jkti=] fgekpy izns'k

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

cq/kokj] 07 Qjojh] 2018@18 ek?k] 1939

fgekpy izns'k ljdkj

LABOUR AND EMPLOYMENT DEPARTMENT

NOTIFICATION

Shimla, the 11 September, 2017

No: Shram (A) 6-3/2017 (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

232&jkti=@2017&07&02&2018

¼10407½

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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:—

Sr.

No.

Reference/

Application

Title

Section

Ref.74/2015

Sh. Subhash Chand V/s Senior Executive Engineer, HPSEB,

Electrical Division Jubbad District Shimla H.P.

Ref.65/2014

Sh.Dinesh Kumar V/s Principal, DAV Dental college, Tatul,

Solan, H.P.

Ref.93/2016

Sh. Sanjeev Kumar V/S The Executive Engineer, IPH, Solan,

H.P.

Ref.44/2012

Sh. Lucky Rana & Ors. V/s Proprietor/Factory Manager, M/S

Ind Swift Ltd. Parwanoo District Solan, H.P.

Ref.04/2016

Sh.Prem Singh Kanwar V/s Senior Executive Engineer,

HPSEB, Electrical Division HPSEB District Shimla, H.P.

Ref.72/2015

Smt. Rattan Lal V/s The Executive Engineer, HPPWD, Kalpa

District Kinnaur, H.P.

Ref.33/2015

Sh. Rajesh Kumar V/s Director of Higher Education, Shimla

& Anr.

Ref.49/2017

State HRTC Conductor Union V/S The M.D. HRTC, Shimla.

Ref.40/2016

Sh. Prem Singh V/s The XEN, HPSEB, Charlie Villa Shimla,

H.P.

10.

Ref.39/2016

Sh.Chaman Lal V/sThe XEN, HPSEB, Charlie Villa Shimla,

H.P.

11.

Ref.03/2016

Sh. Ram Chander V/s Resient Engineer, Ganvi Power House

Division HPSEB, Jeori District

Shimla, H.P.

12.

Ref.53/2016

Sh. Hoshiar Singh V/S The D.F.O. Shimla.

13.

Ref.28/2016

Sh. Rajeev Kumar V/S M/S Super Multicolor Prints Ltd.

14.

Ref.15/2015

Sh. Ram Chander V/s M/S Vallabh Stripes, Kala Amb.

15.

Ref.66/2016

Sh. Gian Chand V/s The M.D. H.P. State Agriculture

Marketing Board, Khalini, Shimla.

16.

Ref.69/2015

Sh. Rattan Singh V/s The M/s A&A Moduler Systems,

Barotiwala District Solan, H.P.

17.

Ref.112/2016 The President/General Secretary, M/s Su-Kam Power

Systems Ltd. Baddi V/s The Managing Director, M/S Su-

Kam Power Systems Ltd. Baddi District Solan, H.P.

18.

Ref.131/2016 Smt. Chander Kanta Thakur V/s Factory Manager M/S Asian

Electronices Ltd. Shantialaya Trust, Shimla.

By order,

R. D. DHIMAN, IAS,

Pr. Secretary ( Lab. & Emp.).

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

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Ref no. 74 of 2015

Instituted on 3.11.2015

Decided on 29.7.2017

Subhash Chand S/O Shri Diwan Chand, R/O Village Bhadyara, P.O. Chaunta, Tehsil

Jogindernagar, Distt. Mandi, H.P.

^{. .} Petitioner

VERSUS

The Senior Executive Engineer, H.P.S.E.B. Electrical Division Rohru, Tehsil Rohru, Distt.

Shimla, H.P.

^{. .} Respondent

Reference under section 10 of the Industrial Disputes Act, 1947

For petitioner

: Shri R.K Khidtta, Advocate

For respondent : Shri Sudhir Negi, Advocate

AWARD

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

“Whether termination of the services of Shri Subhash Chand S/O Sh. Diwan Chand, R/O

Village-Bhadyara, P.O. Chauntra, Tehsil Joginder Nagar, Distt. Mandi, H.P. by the Senior

Executive engineer, HPSEB Electrical Division Jubbal, Tehsil Rohru, Distt. Shimla, H.P.

during July, 1993 without complying the provisions of the Industrial Disputes Act, 1947 is

legal and justified? If not, keeping in view the delay of about 16 years in raising the

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

compensation the above aggrieved workman is entitled to from the above employer?”

Briefly, the case of the petitioner is that he was engaged as beldar/worker by the

respondent board in the month of September, 1992 in sub Division Gangtoli and worked

continuously till the year, 1996 and that his services were terminated by the respondent without

assigning any reason and without complying the mandatory provisions of the Industrial Disputes

Act, 1947 (hereinafter referred to as Act) as well as Standing Orders of the HPSEB. It is further

stated that the petitioner after his illegal termination, visited the office of the respondent number of

times and requested the concerned official to engage him on the same post as the work was

available with the Board but of no avail and thereafter he raised the demand notice on 4.12.2009

which was rejected by the Labour Commissioner and there after feeling aggrieved, he filed CWP

No. 3651/2015 before the Hon'ble High Court in which the Labour Commissioner was directed to

consider the case of the petitioner and ultimately the case of the petitioner has been sent as

reference to this Court. It is also stated that neither any notice nor compensation in lieu of the

notice has been paid to the petitioner by the board before terminating his services which is clear cut

violation of section 25-F of the Act and that the petitioner had completed 240 days in a calendar

year and the junior persons namely Sushila Kamta, Man Singh, Dhan Singh, Sunder Singh and

Puran Chand are still working and the work which the petitioner was performing is still available

with the respondent. It is stated that the respondent has also engaged new persons and the petitioner

has not been called back and while terminating the services of the petitioner respondent board has

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violated the provisions of sections 25-F, 25-G, 25-H, 25-N of the Act and section 14 (2) of the

Standing Orders of HPSEB. Against this back-drop a prayer has been made that termination of the

petitioner from the month of July, 1992 be quashed and set aside and the respondent board be

directed to reinstate the petitioner in service on the same post w.e.f. July, 1992 with all

consequential service benefits.

By filing reply, the respondent contested the claim of the petitioner with the averments

that the petitioner was engaged temporarily as daily waged beldar on the specific work and he had

worked from 26.9.1992 to 25.7.1993 for 269 days and on the completion of work, he was

discharged from duties on 25.7.1993 and on 4.12.2009, he had raised the industrial dispute after a

gap of 16 years and that the petitioner had never completed 240 days in each calendar year, hence,

he is not entitled to any notice or compensation and also no show cause notice was required as his

engagement was purely temporary. It is further averred that no written representation has been

made by the petitioner and even his services were never terminated but he was discharged from his

duties on the completion of work and funds. It is denied that the juniors were retained and fresh

hands were engaged. It is further denied that the services of Sushila Kamta, Man Singh, Dharam

Singh, Sunder Singh and Puran Singh were engaged after the discharge of the petitioner. The

respondent prayed for the dismissal of the claim petition.

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

respondent.

On the pleadings of the parties, the following issues were framed on 27.9.2016.

Whether the termination of the services of petitioner during July, 1993 by the

respondent 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.

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

No.

Issue no.2

Becomes redundant.

Relief.

Reference answered in favour of the respondent and against the

petitioner per operative part of award

Reasons for findings

Issues no.1

8. The learned counsel for the petitioner contended that the services of the petitioner had

been terminated by the respondent 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

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respondent 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, learned counsel for the respondent contended that the claim of the

petitioner is highly belated and stale. He further contended that the services of the petitioner were

engaged temporarily and his services were never terminated but he was discharged from his duties

on the completion of work and funds. He also contended that no junior to the petitioner had been

retained and no fresh hands had been engaged by the respondent, hence, he is not entitled to any

relief.

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

he was engaged as beldar in September, 1992 and worked as such till 1996 and thereafter his

services were terminated by the respondent without any notice and compensation and that too

without conducting any enquiry. He further deposed that the respondent had retained his juniors

namely Sunder Lal, Sushil Kamta, Man Singh, Dhan Singh, Panna Lal, Puran Chand etc. who are

still working with the respondent and their services had been regularized. He also deposed that he

had worked for more than 240 days in every calendar year and the work which he was performing

is still available with the respondent. He is un-employed after his termination and he was illegally

terminated. He deposed further that after his termination he requested for his re-engagement but of

no avail and thereafter on 4.12.2009, he raised the demand notice but the Labour Commissioner

had rejected his case upon which he approached the High Court by filing CWP No.3652/2015

which was decided in his favour. The copy of demand notice is Ex.PW-1/A and Ex.PW-1/B is the

copy of the order of Hon‟ble High Court. In cross examination he admitted that he was engaged on

26.09.1992. He denied that he was engaged for specific work w.e.f. 26.9.1992 till 25.7.1993. He

further denied that he had not completed 240 days in a calendar year. He also denied that the

respondent had not retained his juniors and that the respondent had not engaged new/fresh persons.

He denied that he had filed the case after lapse of 22 years and that he had raised the demand notice

after a gap of 16 years.

11. PW-2 Shri Kuldeep Singh Senior Executive Engineer has stated that Shri Subhash

Chand was engaged on 26.9.1992 in Sub Division Gangtoli, Rohru and Surinder Singh was

engaged on 26.10.1986, Puran Chand was engaged on 26.10.1992, Sunder Lal was engaged on

26.9.1992, Panna Lal was engaged on 26.10.1992 and Ravinder Singh was engaged on 26.11.1992

as beldars and the are still working with the respondent board. He tendered in evidence the copy of

standing orders of the Board Ex. PW-2/A. In cross-examination, he stated that the juniors have

been retained upon the orders of the Hon‟ble High Court mark RX-1 to mark RX-4.

12. PW-3 Smt. Sushila Kamta deposed that initially she was engaged as beldar by the

board at Rohru on 20.7.1998 and presently she is working with the board.

13. On the other hand, the respondent examined one Shri Ajay Kumar, Assistant Engineer,

as RW-1 who deposed that the petitioner was engaged as daily waged beldar on 26.9.1992 on

muster roll basis and he worked till 25.7.1993 and thereafter he left the job at his own. He further

deposed that the petitioner was called telephonically to resume the duties but he never turned up

and he raised the demand notice after 16 years and during the intervening period of 16 years, the

petitioner never approached the board for his re-instatement. He also deposed that no junior to the

petitioner was retained and the persons namely Surinder Singh, Puran Singh, Panna Lal, Goverdhan

Singh and Ravinder Singh were initially engaged prior to the petitioner and Sunder Lal was

engaged along-with the petitioner and they have been retained upon the orders of the Court. In

cross-examination, he admitted that the petitioner was engaged in September, 1992 and that he

worked till 25.7.1993. He further admitted that as per extract mark PX, the petitioner had worked

for 240 days in 12 calendar months. He also admitted that neither any notice was issued nor any

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compensation was given to the petitioner prior to his termination and that no letter was issued to

him for resumption of his duties and no show cause notice was issued and no enquiry was

conducted against him. He denied that the juniors to the petitioner have been retained by the Board.

He admitted that Puran Chand and Panna Lal were engaged on 26.10.1992 and Sudner Lal was

engaged on 26.9.1992 and that Goverdhan and Ravinder Singh were engaged on 26.11.1992. He

admitted that the aforesaid persons are still working with the board. He denied that the services of

the petitioner were terminated illegally and he never abandoned the job.

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

thereof, it has become clear that the services of the petitioner were engaged on 26.9.1992 and he

worked as such till 25.7.1993. It is also clear from the record that the present dispute was raised by

the petitioner after about 16 years. Now, the question which arises for consideration before this

Court is as to whether the reference is stale and highly belated. The learned counsel for the

petitioner contended that under the Industrial Disputes, no limitation is prescribed and the provision

of Article 137 of the 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.

15. Undisputedly, the petitioner had raised his industrial dispute after a period of more

than 16 years. According to the petitioner he was engaged by the respondent in the month of

September, 1992. It is the admitted case of the petitioner that he raised the demand notice Ex. PW-

1/A on 4.12.2009. The perusal of the demand notice Ex. PW-1/A shows that the same was raised

by the petitioner after a period of 16 years. Therefore, the position of law in respect of a stale claim

is required to be seen.

16. In (2013) 14 SCC 543, titled as Assistant Engineer Rajasthan State Agriculture

Marketing Board, Sub Division Kota Vs. Mohan Lal, it has been held by the Hon'ble Apex

Court that though the Limitation Act is not applicable to the reference made under the I.D Act but

delay in raising industrial Dispute is an important circumstance for exercise of judicial discretion in

determining relief that is to be granted. The relevant portion of aforesaid judgment is reproduced as

under:

“19. We are clearly of the view that though the Limitation Act, 1963 is not applicable to the

reference made under the ID Act but delay in raising industrial dispute is definitely an

important circumstance which the Labour Court must keep in view at the time of

exercise of discretion irrespective of whether or not such objection has been raised by

the other side. The legal position laid down by this Court in Gitam Singh 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, must be invariably

followed.”

17. In Assistant Executive Engineer, Karnataka Vs. Shivalinga reported in (2002) 10

SCC 167, the services of the employee were terminated on 25.5.1985 and he approached the

Labour Officer on 17.3.1995 and then the reference was made by the Government to the Labour

Court. There was a delay of more than nine years in approaching the Labour Officer. In para 6 of

the aforesaid judgment, the Hon'ble Apex Court has held as under:

“Learned counsel for the appellant strongly relied on the reasoning of the Labour Court and

contended that the view of the High Court would not advance the cause of justice. Learned

counsel for the respondent relied upon two decisions of this Court in Ajaib Singh vs.

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Sirhind Coop. Marketing-cum-Processing Service Society Ltd. (1999) 6 SCC 82 and Sapan

Kumar Pandit vs. U.P. SEB (2001) 6 SCC 222 to contend that there is no period of

limitation prescribed under the Industrial Disputes Act to raise the dispute and it is open to a

party to approach the Court even belatedly and the Labour Court or the Industrial Tribunal

can properly mould the relief by refusing or awarding part-payment of back wages. It is no

doubt true that in appropriate cases, as held by this Court in the aforesaid two decisions,

such steps could be taken by the Labour Court or the Industrial Tribunal, as the case may

be, where there is no such dispute to relationship between the parties as employer and

employee. In cases where there is a serious dispute, or doubt in such relationship and

records of the employer become relevant, the long delay would come in the way of

maintenance of the same. In such circumstances to make them available to a Labour Court

or the Industrial Tribunal to adjudicate the dispute appropriately will be impossible. A

situation of that nature would render the claim to have become stale. That is exactly the

situation arising in this case. In that view of the matter, we think the two decisions relied

upon by the learned counsel have no application to the case on hand.”

Thus, it has been held that in case there is a serious dispute or doubt in such relationship and

the records of the employer become relevant, the long delay would come in the way of maintenance

of the same.

18. In Haryana State Coop. Land Development Bank Vs. Neelam reported in (2005) 5

SCC 91, the employee was discontinued from service w.e.f. 30.5.1986 and he raised the demand

notice on 30.9.1993 and thereafter the reference was sent to the Labour court by the appropriate

government. The Labour Court passed an order answering the reference against the employee

holding that the claim was belated. Thereafter, a writ petition was filed before the Hon'ble High

Court which was allowed and the employee was directed to be reinstated in service with continuity

of service but without back-wages. The Hon'ble Supreme Court set aside the judgment of the High

Court and restored the judgment of the Labour Court as a result the reference stood answered

against the workman. The relevant portion of the aforesaid judgment is reproduced as under:

13. “In Ajaib Singh (supra), the management did not raise any plea of delay. The Court

observed that had such plea been raised, the workman would have been in a position to

show the circumstances which prevented him in approaching the Court at an earlier

stage or even to satisfy the Court that such a plea was not sustainable after the

reference was made by the Government. In that case, the Labour Court granted the

relief, but the same was denied to the workman only by the High Court. The Court

referred to the purport and object of enacting Industrial Disputes Act only with a view

to find out as to whether the provisions of the Article 137 of the Schedule appended to

the Limitation Act, 1963 are applicable or not. Although, the Court cannot import a

period of limitation when the statute does not prescribe the same, as was observed in

Ajaib Singh (supra), but it does not mean that irrespective of facts and circumstances

of each case, a stale claim must be entertained by the appropriate Government while

making a reference or in a case where such reference is made the workman would be

entitled to the relief at the hands of the Labour Court.”

14. “The decision of Ajaib Singh (supra) must be held to have been rendered in the fact

situation obtaining therein and no ratio of universal application can be culled out

therefrom. A decision, as is well-known, is an authority of what it decides and not what

can logically be deduced therefrom Bharat Forge Co. Ltd. Vs. Uttam Manohar Nakate,

JT 2005 (1) SC 303], and Kalyan Chandra Sarkar vs. Rajesh Ranjan @ Pappu Yadav

& Anr. para 42.”

15” In Balbir Singh vs. Punjab Roadways and Another [(2001) 1 SCC 133], as regard

Ajaib Singh (supra), this Court observed :

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5.” The learned counsel for the petitioner strenuously urged that the Tribunal

committed error in denying relief to the workman merely on the ground of delay.

The learned counsel submitted that in industrial dispute delay should not be taken

as a ground for denying relief to the workman if the order/orders under challenge

are found to be unsustainable in law. He placed reliance on the decision of this

Court in the case of Ajaib Singh v. Sirhind Coop. Marketing-cum-Processing

Service Society Ltd. (1999) 6 SCC 82 : 1999 SCC (L&S) 1054 : JT (1999) 3 SC

38).

“We have carefully considered the contentions raised by the learned counsel for

the petitioner. We have also perused the aforementioned decision. We do not find

that any general principle as contended by the learned counsel for the petitioner

has been laid down in that decision. The decision was rendered on the facts and

circumstances of the case, particularly the fact that the plea of delay was not taken

by the management in the proceeding before the Tribunal. In the case on hand the

plea of delay was raised and was accepted by the Tribunal. Therefore, the

decision cited is of little help in the present case. Whether relief to the workman

should be denied on the ground of delay or it should be appropriately moulded is

at the discretion of the Tribunal depending on the facts and circumstances of the

case. No doubt the discretion is to be exercised judicially."

16. “Yet again in Assistant Executive Engineer, Karnataka vs. Shivalinga [(2002) 10 SCC

167], a Bench of this Court observed :

“6. Learned counsel for the appellant strongly relied on the reasoning of the Labour

Court and contended that the view of the High Court would not advance the cause

of justice. Learned counsel for the respondent relied upon two decisions of this

Court in Ajaib Singh vs. Sirhind Coop. Marketing-cum-Processing Service

Society Ltd. (1999) 6 SCC 82 and Sapan Kumar Pandit vs. U.P. SEB (2001) 6

SCC 222 to contend that there is no period of limitation prescribed under the

Industrial Disputes Act to raise the dispute and it is open to a party to approach

the Court even belatedly and the Labour Court or the Industrial Tribunal can

properly mould the relief by refusing or awarding part-payment of back wages. It

is no doubt true that in appropriate cases, as held by this Court in the aforesaid

two decisions, such steps could be taken by the Labour Court or the Industrial

Tribunal, as the case may be, where there is no such dispute to relationship

between the parties as employer and employee. In cases where there is a serious

dispute, or doubt in such relationship and records of the employer become

relevant, the long delay would come in the way of maintenance of the same. In

such circumstances to make them available to a Labour Court or the Industrial

Tribunal to adjudicate the dispute appropriately will be impossible. A situation of

that nature would render the claim to have become stale. That is exactly the

situation arising in this case. In that view of the matter, we think the two decisions

relied upon by the learned counsel have no application to the case on hand."

17. “In Nedungadi Bank Ltd. (supra), a Bench of this Court, where S. Saghir Ahmad was a

member [His Lordship was also a member in Ajaib Singh (supra), opined :

“6. Law does not prescribe any time-limit for the appropriate Government to exercise

its powers under Section 10 of the Act. It is not that this power can be exercised at

any point of time and to revive matters which had since been settled. Power is to

be exercised reasonably and in a rational manner. There appears to us to be no

rational basis on which the Central Government has exercised powers in this case

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after a lapse of about seven years of the order dismissing the respondent from

service. At the time reference was made no industrial dispute existed or could be

even said to have been apprehended. A dispute which is stale could not be the

subject-matter of reference under Section 10 of the Act. As to when a dispute can

be said to be stale would depend on the facts and circumstances of each case.

When the matter has become final, it appears to us to be rather incongruous that

the reference be made under Section 10 of the Act in the circumstances like the

present one. In fact it could be said that there was no dispute pending at the time

when the reference in question was made."

(Emphasis supplied)

19. In (2006) 5 SCC 433 in case titled as UP State Road Transport Corporation Vs.

Babu Ram, the termination was dated 19.9.1983 and the reference was made on 29.8.1998. The

Labour Court has held the termination as un-valid without considering the question of delay. The

Hon'ble High Court dismissed the writ petition. The Hon'ble Supreme Court has held that no

material was placed on record to show that the dispute was raised within reasonable time and the

employee was not responsible for delay. The relevant portion of the aforesaid judgment is

reproduced as under:

“10. It is to be noted that the High Court has very cryptically disposed of the writ petition.

The workman has not placed any material to show that it had raised dispute within a

reasonable time, and/or that he was not responsible for delayed decision if any in the

conciliation proceedings. It was for him to show that the dispute was raised within a

reasonable time and that he was not responsible for any delay. The High Court, on a

hypothetical basis has assumed that the dispute might have been raised promptly but

delayed by the State Government and he cannot be penalized for delay in finalizing the

conciliation proceedings and the reference. But neither the Labour Court nor the High

Court has even noted the factual position. The conclusion was based on surmises and

conjectures.”

20. In Assistant Engineer, CAD Kota Vs. Dhan Kunwar reported in (2006) 5 SCC

481, the delay was of about eight years in raising the dispute. The Labour Court granted

reinstatement with 30% back-wages. The writ petition and writ appeal filed by the employer were

dismissed. However, the Hon'ble Apex Court set aside the judgments of Hon‟ble High Court and

the Labour Court and held that no relief should have been granted. The relevant portion of the

aforesaid judgment is reproduced herein under:

“9. In the background of what has been stated above, the Labour Court should not have

granted relief. Unfortunately, learned Single Judge and the Division Bench did not

consider the issues in their proper perspective and arrived at abrupt conclusions

without even indicating justifiable reasons…………………..

21. In UP State Road Transport Corporation Vs. Ram Singh and another (2008) 17

SCC 627, the termination was dated 15.3.1973 and the reference was dated 15.6.1986 and there

was a delay of about 13 years in making the reference. The reference was dismissed on the ground

of delay. The relevant portion of the aforesaid judgment reads as under:

“ 7. We are of the view that in the facts and circumstances of the case, the High Court erred

in not setting aside the award of the Labour Court. Apart from the unacceptable

manner in which the appellant was denied the opportunity of participating in the

proceedings, including being debarred from cross-examining the respondent, the

Labour Court could not have entertained the industrial dispute given the enormous

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delay. This Court has in several decisions has held that while delay cannot by itself be

sufficient reason to reject an industrial dispute, never the less the delay cannot be un-

reasonable. The decision in Prakash Chander Sahu has reaffirmed this principal. The

reason for diligence and promptness lies in the fact that the records pertaining to an

employee might have been destroyed and it would be difficult to obtain witnesses who

would be competent to give evidence so many years later if the Labour Court wishes to

hold a further enquiry into the matter. In the present case, the delay of 13 years is

unreasonable. The mere fact that the respondent was making repeated representations

would not justify his raising the issue before the Labour Court after 13 years. In any

event, the last representation was made in 1983 and the industrial dispute was

admittedly raised in 1986. The lack of diligence on the part of the respondent is

apparent."

22. In (2009) 13 SCC 746, State of Karnataka Vs. Ravi Kumar the Hon'ble Supreme

Court dismissed the reference on the ground of delay and it was held that the person supervising

could not be expected to prove after 14 years that the employee did not work or that he did not

work for 240 days or he voluntarily left the job. The relevant portion of the aforesaid judgment

reads as under:

“9. It is not possible to expect the Asstt. Executive Engineer to prove after 14 years that

the daily wager did not work or that he did not work for 240 days in a year or that the

daily wager voluntarily left the work…………

23. In a recent judgment of our Hon’ble High Court delivered in CWP no. 1912 of 2016

titled as Bego Devi Versus State of HP and others decided on 26.10.2016, it has been held as

under:

“5. As discussed hereinabove, petitioners have chosen to remain in deep slumber for not

less than 8-12 years and have come out of deep slumber after more than 8 to 12 years.

While going through the writ petitions, it appears that the petitioners remained

contented with the orders of their termination and had not made any murmur for

making reference. It is only after noticing the judgment of the apex Court in Ajaib

Singh versus Sirhind Cooperative Societies Ltd reported in AIR 1999 SC 1351,

Raghubir Singh versus General Manager, Haryana Roadways, Hissar, reported in 2014

AIR SCW 5515, which has been relied upon by this Court in a batch of writ petitions,

CWP No. 9467 of 2014 titled as Pratap Chand versus Himachal Pradesh State

Electricity Board and others, being the lead case, decided on 30.12.2014 and in so

many cases, has set aside the orders and directed the Labour Commissioner to make

reference to the Industrial Tribunal, reference of which have been made in all the writ

petitions. Thus, one comes to an inescapable conclusion that these writ petitions are

only because of the judgment made by the apex Court and the judgments made by this

Court, is suggestive of the fact that the petitioners were fence-sitter and watching what

will happen to other cases. The petitioners have not made any murmur till the

judgments were made by the apex Court and by this Court in so many cases.”

(Emphasis supplied).

6………………………………………….…………

7……………………………………………..………

8……………………………………………………..

“9. It is beaten law of land that delay takes away the settings of law. A person who does

not seek relief within time, his petition has to be dismissed only on the grounds of

delay and laches, otherwise, it would amount to gross misuse of jurisdiction and

disturb the settled position”.

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24. In view of the aforesaid law laid down by the Hon'ble Apex Court, it is clear that

though the Court cannot import the period of limitation and the reference cannot be dismissed

merely on the ground of delay, it does not mean that irrespective of the facts and circumstances of

the case, a stale claim must be entertained and the relief should be granted. In the case of delay, no

formula of universal application can be laid down and it would depend on the facts and

circumstances of each case. The delay would certainly be fatal if it has resulted in material

evidence relevant to the adjudication being lost and rendered unavailable. The onus of showing that

the dispute was raised within a reasonable time is upon the workman and it is for the workman to

explain the delay by furnishing the acceptable explanation to the satisfaction of the Court that he

was not responsible for the delay caused. The fact that the workman was making repeated

representations is not sufficient to explain the delay.

25. Keeping in view the aforesaid principles laid down by the Hon'ble Apex Court, the

facts of this case are required to be seen. The services of the petitioner were stated to be terminated

w.e.f. the year, 1996 but in support thereof no evidence has been led by the petitioner which could

go to show that he had actually worked till the year, 1996. As per the reference the services of the

petitioner were stated to be terminated during July, 1993 and even RW-1 has categorically deposed

that the petitioner had worked till 25.7.1993 therefore, in the absence of any documentary evidence

on record, it cannot be said that the services of the petitioner were allegedly terminated in the year,

1996. It is also clear from record that the petitioner had raised the present dispute after about a

period of 16 years. In his deposition before this Court the petitioner as PW-1 has stated that after

his termination, he requested the respondent for his re-engagement several times but he was not re-

engaged. However, except for his bald statement there is no other evidence on record to suggest as

to when he approached the respondent for his reinstatement. No documentary evidence has been

produced by the petitioner to prove that he had been visiting the respondent for his re-engagement

during the period of 16 years. In the opinion of this Court, the explanation furnished by the

petitioner for not raising the demand notice within a reasonable period cannot be accepted. The

burden of proof was upon the petitioner to show that the dispute was raised within a reasonable

time and to offer an explanation to the satisfaction of this Court for the delay of 16 years caused in

seeking reference but the petitioner has failed to discharge his burden. The reference is therefore

stale and is liable to be rejected on the ground of delay in raising the dispute.

26. The learned counsel for the petitioner next contended that the since the petitioner had

completed 240 days in a calendar year, it was necessary for the respondent to have complied with

the provisions of section 25-F of the Act. It has been admitted by RW-1 that as per the extract mark

PX, the petitioner had worked for 240 days in 12 calendar months. No doubt, the petitioner might

have completed 240 days in a calendar year or in preceding 12 months but as observed earlier,

since, the petitioner has failed to explain the delay of about 16 years in raising the reference, no

protection of section 25-F of then Act can be granted to the petitioner at this belated stage.

27. The learned counsel for the petitioner next contended that RW-1 has deposed before

this Court that the petitioner has left the job at his own but the respondent has failed to establish

such plea by producing any evidence on record. As pointed out earlier, the Hon'ble Supreme Court

has held that the delay would certainly be fatal if it has resulted in material evidence relevant to the

adjudication being lost and rendered unavailable. It has also been held by the Hon’ble Supreme

Court in 2009 (13) SCC 746 that the person supervising cannot be expected to prove after long

delay that the employee/workman did not work for 240 days in a year or that he voluntarily left the

job. It is difficult for the employer to obtain witness/es who would be competent to give evidence

so many years later. It has further been held that lapse of time results in losing the remedy and the

right as well and the delay in seeking the reference causes prejudice to both the employer and

employee. In the present case also it would not be expected from the respondent to lead evidence

and to bring witnesses or to place documents on record to prove after 16 years that the petitioner

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had abandoned the job at his own. The petitioner had raised the industrial dispute after lapse of

about 16 years and remained silent during this period without any plausible explanation, and as

such, no relief can be granted to him after a lapse of about 16 years as the delay in the present case

is certainly fatal.

28. The learned counsel for the petitioner next contended that at the time of the termination

of the petitioner, the respondent had retained his juniors and had engaged fresh hands who are still

working as such the respondent had violated the principles of “last come first go”. In his deposition,

the petitioner has also stated that after the termination of his services, the respondent has retained

his juniors namely Sunder Lal, Sushila Kamta, Man Singh, Dhan Singh, Panna Lal and Puran

Chand and they are still working with the department. However, the statement of RW-1 shows that

Sunder Lal was engaged on 26.9.1992 along-with the petitioner and he cannot be stated to be his

junior. Furthermore, the persons namely Puran Chand, Panna Lal, Goverdhan Singh and Ravinder

Singh were engaged upon the orders of the Court mark RX-1 to mark RX-4. Therefore, the perusal

of the aforesaid orders of the Court shows that they have not been engaged by the board itself rather

they have been engaged upon the orders of the Court. So far as the engagement of Smt. Sushila

Kamta is concerned, she was engaged as beldar by the board at Rohru on 20.7.1998 as per her

statement as PW-3. However, no documentary evidence has been produced by the petitioner in

order to show her actual date of appointment and whether she had worked continuously at Rohru

w.e.f. 20.7.1998 till date. Rather, it is clear from her statement that at present she is working under

City Electric Division Shimla and not at Rohru. Even, at the time of her deposition before the Court

she had not produced any documentary evidence regarding her appointment with the board.

Therefore, in the absence of any documentary evidence on record, it cannot be said that the

aforesaid Sushila Kamta was retained/engaged by the board at the same Sub Division where the

petitioner was working. Moreover, our own Hon’ble High Court in CWP no. 4515/2012 decided

on 13.6.2012, titled as Suraj Mani Vs. HPSEB has held that the petitioners cannot claim equal

treatment after about two decades with the juniors who have allegedly been retained. The petitioner

who slept for a long period of 16 years is not entitled to claim any relief on the ground of equal

treatment. Since, the reference has been proved to be stale and belated as such the protection of

sections 25-F, 25-G and 25-H of the Act cannot be granted to the petitioner. If the alleged

termination of petitioner was either illegal or unjustified, he would not have kept silent for a period

of 16 years.

29. Thus, keeping in view the above cited rulings and the material fact that the petitioner

had raised the industrial dispute after lapse of about 16 years and remained silent during this period

without any plausible explanation as such no relief can be granted to him. Hence, it cannot be said

that the termination of the services of the petitioner is illegal and unjustified. Consequently, this

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

Issue no.2.

30. Since, the petitioner has failed to prove issue no.1, above, this issue becomes

redundant.

Relief.

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

hereby dismissed. Consequently, the reference stands answered against the petitioner and in favour

of 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 29th Day of July, 2017.

(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. 65 of 2014

Instituted on 13.8.2014

Decided on 31.7.2017

Dinesh Kumar S/o Sh. Hari Ram, Village Kailar & P.O. Saproon, Distt. Solan, H.P.

. . Petitioner.

VS.

M.N. DAV Dental College, Tatul, P.O. Oachghat, District Solan, H.P through its Principal.

. . Respondents.

Reference under section 10 of the Industrial Disputes Act, 1947

For petitioner

: Shri Shri J.C Bhardwaj, AR.

For respondent : Shri Arun Verma, Advocate.

AWARD

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

“Whether verbal termination of the services of Shri Dinesh Kumar S/O Shri Hari

Ram, R/O Village Kailar, P.O. Saproon, District Solan, H.P. by the Principal, M.N.

D.A.V. Dental College, Tatul, P.O. Oachghat, Distt. Solan, H.P. w.e.f. 01.04.2013

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

justified? If not, what amount of back wages, seniority, past service benefits and

amount of compensation the above aggrieved worker is entitled to?”

In nutshell, the case of the petitioner is that he was engaged as driver to drive the

college buses/vehicles since 3.11.2011 and remained continued as such till 1.4.2013 without any

break and thereafter he was orally restrained to attend his duties without any legal orders and he

was paid wages ` 5412/- per month which is less than the minimum wages notified for the category

of drivers by the appropriate government, hence, he is entitled to receive difference of wages

throughout with interest. It is further stated that the services of the petitioner were terminated

without any notice, retrenchment compensation and without necessary compliance of section 25-F

of the Industrial Disputes Act, 1947 (hereinafter referred as to Act) and that the oral termination

orders of the petitioner are not speaking orders and as such those are null, void and inoperative

which amounts to unfair labour practice. The conduct of the petitioner was quite satisfactory as

neither he was served with any chargesheet nor any enquiry was conducted against him and even

no opportunity of being heard was given to him before terminating his services. It is also stated that

the services of junior workmen in the same establishment were retained by the respondent in

violation of the provisions of section 25-G of the Act and that the removal of the petitioner from the

services of the college is against the provisions of The employment Standing Orders Act, 1946.

Against this back-drop a prayer has been made that the respondent be directed to reinstate the

petitioner in the employment of the respondent college, retrospectively w.e.f. 1.4.2013 with full

back-wages, seniority and other consequential service benefits.

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

preliminary objections have been taken qua maintainability and that the claim is bad for non-

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joinder of necessary parties etc. On merits, it has been asserted that neither the petitioner was in the

employment of the respondent nor at any point of time, wages amounting to ` 5412/- had been paid

to him. The respondent had annual contract previously with M/s Jai Durga Agency, Solan for

providing manpower on various posts including driver and accordingly the aforesaid contractor

recruited the petitioner as a driver and was deputed for plying the buses of the respondent. The

petitioner remained on the rolls of the contractor, aforesaid, only for three months and thereafter his

services were availed by M/s Rab Rakha security Solan and further deputed him with the

respondent. The respondent did not pay any wages/salary or any other benefits to the petitioner

directly and the contractor used to disburse wages to him. It is further asserted that as informed by

the security agency, the petitioner had resigned from the services of the contractor as he has got

better employment opportunity with some other organization at Pawranoo. It is further asserted that

the petitioner had submitted his resignation to the contractor wherein he has acknowledged that he

had received his entire full and final settlement amount and there are no dues from M/s Rab Rakha

Security Service, Solan and even in one letter he had admitted and acknowledged that he was

recruited by M/s Rab Rakha Security service, Solan to provide services to various agencies

including the respondent. It is denied that the services of the petitioner were terminated without any

notice and retrenchment compensation and that too without compliance of section 25-F of the Act.

Since, the petitioner had submitted his resignation with his employer i.e contractor, hence he is not

entitled for statutory benefits as claimed and that since the petitioner was not in the employment of

respondent, hence, no notice and chargesheet was required to be issued to him. It is denied that the

services of junior workmen in the same establishment were retained by the respondent. 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 4.1.2016.

Whether the termination of the services of petitioner w.e.f. 1.4.2013 by the respondent

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 petition is not maintainable as alleged?

. . OPR.

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

. . OPR.

Relief.

I have heard the AR for the petitioner and learned counsel for the respondent and have

also gone through the record of the case carefully.

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

findings on the aforesaid issues are as under.

Issue no. 1

No.

Issue no. 2

Becomes redundant.

Issue no. 3

No.

Issue no. 4

Yes.

Relief.

Reference answered in favour of the respondent and against the

petitioner per operative part of award.

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Reasons for findings

Issues no.1 &4

Being interlinked and correlated both these issues are taken up together for discussion

and decision.

The AR for the petitioner contended that the services of the petitioner had been

terminated by the respondent 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 before terminating the services of the petitioner neither any enquiry was

conducted against him nor he was afforded any opportunity of being heard. He also contended that

the junior persons to the petitioner are still working with the respondent and fresh workers have

been engaged in violation of the provisions of section 25-G and 25-H of the Act.

10. On the other hand, learned counsel for the respondent contended that the petitioner was

the employee of the contractor and he was deputed by the contractor with the respondent for plying

the vehicles/buses of the respondent. He further contended that as per the information received

from the contractor, the petitioner himself tendered his resignation in which he had acknowledged

that he had received his full and final settlement amount and there are no dues from M/s Rab Rakha

Security Service, Solan. He also contended that in one letter the petitioner had also admitted and

acknowledged that he was recruited by M/s Rab Rakha Security Service Solan and since, he was

not the employee of respondent, hence, the question of his termination by the respondent does not

arise at all.

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

he was engaged as driver by the respondent on 3.11.2011 and continued as such till 1.4.2013 and he

used to dive the bus of the respondent. The log book of the bus no. HP 14-A-2408 Mark A has been

filled by him. He further stated that he had completed 240 days in each calendar year till his

termination and neither any notice was issued to him nor any compensation was paid before the

termination of his services. He further stated that neither any show cause notice /chargesheet was

issued nor any enquiry was conducted against him, and after his termination, the respondent has

engaged new driver namely Bala Ram, Jaggu Ram and Nanku Ram. His last drawn salary was

about `5000/- per month. In cross-examination, he denied that he had joined Jai Maa Durga

Security Services in the year, 2011-2012 and that the respondent had entered into contract with Jai

Maa Durga Security Service for deploying manpower for the year, 2011-12. He further denied that

the salary for the year, 2011-12 was being paid by M/s Jai Durga Security Services. He also denied

that w.e.f. 1.4.2012 to 31.3.2013, M/s R.R Security Services, Solan had deployed him with the

respondent and they had paid the salary to him and that he was under the control of R.R Security

Services. He denied that he submitted his resignation to R.R Security Services on 17.6.2013 and

that he had appended his signatures on Mark RX at point A&B encircled in red. He further denied

that he had written letter Mark RY to R.R Security and he had appended his signatures on the same.

He also denied that since he got another job, therefore, he had left the job on 17.6.2013 from R.R

Security Service. He denied that he was not under the direct control of respondent. He further

denied that the services of Bala Ram, Jaggu Ram and Nanku Ram have not been engaged by the

respondent.

12. On the other hand, the respondent examined two RWs. RW-1 Shri Inder Kumar,

Transport Incharge 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 authority letter Ex. RW-1/B, copy

of agreement dated 30.3.2012 Ex. RW-1/C and agreement dated 30.3.2011 Ex. RW-1/D. In

crossexamination, he admitted that the bus which was used to be driven by the petitioner is still

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being plied by the college. He further admitted that the respondent does not have any certificate of

registration under Contract Labour (Regulation and Abolition) Act. He denied that the work is

taken from the workers deployed by the contractor as per the rules and regulations of the college.

He further denied that the services of the workers deployed by the contractor are terminated by the

Principal of the college. He admitted that the petitioner had not tendered the resignation to the

respondent college. He denied that the petitioner was being paid the wages which were less than the

wages as per the minimum wages Act. He further denied that the petitioner was under the

administrative control of the college. He admitted that the work of the petitioner was satisfactory

and that no person of the contractor used to sit in the college.

13. Shri Sant Ram Sharma, Prop. of R.R Security Services appeared into the witness box

as RW-2 to depose that Ex. RW-2/A is the copy of licence under the Contract Labour (Regulation

and Abolition) Act to deploy the contract labour and agreement Ex. RW-1/C had been executed by

them with the college and the same is signed by him at point B encircled in red and as per

agreement, they have supplied nine workers to the college. He further deposed that the workers

including the petitioner were under his supervision and he used to pay him the salary after 1.4.2012

and he used to raise the salary bills of the petitioner and used to give it to the college as per the

terms and condition of agreement Ex. RW- 1/C. The college used to pay the amount to him through

cheques and he used to deposit the EPF of the petitioner. He also deposed that the resignation letter

Ex. RW-2/B was given to him by the petitioner and he was paid his full & final dues as per letter

Ex. RW-2/C on 17.6.2013. In cross-examination, he admitted that he had not terminated the

services of the petitioner. He volunteered that the petitioner had tendered his resignation before him

on 17.6.2013. He denied that the petitioner had not signed the letters Ex. RW-2/B and Ex. RW-2/C

and the same are fabricated. He further denied that licence Ex. RW-2/A is only for deploying the

security staff but admitted that the licence is not valid for deploying the drivers. He also denied that

the petitioner was neither under his control and supervision nor he used to mark his attendance. He

admitted that he used to receive 20% commission from the college. He further admitted that the log

book of the vehicle was maintained by the college.

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

thereof it has become clear that the petitioner has not been able to establish that he was the

employee of the respondent college and that his services have been terminated by the respondent in

violation of the provisions of the Act. It was for the petitioner to bring on record the cogent and

satisfactory evidence regarding his appointment with the respondent. The petitioner, admittedly,

has not adduced in evidence any such appointment letter or document to warrant such inference

thereby making it evident that he was the employee of the respondent. Except for the bald

statement of the petitioner, there is no evidence on record to suggest that he was engaged as driver

by the respondent. In crossexamination, he admitted that no appointment letter was issued to him

by the respondent. He also admitted in cross-examination that he had not annexed any salary slip,

extract of attendance register and identity card issued by the respondent. In fact there is no

documentary evidence on record which could show that the petitioner was the employee of the

respondent.

15. On the other hand, it has been proved on record by the respondent that on 30.3.2011, it

had entered into an agreement Ex. RW-1/D with M/s Jai Durga Agency for providing manpower of

various posts including drivers and thereafter it had entered into an agreement dated 30.3.2012 Ex.

RW-1/C with M/s R.R Security Services Solan who had provided the services of the petitioner as

driver for plying its buses. The name of the petitioner is reflected in the list of workers mark RX

supplied against the aforesaid agreement Ex. RW-1/C in which the petitioner had appended his

signatures at serial no. 9. RW-2, who is the proprietor of M/s R.R Security Services has specifically

deposed that they have supplied nine workers to the respondent college as per agreement Ex. RW-

1/C and the list mark RX has been signed by the petitioner at serial no.9. He further deposed that all

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the nine workers including the petitioner were under his supervision and he used to pay him the

salary after 1.4.2012. He also deposed that he used to raise the salary bills of the petitioner and used

to give it to the college as per the terms and conditions of the agreement Ex. RW-1/C. He further

deposed that he used to deposit the EPF of the petitioner. No evidence to the contrary has been filed

by the petitioner. Hence, the direct evidence in the shape of the aforesaid documents is clinching to

substantiate that the petitioner was the worker of the contractor i.e M/s R.R Security Services and

was not engaged by the respondent. Therefore, the relationship of employer and employee between

the petitioner and respondent has not been established. Moreover, it has also been proved on record

that the petitioner has tendered his resignation to M/s R.R Security Services on 17.6.2013 vide

letter Ex. RW-2/B. RW-2 specifically deposed that the resignation letter Ex. RW-2/B was given to

him by the petitioner and the same is signed by the petitioner at point A. He also deposed that the

petitioner was paid full & final dues as per letter dated 17.6.2013 Ex. RW-2/C. The perusal of the

same shows that the petitioner had signed the same and acknowledged that he had received his full

& final dues and there are no dues from the company. Though a suggestion has been put to RW-2

that the petitioner has not signed the letters Ex. RW-2/B and Ex. RW-2/C and the same are

fabricated. However, no evidence has been led by the petitioner to prove that the aforesaid letters

have been fabricated and the same have not been signed by him and he had not tendered his

resignation.

16. Hence, in view of the entire evidence on record, I have no hesitation in holding that the

petitioner was the employee of the contractor and he was deputed by the contractor with the

respondent for plying the buses of the respondent and thereafter the petitioner himself had tendered

his resignation.

17. From the perusal of the record, it has become clear that the petitioner has not

impleaded M/s R.R Security Services, Solan as a party in the statement of claim which has been

filed consequent upon the reference having been made to this Court by the appropriate government.

The respondent college has taken a specific plea in its reply that the petitioner had been deputed by

the contractor M/s R.R Security Services, Solan. Therefore, since the respondent college through its

reply had made known to the petitioner that the contractor had deputed the petitioner with the

respondent and in support thereof the respondent had also filed documents, it was incumbent upon

the petitioner to have taken necessary steps to get impleaded M/s R.R Security Services, Solan as a

party, even, if initially he has filed his claim only against the respondent college. Therefore, I have

no hesitation in holding that the petition is bad for non-joinder of necessary parties.

18. Accordingly both these issues are answered in favour of the respondent and against the

petitioner.

Issue no.3

19. Consequent upon the reference, made to this Court by the appropriate government, the

petitioner had filed the claim petition which cannot be said to be not maintainable. Thus, by holding

the claim petition to be maintainable, 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 petition filed by the petitioner

deserves to be dismissed and accordingly, the same is dismissed with the result, this reference is

decided against him and in favour of the respondent. Let a copy of this award be sent to the

appropriate government for publication in the official gazette. File, after completion be consigned

to records. Announced in the open court today on this 31st day of July, 2017.

(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-CUMLABOUR COURT, SHIMLA

Ref no. 93 of 2016

Instituted on 3.10.2016

Decided on 26.7.2017

Sanjeev Kumar S/o late Shri Shankar Lal R/o Village Bhalori, P.O Kuthar, Tehsil Kasauli,

District Solan, HP.

. . Petitioners.

VS.

State of HP through Secretary, I&PH Department

The Executive Engineer, I&PH Division Solan, District Solan, HP.

. . Respondents.

Reference under section 10 of the Industrial Disputes Act, 1947

For petitioner

: Ms. Kiran Sharma, Advocate

For respondents : Ms. Reena Chauhan, Dy. DA

AWARD

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

“Whether alleged termination of services of Sh. Sanjeev Kumar S/O Sh. Shankar Lal R/O

Village- Bhalori, P.O. Kuthar, Tehsil Kasauli, Distt. Solan, H.P. during October, 1995 by

the Executive Engineer, I & PH Division Solan (Rabon), Distt. Solan, H.P., who had

worked for 263 days & 193 days during the years 1994 & 1995 respectively and has raised

his industrial dispute after more than 17 years, allegedly without complying with the

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

the working period of 263 days & 193 days during the years 1994 & 1995 and delay of

more than 17 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

employer?”

Briefly, the case of the petitioner is that in the month of April, 1994, he was engaged as

daily waged beldar by the respondents and worked continuously till 30.9.1995 and completed 240

days in a calendar year but on 1.10.1995, his services were orally terminated without complying the

mandatory provisions of section 25-F, 25-G, 25-H, 25-L and 25-M of the Industrial Disputes Act,

1947 (hereinafter referred to as Act). It is further stated that after the termination of the services of

the petitioner, he made several requests to the respondents but of no avail and that the respondents

have retained his juniors without following the procedure of last come first go. It is also stated that

during conciliation, the Labour Officer declined to make the reference and thereafter the petitioner

filed CWP no 849/2016 before the Hon'ble High Court wherein the Labour Commissioner was

directed to make the reference to this Court within a period of six weeks. That the services of the

petitioner were terminated without giving any notice and without paying retrenchment

compensation and there is a lot of work and funds available with the respondents against which the

petitioner could have easily been accommodated and that the action of the respondents in giving

artificial and fictional breaks is illegal. Against this backdrop a prayer has been made that the

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employer be directed to re-engage/reinstate the petitioner in service with all consequential benefits

including full back-wages.

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

preliminary objections have been taken qua maintainability as the petitioner had left the job at his

own and the petition is time barred. On merits, it has been asserted that the petitioner was initially

engaged in the department during the month of 04/1994 and worked intermittently up to

September, 1995 and thereafter he left the job/work on his own and did not turn up for his duties

from 1.10.1995. It is further asserted that the petitioner never approached the department for his re-

engagement. It is denied that the services of the petitioner were orally terminated and that the

respondents have retained junior persons and the procedure of last come first go has been violated.

Since, the services of the petitioner were never terminated by the respondents, hence, the question

of issuance of one months notice does not arise. The respondents prayed for the dismissal of the

claim petition.

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

respondents.

On the pleadings of the parties, the following issues were framed on 11.4.2017

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

October, 1995 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 petitioner had left the job at his own as alleged?

. . OPR.

Whether the claim petition is time barred 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

No.

Issue no.2

Becomes redundant.

Issue no.3

Decided accordingly.

Issue no.4

Yes.

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

operative part of award.

Reasons for findings

Issues no.1, 3 & 4

Being interlinked and correlated, all 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. She further contended that the junior persons to the petitioner are still working with the

respondents 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, learned Dy. DA for the respondents contended that the claim of the

petitioner is highly belated and stale. She further contended that the services of the petitioner had

never been terminated by the respondents who had left the job at his own and even he had not

completed 240 days in preceding twelve months. She also 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 to depose that

he was engaged as beldar by the respondents in the year, 1994 and he worked upto December, 1995

and thereafter his services were terminated. He further deposed that neither any notice was issued

to him nor any compensation was paid to him prior to his termination. He had also written letter to

the respondents and that the Labour Officer had declined to make the reference, hence, he filed

CWP no. 849/2016 before the Hon'ble High Court wherein the Labour Commissioner was directed

to make the reference. He also stated that he had completed 240 days in the calendar year preceding

his termination and the copy of mandays chart Ex. PW-1/A has been issued by Assistant Engineer

and after his termination, the respondents have retained the juniors and engaged fresh hands. In

cross-examination, he denied that he had worked intermittently between the year, 1994 to 1995 and

that he had left the job at his own. He further denied that he had never approached the respondents

for his re-engagement and that his services were never terminated by the respondents. He also

denied that no juniors were retained and no fresh hands were engaged by the respondents. He

admitted that he had raised the industrial dispute after 16 years.

11. On the other hand, the respondents examined one Shri Pramod Gautam, Assistant

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

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

RW-1/B and muster roll no. 422 Mark RX. In cross-examination, he admitted that the petitioner

was engaged as beldar in the month of April 1994 and he worked continuously till 30.9.1995. He

admitted that the petitioner had completed 240 days in the calendar year of 1994 but denied that

fictional breaks were given to him. He denied that the petitioner approached the department for his

re-instatement in October, 1995 and thereafter also. He admitted that no notice was issued to the

petitioner and no compensation was given to him. He denied that juniors to the petitioner have been

retained by the respondents and that the services of the petitioner were terminated illegally.

14. RW-2 stated that as per the voucher register Ex. RW-2/A, the work was available with

the respondent but the petitioner had not turned up to do job.

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

thereof, it has become clear that the petitioner had worked only for 263 day in the year 1994 and

193 days in 1995 with the respondents during the entire period w.e.f. 1.4.1994 till 30.9.1995 as per

the mandays chart Ex. PW-1/A. It is also clear from the record that the present dispute was raised

by the petitioner after about 17 years. Now, the question which arises for consideration before this

Court is as to whether the reference is stale and highly belated. The learned counsel for the

petitioner contended that under the Industrial Disputes, no limitation is prescribed and the provision

of Article 137 of the 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.

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16. Undisputedly, the petitioner had raised his industrial dispute after a period of more

than 17 years. According to the petitioner he was engaged by the respondents in the month of April,

1994 and worked as such till 30.9.1995. He has admitted in cross-examination that he had raised

the demand notice after about 16 years. Therefore, the position of law in respect of a stale claim is

required to be seen.

17. In (2013) 14 SCC 543, titled as Assistant Engineer Rajasthan State Agriculture

Marketing Board, Sub Division Kota Vs. Mohan Lal, it has been held by the Hon'ble Apex

Court that though the Limitation Act is not applicable to the reference made under the I.D Act but

delay in raising industrial Dispute is an important circumstance for exercise of judicial discretion in

determining relief that is to be granted. The relevant portion of aforesaid judgment is reproduced as

under:

“19. We are clearly of the view that though the Limitation Act, 1963 is not applicable to the

reference made under the ID Act but delay in raising industrial dispute is definitely an

important circumstance which the Labour Court must keep in view at the time of exercise of

discretion irrespective of whether or not such objection has been raised by the other side.

The legal position laid down by this Court in Gitam Singh 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, must be invariably followed.”

18. In Assistant Executive Engineer, Karnataka Vs. Shivalinga reported in (2002) 10

SCC 167, the services of the employee were terminated on 25.5.1985 and he approached the

Labour Officer on 17.3.1995 and then the reference was made by the Government to the Labour

Court. There was a delay of more than nine years in approaching the Labour Officer. In para 6 of

the aforesaid judgment, the Hon‟ble Apex Court has held as under: