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fgekpy izns'k ljdkj

LABOUR AND EMPLOYMENT DEPARTMENT

NOTIFICATION

Shimla, the 14^th May, 2018

No. Shram (A) 6-1/2018 (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:—

60&jkti=@2018&19&06&2018

¼2553½

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Sl.

No.

Reference/

Application

Title

Section

Ref. 174/2017

Sh. Harpreet Singh V/s. M/s Fujikawa Power, Nalagarh

Ref. 59/2016

Sh. Sandeep Kumar V/s. The Registrar, H.P. University &

Anr.

Ref. 82/2016

Sh. Yash Pal V/s. The Executive Engineer, H.P. State

Electricity Board, Shimla.

Ref. 61/2016

Sh. Khub Chand V/s. Sr. Executive Engineer, HPSEB Ltd.

Shimla

Ref. 60/2017

Van Vibhag Karamchari Sangh & Anr. V/s. The DFO

Chopal.

Ref. 108/2017

Sh. Roshan Lal V/s. The Divisional Forest Officer, Shimla &

Anr.

Ref. 115/2016

Sh. Het Ram V/s. The Resident Engineer, HPSEB,

Division Jeori, Ganvi Power House, Distt. Shimla, H.P.

Ref. 86/2017

Sh. Salig Ram V/s. The Resident Engineer, HPSEB,

Division Jeori, Ganvi Power House, Distt. Shimla, H.P.

Ref. 29/2016

Sh. Mohan Lal V/s. The Secretary, (HPPWD) to the Govt

of H.P.& Anr.

10.

Ref. 45/2017

Sh. Karam Dass V/s. Senior Engineer, HPSEB Ltd.

Electrical Division Rampur Bushehr.

11.

Ref. 78/2016

Sh. Ram Bahadur V/s. Divisional Forest Officer, Wild Life

Division Shimla, H.P.

2-A

12.

Ref. 107/2017

Sh. Yog Raj V/s. The Divisional Forest Officer, Forest

Division Shimla, H.P.

—

Ref. 120/2010

Sh. Harvinder Singh V/s. Pradhan Vishal Himachal Taxi

Operator Union, Shimla.

—

14. Ref. 136/2017

Ms. Asha Devi V/s. The Registrar, LLR Group of

Institute, Village Jabli Kyar, P.O. Oachghat, Tehsil & Distt

Solan, H.P.

—

By order,

Nisha Singh, IAS,

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

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23.03.2018

Present:

Petitioner in person.

Sh. Rajeev Sharma Ld. Csl. for the respondent.

At this stage it has been stated by the petitioner that he had settled the matter with the

respondent out of court and the respondent had handed over to him a cheque bearing No-

503512, dated 16.09.2017 drawn on State Bank of India Nalagarh in the sum of Rs. 3,00,000/-

(Three Lacs) vide settlement Ex. P-1 only as full and final amount of legal dues. He further

stated that the petitioner has now no dispute with the respondent arising out of the present

reference.

Similarly it has been stated by the Ld. Csl. for the respondent that the respondent had

settled the matter with the petitioner out of court and paid him an amount of Rs. 3,00,000/-(Three

Lacs) only by way of Cheque No-503512, dated 16.09.2017 drawn on State Bank of India

Nalagarh vide settlement Ex. P-1, which has been handed over to the petitioner and now the

petitioner has no dispute with the respondent arising out of the present reference.

Therefore, in view of the aforesaid statements, I am satisfied that a lawful compromise has

been effected between the parties and the dispute between them stands settled in terms of the

statements of the parties. The settlement Ex. P-1 and the statements of the parties shall form a

part of this award/order. The reference is answered accordingly. Let, a copy of this award be sent

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

consigned to record.

Sd/-

Announced:

(SUSHIL KUKREJA)

23.03.2018

Presiding Judge, Labour Court, Shimla.

________

3.3.2018

Present:

None for petitioner.

Shri Ranvir Chauhan, Advocate for respondents.

It is 10.55 A.M. Case called twice but none appeared on behalf of the petitioner. Be

awaited.

Sd/-

(SUSHIL KUKREJA),

Presiding Judge,

Labour Court, Shimla.

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Case called again

Present:

None for petitioner.

Shri Ranvir Chauhan, Advocate for respondents.

It is 12.50 P.M. Case called again but none appeared on behalf of the petitioner. Be called

after lunch.

(SUSHIL KUKREJA),

Presiding Judge,

Labour Court, Shimla.

__________

Case called after lunch

Present:

None for petitioner.

Shri Ranvir Chauhan, Advocate for respondents.

It is 3.20 P.M. Case called repeatedly in pre and post lunch sessions but neither the petitioner

nor his counsel appeared before this Court. For today, the case has been listed for the evidence of

the petitioner but neither the petitioner nor his counsel appeared before this Court despite the fact

that the case has been called several times which clearly shows that the petitioner is not interested

to pursue his case arising out of the present reference. Therefore, this Court is left with no other

alternative but to decide the reference on the basis of material whichever is available on file.

The following reference has been received from appropriate government for adjudication:

“Whether termination of the services of Shri Sandeep Kumar s/o Shri Dhani Ram,

Village Samlehda, P.O. Bagwada, Tehsil Bhoranj, Distt. Hamirpur, H.P. by i) The

Registrar, Himachal Pradesh University, Shimla-5, H.P. ii) The Co-Ordinator, Nodal

Centre for Computer Application. Physics Department, H.P.U. Shimla-5, H.P.,

without complying with the provisions of the Industrial Disputes Act, 1947, as alleged

by the workman, is legal and justified? If not, what relief including reinstatement,

amount of back wages, seniority, past service benefits and compensation the above ex-

worker is entitled to from the above employers?”

In support of the aforesaid reference, the petitioner has filed the statement of claim on

31.12.2016 and thereafter by filing reply the respondents denied the allegation leveled in the

claim petition. Then this Court vide order dated 3.10.2017 framed the following issues.

(1) Whether the termination of the services of the petitioner by the respondents without

complying with the provisions of Industrial Disputes Act 1947 is illegal and

unjustified?

OPP.

(2) If issue No. 1 is proved in affirmative to what relief of service benefits the

petitioner is entitled to?

OPP.

(3) Whether the petition is not maintainable as alleged?

OPR.

(4) Relief.

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I have heard the learned counsel for the respondents and also gone through the record of the

case.

The perusal of record reveals that after framing of aforesaid issues, the petitioner was

allowed to lead evidence but despite affording various opportunities, the petitioner has failed to

lead any evidence. Today, neither the petitioner appeared before this Court nor he has brought

any evidence in support of his case. Therefore, in the absence of any evidence on record, it

cannot be said that termination of the services of the petitioner by the respondents without

complying with the provisions of the Industrial Disputes Act, 1947 is illegal and unjustified.

Accordingly, issues No. 1 and 2 are decided against the petitioner.

During the course of arguments the learned counsel for the respondents has not pressed

issue No. 3, hence, this issue is decided against the respondents.

Therefore, in view of my aforesaid discussion, the claim filed by the petitioner fails

and is hereby dismissed with the result, the reference is decided against the petitioner and

answered in negative. Let a copy of this award be sent to the appropriate government for

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

Sd/-

Announced:

(SUSHIL KUKREJA),

3.3.2018

Presiding Judge,

Labour Court, Shimla.

_________

IN THE COURT OF SH. SUSHIL KUKREJA, PRESIDING JUDGE, H.P.

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Ref No. 82 of 2016

Instituted on 7.9.2016

Decided on 29.3.2018

Yash Pal Son of Late Shri Uttam Chand, Resident of Village Pahar, P.O. Dhar, Tehsil

Jubbal, District Simla, H.P.

..Petitioner.

Vs.

Himachal Pradesh State Electricity Board, Through its Executive Engineer, Division

Jubbal, District Shimla, H.P.

..Respondent.

Reference under section 10 of the Industrial Disputes Act, 1947

For petitioner

Shri Surinder Steta, Advocate.

For respondent :

Ms. Kiran Mehta, Advocate vice Shri Ramakant Sharma, Advocate.

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AWARD

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

“Whether alleged termination of services of Shri Yash Pal Sharma s/o Late Shri

Uttam Chand, r/o Village Pahar, P.O. Dhar, Tehsil Jubbal, Distt. Shimla, H.P.

during February, 1999 by the Executive Engineer, Electrical Division HPSEBL,

Jubbal, Distt. Shimla, H.P, who had worked as beldar from 1993 to 1999 on daily

wages and has raised his industrial dispute after about 14 years, allegedly without

complying with the provisions of the Industrial Disputes Act, 1947 is legal and

justified? If not, keeping in view the working period from 1993 to 1999 and delay of

about 14 years in raising the industrial dispute, what amount of back wages,

seniority, past service benefits and compensation the above ex-worker is entitled to

from the above employer?”

Briefly, the case of the petitioner is that he had joined the respondent on daily wage

muster roll basis in the month of Jan., 1993 and remained as such till Jan., 1999 and thereafter in

the month of Feb., 1999, his services were illegally terminated by the respondent without

assigning any reasons. It is further stated that the services of Dharminder Singh who was working

with the petitioner on daily wage muster roll basis in the same Division were regularized but the

services of the petitioner were orally terminated on the assurance that he will be re-engaged after

some time but of no avail and even the petitioner had made various requests to the respondent for

his reengagement but nothing has been heard. It is also stated that the respondent had engaged

junior persons in violation of the provisions of section 25-G of the Industrial Disputes Act,

1947 (hereinafter referred as to Act) but the services of the petitioner have been terminated

without issuing any notice as required under section 25-F of the Act. Against this back-drop a

prayer has been made that the respondent be directed to reengage the services of the petitioner

with all consequential benefits such as continuity in service, back wages and compensation.

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

preliminary objections have been taken qua suppression of material facts from this Court,

maintainability, that the claim petition is hopelessly time barred, and estoppel etc. On merits, it

has been asserted that the petitioner was engaged as daily wage labourer on 26.8.1993 and he

worked up till 20.2.1999 with breaks as he had been engaged for specific work and for specific

period and on the completion of work he had been discharged from duties. It is further asserted

that the petitioner had not completed 240 days in the preceding 12 months and no junior to him

has been retained in the Division. It is also asserted that since the petitioner had not

completed 240 days in 12 months from the date of his discharge from duties, hence, he is not

entitled for any termination notice or any compensation and the provisions of Sections 25-F, 25-

G and 25-H of the Act are not attracted in this case. The respondent prayed for the dismissal of

the claim petition.

Rejoinder not filed. On the pleadings of the parties, the following issues were

framed on 19.6.2017.

(1) Whether the termination of the services of the petitioner by the respondent

during Feb., 1999 without complying with the provisions of the Industrial Disputes

Act, 1947 is illegal and unjustified as alleged?

OPP…

(2) If issue No. 1 is proved in affirmative, to what relief of service benefits the

petitioner is entitled?

OPP…

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(3) Whether the petition is not maintainable as alleged?

OPR…

(4) Whether the petition is time barred as alleged?

OPR…

(5) Relief.

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

of the case.

For the reasons to be recorded hereinafter while discussing issues for

determination my findings on the aforesaid issues are as under.

Issue No. 1

Issue No. 2

Becomes redundant

Issue No. 3

Issue No. 4

Yes

Relief.

Reference answered in favour of the respondent and against the

petitioner per operative part of award.

Reasons for findings

Issues No. 1 & 4 :

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

decision.

The learned counsel for the petitioner contended that the services of the petitioner

had been terminated by the respondent illegally without serving him any notice as required

under Section 25-F of the Act especially when he had completed more than 240 days in each

calendar year. He further contended that the junior persons to the petitioner are still working with

the respondent and fresh workers have been engaged in violation of the provisions of section

25-G and 25-H of the Act.

On the other hand, learned vice counsel for the respondent contended that the claim

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

petitioner were never terminated by the respondent rather he has been discharged from his duties

on the completion of specific work against which he was engaged and even he had not

completed 240 days in any calendar year. She also contended that no junior to the petitioner had

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

any relief.

10. To prove issue No. 1, the petitioner stepped into the witness box as PW-1 and

tendered in evidence his affidavit Ex. PW-1/A wherein he reiterated almost all the averments as

stated in the claim petition. In cross-examination, he admitted that he was engaged on 26.1.1993

and worked till 20.2.1999. He denied that he had not completed 240 days in any calendar

year. He further denied that the Board had never engaged fresh hands and had never retained

any junior after 20.2.1999. He admitted that he had raised the demand notice after 20 years.

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11. On the other hand, the respondent has examined Shri Ramesh Chand Verma,

Assistant Engineer as RW-1, who deposed that the petitioner was engaged with the board as daily

wager on 26.8.1993 and he had worked till 20.2.1999 and tendered in evidence the mandays

chart of petitioner ex. RW-1/A. He further deposed that the petitioner had never completed

240 days in any calendar year and no junior to him was engaged by the board. In cross-

examination, he denied that the mandays chart Ex. RW-1/A is not based on record. He further

denied that the petitioner had completed 240 days in every calendar year. He admitted that

Dharmender Singh who was junior to the petitioner was re-engaged by the board but

volunteered that he was re-engaged by the orders of the Court.

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

scrutiny thereof, it has become clear that the petitioner was engaged as daily wage labourer by

the respondent on 26.8.1993 and he worked as such till 20.2.1999 as is evident from the mandays

chart Ex. RW-1/A. The perusal of mandays chart goes to show that the petitioner had worked for

31 days in the year 1993, 246 days w.e.f. 26.12.1993 to 25.12.1994, 18 days in the year, 1995,

174 days in the year, 1996, 11 days in the year, 1997, 11 days in the year, 1998 and 10 days in

the year, 1999. Therefore, from the mandays chart Ex. RW-1/A, it is clear that the petitioner had

not completed 240 days in preceding twelve calendar months.

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

reference is stale and highly belated. The learned counsel for the petitioner contended that under

the Industrial Disputes, no limitation is prescribed and the provision of Article 137 of the

Limitation Act 1963 is not applicable to the proceedings under the Act and the relief under the

Industrial Disputes Act cannot be denied to the workman merely on the ground of delay.

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

than 14 years. According to the petitioner he was terminated in the year, 1999. It is also clear from

the reference itself that the petitioner had raised the industrial dispute after more than 14 years.

Therefore, the position of law in respect of a stale claim is required to be seen.

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

Agriculture Marketing Board, Sub Division Kota Vs. Mohan Lal, it has been held by the

Hon’ble Apex Court that though the Limitation Act is not applicable to the reference made

under the I.D. Act but delay in raising industrial Dispute is an important circumstance for

exercise of judicial discretion in determining relief that is to be granted. The relevant

portion of aforesaid judgment is reproduced as under:

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

applicable to the reference made under the ID Act but delay in raising industrial dispute is

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

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

the other side. The legal position laid down by this Court in Gitam Singh that before

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

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

service, the ground on which termination has been set aside and the delay in raising

industrial dispute before grant of relief in an industrial dispute, must be invariably

followed.”

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

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

approached the Labour Officer on 17.3.1995 and then the reference was made by the

Government to the Labour Court. There was a delay of more than nine years in

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approaching the Labour Officer. In para 6 of the aforesaid judgment, the Hon’ble Apex

Court has held as under:

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

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

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

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

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

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

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

Tribunal can properly mould the relief by refusing or awarding part-payment of back

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

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

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

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

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

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

Labour Court or the Industrial Tribunal to adjudicate the dispute appropriately will be

impossible. A situation of that nature would render the claim to have become stale. That

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

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

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

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

maintenance of the same.

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

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

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

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

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

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

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

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

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

under:

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

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

position to show the circumstances which prevented him in approaching the Court at an

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

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

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

the purport and object of enacting Industrial Disputes Act only with a view to find out as

to whether the provisions of the Article 137 of the Schedule appended to the Limitation

Act, 1963 are applicable or not. Although, the Court cannot import a period of limitation

when the statute does not prescribe the same, as was observed in Ajaib Singh (supra), but it

does not mean that irrespective of facts and circumstances of each case, a stale claim must

be entertained by the appropriate Government while making a reference or in a case where

such reference is made the workman would be entitled to the relief at the hands of the

Labour Court.”

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

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

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

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

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

para 42.”

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

Ajaib Singh (supra), this Court observed :

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

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

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

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

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

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

Service Society Ltd. [(1999) 6 SCC 82: 1999 SCC (L&S) 1054 : JT (1999) 3 SC 38].

6. “We have carefully considered the contentions raised by the learned counsel

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

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

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

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

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

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

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

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

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

No doubt the discretion is to be exercised judicially."

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

167], a Bench of this Court observed :

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

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

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

Ajaib Singh vs. Sirhind Coop. Marketing-cum-Processing Service Society Ltd.

(1999) 6 SCC 82 and Sapan Kumar Pandit vs. U.P. SEB (2001) 6 SCC 222 to

contend that there is no period of limitation prescribed under the Industrial Disputes

Act to raise the dispute and it is open to a party to approach the Court even belatedly

and the Labour Court or the Industrial Tribunal can properly mould the relief by

refusing or awarding part-payment of back wages. It is no doubt true that in

appropriate cases, as held by this Court in the aforesaid two decisions, such steps

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

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

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

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

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

Labour Court or the Industrial Tribunal to adjudicate the dispute appropriately will

be impossible. A situation of that nature would render the claim to have become

stale. That is exactly the situation arising in this case. In that view of the matter, we

think the two decisions relied upon by the learned counsel have no application to the

case on hand."

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

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

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

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

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

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

basis on which the Central Government has exercised powers in this case after a lapse

of about seven years of the order dismissing the respondent from service. At the time

reference was made no industrial dispute existed or could be even said to have been

apprehended. A dispute which is stale could not be the subject-matter of reference

under Section 10 of the Act. As to when a dispute can be said to be stale would

depend on the facts and circumstances of each case. When the matter has become final,

it appears to us to be rather incongruous that the reference be made under Section 10

of the Act in the circumstances like the present one. In fact it could be said that there

was no dispute pending at the time when the reference in question was made."

(Emphasis supplied).

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

Corporation Vs. Babu Ram, the termination was dated 19.9.1983 and the reference was

made on 29.8.1998. The Labour Court has held the termination as un-valid without

considering the question of delay. The Hon’ble High Court dismissed the writ petition.

The Hon’ble Supreme Court has held that no material was placed on record to show that

the dispute was raised within reasonable time and the employee was not responsible for

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

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

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

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

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

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

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

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

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

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

conjectures.”

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

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

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

were dismissed. However, the Hon’ble Apex Court set aside the judgments of Hon’ble High Court

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

aforesaid judgment is reproduced herein under:

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

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

consider the issues in their proper perspective and arrived at abrupt conclusions without

even indicating justifiable reasons…………………..

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

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

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

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

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

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

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

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

Court could not have entertained the industrial dispute given the enormous delay. This

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

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

The decision in Prakash Chander Sahu has reaffirmed this principal. The reason for

diligence and promptness lies in the fact that the records pertaining to an employee might

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

competent to give evidence so many years later if the Labour Court wishes to hold a further

enquiry into the matter. In the present case, the delay of 13 years is unreasonable. The

mere fact that the respondent was making repeated representations would not justify his

raising the issue before the Labour Court after 13 years. In any event, the last

representation was made in 1983 and the industrial dispute was admittedly raised in

1986. The lack of diligence on the part of the respondent is apparent. ”

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

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

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

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

reads as under:

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

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

the daily wager voluntarily left the work…………

21. In a recent judgment of our Hon’ble High Court delivered in CWP No. 1912

of 2016 titled as Bego Devi Versus State of HP and others decided on 26.10.2016, it has been

held as under:

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

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

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

jurisdiction and disturb the settled position”.

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

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

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

circumstances of the case, a stale claim must be entertained and the relief should be granted. In

the case of delay, no formula of universal application can be laid down and it would depend on

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

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

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

the workman to explain the delay by furnishing the acceptable explanation to the satisfaction of

the Court that he was not responsible for the delay caused. The fact that the workman was

making repeated representations/requests is not sufficient to explain the delay.

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23. Keeping in view the aforesaid principles laid down by the Hon’ble Apex Court, the

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

terminated w.e.f. 20.2.1999 and he raised the present dispute after a period of more than 14 years.

In his affidavit by way of evidence Ex. PW-1/A, the petitioner has stated that after his

termination he was assured by the respondent that he would be re-engaged after some time and

even he had made various requests to the respondent but nothing has been heard by the

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

suggest as to when the respondent had given him assurance and even he has failed to place on

record such request/representation filed by him before the respondent for his reengagement. He

further stated in his affidavit Ex. PW-1/A that his uncle expired in the year, 2001 and thereafter

his brother expired in the year, 2004 and he remained under mental shock due to their death.

However, in his claim petition he stated that his father expired in the year, 2001. Therefore, in

the opinion of this Court, the explanation furnished by the petitioner for not raising the demand

notice within a reasonable period cannot be accepted. The burden of proof was upon the petitioner

to show that the dispute was raised within a reasonable time and to offer an explanation to the

satisfaction of this Court for the delay of 14 years caused in seeking reference but the petitioner

has failed to discharge his burden. The reference is therefore stale and is liable to be rejected on

the ground of delay in raising the dispute.

24. On merits, from the perusal of mandays chart Ex. RW-1/A and evidence led by the

parties, the petitioner has failed to prove on record that he had worked for 240 days in preceding

twelve months prior to his termination. In 2009 (120) FLR 1007 incase titled as Relip

Nagarpalika Vs. Babuji Gabhaji Thakore and others, the Hon’ble Supreme Court has held as

under:

“The burden of proof lies on the workman to show that he had worked continuously

for 240 days for the preceding one year and it is for the workman to adduce evidence

apart from examining himself to prove the factum of being in employment of the

employer.”

In AIR 2006 S.C. 110 case titled as Surindernagar District Panchyat V/s Dayabhai

Amar Singh, the Hon’ble Supreme Court has held that:—

“Incase workman claims to have worked for more than 10 years as daily wager. Apart

from oral evidence workman has not produced any evidence to prove fact that he has

worked for 240 days. No proof of receipt of salary or wages or any record or order in

that regard was produced: no co-worker was examined; muster roll produced by

employer has not been contradicted. Workman has failed to discharge his burden that

he was in employment for 240 days during preceding 12 months of date of termination

of his service. Workman not entitled for protection of Section 25-F before his service

was terminated.”

A bare perusal of the extract of the judgment re-produced, hereinabove, shows that the

burden to prove completion of 240 days service lies on the workman and this burden is

discharged on workman stepping in the witness box and adducing cogent evidence. The

petitioner has failed to prove on record that he had put in 240 days in twelve calendar

months preceding his termination. There is no iota of evidence which could go to show

that the petitioner had completed 240 working days in twelve calendar months

preceding his termination. Hence, the case of the petitioner does not fall under section

25-F of the Industrial Disputes Act, 1947 and as such no protection of Section 25-F can

be granted to the petitioner.

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

termination of the petitioner, the respondent had retained his junior namely Dharmender Singh

who was working with the petitioner in the same division and his services have been

regularized. He further contended that the respondent had engaged fresh hands who are still

working as such the respondent had violated the principles of “last come first go”. However, in

cross-examination RW-1 admitted that Dharmender Singh who was junior to the petitioner was

reengaged by the board only upon the orders of the Court. Moreover, as observed earlier, the

petitioner had raised the demand notice after a period of 14 years as such there is no question of

consideration of equal treatment with his junior who had allegedly been retained/engaged. To

take this view, I am fortified with the judgment of our own Hon ’ble Hi gh Court in CWP

No. 4515/2012 decided on 13.6.2012, titled as Suraj Mani Vs. HPSEB wherein it has been

held that the petitioner cannot claim equal treatment after about two decades with the juniors

who have allegedly been retained. The petitioner who slept for a long period of 14 years is not

entitled to claim any relief on the ground of equal treatment. Since, the reference has been proved

to be stale and belated as such the protection of Sections 25-G and 25-H of the Act cannot be

granted to the petitioner. If the alleged termination of petitioner was either illegal or

unjustified, he would not have kept silent for a period of 14 years.

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

had raised the industrial dispute after lapse of about 14 years and remained silent during this

period without any plausible explanation as such no relief can be granted to him. Hence, it

cannot be said that the termination of the services of the petitioner is illegal and unjustified.

Consequently, both these issues are answered against the petitioner.

Issue No. 2:

28. Since, the petitioner has failed to prove issue No. 1, above, this issue becomes

redundant.

Issue No. 3:

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

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

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

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

respondent.

Relief

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

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

favour of the respondent. Let a copy of this award be sent to the appropriate government for

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

Announced in the open Court today on this 29thday of March, 2018.

Sd/-

(SUSHIL KUKREJA),

Presiding Judge,

Industrial Tribunal-cum- Labour Court, Shimla.

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IN THE COURT OF Sh.SUSHIL KUKREJA, PRESIDING JUDGE, H.P. INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Ref No. 61 of 2016

Instituted on 18.7.2016

Decided on 6.3.2018

Khub Chnad s/o Shri Man Singh, Resident of Village Koti, P.O. Khaneol Bagra, Tehsil

Karsong, District Mandi, H.P.

Petitioner…

Vs.

Sr. Executive Engineer, HPSEB, Ltd. division Shimla, District Shimla, H.P.

Assistant Engineer, HPSEB, Ltd. Division Charli Villa, Sub-Division earlier

Mashobra, now Kasumpti, Shimla-9

Respondents…

Reference under section 10 of the Industrial Disputes Act, 1947

For petitioner

Shri Naresh Sharma, Advocate vice Shri Neel Kamal Sood,

Advocate.

For respondents

Shri Gaurav Sharma, Advocate vice Shri Ramakant Sharma,

Advocate.

AWARD

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

“Whether alleged termination of services of Shri Khub Chand Verma (Khub

Ram) s/o Shri Man Singh, r/o Village Koti, P.O. Khaneol Bagra, Tehsil Karsog, Distt.

Mandi, H.P. during February, 1993 by the Senior Executive Engineer, Shimla

Electrical Division No. 1, HPSEB, Ltd. Shimla-171009, who had worked as Beldar

on daily wages only for 62 days during 1992-93 and has raised his industrial

dispute after about 21 years, allegedly without complying with the provisions of

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

working period of 62 days and delay of about 21 years in raising the industrial

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

compensation the above ex-worker is entitled to from the above employer?”

Briefly, the case of the petitioner is that initially in the year, 1992 he was appointed

as Class-IV employee on daily wages basis with the respondents and worked as such till 1994

regularly and he had completed 240 days during the course of his job. It is further asserted

that the services of the petitioner were illegally terminated by respondents without any rhyme or

reason whereas many juniors namely Rajesh Kumar, Prem Singh, Molak Ram, Devi Ram,

Mahinder and Bhim Singh were retained after his termination and even fresh persons have been

engaged and the petitioner was not re-engaged. The services of the petitioner were terminated

without any reason and without serving any prior notice as required under law and also without

complying with the provisions sections 25-G, 25-H and 25-F of Industrial Disputes Act, 1947

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(hereinafter referred as to Act). Against this back-drop a prayer has been made that directions

be issued to the respondents to re-instate the petitioner in service along-with all

consequential service benefits including back-wages.

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

preliminary objections have been taken qua maintainability, suppression of material facts,

abandonment of job, that the petition is hit by the vise of delay and latches etc. On merits, it has

been asserted that the petitioner was engaged on muster roll basis in Electrical Sub- Division

HPSEBL Mashobra during December, 1992 and remained with job upto Feb., 1993 instead of

1994 in different spells and thereafter he left the job at his own without any intimation to the

respondents and since, the petitioner had worked for 62 days in different spells, hence, there is

no violation of the Act. It is further asserted that no junior persons were engaged by the

respondents except only few workers who were engaged on daily wages with respondents on

specific judicial orders of competent court. The respondents prayed for the dismissal of the claim

petition.

Rejoinder not filed. On the pleadings of the parties, the following issues were

framed on 19.6.2017.

(1) Whether the termination of the services of the petitioner during Feb., 1993 by the

respondent without complying with the provisions of the Industrial Disputes Act, 1947

is illegal and unjustified as alleged?

……. OPP

(2) If issue No. 1 is proved in affirmative, to what relief of service benefits the

petitioner is entitled?

……….OPP

(3) Whether the claim petition is not maintainable?

……….OPR

(4) Whether the claim petition is hit by delay and laches as alleged?

………..OPR

(5) Relief

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

of the case.

For the reasons to be recorded hereinafter while discussing issues for

determination my findings on the aforesaid issues are as under.

Issue No. 1

No.

Issue No. 2

Becomes redundant.

Issue No. 3

No.

Issue No. 4

Yes.

Relief.

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

operative part of award.

Reasons for findings

Issues No. 1 & 4

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

decision.

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The learned counsel for the petitioner contended that the services of the petitioner

had been terminated by the respondents illegally without serving him any notice as required

under Section 25-F of the Act especially when he had completed more than 240 days in each

calendar year. He further contended that the junior persons to the petitioner are still working with

the respondents and fresh workers have been engaged in violation of the provisions of section

25-G and 25-H of the Act.

On the other hand, learned counsel for the respondents contended that the claim of

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

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

completed 240 days in any calendar year. He also contended that no junior to the petitioner had

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

any relief.

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

that he had been working with the respondents from the year, 1992 and worked till the year,

1994 at HPSEB Sub Division Mashobra. He further stated that he had completed more than 240

days in a calendar year and his services were terminated in the year, 1994 and at the time of his

termination, he was assured that he would be called back to resume his duties. He also stated that

neither any notice nor any compensation was paid to him prior to the termination and after his

termination the persons namely Rajesh Kumar, Prem Singh, Bhim Singh, Mahinder, Devi Ram

and Molak Ram were retained by the respondents who were junior to him. In cross-

examination he admitted that he had not completed 240 days in any calendar year. He denied that

he had worked only for 62 days. He further denied that no junior persons were retained and no

fresh hands have been engaged. He admitted that he had raised the demand notice after 23 years.

11. On the other hand, the respondents have examined Shri Hemant Kumar Senior

Assistant, Electrical Division No. 1 Kasumpati Shimla as RW-1 who deposed that vide

authority letter Ex. RW-1/A, he has been authorized to make the statement before this Court. He

further stated that the petitioner was engaged on 26.12.1992 as Beldar on muster roll basis and he

worked till 25.2.1993 only for 62 days and he had never completed 240 working days in any

year. He also stated that the Board had not engaged any junior to the petitioner except on the

orders of the Courts and amongst the disabled quota of 3% and the present claim has been filed

by the petitioner after 24 years. In cross-examination, he denied that the petitioner had completed

240 days in a calendar year. He admitted that no compensation has been paid to the petitioner

prior to his termination but volunteered that the same was not required as he had worked only for

62 days. He denied that the juniors and fresh hands namely Rajesh Kumar, Prem Singh, Molak

Ram, Devi Ram, Mahinder and Bhim Singh have been engaged after the termination of the

petitioner.

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

scrutiny thereof, it has become clear that the petitioner had worked only for 62 days as daily

waged beldar with the respondents w.e.f. 26.12.1992 till 25.2.1993 whereas the petitioner has

alleged his termination to be illegal w.e.f. the year, 1994 but to this effect no documentary

evidence has been led by him. Moreover, he himself as PW-1 has admitted that he had not

completed 240 days in any calendar year. Now, the question which arises for consideration

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

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

provision of Article 137 of the Limitation Act 1963 is not applicable to the proceedings under the

Act and the relief under the Industrial Disputes Act cannot be denied to the workman merely on

the ground of delay.

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

than 21 years. According to the petitioner he was terminated in the year, 1994. It is also clear from

the reference itself that the petitioner had raised the industrial dispute after more than 21 years.

Therefore, the position of law in respect of a stale claim is required to be seen.

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

Agriculture Marketing Board, Sub Division Kota Vs. Mohan Lal, it has been held by the

Hon’ble Apex Court that though the Limitation Act is not applicable to the reference made

under the I.D. Act but delay in raising industrial Dispute is an important circumstance for

exercise of judicial discretion in determining relief that is to be granted. The relevant

portion of aforesaid judgment is reproduced as under:

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

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

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

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

side. The legal position laid down by this Court in Gitam Singh that before exercising its

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

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

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

grant of relief in an industrial dispute, must be invariably followed.”

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

10 SCC 167, the services of the employees were terminated on 25.5.1985 and he

approached the Labour Officer on 17.3.1995 and then the reference was made by the

Government to the Labour Court. There was a delay of more than nine years in

approaching the Labour Officer. In para 6 of the aforesaid judgment, the Hon’ble Apex

Court has held as under:

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

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

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

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

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