jkti=] fgekpy izns'k

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

cq/kokj] 25 vizSy] 2018@05 oS'kk[k] 1940

fgekpy izns'k ljdkj

HIGH COURT OF HIMACHAL PRADESH, SHIMLA- 171 001

NOTIFICATION

Shimla, the 12th March, 2018

No. HHC/Admn. 3(400)/95-II.—09 days commuted leave on and with effect from

05-02-2018 to 13-02-2018 with permission to prefix Second Saturday, Sunday, 1st batch special

causal leave and Sunday commencing from 13-01-2018 to 04-02-2018 and suffix Gazetted Holiday

17&jkti=@2018&25&04&2018

¼727½

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on 14-02-2018, is hereby sanctioned, ex-post-facto, in favour of Shri Lal Singh Pathania, Secretary

of this Registry.

Certified that Shri Lal Singh Pathania has joined the same post and at the same station from

where he had proceeded on leave after the expiry of the above leave period.

Certified that Shri Lal Singh Pathania would have continued to officiate the same post of

Secretary but for his proceeding on leave.

By order,

Sd/-

Registrar General.

____________

HIGH COURT OF HIMACHAL PRADESH, SHIMLA- 171 001

NOTIFICATION

Shimla, the 11th April, 2018

No. HHC/Admn. 3(179)/82-I.—13 days earned leave w.e.f. 16-04-2018 to 28-04-2018 with

permission to prefix Second Saturday & Sunday falling on 14th & 15th April, 2018 and suffix

Sunday & Gazetted Holiday falling on 29th & 30th April, 2018 is hereby sanctioned in favour of

Smt. Sudesh Kumari, Court Master of this Registry.

Certified that Smt. Sudesh Kumari 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.

Certified that Smt. Sudesh Kumari 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 10^th April, 2018

No. HHC/Admn. 3(399)/95-I.—06 days earned leave w.e.f. 12-02-2018 to 17-02-2018 with

permission to prefix Second Saturday and Sunday on 10th & 11th February, 2018 and suffix

Sunday on 18-02-2018 is hereby sanctioned, ex-post-facto, in favour of Shri Beer Singh Sharma,

Secretary of this Registry.

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Certified that Shri Beer Singh Sharma has joined the same post and at the same station from

where he had proceeded on leave after the expiry of the above leave period.

Certified that Shri Beer Singh Sharma would have continued to officiate the same post of

Secretary but for his proceeding on leave.

By order,

Sd/-

Registrar General.

____________

HIGH COURT OF HIMACHAL PRADESH, SHIMLA- 171 001

NOTIFICATION

Shimla, the 9th April, 2018

No. HHC/Estt. 3(516)/2001-I.—40 days earned leave w.e.f. 04-12-2017 to 12-01-2018

with permission to prefix Sunday on 03-12-2017 and suffix Second Saturday, Sundays and special

casual leave 1st batch from 13-01-2018 to 04-02-2018 is hereby sanctioned, ex-post-facto, in

favour of Shri Tilak Raj Sharma, Court Master of this Registry.

Certified that Shri Tilak Raj Sharma has joined the same post and at the same station from

where he had proceeded on leave after the expiry of the above leave period.

Certified that Shri Tilak Raj Sharma would have continued to officiate the same post of

Court Master but for his proceeding on leave.

By order,

Sd/-

Registrar General.

____________

HIGH COURT OF HIMACHAL PRADESH, SHIMLA- 171 001

NOTIFICATION

Shimla, the 9th April, 2018

No. HHC/ Estt.3(415)/95-I.—10 days earned leave w.e.f. 12-03-2018 to 21-03-2018 with

permission to prefix Second Saturday and Sunday on 10th & 11th March, 2018 is hereby

sanctioned, ex-post-facto, in favour of Shri Sunil Kumar Sharma, Secretary of this Registry.

Certified that Shri Sunil Kumar Sharma has joined the same post and at the same station

from where he had proceeded on leave after the expiry of the above leave period.

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jkti=] fgekpy izns'k] 25 vizSy] 2018@05 oS'kk[k] 1940

Certified that Shri Sunil Kumar Sharma would have continued to officiate the same post of

Secretary but for his proceeding on leave.

By order,

Sd/-

Registrar General.

____________

HIGH COURT OF HIMACHAL PRADESH, SHIMLA- 171 001

NOTIFICATION

Shimla, the 6th April, 2018

No. HHC/Admn. 3(179)/82-I.—06 days commuted leave w.e.f. 15-01-2018 to 20-01-2018

with permission to prefix Second Saturday and Sunday on 13th & 14th January, 2018 and suffix

Sunday on 21-01-2018 is hereby sanctioned, ex-post-facto, in favour of Smt. Sudesh Kumari, Court

Master of this Registry.

Certified that Smt. Sudesh Kumari has joined the same post and at the same station from

where she had proceeded on leave after the expiry of the above leave period.

Certified that Smt. Sudesh Kumari 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 10th April, 2018

No. HHC/GAZ/14-375/2016.—Hon’ble the Acting Chief Justice has been pleased to grant

06 days earned leave w.e.f. 23-04-2018 to 28-04-2018 with permission to prefix 22-04-2018 being

Sunday and suffix 29-04-2018 & 30-04-2018 being Sunday and Gazetted Holiday respectively in

favour of Ms. Vibhuti Bahuguna, Civil Judge-cum-JMIC, Kandaghat, District Solan, H.P.

Certified that Ms. Vibhuti Bahuguna is likely to join the same post and at the same station

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

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Also certified that Ms. Vibhuti Bahuguna would have continued to hold the post of Civil

Judge-cum-JMIC, Kandaghat, District Solan, H.P. but for her proceeding on leave for the above

period.

By order,

Sd/-

Registrar General.

____________

HIGH COURT OF HIMACHAL PRADESH, SHIMLA – 171 001

NOTIFICATION

Shimla, the 13th April, 2018

No. HHC/GAZ/14-363/2015.—Hon’ble the Acting Chief Justice has been pleased to grant

26 days earned leave w.e.f. 16-04-2018 to 11-05-2018 with permission to prefix 13th, 14th & 15th

April, 2018 being Local Holiday, Second Saturday & Sunday and suffix 12th & 13th May, 2018

being Second Saturday & Sunday in favour of Sh. R. Mihul Sharma, Civil Judge-cum-JMIC (III),

Una, H.P.

Certified that Sh. R. Mihul Sharma is likely to join the same post and at the same station

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

Also certified that Sh. R. Mihul Sharma would have continued to hold the post of Civil

Judge-cum-JMIC (III), Una, H.P. but for his proceeding on leave for the above period.

By order,

Sd/-

Registrar General.

____________

HIGH COURT OF HIMACHAL PRADESH, SHIMLA – 171 001

NOTIFICATION

Shimla, the 13th April, 2018

No. HHC/GAZ/14-292/2006.—Hon’ble the Acting Chief Justice has been pleased to grant

06 days earned leave w.e.f. 16-04-2018 to 21-04-2018 with permission to prefix local holiday,

Second Saturday & Sunday falling on 13th, 14th & 15th April, 2018 in favour of Sh. Dhiru Thakur,

Senior Civil Judge-cum-ACJM (I), Kangra, H.P.

Certified that Sh. Dhiru Thakur is likely to join the same post and at the same station from

where he proceeds on leave, after expiry of the above period of leave.

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jkti=] fgekpy izns'k] 25 vizSy] 2018@05 oS'kk[k] 1940

Also certified that Sh. Dhiru Thakur would have continued to hold the post of Senior Civil

Judge-cum-ACJM (I), Kangra, H.P. but for his proceeding on leave for the above period.

By order,

Sd/-

Registrar General.

____________

HIGH COURT OF HIMACHAL PRADESH AT SHIMLA - 171 001

NOTIFICATION

Shimla the 13th April, 2018

No. HHC/Admn.6 (23)/74-XVI.—Hon’ble the Acting Chief Justice in exercise of the

powers vested in him under Rule 2(32) of Chapter 1 of H.P. Financial Rules, 2009, has been

pleased to declare the Civil Judge-cum-JMIC (II), Kangra, H.P. as Drawing and Disbursing Officer

in respect of the Court of Senior Civil Judge-cum-ACJM (I), District Kangra, H.P. and also the

Controlling Officer for the purpose of T.A. etc. in respect of establishment attached to the aforesaid

court under head “2014–Administration of Justice” during the earned leave period of Sh. Dhiru

Thakur, Senior Civil Judge-cum-ACJM (I), Kangra, HP w.e.f. 16-04-2018 to 21-04-2018 with

permission to prefix local holiday, Second Saturday & Sunday falling on 13th, 14th and 15th April,

2018 or till he returns from leave.

By order,

Sd/-

Registrar General.

____________

OFFICE OF DEPUTY COMMISSIONER CHAMBA,

DISTRICT CHAMBA H.P.

NOTIFICATION

Chamba, the 19^th April, 2018

No. CBA-Peshi-M-47(6)/2017-1144-1159.—In continuation of this office notification No.

CBA-Peshi-M-47(6) /2017-913-927 dated 03-04-2018 the restrictions to ply all kind of vehicles

over Baloo Bridge (from both sides) is further extended upto 30th April, 2018. The other

regulations notified vide above notification shall remain the same.

Sd/-

District Magistrate,

Chamba , Distt. Chamba, H.P.

733

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LABOUR AND EMPLOYMENT DEPARTMENT

NOTIFICATION

Shimla,the 20^th January, 2018

No. Shram (A) 6-5/2017 (Awards).—In exercise of the powers vested under section 17 (1)

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

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

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

Pradesh :—

Sl.

No.

Reference/Application

Title

Section

1. Ref. 87/2009

Pres/Gen. Secy Cosmo Karamchari Sangh V/s G.M.

Cosmo Ferrites Ltd. Jabli.

2. Ref. 98/2009

Pres/Gen. Secy Cosmo Karamchari Sangh V/s G.M.

Cosmo Ferrites Ltd. Jabli.

3. Ref. 95/17

Sh. Rakesh Thakur V/s M/s Akron India Pvt. Ltd.

4. Ref. 85/17

Hotel Mazdoor Lal Jhanda Union V/s M/s A.B. Tools

Company Shimla & Anr.

5. Ref. 71/16

Sh. Jitender Singh V/s The D.F.O. MIST Chamber

Khalini.

6. Ref. 38/07

Sh. Pushpender Kumar & Ors V/s The M.D. M/s

Ansysco Parwanoo.

7. Ref. 131/17

Sh. Dinesh Kumar V/s M/s Concept Industries

8. Ref. 130/17

Sh. Rakesh Kumar V/s M/s Concept Ind. Nalagarh

9. Ref. 177/17

Sh. Prem Chand V/s M/s Fujikawa Power Nalagarh

10. Ref. 176/17

Sh. Kuldeep Chand V/s M/s Fujikawa Power Nalagarh

11. Ref. 175/17

Sh. Jagdish Kumar V/s M/s Fujikawa Power Nalagarh

12. Ref. 173/17

Sh. Jaswinder Singh V/s M/s Fujikawa Power Nalagarh

13. Ref.172/17

Sh. Daljeet Singh V/s M/s Fujikawa Power Nalagarh

14. Ref. 36/11

Sh. Naginder Chand V/s M/s G.M. Technical Solutions

Solan & Anr.

15. Ref. 61/14

Sh. Surinder Kumar V/s M/s GMP Technical Solutions

Solan & Anr.

16. Ref. 63/14

Sh. Lal Chand V/s M/s G.M. Technical Solutions Solan

& Anr.

17. Ref. 62/14

Sh Raj Kumar V/s M/s G.M. Technical Solutions Solan

& Anr.

18. Ref. 37/11

Sh. Rafic V/s M/s G.M. Technical Solutions Solan &

Anr.

19. Ref. 35/17

Workers Union M/s Landis + Gyr Ltd. Nalagarh

20. App.79/14

Salochna V/s Saty Parkash Aggerwal

2-A

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21. App. 80/14

Vijay Kumar V/s Satya Parkash M/s SPA Soaps &

Surfacants Parwanoo H.P.

2-A

By order,

NISHA SINGH, IAS

Addl. Chief Secretary (Lab. & Emp.).

____________

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

TRIBUNAL-CUM-LABOUR COURT, SHIMLA.

Ref. No. 87 of 2009

Instituted on 10-11-2009

Decided on 30-12-2017

Cosmo Karamchari Sangh, Jabli, District Solan, HP

. . .Petitioner.

VERSUS

The General Manager M/s Cosmo Ferrites Ltd., Jabli, District Solan, HP

. . .Respondent.

2. Ref. No. 98 of 2009

Instituted on 18-11-2009

Decided on 30-12-2017

Cosmo Karamchari Sangh, Jabli, District Solan, HP.

…Petitioner.

VERSUS

The General Manager M/s Cosmo Ferrites Ltd., Jabli, District Solan, HP

…Respondent.

References under section 10 of the Industrial Disputes Act, 1947

For petitioner

: Shri Vishal Panwar, Advocate

For respondent

: Shri Rahul Mahajan, Advocate

AWARD

This award shall dispose of the above mentioned consolidated claim petitions filed by the

petitioner union arising out of reference no. 87 of 2009 and 98 of 2009, received from the

appropriate government, the terms of which are similar and reads as under :

“Whether the Demand Notice dated 1.4.2009 (Copy enclosed) raised by the

President/General Secretary, Cosmo Karamchari Sangh (Reg. No.-514), Jabli, District

735

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Solan, H.P., before the management of M/s Cosmo Ferrites Ltd. Jabli, District Solan,

H.P., is maintainable, legal and justified? If yes, to what benefits the workmen of the

factory are entitled to?”

“Whether the dismissal order dated 21.3.2009 of Shri Baldev Singh s/o Late Shri

Mohan Lal, Senior Technician and dismissal orders dated 17.10.2008 of Shri Inder s/o

Shri Agru Ram, Operator issued by the General Manager of M/s Cosmo Ferrites Ltd.

Jabli, District Solan, H.P., after serving charge sheets and holding enquiry is legal and

justified? If not what back wages, service benefits and relief Shri Baldev Singh s/o

Late Shri Mohan Lal, Senior Technician and Shri Inder s/o Shri Agru Ram, Operator

are entitled to?”

“Whether the strike of about 171 workmen w.e.f. 19.7.2009 to 18.8.2009 in the factory

of M/s Cosmo Ferrites Ltd. Jabli, District Solan, H.P. is legal and justified? If yes, to

what wages and relief the workmen on strike for strike period are entitled to from the

Management of M/s Cosmo Ferrites Ltd. Jabli, District Solan, H.P.? If not, then what

legal service effects upon the workmen continuing on strike?”

2. Consequent upon the receiving of aforesaid reference, the Cosmo Karamchari Union

(hereinafter referred as to petitioner union) has filed the claim petition averring therein that

registered employees union having its registration no. 514, Shri Baldev Singh and Jiwan have been

authorized to pursue the present matter before this court. It has further been averred that on

1-4-2009 the union has submitted a demand charter before the respondent management wherein

two sets of demands were raised. First was to re-instate the President Shri Baldev Singh and worker

Shri Inder Singh who's services were dismissed by the respondent management in an illegal manner

vide dismissal orders dated 21-3-2009 and 5-11-2008 and the second demand in respect of increase

in pay, allowance of workers and improvement in their service conditions. That Baldev Singh was

initially appointed as Senior Technician on 2-4-2001 and he was getting monthly salary of Rs.

7301/- and during his entire 8 years of service career he kept on working to the entire satisfaction of

his superior and never had been served with any show cause notice and that in the month of

January, 2008 he was elected as President of the union and subsequently at many occasions he

raised legal actions and proceedings before the competent authorities against the respondent

management. As a result of which the management got annoyed with him and there by hatched

conspiracy by terminating him from service in an illegal manner by serving a show cause notice on

12-1-2009 wherein it has been alleged that he had got published a false news in the news paper and

that on 13-1-2009 another show cause notice was served upon Baldev Singh wherein it has been

mentioned that he has submitted the false submission/declaration in his application form for

employment. It is further stated that both the show cause notices were replied by Baldev Singh

stating there in that the entire allegations have been imposed by the respondent just to harass and to

victimize him and thereafter an enquiry was conducted against Baldev Singh by appointing an

enquiry officer who conducted the enquiry proceedings contrary to the settled principles of natural

justice and under the influence of the management and even the objection submitted in respect of

the appointment of the enquiry officer vide letter dated 10-9-2009 had not been considered by the

respondent management. It is stated that workmen Inder Singh was initially appointed as an

operator in the month of August 2000 and granted with the monthly salary of Rs. 3886/- and during

his entire 8 years of service career he kept on working to the entire satisfaction of his superior and

that on 11-7-2008 a suspension order was served upon Inder Singh vide which the management had

imposed false allegations that on 9th July, Inder Singh was roaming in Packing Department without

permission and threatened Mr. Prakash Chand and Ms. Leela Kaushal which was replied on 15-7-

2008 by Inder Singh and the enquiry proceedings held against him were contrary to the settled

principles of natural justice and under the influence of the management of the respondent. It is

further averred that due to his illness, Inder Singh had written letters on 18-9-2008, 30-9-2008 and

8-10-2008 to the enquiry officer as well to the management for reschedule/stopping of enquiry

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proceedings but that request was turned down by overlooking the medical certificates submitted by

Inder Singh. That due to his illness, Inder Singh had written letters on 18-9-2008, 30-9-2008 and

8-10-2008 to the enquiry officer as well as to management for reschedule/stopping of enquiry

proceedings but that request was turned down without any justification and by mere saying that the

doctor of ESI hospital has given the wrong certificate and thereby carried out the enquiry

proceedings without associating Inder Singh. That in both the cases of Baldev Singh and Inder

Singh the enquiry has been conducted in a biased manner against the set principles of natural

justice and under the influence of management of respondent company. Hence, the dismissal order

of both Baldev Singh and Inder Singh is illegal and arbitrary one and is liable to be quashed and set

aside. That when the request of both the workers Baldev Singh and Inder Singh as well as of entire

171 workers did not fell on the deaf ears of the management, they left with no other alternative but

to resort to strike w.e.f. 19-7-2009 to 18-8-2009 after serving the notice under section 22 of the Act.

Since, the action of the respondent company in dismissing the services of Baldev Singh and Inder

Singh are arbitrary, hence, strike of 171 workers cannot be termed as illegal. In respect of second

demand, it is averred that the petitioner union had demanded that old grading system should be

replaced by new grade system and every worker should be given with the increase of minimum

wages of ` 3,000/- per month. That the petitioner union was compelled to raise the dispute vide

demand notice dated 1-4-2009 challenging the dismissal order of Baldev Singh and Inder Singh vis-

à-vis other issues and the conciliation meeting also got failed and ultimately the appropriate

government referred the dispute to this Court. On the basis of these averments the petitioner prayed

that the reference be answered in affirmative by issuing directions to the respondent company to

reinstate the services of Baldev Singh and Inder Singh with retrospective effect alongwith all the

consequential benefits including back-wages besides continuity of service and further to pay wages

to 171 workmen for the period w.e.f. 19-7-2009 to 18-8-2009.

3. The respondent contested the petition by filing reply wherein preliminary objections

have been taken that the reference is neither competent nor maintainable, that the demand notice

dated 1.4.2009 raised by Baldev Singh is neither competent nor maintainable, that the reference

deserves to be dismissed as the services of Baldev Singh and Inder Singh were dismissed after

conducting proper enquiry. On merits, it has been averred that the resolution dated 12-7-2008 is

totally false and fictitious and the claim petition has not been filed by authorized representative.

That the demand notice could not have given by Baldev Singh as he was dismissed on 21-3-2009

and there was no employer and employee relationship. That the second set of demands in respect of

increase of pay allowances, improvement of service conditions, giving of loans, attendance, award

etc., are totally baseless, false and fictitious and the petitioner union is not entitled to any of the said

benefits/demands raised. That a show cause notice-cum-chargesheet dated 12-1-2009 having been

served on Baldev Singh in respect of the misconduct of insubordination, making false statements in

the press, loss of confidence and suspending him with immediate effect are matter of record. That

Baldev Singh participated in the enquiry and produced his witnesses, cross-examined the witnesses

of respondent company and even submitted the written arguments and the enquiry officer

conducted the enquiry in a just, proper and fair manner. That during the enquiry the misconduct

leveled vide chargesheet dated 12-1-2009 and chargesheet dated 13-1-2009 stood duly proved. The

service of Baldev Singh was dismissed after conducting a fair enquiry. That the work and conduct

of Inder Singh was not satisfactory and the misconduct qua Inder Singh was major misconduct

which was on the basis of incident which happened on 9-7-2008 in A shift when Inder Singh was

roaming in packing department without permission and threatened Prakash Chand and Leela

Kaushal. That the enquiry conducted against Inder Singh was as per the principles of natural justice

and fair hearing and the procedure prescribed in the Standing Orders of the company. That the

strike which was done was illegal, unjustified and bad in law as it was done during the conciliation

proceedings which resulted in financial loss to the respondent company. That the demands so raised

in the demand charter dated 1.4.2003 are totally wrong, baseless and devoid of merits. On the basis

of these averments, the respondent prayed for the dismissal of the claim petition.

737

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4. In rejoinder, the petitioner union controverted the assertions made in the reply and

reaffirmed the averments of the claim petition.

5. On the pleadings of the parties, the following issues were framed by this Court on

27-10-2010 in both the references:—

1. Whether the demand notice dated 1.4.2009, raised by President/General Secretary,

Cosmo Karamchari Sangh, Jabli, District Solan, H.P. before the management of

respondent is legal, maintainable and justified as alleged?

…OPP.

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

factory are justified as alleged?

…OPP.

3. Whether the services of S/ShriBaldev Singh s/o Late Shri Mohan Lal and Inder Singh

s/o Shri Agru Ram, have been dismissed vide order dated 21-3-2009 and 17-10-2008

respectively without holding a fair and proper enquiry against the provisions of the

natural justice as alleged?

…OPP.

4. If issue no.3 is proved in affirmative to what service benefits the aforesaid Baldev

Singh & Inder Singh, are entitled to?

…OPP.

5. Whether the strike by about 171 workmen w.e.f. 19.7.2009 to 18.8.2009 in the factory

of the respondent is legal and justified as alleged?

…OPP.

6. If issue no.5 is proved in affirmative to what wages and relief, the workmen, on strike,

are entitled to?

…OPP.

7. Whether the claim of the petitioner union is neither competent nor maintainable as

alleged?

…OPR.

8. Relief.

6. Vide order dated 15-10-2012, the reference petition no. 98 of 2009 was consolidated

with reference petition no. 87 of 2009 and it was further ordered that both the petitions shall be

disposed of by a single award:—

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

of the case carefully.

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

my findings on the aforesaid issues are as under.

Issue No. 1 Decided accordingly

Issue No. 2 Becomes redundant

Issue No. 3 Yes

Issue No. 4 Entitled to reinstatement with seniority and continuity but without back wages

Issue No. 5 Decided accordingly

Issue No. 6 Becomes redundant

738

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Issue No.7 No.

Relief : Reference partly answered in favour of the petitioner union and against the

respondent per operative part of award.

REASONS FOR FINDINGS

Issue no. 1 & 5 :

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

10. In support of these issues, the petitioner union examined PW-2 Shri Sat Parkash, who

produced on record the settlement dated 19-5-2012 Ex. A vide which the terms of reference at

serial no. 1 and 3 of reference no. 87 of 2009 and reference no. 90 of 2009 stood settled. He

deposed that this settlement took place before the Labour Officer on 19-5-2012 as per section 12

(3) of the Act. He also tendered in evidence the union resolution Ex. B, letter dated 5-12-2012 Ex.

C and letter dated 4-5-2012 Ex. D. He further deposed that as per the aforesaid settlement the

workers are getting everything and now they have no dispute with respect to terms of reference at

serial no. 1 & 3.

11. Therefore, in view of the aforesaid statement of PW-2, it has become clear that the

terms of reference at serial no. 1 & 3 of both the references stand settled. Moreover, this Court had

also passed an order regarding the settlement of terms of reference at serial no. 1 & 3 on

15-10-2012 which reads as under :

“At this stage a joint application under section 151 CPC was filed with the prayer to

bring on record the settlement arrived at between the parties qua 1 and 3 of the

reference. In the interest of justice, the request is allowed. Consequently, the

settlement arrived at between the parties is brought on record and the relevant

documents Ex. A to Ex. D are also brought on record. The final award in both the

petitions shall be passed in view of the aforesaid settlement.”

Hence, in view of the settlement dated 19-5-2012 Ex. A, both these issues are decided

accordingly.

Issues no. 2 & 6 :

12. In view of my findings on issues no. 1 and 5, these issues become redundant.

Issues no. 3 :

13. In support of this issue Shri Baldev Singh appeared into the witness box as PW-1 and

tendered in evidence his affidavit wherein he reiterated almost all the averments as stated in the

claim petition. In cross-examination, he denied that he got news item published in “Daink Bhaskar”

that the company was pressuring the employees to putting their resignation and go on leave and that

the wages would be paid on 1-1-2009. He denied that the enquiry was conducted according to

standing orders without bias and he was given opportunity of being heard.

14. Shri Inder Singh appeared into the witness box as PW-3 and tendered in evidence his

affidavit wherein he reiterated almost all the averments as stated in the claim petition. In cross-

examination, he admitted that he replied to the charge sheet dated 11-7-2008 and thereafter an

enquiry was conducted against him. He denied that certificate Ex. R-1 has been obtained falsely

739

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from the IGMC hospital. He admitted that he received letters Ex. X-3 to Ex. X-5 from the

management. He denied that after enquiry notice mark Z-1 and enquiry report Ex. X-6 was

received by him. He admitted that he filed reply Ex. X-7 to second show cause notice. He further

admitted that termination order Ex. X-7 was received by him through registered letter. He denied

that the enquiry officer had conducted a fair enquiry against him in accordance with law.

15. Shri Jivan Singh appeared into the witness box as PW-4 and tendered in evidence his

affidavit Ex. PW-4/1. In cross-examination, he denied that the action taken against Baldev Singh by

the management was in accordance with rules and standing orders. He admitted that proper

opportunity was granted to Baldev Singh to put forth his defence in the enquiry.

16. PW-5 Shri Kuldeep Singh also tendered in evidence his affidavit Ex. PW-5/1 wherein

he reiterated almost all the averments as stated in the claim petition. In cross examination he denied

that Baldev Singh had no authority to raise the demand notice dated 1-4-2009. He denied that when

they resorted to strike on 19-7-2008, the conciliation proceedings were not pending. He admitted

that the terms no. 1 & 3 of the reference have been settled. He further denied that Baldev Singh was

afforded full opportunity to defend himself during enquiry. He denied that the services of Baldev

Singh and Inder Singh have been terminated legally.

17. On the other hand, the respondent examined two RWs. Shri Ravi Luthra, Assistant

Manager, HR with respondent company appeared into the witness box as RW-1 and 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 copy of GPA Ex. R-1, letter dated 19-2-2009 Ex. R-2,

notice dated 2-1-2009 Ex. R-3, committee meeting dated 13-1-2009 Ex. R-4, termination letter Ex.

R-5, letters dated 31-3-2009 and 10-6-2009 Ex. R-6 and Ex. R-7, letter dated 12-8-2009 Ex. R-8,

enquiry proceedings dated 14-8-2009 Ex. R-9, letter dated 14-10-2008 Ex. R-10, letter dated

10-4-2008 Ex. R-11, two letters dated 23-9-2008 Ex. R-12, enquiry proceedings Ex. R-13 to Ex. R-

16, letter issued by Arun Yadav Ex. R-17, show cause notice dated 11-10-2008 Ex. R-18, letter

regarding enquiry report dated 8-10-2008 Ex. R-19, news item of paper cutting mark A-1, letter

dated 3-2-2009 mark A-2, notice dated 12-1-2009 mark A-3, enquiry proceeding dated 11-8-2008

mark A-4, letter dated 12-8-2008 mark A-5 and proceedings of disciplinary committee mark A-6.

In cross-examination, he admitted that Baldev Singh had submitted the demand charter in January

2008 before the management. He denied that show cause notice dated 12-01-2009 was issued to

Baldev Singh as he refused to withdraw the demand charter. He further denied that false allegations

were made against Baldev Singh. He admitted that during the enquiry proceedings against Baldev

Singh he was representing the management. He admitted that the workers union had displayed on

their own notice board whereby it was mentioned that one line of news item has been wrongly

published by the reporter of the newspaper vide mark A-7. He denied that the enquiry against Inder

Singh was initiated on wrong facts. He further denied that the enquiry conducted against Baldev

Singh and Inder Singh was in violation of the principles of natural justice.

18. RW-2 Shri Laxmi Dutt Sharma also tendered in evidence his affidavit Ex. RW-2/A

wherein it has been stated by him that he was appointed as an enquiry officer vide letter dated

16-7-2008 to conduct the domestic enquiry in respect of charges levied against Inder Singh and he

intimated his appointment as an enquiry officer to Inder Singh and management and fixed the date

of enquiry. He further stated that he conducted the enquiry as per the procedure prescribed under

the certified standing orders of the respondent company. He also stated that he gave all the

opportunities to Inder Singh to put forth his case. He also tendered in evidence letters dated

12-8-2008 mark X-1 and mark X-2, letter dated 14-8-2008 mark X-3, letter dated 14-8-2008 mark

X-4, enquiry proceedings dated 14-8-2008 mark X-5, letter dated 4-9-2008 mark X-6, letter dated

3.9.2008, mark X-7, letter dated 20-9-2008 and registered AD receipt mark X-8, enquiry

proceedings dated 30-9-2008 mark X-9, enquiry proceedings dated 12-9-2008 and 23-9-2008 mark

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X-10 and mark X-11, forwarding letter alongwith enquiry report mark X-12 and enquiry

proceedings dated 7-10-2008 mark X-13. In cross-examination he denied that he had not explained

the procedure to the chargesheeted worker at the time of commencement of the enquiry. He further

denied that he had not conducted the enquiry in accordance with the principles of natural justice.

He admitted that Inder Singh had submitted a protest letter during the enquiry. He further admitted

that no letter was given to the defence assistance of Inder Singh regarding his non-appearance in

the enquiry. He denied that enquiry proceedings were conducted as per the wishes of the

management. He further denied that he had not given the enquiry report on the basis of the

chargesheet.

19. I have closely scrutinized the entire evidence on record and from the closure scrutiny

thereof it has become clear that Baldev Singh was initially appointed as senior technician on

2-4-2001 on a monthly salary of ` 7301/-. On 12-1-2009 a show cause notice-cum-chargesheet was

served upon him with the allegations that he got published a false news in the news paper by giving

information that the company is disbursing salary on 1-1-2009 and pressurizing the employees to

give resignation or to go on compulsory holidays/vacations which news was contrary to the actual

meeting and decision and due to this false news the company has suffered a huge monitory loss and

this act of misconduct committed by Baldev Singh falls under Clause no. 22 ( c), 27 (1), 34 of the

Certified Standing Orders of the company. On 13-1-2009, another chargesheet was served upon

Baldev Singh wherein it has been mentioned that Baldev Singh has submitted the false

information/declaration in his application form for employment and the same is misconduct under

Clause no. 27 (59) of the Certified Standing Orders of the company. That Baldev Singh had

submitted reply to both the show cause notices and being unsatisfied with the reply filed by him,

the respondent company initiated an enquiry against him by appointing an enquiry officer. That

thereafter, Baldev Singh submitted objections qua holding of enquiry and then the management

decided to conduct domestic enquiry afresh. Thereafter, fresh enquiry was conducted by the

enquiry officer and Baldev Singh participated in the enquiry and during the enquiry the misconduct

leveled vide show cause notice-cum-chargesheet dated 12-1-2009 and chargesheet dated 13-1-2009

against him stood duly proved and on the basis of enquiry report the service of Baldev Singh was

dismissed on 21-3-2009.

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

conducted the enquiry against Baldev Singh in a fair and proper manner and the principles of

natural justice were also not followed during the enquiry proceedings. In K. L. Tripathi Vs. State

Bank of India and ors. AIR 1984 SC 273 while dealing with the concept of natural justice in the

back-drop of departmental proceedings, it has been held as under :

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

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

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

has been any infraction of the application of that principle, has to be judged, in the light of

facts and circumstances of each particular case. The basic requirement is that there must be

fair play in action and the decision must be arrived at in a just and objective manner with

regard to the relevance of the materials and reasons. We must reiterate again that the rules

of natural justice are flexible and cannot be put on any rigid formula. In order to sustain a

complaint of violation of principles of natural justice on the ground of absence of

opportunity of cross-examination, it has to be established that prejudice has been caused to

the appellant by the procedure followed.”

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

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

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

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

under:

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

cogent and acceptable material facts though not proved strictly in conformity with the

Evidence Act. The material must be germane and relevant to the facts in issue. In grave

cases like forgery, fraud, conspiracy, misappropriation, etc. seldom direct evidence would

be available. Only the circumstantial evidence would furnish the proof, but inference from

the evidence and circumstances must be carefully distinguished from conjectures or

speculation. There must be evidence direct or circumstantial to deduce necessary inferences

in proof of the facts in issue. There can be no inferences unless there are objective facts,

direct or circumstantial from which to infer the other fact which it is sought to

establish.……………The standard of proof is not proof beyond reasonable doubt but the

preponderance of probabilities tending to draw an inference that the fact must be more

probable.

The aforesaid decision was relied upon by the Hon’ble Supreme Court in AIR 2005 S.C

570 titled as Cholan Roadways Ltd. Vs. G Thirugnanasambandam, wherein it has been

observed as under:

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

are required to be complied with in a domestic enquiry. It is, however, well-known that the

said principle cannot be stretched too far nor can be applied in a vacuum.”

“18……………………………………..”

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

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

suffice; in the latter, 'proof beyond all reasonable doubt' is imperative.”

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

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

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

stands on a different platform that is required in a court of law and strict rules of Evidence Act do

not apply to domestic enquiry. Now, in the light of the aforesaid decisions of the Hon'ble Supreme

Court, it has to be seen in the present case as to whether there was any violation of principles of

natural justice in the enquiry held against the petitioner Baldev Singh. While appearing into the

witness box as PW-1, Baldev Singh in his affidavit dated 24-7-2011 deposed that the enquiry

officer has acted in an illegal, discriminatory, unjust and capricious manner without appreciating

the real facts and evidence on record so put forth by him. He also deposed that the enquiry officer

had not given him adequate chance to submit the written arguments and vide letters dated 7-3-2009

and 10-3-2009, he requested the enquiry officer to give him 15 days time to submit the defence

arguments but to the contrary the enquiry officer closed the enquiry on 12-3-2009 and submitted

the enquiry report on 13-3-2009 before the management of the company. However, in cross-

examination he admitted that he participated in the enquiry and the daily proceedings used to be got

signed from him. He also admitted that two days time was given to him for filing written

arguments. The onus was upon the petitioner to prove that the enquiry was not conducted in a fair

and proper manner. It is a settled law that obligation to lead evidence to establish an allegation

made by a party is upon the party making the allegation. The test would be as to who would fail if

no evidence is led. The party making the allegations and seeking the redressal must seek an

opportunity to lead evidence. In the present case, the petitioner has pleaded that the enquiry was not

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conducted against him in a fair and proper manner. However, to substantiate these allegations,

except for his bald statement, no other evidence has been led by him. PW-4 Jeewan Singh also

admitted in cross-examination that proper opportunity was given to Baldev Singh to put forth his

defence. The perusal of the enquiry proceedings reveals that the petitioner had participated in the

enquiry proceedings, produced his witnesses and also cross-examined the witnesses of respondent

and he even submitted his written arguments. I have gone through the enquiry proceedings as well

as enquiry report and in the absence of any cogent evidence adduced by the petitioner, it cannot be

said that the enquiry against Baldev Singh was not conducted in a fair and proper manner and there

had been any violation of principles of natural justice as contended by the learned counsel for the

petitioner.

22. From the perusal of the record it has become clear that the petitioner Inder Singh was

initially appointed as an operator in the month of August 2000 with the monthly salary of ` 3886/-

and on 11-7-2008 a suspension order was served upon him vide which the management had

imposed allegations against him that on 9th July in “A” shift he was roaming in packing department

without permission and threatened Mr. Prakash Chand and Ms. Leela Kaushal and thereby

committed a major misconduct under clause no. 27, 25, 51 of the Certified Standing Orders of the

company. That in pursuance to the suspension order Inder Singh submitted his detailed reply and

since his reply was not found satisfactory the respondent took a decision to hold a domestic enquiry

against him and thereafter an enquiry officer was appointed. Initially Inder Singh participated in the

enquiry alongwith his representative Shri Jeewan Singh but after 15-9-2008, he did not participate

in the enquiry and was proceeded against ex-parte and on 7-10-2008, the enquiry proceedings were

carried out by the enquiry officer without associating Inder Singh and then the enquiry report was

submitted by the enquiry officer and on the basis of the enquiry report, the services of Inder Singh

were dismissed. The learned counsel for the petitioner contended that due to illness, Inder Singh

had written letters on 18-9-2008, 30-9-2008 and 8-10-2008 to the enquiry officer as well as to the

management for reschedule/stopping of enquiry proceedings but that request was turned down and

the medical certificates submitted by Inder Singh were overlooked by the enquiry officer and he

carried the enquiry proceedings without associating Inder Singh in the enquiry as such the enquiry

conducted against Inder Singh is illegal and arbitrary. Therefore, it was for the petitioner to prove

by leading cogent and satisfactory evidence on record that due to illness he could not participate in

the enquiry proceedings and he was wrongly proceeded against ex-parte. However, except for the

bald statement of Inder Singh no other satisfactory evidence has been led by him to prove that he

could not participate in the enquiry due to his illness. He has failed to prove on record the medical

certificates submitted by him before the enquiry officer. No Doctor was examined by him before

this Court to prove that he was ill during the relevant period. On the other hand the enquiry officer

categorically deposed in his affidavit Ex. RW-2/A that he wrote a letter dated 4-10-2008 to Inder

Singh fixing the next date of hearing on 7-10-2008 and he also wrote to Inder Singh that on

22-10-2008 at 8.00 PM, Inder Singh was seen on bike at the gate of Cosmo Ferrites alongwith other

workers and he was faking illness. He also deposed that the Doctor of ESI hospital submitted that

Inder Singh had not come back for further examination and the treatment and advice till date is

sufficient to make him fit to resume his duties. He also deposed that medical prescription slip dated

4.10.2008 was never submitted to him during enquiry. He further deposed that Inder Singh was

granted sufficient opportunity to defend himself in the enquiry but he failed to participate in the

same. The petitioner Inder Singh admitted in cross-examination that after 15-9-2008 he failed to

appear in the enquiry and the enquiry was adjourned for three times keeping in view his illness. He

also admitted in cross examination that he had received the letters Ex. X-3 to Ex. X-5. Therefore,

from the perusal of entire evidence on record, it has become clear that the petitioner Inder Singh

was well aware about the enquiry proceedings but he failed to appear in the enquiry inspite of the

intimation to him by the enquiry officer. Now, the question which arises for consideration before

this Court is as to whether the petitioner can allege violation of principles of natural justice despite

being aware about the enquiry proceedings. The Hon'ble Supreme Court in a catena of judgments

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held that the employee failing to participate in the enquiry proceedings being aware of the enquiry,

cannot complain violation of the principles of natural justice. In AIR 2008 SC (Supl.) 1542, Board

of Directors H.P.T.C Vs. K.C Rahi, it has been held that if an employee does not participate in

the enquiry proceedings being well aware of departmental enquiry, he is stopped from raising the

question of non-compliance of the principles of natural justice. The relevant portion of the

aforesaid judgment is reproduced as under :

“…………..The Tribunal also held that from the representation dated 09-08-1993 and

19-10-1993 it would clearly show that the respondent was well aware of the departmental

enquiry which was initiated against him, however, he intentionally avoided service of notice

and did not participate in the enquiry proceedings and, therefore, he was estopped from

raising the question of non-compliance of the principle of natural justice………………”.

Furthermore, in (2008)-4 SCC 42, Pepsu Road Transport Corporation Vs. Rawel Singh,

it has been held as under :

“15………………………. We are not entering into correctness or otherwise of the

allegations of the Corporation. One thing, however, is certain that in spite of service of

show cause notice, the respondent failed to appear at the enquiry and the Enquiry Officer

had to proceed with the enquiry in absence of the respondent.

16. Apart from that it is also clear from the record that so far as the charge as to

unauthorized absence of the respondent is concerned, the same is duly established from the

record. The Enquiry Officer, in our opinion, rightly observed that charges (ii) and (iii) were

consequential in nature and based on charge (i) and hence all the charges can be said to

have been proved against the respondent. In our judgment, the Labour Court was wholly

wrong in holding that enquiry was not fair. To us, it is not a case of not extending an

opportunity to the employee but not availing of opportunity by the employee. Therefore, the

finding recorded by the Labour Court that the enquiry was vitiated being violative of natural

justice and fair play is based on 'no evidence' and must be set aside”.

Similarly, in (1997) 10 S.C.C 386, Ranjan Kumar Mitra Vs. Andrew Yule & Co. Ltd.,

and others it has been observed as under :

“1. In view of the fact that the appellant's services were terminated after an enquiry in which

the appellant chose not to participate, we are of the view that the appellant cannot assail his

termination on merits even assuming that the writ petition filed by him in the High Court

was maintainable. For this reason, it is not necessary to examine the correctness of the High

Court's view that the writ petition was not maintainable. The dismissal of the appeal by this

Court is, therefore, not to be construed as an expression of any opinion on the merits of the

view taken by the High Court on the question of maintainability of the writ petition.”

23. Therefore, in view of the aforesaid decisions of Hon'ble Supreme Court, the petitioner

is estopped from raising the plea of non-compliance of principles of natural justice as he had failed

to participate in the enquiry despite being aware about the enquiry proceedings. RW-2, the enquiry

officer further deposed that he submitted the enquiry report to the respondent company wherein the

misconduct stood duly proved against Inder Singh in the enquiry. He also tendered in evidence the

enquiry proceedings dated 14-8-2008 mark X-5, enquiry proceedings dated 30-9-2008 mark X-9,

enquiry proceedings dated 12-9-2008 and 23-9-2008 mark X-10 and mark X-11, forwarding letter

alongwith enquiry report mark X-12 and enquiry proceedings dated 7-10-2008 mark X-13. I have

gone through the enquiry proceedings as well the enquiry report Ex. X-6 and in view of the entire

evidence on record and also in view of the facts and circumstances of the present case, it cannot be

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said that the enquiry against Inder Singh was not conducted in a fair and proper manner and there

has been violation of principles of natural justice as contended by the learned counsel for the

petitioner.

24. The learned counsel for the petitioner next contended that the punishment of dismissal

of service of both the petitioners is disproportionate to the gravity of misconduct. The charges

leveled against both the petitioners i.e. Baldev Singh and Inder Singh stood duly proved and their

services had been dispensed with w.e.f. 21-3-2009 and 17-10-2008 respectively. In the opinion of

this Court the dismissal of both the petitioners on the allegations leveled in the chargesheets is

excessively high and disproportionate to the acts of misconducts committed by them. The charges

leveled against the petitioners cannot be regarded as a grave misconduct. Now, the next question

which arises for consideration before this Court is as to whether this Court can interfere in the

quantum of punishment imposed by the respondent. In (2005) 3 S. C. 134, Mahindra and

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

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

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

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

judgment is reproduced as under :

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

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

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

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

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

unlimited as has been observed by the Division Bench of the High Court. The discretion

which can be exercised under Section 11-A is available only on the existence of certain

factors like punishment being disproportionate to the gravity of misconduct so as to disturb

the conscience of the court, or the existence of any mitigating circumstances which requires

the reduction of the sentence, or the past conduct of the workman which may persuade the

Labour Court to reduce the punishment. In the absence of any such factor existing, the

Labour Court cannot by way of sympathy alone exercise the power under Section 11-A of

the Act and reduce the punishment.”

(emphasis supplied).

25. In the present case it is matter of record that the past record of both the petitioners is

clean and no other misconduct has been pointed out against them. Admittedly, petitioner Baldev

Singh had been engaged as senior technician and petitioner Inder Singh had been engaged as an

operator. Both of them were not engaged in a sensitive post and this is not the case of dishonesty,

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

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

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

punishment imposed upon both the petitioners was too harsh and wholly disproportionate to their

act of misconduct. Therefore, looking to the charges levelled against both the petitioners and

keeping in view their past service record, the punishment of dismissal of the services of petitioner

Baldev Singh w.e.f. 21-3-2009 and Inder Singh w.e.f. 17-10-2008 is hereby set aside and quashed.

Accordingly, issue no.1 is decided in favour of the petitioners and against the respondent.

Issue no. 4 :

26. Since, I have held under issue no.3 above that the action of the respondent to terminate

the services of the petitioner Baldev Singh w.e.f. 21-3-2009 and Inder Singh w.e.f. 17-10-2008 is

illegal and unjustified, hence, both the petitioners are held entitled to reinstatement in service with

seniority and continuity.

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

petitioner Baldev Singh and Inder Singh are entitled to full back wages as contended by the learned

counsel for the petitioner. In (2009) 1 SCC 20, Kanpur Electricity Supply Company Limited

Vs. Shamim Mirza, the Hon'ble Supreme Court has held that once the order of termination of

services of an employee is set-aside, ordinarily, the relief of reinstatement is available to him.

However, the entitlement of an employee to get reinstated does not necessarily result in payment of

full or partial back-wages, which is independent of reinstatement. It has further been held by the

Hon’ble Supreme Court in 2010 (1) SLJ S.C 70, M/s Ritu Marbals Vs. Prabhakant Shukla

that full back wages cannot be granted mechanically, upon an order of termination be declared

illegal. It is further held that reinstatement must not be accompanied by payment of full back wages

even for the period when the workman remained out of service and contributed little or nothing to

the Industry.

28. Moreover, both the petitioners Baldev Singh and Inder Singh were under an obligation

to prove by leading cogent evidence that they were not gainfully employed after the termination of

their services. The initial burden is on the workman/employee to show that they were not gainfully

employed as held by the Hon’ble Apex Court in (2005) 2 Supreme Court Cases 363 titled as

Kendriya Vidyalaya Sangathan and another Vs. S.C Sharma that:

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

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

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

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

29. In the present case, both the petitioners have failed to discharge their burden by placing

any material on record that they were not gainfully employed after their termination/

disengagement. Even, both the petitioners in their deposition before the Court have failed to state

that they were not gainfully employed after the termination of their services. Therefore, in view of

the entire evidence, on record, coupled with the rulings (supra), I have no hesitation in holding that

the petitioners Baldev Singh and Inder Singh are not entitled to any back-wages. Hence, this issue

is decided accordingly.

Issue No.7:

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

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

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

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

respondent.

Relief :

As a sequel to my above discussion and findings on issues no.1 to 7, the claim of the

petitioner union succeeds and is hereby partly allowed and the petitioners Baldev Singh and Inder

Singh are ordered to be reinstated in service forthwith with seniority and continuity. However the

petitioners Baldev Singh and Inder Singh are not entitled to back wages and as such the reference is

partly answered in favour of the petitioner union and against the respondent. It is also ordered that

the original award be placed on record in reference no. 87 of 2009 and authenticated copy of the

same be placed in reference no. 98 of 2009. Let a copy of this award be sent to the appropriate

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

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Announced in the open Court today on this 30th day of December, 2017.

Sd/-

(SUSHIL KUKREJA)

Presiding Judge,

H.P. Industrial Tribunal-cum-

Labour Court, Shimla.

__________

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

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Ref. No. 87 of 2009

Instituted on 10-11-2009

Decided on 30-12-2017

Cosmo Karamchari Sangh, Jabli, District Solan, HP

…Petitioner.

VERSUS

The General Manager M/s Cosmo Ferrites Ltd., Jabli, District Solan, HP.

…Respondent.

Ref. No. 98 of 2009

Instituted on 18-11-2009

Decided on 30-12-2017

Cosmo Karamchari Sangh, Jabli, District Solan, HP.

…Petitioner.

VERSUS

The General Manager M/s Cosmo Ferrites Ltd., Jabli, District Solan, HP.

…Respondent.

References under section 10 of the Industrial Disputes Act, 1947

For petitioner

: Shri Vishal Panwar, Advocate

For respondent

: Shri Rahul Mahajan, Advocate

AWARD

This award shall dispose of the above mentioned consolidated claim petitions filed by the

petitioner union arising out of reference no. 87 of 2009 and 98 of 2009, received from the

appropriate government, the terms of which are similar and reads as under :

“Whether the Demand Notice dated 1-4-2009 (Copy enclosed) raised by the

President/General Secretary, Cosmo Karamchari Sangh (Reg.No.-514), Jabli, District

Solan, H.P., before the management of M/s Cosmo Ferrites Ltd. Jabli, District Solan,

H.P., is maintainable, legal and justified? If yes, to what benefits the workmen of the

factory are entitled to?”

“Whether the dismissal order dated 21-3-2009 of Shri Baldev Singh S/o Late Shri

Mohan Lal, Senior Technician and dismissal orders dated 17-10-2008 of Shri Inder s/o

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Shri Agru Ram, Operator issued by the General Manager of M/s Cosmo Ferrites Ltd.

Jabli, District Solan, H.P., after serving charge sheets and holding enquiry is legal and

justified? If not what back wages, service benefits and relief Shri Baldev Singh s/o

Late Shri Mohan Lal, Senior Technician and Shri Inder s/o Shri Agru Ram, Operator

are entitled to?”

“Whether the strike of about 171 workmen w.e.f. 19-7-2009 to 18-8-2009 in the factory