal order w.e.f. November, 2005 without notice pay as well as retrenchment

compensation under the provisions of the Industrial Disputes Act, 1947 (hereinafter referred to as

'the Act' for brevity). It is alleged that respondent had violated the provisions of Section 25-F of the

Act. Not only this, the principle of "Last come First go" was not followed by the respondent as

some juniors namely S/Sh. Shasi Pal (6.4.1999), Mamta Devi (6.4.2000), Roshani Devi (4.7.1999)

and Inder Singh (1.1.2000) were retained in service whereas the service of petitioner had been

terminated. The grievance of petitioner further remains that after termination of services of

petitioner so many new hands had been engaged by the respondent/department, whose names

were Pradeep Kumar on 02.05.2008, Vipin Kumar on 1.7.2008, Lekh Raj on 25.8.2008 and Ruma

Devi on 25.5.2014 but petitioner had not been given any opportunity of reemployment by the

respondent prior to appointing above named workers establishing violation of provisions of

Section 25-H of the Act. Feeling aggrieved the action of respondent in terminating the services of

petitioner an industrial dispute was raised vide demand notice dated 19.12.2014 copy of the same

was forwarded to Labour Officer, Mandi for further necessary action. It is alleged that Labour

Officer, Mandi could not resolve the dispute who submitted failure report under Section 12(4) of

the Industrial Disputes Act and the matter was referred to appropriate government i.e. Labour

Commissioner, Shimla who declined to refer the case of petitioner for adjudication in pursuance

to which the petitioner had approached Hon'ble High Court of H.P. by filing CWP

no.8315/2012 which had been decided on 20.12.2012 directing the Labour Commissioner

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

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

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

that respondent in terminating the services of petitioner w.e.f. 2005 without compliance with

mandatory provision of Industrial Disputes Act was illegal and unjustified. Accordingly, prayer

has been made to set aside the illegal termination order of petitioner directing the respondent

9784

jkti=] fgekpy izns'k] 18 tuojh] 2018@28 ikS"k] 1939

to reinstate the petitioner with full back wages, seniority and continuity in service with all

consequential benefits.

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

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

as daily wager on 5/1998 who intermittently worked upto 11/2005. It is alleged that petitioner

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

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

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

petitioner had left the job at his own sweet will. Moreover there exist inordinate delay in raising

industrial dispute. It is alleged that petitioner had left the job of his own sweet will who was never

terminated by the respondent. It is alleges that question of termination of the services of petitioner

by the respondent does not arise. Delay in filing the claim petition is stated to be fatal to the case

of petitioner and the petitioner raised his claim when other workers raised demand notice and

that petitioner was gainfully employed as an agriculturist after leaving the job. Accordingly,