jkti=] fgekpy izns'k

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

cq/kokj] 11 vizSy] 2018@21 pS=] 1940

fgekpy izns'k ljdkj

TRANSPORT DEPARTMENT

NOTIFICATION

Shimla-2, the 10^th April, 2018

No. TPT-A(1)-3/2015.—The Governor, Himachal Pradesh, in exercise of the power

conferred upon him under Section 68 of Motor Vehicles Act, 1988 (Act No 59 of 1988) and all

09&jkti=@2018&11&04&2018

¼267½

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other powers enabling him in this behalf, is pleased to constitute the State Transport Authority,

Himachal Pradesh, Shimla, which shall exercise powers and perform functions enumerated in sub-

section 2 of above Section, of the act ibid:—

Official Member

Additional Chief Secretary (Transport) to the

Government of Himachal Pradesh

. .Chairman

Director (Transport) Himachal Pradesh

Shimla-171004

. .Member

Secretary, State Transport Authority

Shimla, H.P.

. .Member Secretary

Non-Official Member

Sh. Pal Verma, Advocate, r/o Vill. Shylah,

P.O. Lohara, Tehsil Balh, District Mandi, H.P.

. .Member

Sh. Chaman Pundeer, r/o VPO Dehrian, Tehsil

Jawalaji, District Kangra, H.P.

. .Member

Sh. Harpal Singh Gill, r/o VPO Raipur Sadouna,

Tehsil and District Una, H.P.

. .Member

Smt. Jindu Devi, r/o Vill Kanyal, P.O. Chhiyal

Tehsil Manali, District Kullu, H.P.

. .Member

By order,

RAM SUBHAG SINGH,

Additional Chief Secretary (Transport).

____________

HIMACHAL PRADESH VIDHAN SABHA SECRETARIAT

SHIMLA-171004

NOTIFICATION

Shimla- 4, the 10th April, 2018

No. VS/Estt./6-62/81-II.—On the recommendations of the Departmental Promotion

Committee, the Hon’ble Speaker is pleased to promote and appoint Sh. Sanjeev Gupta, Section

Officer as Under Secretary in the pay scale of Rs. 15600-39100+ 6600GP with immediate effect.

He will be entitled to exercise option for pay fixation under the saving clause as per

clarification contained in letter number Fin (PER)B(7)-1/2009 dated 19.09.2009 within a period of

one month.

Sd/-

Secretary,

H. P. Vidhan Sabha.

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LAW DEPARTMENT

NOTICE

Shimla-2, the 7th April, 2018

No. LLR-E(9)-4/2018-Leg.—Whereas, the following Advocates of District Sirmaur H.P.

have applied for appointment of Public Notary in the place and area mentioned against their names

under rule 4 of the Notaries Rules, 1956:—

Sl. No.

Name of Advocate

Area for which they have applied for

appointment of Notary

Shri Nitin Gupta, Advocate s/o Shri Viney

Kumar Gupta, r/o H. No. 262/11, Chauhan Ka

Bag Nahan, District Sirmaur, H.P.

Sub-Division Nahan

Shri Abhay Kant Aggarwal, Advocate s/o

Shri Prem Chand Aggarwal, r/o Above

Aggarwal

Motors

Gunnu-Ghat

Nahan,

District Sirmaur, H.P.

Sub-Division Nahan

Therefore, I undersigned in exercise of the power conferred vide Government Notification

No. LLR-A(2)-1/2014-Leg. dated 1st July, 2017, hereby issue notice under rule 6 of the Notaries

Rules, 1956, for the information of general public for inviting objections, if any, within a period of

fifteen days from the date of publication of this notice in Rajpatra, H.P. against their appointment

as Notary Public in the places mentioned against their names of their respective Sub-Divisions.

(Competent Authority),

DLR-cum-Deputy Secretary (Law-Legislation).

&&&&&&&

HIGH COURT OF HIMACHAL PRADESH, SHIMLA- 171 001

NOTIFICATION

Shimla, the 21st March, 2018

No. HHC/Admn. 3(270)/88-I.—12 days earned leave i.e. on and with effect from

02-04-2018 to 13-04-2018, with permission to prefix Sunday falling on 01-04-2018 and suffix

Second Saturday and Sunday falling on 14-04-2018 and 15-04-2018, is hereby sanctioned, in

favour of Smt. Sanjokta Thakur, Court Master of this Registry.

Certified that Smt. Sanjokta Thakur is likely to join the same post and at the same station

from where she proceeds on leave after the expiry of the above leave period.

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Certified that Smt. Sanjokta Thakur would have continued to officiate the same post of

Court Master but for her proceeding on leave.

By order,

Sd/-

Registrar General.

___________

HIGH COURT OF HIMACHAL PRADESH, SHIMLA - 171 001

NOTIFICATION

Shimla, the 23rd March, 2018

No. HHC/Admn.16 (8)74-IV.—Hon’ble the Acting Chief Justice, in exercise of the powers

vested in him U/S 139(b) of the Code of Civil Procedure, 1908, U/S 297(1) (b) of the Code of

Criminal Procedure, 1973 and Rule 5(vi) of the H.P. Oath Commissioners (Appointment &

Control) Rules, 2007 has been pleased to appoint Sh. Vikas Kumar and Ms. Parveen Kumari,

Advocates, Hamirpur as Oath Commissioners at Hamirpur for a period of two years with

immediate effect for administering oaths and affirmations on affidavits to the deponents under the

aforesaid Codes and Rules.

By order,

Sd/-

Registrar General.

____________

HIGH COURT OF HIMACHAL PRADESH, SHIMLA - 171 001

NOTIFICATION

Shimla, the 23rd March, 2018

No. HHC/Admn.16 (20)75-III.—Hon’ble the Acting Chief Justice, in exercise of the

powers vested in him U/S 139(b) of the Code of Civil Procedure, 1908, U/S 297(1) (b) of the Code

of Criminal Procedure, 1973 and Rule 5(vi) of the H.P. Oath Commissioners (Appointment &

Control) Rules, 2007 has been pleased to appoint Sh. Pankaj Kumar, Advocate, Ghumarwin as

Oath Commissioner at Ghumarwin for a period of two years with immediate effect for

administering oaths and affirmations on affidavits to the deponents under the aforesaid Codes and

Rules.

By order,

Sd/-

Registrar General.

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LABOUR AND EMPLOYMENT DEPARTMENT

NOTIFICATION

Dharamshala the 7^th December, 2017

No.: Shram (A) 6-2/2014 (Awards).—In exercise of the powers vested under section 17(1)

of the Industrial Disputes Act,1947, the Governor Himachal Pradesh is pleased to order the

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

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

Pradesh:—

Sl.

No.

Ref. No.

Petitioner

Respondent

Date of

Award/Order

189/17

Dhian Chand

D.C.-cum-Chairman Red Cross

Society Kangra,HP

16-10-2017

490/15

Lal Chand

E.E. HPPWD, Killar

04-10-2017

507/15

Sunita Devi

E.E. HPPWD, Killar

04-10-2017

489/15

Ram Dei

E.E. HPPWD, Killar

04-10-2017

499/15

Muni Kumari

E.E. HPPWD, Killar

04-10-2017

509/15

Naino Devi

E.E. HPPWD, Killar

04-10-2017

513/15

Bimla

E.E. HPPWD, Killar

04-10-2017

502/15

Laxmi Devi

E.E. HPPWD, Killar

04-10-2017

506/15

Bhagtu Ram

E.E. HPPWD, Killar

04-10-2017

10.

511/15

Bindro Kumari

E.E. HPPWD, Killar

04-10-2017

11.

498/15

Dhyan Singh

E.E. HPPWD, Killar

04-10-2017

12.

492/15

Tek Chand

E.E. HPPWD, Killar

04-10-2017

13.

435/15

Anchal Goswami

M/s GVK EMRI

07-10-2017

14.

139/13

Prem Chand

E.E. HPSEB, Dharampur

09-10-2017

15.

140/13

Hem Singh

E.E. HPSEB, Dharampur

09-10-2017

16.

141/13

Hari Chand

E.E. HPSEB, Dharampur

09-10-2017

17.

273/16

Surinder Kumar

M.D. M/s GVK EMRI

17-10-2017

18.

114/16

Om Prakash

M.D. M/s GVK EMRI

17-10-2017

19.

137/17

Banita Devi

CMO Bilaspur

24-10-2017

20.

147/17

Bhoop Singh

G.M. M/s Sapna, Cars Pvt. Ltd.

27-10-2017

21.

214/16

Sebo Kumari

E.E. HPPWD, Killar

16-10-2017

22.

118/16

Khem Raj

E.E. HPPWD, Killar

16-10-2017

23.

173/16

Pritam Singh

E.E. HPPWD, Killar

16-10-2017

24.

200/16

Kishan Dei

E.E. HPPWD, Killar

16-10-2017

25.

64/16

Krishni

E.E. HPPWD, Killar

16-10-2017

26.

205/16

Narinder Kumar

E.E. HPPWD, Killar

16-10-2017

27.

157/13

LPS Dainik Bhogi

Lahaul Potato

27-10-2017

28.

231/14

Karam Chand

M/s GVKEMRI

27-10-2017

By order,

R.D. DHIMAN, IAS,

Pr. Secretary ( Lab. & Emp.).

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

INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA, H.P.

Ref: No. 189/ 2017

Shri Dhian Chand s/o Shri Dharam Chand, r/o Village Kuthar Thati, P.O. Sansai, Tehsil and

District Kangra, H.P.

. . Petitioner.

Versus

The Deputy Commissioner-cum-Chairman, District Red Cross Society Kangra, H.P.

The Secretary, Red Cross Society, Dharamshala, District Kangra, H.P. ^{. .} Respondents.

16-10-2017 Present: Petitioner with Sh. Umesh Nath Dhiman, adv.

None for the respondent no.1

Sh. Sanjeev Singh Rana, Dy.D.A. for the respondent No.2

Case taken up today in pursuance to application under Section 151

C.P.C. for withdrawal of case moved by the applicant Sh. Dhian Chand who has claimed re-

instatement in service with the respondents raising industrial dispute in pursuance to which

reference No. 189/17 has been received from the Labour Commissioner, H.P. Application

under Section 151 C. P. C. is supported with affidavit reveals that applicant wants to

withdraw this case due to some technical reasons. In his statement on oath before this Court

applicant has prayed for withdrawal of case. Statement recorded and placed on file.

Sh. Manoj Kumar, adv. has identified the applicant/petitioner.

In view of the statement so made by the applicant/petitioner, claim petition/reference No.

189/2017 is dismissed as withdrawn without any order as to costs.

Reference is answered in the aforesaid terms. The parties to bear their own costs.

Let copy of the Order/Award be sent to the appropriate Government for information and

further necessary action / publication. The file, after completion be consigned to the records.

Announced :

16-10-2017

Sd/-

(K. K. SHARMA),

Presiding Judge,

Labour Court-cum-Industrial,

Tribunal, Kangra at Dharamshala, H.P.

__________

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

CUM-INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (H.P.)

Ref. No.

: 490/2015

Date of Institution : 09-11-2015

Date of Decision : 04-10-2017

Shri Lal Chand s/o Shri Mani Dass, r/o Village Banwas, P.O. Luj, Tehsil Pangi, District

Chamba, H.P.

…Petitioner.

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Versus

The Executive Engineer, Killar Division, H.P.P.W.D., Killar (Pangi) District Chamba, H.P.

. . Respondent.

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

For the Petitioner : Sh. Rajeev Dharmani, Adv.

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

AWARD

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

adjudication:

“Whether the industrial dispute raised by the worker Shri Lal Chand s/o Shri Mani Dass, r/o

Villlage Banwas, P.O. Luj, Tehsil Pangi, District Chamba, H.P. before the Executive

Engineer, Killar Division, H.P.P.W.D. Killar (Pangi), District Chamba, H.P. vide demand

notice dated 19-12-2011 regarding his alleged illegal termination of services during

November 1997 suffers from delay and latches? If not, Whether termination of services of

Shri Lal Chand s/o Shri Mani Dass, r/o Villlage Banwas, P.O. Luj, Tehsil Pangi, District

Chamba, H.P. by the Executive Engineer, Killar Division, H.P.P.W.D. Killar (Pangi),

District Chamba, H.P. during November, 1997, without complying the provisions of the

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

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

to from the above employer?”

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

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

Brief facts as enumerated in the present claim petition by the petitioner above named

revealed that he had been initially engaged as daily wage beldar on muster-roll basis in the year

1993 who continuously worked till 2000 with the respondent. Averments made in the petition

further revealed that petitioner had worked for 160 days in each calendar year as per the criteria

prescribed for tribal area of Pangi Tehsil District Chamba and became eligible for continuous

service envisaged under statutory provisions of Section 25-B of the Industrial Disputes Act, 1947

(hereinafter referred to as 'the Act' for brevity). Averments made in the petition revealed that the

services of petitioner had been interrupted by way of intermittent/artificial breaks given by the

respondent/department deliberately and as such breaks are required to be counted as 'continuous

services' for the purposes of calculation of 160 days for the applicability of Section 25-B of the Act.

The grievance of petitioner remains that respondent/department had terminated/disengaged

petitioner from daily wage service orally without issuing one month's notice in writing stipulating

therein reason for retrenchment besides no retrenchment compensation was paid to petitioner when

respondent had been illegally terminated. It is also alleged that respondent had not followed the

provisions of Section 25-F of the Act while disengaging petitioner from service. It is stated that

petitioner is very poor who has no source of income besides after termination of the services of

petitioner, petitioner had approached the respondent time and again but of no avail. The grievance

of petitioner further remains that when the services of petitioner had been terminated,

respondent/department had reengaged number of new workman from time to time and while doing

so, respondent had not followed the principle of 'Last come, First go' envisaged under Section 25-G

of the Act. It is further alleged that respondent/department had continuously retained junior to

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petitioner who are still in service namely Suraj Ram who appointed in 1997, Chunku Ram in 2000,

Budhi Ram in 2003 and Dev Raj in 2007. The claimant/petitioner claimed that he had spotless

service record who never been charge-sheeted for any act of indiscipline or negligence or his

conduct and even at the time of verbal termination, no charge-sheet had been served upon him and

the at the same time, no opportunity of hearing had been afforded to him. The petitioner also

alleges that he has remained unemployed ever since his illegal termination from year of 2000 till

the date of institution of present claim petition who had been nowhere gainfully employed and was

thus entitled for full back wages. Accordingly alleging respondent to have committed violation of

statutory provision of Section 25-F, Section 25-G and Section 25-H of the Industrial Disputes Act,

1947 and thus petitioner prays for setting aside oral order of termination/retrenchment of

respondent in the year 2000. He further prayed for reinstatement in service w.e.f. year 2000 along-

with back wages, seniority including continuity in service as petitioner as he had remained

unemployed since the date of his illegal termination. The petitioner has also prayed that period of

intermittent/fictional breaks deliberately given time and again during entire service of petitioner

between 1993 to 2000 be counted 160 days continuous service and to any other relief petitioner is

entitled and regularization of the services of petitioner w.e.f. 1-1-2002 under 10 years regularization

policy and to any other relief petitioner is entitled.

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

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

denied that petitioner had worked for more than 160 days in each calendar year rather clarified by

stating that petitioner was engaged as daily waged beldar in 1997 who remained engaged till 2004

but had worked intermittently as petitioner used to come and attend the work at his own sweet will

and convenience. Relying upon the mandays chart, it has been categorically pleaded by the

respondent that petitioner had not completed 160 days in each calendar year as required for tribal

area of Pangi Tehsil. The allegations of fictional breaks given by respondent to the petitioner have

been specifically denied. In so far as engagement of persons junior to petitioner mentioned in para

No. 10 of the claim petition were appointed as per order of Labour Court and no other juniors to the

petitioner had been retained in service by the respondent. On the plea of termination of service of

petitioner, respondent specifically alleges that petitioner had left the job at his own will therefore

serving of notice or pay in lieu thereof was not required. Reiterating its stand respondent has

maintained that petitioner had left the work of his own sweet will and the persons mentioned in

para No.10 are stated to have engaged as per direction of the Labour Court-cum-Industrial Tribunal

Dharamshala and respondent had not violated the principle of 'Last come, First go'. It is also

contended that if petitioner had been terminated in 2004 he would have definitely raised industrial

dispute immediately and that after thirteen years petitioner is stated to be agitating the matter which

is bad on account of delay and laches. It is also contended that since the services of petitioner had

not been terminated by the respondent, question of issuance of notice or wages in lieu thereof did

not arise and at the same time, there was no necessity for charge-sheet or issuing any notice of

petitioner after his termination. It is contended that petitioner was agriculturist and gainfully

employed and was thus not entitled for back wages.

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

Further asserted that provisions of Limitation Act did not eclipse the claim of petitioner in totality

besides allegation of violation of principle of 'Last come, First go' was specifically denied.

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

his affidavit Ex. PW1/A under Order 18 Rule 4 CPC, copy of demand notice Ex. PW1/B, copy of

order Ex. PW1/C and closed evidence. On the other hand, repudiating the evidence led by the

petitioner, respondent examined RW1 Shri D.R. Chauhan, the then Executive Engineer, HPPWD

Division Killar as RW1 tendered/proved mandays chart of petitioner Ex. RW1/B, Ex. RW1/C copy

of mandays chart of co-workers and closed the evidence.

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I have heard the Ld. 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 29-04-2016 for

determination:

Whether the industrial dispute raised by petitioner vide demand notice dated

19-12-2011 qua his termination of service during November, 1997 by respondent

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

. . OPP

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

November, 1997 is/was illegal and unjustified as alleged?

. . OPP

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

to?

. . OPR.

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

Relief

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

Issue No.1

Discussed

Issue No. 2

Yes

Issue No. 3

Discussed

Issue No. 4

Relief.

Petition is partly allowed awarding compensation of Rs.40,000/- per

operative part of award.

REASONS FOR FINDINGS

ISSUES No.1 TO 3

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

can be disposed of simultaneously without repetition of evidence.

11. Relationship of petitioner having been engaged as daily waged beldar by respondent on

muster-roll basis in the year 1993 continuously worked till 2000 with the respondent is not in

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

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

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

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

per his own wish and convenience. However, there is dispute with regard to period for which the

petitioner has worked with respondent. It is evident from mandays chart Ex. RW1/B coupled with

pleadings of respondent that petitioner had worked from 1997 till September 2004 whereas the

claimant/petitioner alleges that he had worked from 1993 to 2004. Since the claim of petitioner is

not substantiated from any corresponding documentary evidence on record, the only inference in

such situation could be drawn is that petitioner had been factually engaged in 1997 and not in 1993.

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Admittedly, the reference of appropriate govt. does not relate to plea of fictional breaks but only

with regard to petitioner's termination from service. In the backdrop of foregoing admitted facts on

record, claim of petitioner requires to be adjudicated with a view to determine if petitioner is

entitled for relief of reinstatement and back wages alongwith seniority and past service benefits and

compensation as claimed by him.

12. Stepping into witness box as PW1 has sworn in affidavit Ex. PW1/A reiterating and

reaffirming his pleadings as stipulated in claim petition. In his affidavit he has claimed to have

worked with the respondent/department for more than 160 days in Pangi Sub Division Chamba

District and remained engaged from 1997 till 2004. He has also stated on oath that no notice under

Section 25-F of the Act was given by the respondent before terminating his service and at the same

time no compensation in lieu thereof notice period was paid to him and thus his termination was

illegal and void entitling petitioner benefit of reinstatement of service with full back wages and all

the other consequential service benefits. The petitioner has further alleged on oath that

respondent/department after terminating his services in 2004 by oral order had engaged several co-

workers who were junior to petitioner were retained in service. Not only this, the persons who were

junior to petitioner are stated to have been regularized in service and thus respondent had not

followed the mandate of Sections 25-G and 25-H of the Act which was obligatory on its part. The

case of petitioner also remains that he had served respondent with due diligence and had spotless

service record as respondent/department had never called any explanation or raised charge-sheet

against him but even while retrenching petitioner from service, no notice was given. The petitioner

has also explained reason for not approaching the authorities under Labour Act and thereafter

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

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

make reference for industrial dispute raised by petitioner, the petitioner had moved before the

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

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

13. 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 as also reflected in mandays chart Ex.

RW1/B any notice or letter was ever issued. On this point respondent as RW1 has specifically

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

admitted that no departmental inquiry was initiated against petitioner even after 2004. No reason

whatsoever has been assigned for such any action or omission on the part of respondent in not

initiating any departmental proceedings or making correspondence calling upon the petitioner to

join service. This prima facie belies the stand taken by the respondent as abandonment has to be

proved like any other fact in issue. The petitioner, on the other hand, as PW1 in cross examination

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

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

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

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

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

established plea of abandonment.

14. A bare glance on the mandays chart Ex. RW1/B would reveal that petitioner had

worked for 36 days in the year 1997, 58 days in 2003 and 102 days in 2004 and thus a total of his

service in 1997 to 2004 in 03 years he had worked for 196 days in his entire service period. Be it

noticed that petitioner had not worked for more than 160 days and as there is no reference from the

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

only with regard to alleged illegal termination. It is evident from mandays chart Ex. RW1/B that in

the year 2004 the petitioner had merely worked for 102 days and thus immediately in preceding 12

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jkti=] fgekpy izns'k] 11 vizSy] 2018@21 pS=] 1940

calendar months from the month of termination of petitioner had not rendered service of 160 days

so as to meet requirement of law of having continuous service of one year and thus it was not at all

required from respondent to have issued a notice envisaged under Section 25-F of the Act. As such,

the respondent is held to have not violated the provisions of Section 25-F of the Act.

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

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

and regularized. The grievance of petitioner remains that principle of ‘‘Last come First go’’ was not

followed as the juniors were retained and services of petitioner despite being senior was terminated

without any valid reason. Ex. RW1/C is the year-wise mandays of daily waged workers who were

junior to the petitioner and had joined in the year 1997 or thereafter. All of these co-workers shown

in Ex. RW1/C the year-wise mandays details of workers of Division HPPWD Killar were certainly

junior to petitioner who were given sufficient work existing in those years more than 200 days in a

year whereas the petitioner had been not given muster roll for the whole month. Ex. RW1/C also

established that all the co-workers shown in this document have worked for more than 160 days in

most of the years although they were junior to petitioner. Evidently, there is no iota of evidence of

respondent establishing that petitioner was called upon to join for service at any time after 2004

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

violated the provisions of Section 25-G of the Act as the juniors workers mentioned in para No.10

of the affidavit were retained whereas petitioner was senior from these co-workers having joined

service in 1997 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.

Ld. counsel for petitioner has placed reliance upon judgment of Central Bank of India vs. S.

Satyam, 1996 (5) SCC 419 in which Hon'ble Apex Court has held that for the applicability of

Section 25-G and 25-H of the Act, there was no necessity of claimant/petitioner to have worked

for 240 days as in case of provisions of Section 25-F of the Act.

16. Ld. Dy. D.A. representing respondent has made futile attempt to justify engagement

junior worker and their retention in service in pursuance to Awards passed by Labour Court. On the

other hand, Ld. counsel for petitioner relied upon Ex. PW1/C the order dated 27-8-2015 of Hon'ble

High Court of H.P. vide which the orders qua termination passed as against respondent and several

other were quashed. That being so the relief was granted in favour of the petitioner who was

directed to be reinstated with others. As such, even when petitioner is proved to have not worked

for more than 160 days in preceding 10 years which entitled him for regularization of his service

per government policy, yet respondent is not absolved from its accountability for complying the

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

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

17. Ld. counsel for petitioner has contended that after petitioner's termination in 2004, he

had remained unemployed and was not earning anything thereafter as such was entitled for full

back wages. Repudiating the arguments of Ld. counel of petitioner, Ld. Dy. D.A. for the State has

taken this court through cross-examination of the petitioner who has admitted that he had cultivable

land with him and also worked a private labourer. Thus, plea of having remained not gainfully

employed gets belied admission of petitioner in cross-examination in which he had maintained that

he had been earning from agricultural land as well as he has been working as daily wager privately.

Reliance has been placed on the judgment of Hon'ble Apex Court North East Karnataka Road

Transport Corporation vs. M. Nagangouda (2007) 10 SCC 765 in which Division Bench

comprising of Justice A.R. Lakshmanan and Justice Altamas Kabir had held that "term gainfully

employment would also include self employment wherefrom income is generated. It was

income either from employment in an establishment or from self employment merely

differentiates the sources from which income is generated, the end use being the same".

Applying the ratio of judgment of 2007 (supra) to this case since the petitioner was earning from

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his agricultural and manual pursuits, the same were sufficient to maintain him and his family. It is

thus held that petitioner was gainfully employed. Be it stated here that Hon'ble Apex Court in

Deepali Gundu Surwase's case has held that the Labour Court was not justified in holding that

merely because the respondent was receiving agriculture income, he cannot be treated to be

engaged in gainful employment. Since the petitioner had income from agriculture pursuits for his

livelihood it cannot be stated that petitioner was not gainfully employed and thus would not be

entitled full back wages. In view of the forgoing discussion, it is held that the relationship of

workman and employer existed between petitioner and respondent and that petitioner was illegally

retrenched without compliance of Section 25-G and Section 25-H of the Act although remained

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

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

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

the respondent.

18. Lastly, Ld. Dy. D.A. for State has contended with vehemence that there is inordinate

and explained delay which disentitles petitioner relief claimed for by him. On the other hand, Ld.

counsel for the petitioner has relied upon the judgment of Hon'ble Apex Court titled Raghubir

Singh vs. General Manager, Haryana Roadways, Hissar reported in 2014 Lab IC 4266 (SC)

and the relevant paras of the judgment are produced below for reference:

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

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

Additional Advocate General for the State of Haryana has placed reliance cannot be

applied to the fact situation of the case on hand, for the reason that the Labour Court

has erroneously rejected the reference without judiciously considering all the relevant

factors of the case particularly the points of dispute referred to it and answered the 2nd

issue regarding the reference being barred by limitation but not on the merits of the

case. The said decision has no application to the fact situation and also for the reason

the catena of decisions of this Court referred to supra, wherein this Court has

categorically held that the provisions of Limitation Act under Article 137 has no

application to make reference by the appropriate government to the Labour

Court/Industrial Tribunal for adjudication of existing industrial dispute between

workmen and the employer.

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

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

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

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

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

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

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

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

its power under Section 10(1)(c) of the Act and referred the points of dispute to the

Labour Court as the same are in accordance with the law laid down by this Court in

Avon Services & Sapan Kumar Pandit cases referred to supra.

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

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

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

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

the dispute by the appellants the High Court was justified in denying relief to the

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appellants. We cannot agree...... In Ratan Chandra Sammanta and Ors. vs. Union of

India and Ors. (supra)1993 AIR SCW 2214, it was held that a casual labourer

retrenched by the employer deprives himself of remedy available in law by delay itself,

lapse of time results in losing the remedy and the right as well. The delay would

certainly be fatal if it has resulted in material evidence relevant to adjudication being

lost and rendered not available. However, we do not think that the delay in the case at

hand has been so culpable as to disentitle the appellants for any relief.....”(Emphasis

laid by the Court) In view of the legal principles laid down by this Court in the above

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

Government to the Labour Court to adjudicate the existing industrial dispute between

the parties was made within a reasonable time, considering the circumstances in which

the workman was placed, firstly, as there was a criminal case pending against his and

secondly, the respondent had assured the workman that he would be reinstated after his

acquittal from the criminal case. Moreover, it is reasonable to adjudicate the industrial

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

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

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

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

from claiming rightful relief from his employer.

15. In the case of Ajaib Singh vs. The Sirhind Co-Operative Marketing -cum- Processing

Service Society Limited & Anr.[5] this Court has opined that relief cannot be denied to

the workman merely on the ground of delay, stating that:—

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

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

relief under it cannot be denied to the workman merely on the ground of delay. The

plea of delay if raised by the employer is required to be proved as a matter of fact by

showing the real prejudice and not as a merely hypothetical defence. No reference to

the labour court can be generally questioned on the ground of delay alone. Even in a

case where the delay in shown to be existing, the tribunal, labour court or board,

dealing with the case can appropriately mould the relief by declining to grant back

wages to the workman till the date he raised the demand regarding his illegal

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

the payment of part of the back wages instead of full back wages.....” (Emphasis laid

by the Court).

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

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

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

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

the criminal case, the workman approached the conciliation officer and the State

Government to make a reference to the Labour Court for adjudication of the dispute

with regard to the order of dismissal passed by the respondent. Keeping in mind the

date of acquittal of the appellant and the date on which he approached the conciliation

officer by raising the dispute, since the respondent had not adhered to its assurance, the

State Government had rightly referred the dispute for its adjudication. Therefore it

cannot be said that there was a delay on the part of the appellant in raising the dispute

and getting it referred to the Labour Court by the State Government.

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

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

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

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

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

and the Division Bench of the High Court by dismissing the Civil Writ Petition & the

Letters Patent Appeal without examining the case in its proper perspective, keeping in

view the power of the State Government under Section 10(1)(c) and the object and

intendment of the Act. Not adjudicating the existing industrial dispute on merits

between the parties referred to it may lead to disruption of industrial peace and

harmony, which is the foremost important aspect in Industrial Jurisprudence as the

same would affect the public interest at large.

19. Ld. Dy. D.A. representing respondent department has also contended with vehemence

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

termination of petitioner in this case took place on 2004 and the industrial dispute was raised after

several years of retrenchment. Repudiating the argument by Ld. 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.

20. Relying upon the aforestated judgment, it has been contended that claim of petitioner

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

counsel for petitioner, Ld. Dy. D.A. has placed reliance upon the judgment of Hon'ble Apex Court

titled as Assistant Engineer, Rajasthan State Agriculture Marketing Board, Sub-Division

Kota and Mohan Lal [2013 (139) FLR 125], the relevant para of the judgment are produced

below for reference:

Industrial Disputes Act, 1947-Sections 25-F and 10-Limitation Act, 1963- Section 5-

Industrial dispute-Termination of service-Finding of Labour Court that workman had

completed 240 days in calendar year and her termination was in violation of section 25-F of

the I.D.Act- Workman worked from 1-11-1984 to 17-2-1986 in all 286 days during

employment. Her services terminated on 18-2-1986. Industrial dispute raised after 6 years

of termination. Admitted delay of 6 years not kept in view by the Labour Court- Judicial

discretion exercised by the Labour Court flawed and unsustainable. Reinstatement of the

workman not the appropriate relief. In lieu of reinstatement compensation of Rs.One lac

directed to be paid to the workman by the appellant-employer within six weeks failing

which interest @ 9% p.a. will be payable.

[Paras 21 and 22]

Limitation Act, 1963. Section 5-Industrial Disputes Act, 1947- Section 25-F- Termination

of service- Industrial dispute raised after six years- Limitation Act not applicable to

reference made under the I.D. Act-Delay in raising industrial disputes definitely an

important circumstances which the Labour Court must keep in view before granting

relief”.

21. Repudiating the arguments by Ld. Dy. D.A. for the State, Ld. counsel for

claimant/petitioner has relied upon the judgment of Hon'ble Apex Court in case titled as Tapash

Kumar Paul vs. BSNL & another reported in AIR 2015 SC 357 wherein Hon'ble Court held that

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a Court may pass an order of reinstatement by awarding compensation but the same has to be based

on justifiable grounds. In this judgment, it was held that compensation can be granted in a situation

where the industry is closed or that employees has superannuated or going to retire shortly and no

period is left to his credit or where workman has been rendered in capacitated to discharge duties

cannot be reinstated and/or fourthly when he has lost confidence of the management to discharge

duties. It was observed that there may be appropriate cases on facts which may justify substituting

an order of reinstatement by award of compensation but that has to be supported by some legal

and justifiable reasons indicating why the reinstatement should be followed to be substituted

by award of compensation. Ld. counsel for the petitioner with the aid of above-said judgment had

argued that there are only four situations when a worker may be awarded compensation instead of

reinstatement but the judgment has certainly not been correctly appreciated by Ld. counsel as this

judgment postulates probable four situations which are illustrate in nature where compensation may

be awarded instead of reinstatement but that does not mean that except the four grounds, no other

ground would be appropriate for awarding compensation. In the case in hand before this court, it

has come that petitioner had abandoned the job who did not report for duty for several years and

later gave notice requesting for joining of duties but the conditions in para No. 5 of judgment (2015

supra) even if not met requirement, cannot be a ground to reinstate the petitioner and it is only

compensation which would be appropriate relief. Ld. counsel for the petitioner has relied upon the

judgment of Hon'ble Apex Court titled as Deepali Gundu Surwase vs. Kranti Junior Adhyapak

Mahavidyalaya (D.Ed.) and Ors. reported in AIR 2014 SC (Supp) 121, Raghubir Singh vs.

General Manager, Haryana Roadways, Hissar reported in 2014(3) Apex Court Judgments 652.

I have gone through these judgments and of view that they don't come to rescue the petitioner on

point of reinstatement instead of compensation. Ld. Dy. D.A. for State on the other hand has relied

upon the judgment of Hon'ble Apex Court in Vice Chancellor, Lucknow University, Lucknow,

Uttar Pradesh vs. Akhilesh Kumar Khare & another reported in AIR 2015 SC 3473. It has

been contended that engagement of claimant/petitioner in this case was not through regular mode of

recruitment and applying the ratio of this judgment AIR 2015 SC supra, claim of petitioner for

reinstatement can be negated and thus compensation would be sufficient for redressal of grievance

of the claimant/petitioner. Similarly, in 2016 (1) Him. L.R. 502 titled as State of Himachal

Pradesh and another vs. Chaman Singh relied by Ld. AR for petitioner interpretation of Section

137 of Limitation Act was involved which provides that Article 137 of Limitation Act did not apply

to industrial disputes. In 2014 (3) Apex Court Judgment 652 (SC) similar view was reiterated

which clearly mandates that claimant/petitioner cannot be denied relief sought for merely on the

ground of delay and laches. That being so, the law remains as it was that ground of delay and

laches, claimant/petitioner cannot be denied relief rather the court has to consider various aspects

before moulding relief and the case in hand it would not be erroneous to mention here that the

claimant/petitioner can be reasonably indemnified by ordering compensation and not by

reinstatement. In so far as judgment of AIR 2015 SC 1373 titled as Mackinon Machenize &

Company Ltd. vs. Mackinon Employees Union is concerned, the Hon'ble Apex Court has held

on closure of unit of company principle of "Last come First go" was not followed which violated

Section 25-G of Industrial Disputes Act and retrenchment was held illegal entitling petitioner for

retrenchment compensation. Since the facts of case of Mackinon Machenize's case are different

from case in hand as in former closure of unit of company was involved whereas in case in hand

before this court, there is no closure of company rather it is the department of HPPWD which had

engaged petitioner without following of the procedure although subject to funds and availability of

work but in the case in hand petitioner had abandoned the job who never reported for duty. As

such, when there is no closure of any unit by respondent which the petitioner was engaged,

judgment of Mackinon Machenize cannot be made applicable.

22. After hearing the rival contentions of the parties and case law relied by them, it can be

safely concluded that delay in raising industrial dispute is certainly important aspect/circumstance

which court has to keep in mind while exercising discretion. In para Nos. 20 and 21 of the

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judgment as referred to in this case reported in 2013 (136) FLR 893 (SC) titled as Assistant

Engineer Rajasthan Development Corporation and another vs. Geetam Singh provides that

before exercising its judicial discretion, the Labour Court or Tribunal has to keep in mind 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 delay in raising industrial dispute

before grant of relief. It was observed by the Hon'ble Apex Court in judgment (2013 supra) before

that workman had worked for 286 days and had raised industrial dispute in 1992 whereas her

services have been terminated in 1986 and she raised industrial dispute after six years. The Hon'ble

Apex Court has held that though compensation awarded by Single Judge of the Hon'ble High Court

was too low and liable to be enhanced by the Division Bench but surely reinstatement of the

workman in the facts and circumstances is not the appropriate relief and thus Hon'ble Apex

Court awarded a lump-sum of Rs.1 lakh alongwith interest @ 9% per annum if the respondent

failed to make payment of compensation within six weeks from the date of judgment. In the case in

hand before this court factors which have weighed are that the petitioner in all remained engaged

for about 03 years and actually worked for 196 days as per mandays chart on record and that the

services of petitioner were disengaged in the year 2004 who worked as non skilled worker and had

raised industrial dispute by issuance of demand notice after about fourteen years i.e. demand

notice was given on 19-12-2011. Taking into consideration factors mentioned above in pursuance

to judgments of Hon'ble Apex Court referred to above, petitioner would not be entitled either for

reinstatement or for back wages but a lump-sum compensation would be appropriate relief in view

of judgment 2013 (139) FLR 25 (SC). The judgments relied upon by Ld. counsel for petitioner on

the matter of delay and laches is more or less settled law that claim of the petitioner could not be

solely declined on the ground of delay and laches. Similarly, judgment of Hon'ble Apex Court in

2014 titled as Raghubir Singh's case also does not come to the rescue of the petitioner as in this

judgment also the Hon'ble Apex Court has reiterated the mandate as given by the Hon'ble Apex

Court in previous judgment in the year 2013 i.e. Assistant Engineer, Rajasthan State

Agriculture Marketing Board, Sub-Division Kota and Mohan Lal's case. I have gone through

these judgments which are not attracted in this present case as this court not declining relief to the

petitioner on the ground of limitation rather on the basis of guidelines of Hon'ble Apex Court laid

down in judgment of 2013 as referred to above. Ld. Dy. D.A. representing State/respondents has

relied upon the judgment of Hon'ble Apex Court reported in AIR 2016 SC 2984 titled as

Prabhakar vs. Joint Director Sericulture Department and another. I have gone through the

judgment which deals reference under Section 10 of the Industrial Disputes Act in which it has

been held that Hon'ble High Court can intervene in writ jurisdiction under Article 226 when

reference has been challenged on the ground of inordinate unexplained delay. Since the reference

made by the Government in this case is not in challenge before this Court, the above said judgment

would not be attracted in the facts and circumstances of the case. Moreso in view of observation

qua facts made in judgment (2016) supra, claimant/petitioner was found to be an educated person

who was working as Clerk whereas in case before this Court, the petitioner is an illiterate unskilled

worker. For the above-said reasons, plea of delay and laches would not eclipse claim of petitioner.

23. In view of foregoing discussion, a lump-sum compensation of Rs.40,000/- (Rupees

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

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

shall be paid within four months from the date of 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

to 3 are answered accordingly.

ISSUE No. 4

24. 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

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

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

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

petitioner and against the respondent.

RELIEF

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

the compensation of Rs. 40,000/- (Rupees forty thousand only) to the petitioner in lieu of the

reinstatement, back wages, seniority and past service benefits. Amount of compensation so

awarded will be paid by the respondent to the petitioner within four months from the date of receipt

of Award failing which the respondent shall be liable to pay the interest @ 9% per annum on the

said amount from the date of award till the date of its realization. In the peculiar circumstances of

the case, the parties are left to bear their own costs.

26. The reference is answered in the aforesaid terms.

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

official gazette.

28. File, after due completion be consigned to the Record Room. Announced in the open

Court today this 4th day of October, 2017.

Sd/-

(K. K. Sharma)

Presiding Judge,

Labour Court-cum-Industrial Tribunal,

Kangra at Dharamshala, H.P.

__________

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

INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (H.P.)

Ref. No.

507/2015

Date of Institution : 09-11-2015

Date of Decision :

04-10-2017

Ms. Sunita Devi d/o Shri Gian Chand, r/o V.P.O. Gosati Karyas, Tehsil Pangi, District

Chamba, H.P.

^{. .} Petitioner.

Versus

The Executive Engineer, Killar Division, I.&P.H./H.P.P.W.D., Killar (Pangi) District

Chamba, H.P.

. . Respondent.

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

For the Petitioner : Sh. Rajeev Dharmani, Adv.

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

AWARD

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

adjudication:

“Whether the industrial dispute raised by the worker Ms. Sunita Devi d/o Shri Gina Chand,

r/o V.P.O. Gosati Karyas, Tehsil Pangi, District Chamba, H.P. before the Executive

Engineer, Killar Division, I.&P.H./H.P.P.W.D., Killar (Pangi), District Chamba, H.P. vide

demand notice dated 23-12-2011 regarding her alleged illegal termination during October,

2001 suffers from delay and latches? If not, Whether termination of services of Ms. Sunita

Devi d/o Shri Gina Chand, r/o V.P.O. Gosati Karyas, Tehsil Pangi, District Chamba, H.P.

by the Executive Engineer, Killar Division, I.&P.H./H.P.P.W.D., Killar (Pangi), District

Chamba, H.P. during October 2001, without complying the provisions of the Industrial

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

service benefits and compensation the above aggrieve workman is entitled to from the

above employer?”

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

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

Brief facts as enumerated in the present claim petition by the petitioner above named

revealed that she had been initially engaged as daily wage beldar on muster roll basis in the year

1990 who continuously worked till 2004 with the respondent. Averments made in the petition

further revealed that petitioner had worked for 160 days in each calendar year as per the criteria

prescribed for tribal area of Pangi Tehsil, District Chamba and became eligible for continuous

service envisaged under statutory provisions of Section 25-B of the Industrial Disputes Act, 1947

(hereinafter referred to as 'the Act' for brevity). Averments made in the petition revealed that the

services of petitioner had been interrupted by way of intermittent/artificial breaks given by the

respondent/department deliberately and as such breaks are required to be counted as "continuous

services" for the purposes of calculation of 160 days for the applicability of Section 25-B of the

Act. The grievance of petitioner remains that respondent/department had terminated/disengaged