jkti=] fgekpy izns'k

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

lkseokj] 29 vizSy] 2019@9 oS'kk[k] 1941

fgekpy izns'k ljdkj

LABOUR AND EMPLOYMENT DEPARTMENT

NOTIFICATION

Dharamshala, the 29th October, 2018

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

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

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

23&jkti=@2019&29&04&2019

¼1095½

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

Pradesh.—

Sl. No.

Ref.

No.

Petitioner

Respondent

Date of Award/

Order

482/16

Madan Lal

D.F.O. Nurpur

02-04-2018

206/16

Gulab Deen

E.E. HPPWD, Nurpur

04-04-2018

228/16

Prem Singh

E.E. HPPWD, Nurpur

04-04-2018

269/16

Krishan Singh

E.E. HPPWD, Nurpur

04-04-2018

209/16

Prakash Chand

E.E. HPPWD, Nurpur

04-04-2018

224/16

Desh Raj

E.E. HPPWD, Nurpur

04-04-2018

207/16

Jaram Singh

E.E. HPPWD, Nurpur

04-04-2018

225/16

Om Prakash

E.E. HPPWD, Nurpur

04-04-2018

256/16

Mohinder Pal

E.E. HPPWD, Nurpur

04-04-2018

10.

413/16

Subhash Singh

E.E. HPPWD, Nurpur

04-04-2018

11.

418/16

Sham Lal

E.E. HPPWD, Nurpur

04-04-2018

12.

407/16

Des Raj

E.E. HPPWD, Nurpur

04-04-2018

13.

267/16

Budhi Ram

E.E. HPPWD, Nurpur

04-04-2018

14.

410/16

Vijay Kumar

E.E. HPPWD, Nurpur

04-04-2018

15.

208/16

Mohinder Singh

E.E. HPPWD, Nurpur

04-04-2018

16.

329/15

Sanjeev Kumar

M/s Pal Roller Flour Mill

04-04-2018

17.

119/16

Pipan Dei

E.E. HPPWD, Killar

21-04-2018

18.

594/16

Shounki Devi

E.E. HPPWD, Killar

21-04-2018

19.

310/15

Kamal Kishore

D.F.O. Joginder Nagar

24-04-2018

20.

11/15

Raj Kumar

Dir. Institute of Biotechnology

24-04-2018

21.

10/15

Rajeev Kumar

Dir. Institute of Biotechnology

24-04-2018

22.

12/15

Anil Kumar

Dir. Institute of Biotechnology

24-04-2018

23.

13/15

Manjeet Kumar

Dir. Institute of Biotechnology

24-04-2018

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24.

07/15

Suresh Kumar

Dir. Institute of Biotechnology

24-04-2018

25.

16/15

Sanjay Mohammad

Dir. Institute of Biotechnology

24-04-2018

26.

09/15

Joginder Singh

Dir. Institute of Biotechnology

24-04-2018

27.

62/15

Dev Raj

Dir. Institute of Biotechnology

24-04-2018

28.

08/15

Madan Lal

Dir. Institute of Biotechnology

24-04-2018

29.

06/15

Vipan Kumar

Dir. Institute of Biotechnology

24-04-2018

30.

17/15

Joginder Singh

Dir. Institute of Biotechnology

24-04-2018

31.

14/15

Rajesh Kumar

Dir. Institute of Biotechnology

24-04-2018

32.

44/15

Subhash Chand

Dir. Institute of Biotechnology

24-04-2018

33.

15/15

Rajeev Kumar

Dir. Institute of Biotechnology

24-04-2018

34.

509/16

Kamal Singh

M/s Universal Electric Energy

28-04-2018

35.

495/16

Harjinder Singh

M/s Universal Electric Energy

28-04-2018

36.

496/16

Sant Ram

M/s Universal Electric Energy

28-04-2018

37.

494/16

Banarasi Dass

M/s Universal Electric Energy

28-04-2018

38.

507/16

Pyar Singh

M/s Universal Electric Energy

28-04-2018

39.

508/16

Narender Kumar

M/s Universal Electric Energy

28-04-2018

40.

492/16

Bhupender Singh

M/s Universal Electric Energy

28-04-2018

41.

490/16

Kuldeep Singh

M/s Universal Electric Energy

28-04-2018

42.

491/16

Gurbhajan Singh

M/s Universal Electric Energy

28-04-2018

43.

493/16

Surender Kumar

M/s Universal Electric Energy

28-04-2018

By order,

NISHA SINGH, IAS

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

____________

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

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

Ref. No. :

482/2016

Date of Institution : 22-8-2016

Date of Decision :

02-04-2018

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Shri Madan Lal s/o Shri Ramel Singh, r/o Village Bhaloon, P.O. Kharota, Tehsil Jawali,

District Kangra, H.P.

. .Petitioner.

Versus

The Divisional Forest Officer, Nurpur Forest Division, Nurpur, District Kangra, H.P.

. .Respondent.

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

For the Petitioner

: Sh. N.L. Kaundal, AR

: Sh. Vijay Kaundal, Adv.

For the Respondent(s)

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

AWARD

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

adjudication:

“Whether alleged termination of services of Shri Madan Lal s/o Shri Ramel Singh, r/o

Village Bhaloon, P.O. Kharota, Tehsil Jawali, District Kangra, H.P. during April, 2002 by

the Divisional Forest Officer, Nurpur Forest Division, Nurpur, District Kangra, H.P. who

was worked as beldar on daily wages basis and has raised his industrial dispute vide demand

notice dated 04-11-2013 after more than 9 years, allegedly without complying with the

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

of working period of 191, 264, 118 and 45 days during years 1999, 2000, 2001 and 2002

respectively and delay of more than 9 years in raising the industrial dispute, what amount of

back wages, seniority, past service benefits and compensation the above ex-worker is

entitled to from the above employer/management?”

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

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

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

by respondent on daily waged basis on muster roll as beldar in the year, 1999 where he continued

to work under the Range Officer Jawali, upto April, 2001 along-with co-workers namely Jugal

Kishore and during the aforestated period the service of petitioner had been engaged and

disengaged by the Range Officer, Jawali without any instructions and respondent had given

fictional breaks to petitioner who had not completed 240 days for the purpose of continuous service

as envisaged under Section 25-B of the Industrial Disputes Act, 1947 (hereinafter called 'the Act'

for brevity). It is alleged that the service of petitioner had been terminated unlawfully by Range

Officer, Jawali w.e.f. April, 2001 without serving any notice, charge sheet nor any inquiry was

conducted against the misconduct of petitioner however no retrenchment compensation was paid to

the petitioner in lieu of notice period thereof and the respondent had violated the provisions of

Section 25-F (a) & (b) of the Act whereas petitioner had not completed 240 days prior to his

termination and the same was null and void. Aggrieved with termination order of respondent,

petitioner had approached the Hon'ble Administrative Tribunal by filing O.A. (D) No. 264/2001

and on 7-3-2002 the Hon'ble Administrative Tribunal had directed the petitioner to approach the

appropriate forum and the same was covered under the Industrial Disputes Act and as such the

Hon'ble Administrative Tribunal was no jurisdiction and the same was disposed of on ground of

jurisdiction thereafter petitioner had approached the respondent and raised demand notice dated

20-8-2002. It is further alleged that the respondent had not followed the principle of 'Last come

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First go' when the service of petitioner had been engaged and disengaged from 1999 onwards and

finally terminated on April, 2001 whereas persons junior to petitioner namely Sanjeev Kumar who

had appointed in (1999), Sawroop Singh (12/1999), Shiv Kumar (2000), Budhia (1-1-2000), Onkar

Singh (1-1-2001) had been retained in service and after termination of service of petitioner

respondent had been appointed Fouza Singh who was appointed on 1-6-2008 and no opportunity of

re-employment had been given to petitioner however respondent had violated the provisions of

Sections 25-G and 25-H of the Act. It is stated that petitioner again filed O.A. No. 370/2002 before

the Hon'ble Administrative Tribunal had been decided on 23-8-2004 however Conservator of

Forest, Dharamshala had called the petitioner vide letter dated 27-1-2005 whereas petitioner had

appeared but his case was not considered for reinstatement. Feeling aggrieved the action of

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

notice dated 20-8-2002 but his dispute was not forwarded to the appropriate government. It is

alleged that Dy. Labour Commissioner had not examined the petitioner's demand notice properly. It

is alleged that one Smt. Renu Vaidya who had been terminated by Assistant Town Planner, Sub

Divisional Town Planning Office Chamba in the month of July, 1999 and she had raised her

demand notice in the year 2013 and the appropriate govt. had considered delay of 13 years as well

as this Tribunal has also considered delay of 13 years and the relief was granted to said Smt. Renu

Vaidya. It is alleged that respondent had orally terminated the services of petitioner in the month of

April, 2002 which was unjustified, arbitrary and unconstitutional, contrary, unlawful and against

the mandatory provisions of the Act and act of respondent was also unfair labour practice under

Section 2 (ra) read with Schedule 5th Clause 10 of the Act. It is alleged that the petitioner is still

unemployed and not gainfully employed anywhere from the date of his illegal termination.

Accordingly, prayer has been made to set aside the illegal termination order of petitioner directing

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

with all consequential benefits.

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

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

daily wager on April, 1999 who intermittently worked upto April, 2001 under the Range Officer,

Jawali. It is denied that petitioner had not allowed to complete 240 days in a calendar year. It is

further stated that petitioner had left the work of his own sweet will and not completed 240 days in

any calendar year and as such there was no violation of Section 25-B of the Act. It is contended that

petitioner had not completed 240 days as he left the work of his own sweet will and the respondent

had not violated the provisions of Section 25-F (a) & (b) of the Act. It is denied that respondent had

not followed the principle of last come first go as juniors had been engaged by respondent. It is

stated that persons namely Subhash Singh, Budhiya never worked with Jawali Forest Range as well

as Sawarna Devi had been engaged on compassionate grounds. It is contended that persons namely

Sanjeev Kumar, Maru Ram, Sawroop etc. had been engaged by way of direction of Hon'ble

Administrative Tribunal as well as Fouza Singh was engaged in the year 1998 who was senior to

the petitioner. Alleges that question of termination of the services of petitioner by the respondent

does not arise. Delay in filing the claim petition is stated to be fatal to the case of petitioner and the

petitioner raised his claim when other workers raised demand notice and that petitioner was

gainfully employed as an agriculturist. Accordingly, petition was sought to be dismissed.

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

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

affidavit under Order 18 Rule, 4 CPC Ex. PW1/A, copy of letter dated 25-11-2002 Ex. PW1/B,

copy of OA No.269/2002 Ex. PW1/C, copy of letter dated 27-1-2005 Ex. PW1/D, copy of seniority

list Ex. PW1/E, copy of mandays chart of Jugal Kishore Ex. PW1/F, copy of Award dated

15-6-2013 Ex. PW1/G and closed evidence. On the other hand, repudiating the evidence led by the

petitioner, respondent examined RW1 Shri Dinesh Sharma, the then Divisional Forest Officer,

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Nurpur Forest Division Nurpur as RW1 tendered/proved his affidavit Ex. RW1/A, mandays chart

of petitioner Ex. RW1/B, copy of mandays chart of Fauja Singh Ex. RW1/C, copy of orders Ex.

RW1/D to Ex. RW1/G and closed the evidence.

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

representing respondent, gone through records of the case carefully relevant for disposed of this

case.

From the contentions raised, following issues were framed on 20-1-2017 for

determination:

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

April, 2002 and raised his industrial dispute vide demand notice dated 04-11-2013

is/was illegal and unjustified as alleged?

. .OPP.

If issue No.1 is proved in affirmative to what service benefits the petitioner is entitled

to?

. .OPP.

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

Whether the claim petition suffers from vice of delay and laches as alleged. If so, its

effect?

. .OPR.

Relief.

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

Issue No. 1 : Yes

Issue No. 2 : Discussed

Issue No. 3 : No

Issue No. 4 : Discussed

Relief :

Petition is partly allowed awarding lump sum compensation of Rs.60,000/-

per operative part of award.

REASONS FOR FINDINGS

Issues No.1, 2 and 4 :

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

can be disposed of simultaneously without repetition of evidence.

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

petitioner in which he has prayed for setting aside the retrenchment order in the month of April,

2001 qua his illegal termination and sought direction to the effect that services of petitioner be

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

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

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

may also be considered for engagement in service as per policy framed by the State Govt. and to

another relief petitioner is entitled.

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

wage basis with the respondent in the year 1999 on muster roll basis as beldar who continued to

work till April, 2001 when his services were terminated without paying any retrenchment

compensation under Section 25-F of the Act. It is claimed that petitioner had completed more than

240 days in each calendar prior to his termination and that while retrenching the services of

petitioner principle of 'Last come First go' was not followed as Sanjeev Kumar who had appointed

in (1999), Sawroop Singh (12/1999), Shiv Kumar (2000), Budhia (1-1-2000), Onkar Singh

(1-1-2001) were retained in service and thus the provisions of Section 25-G of the Act was not

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

worked for 191 days in the year 1999, 264 days in 2000 and 45 days in 2001. Even if we look at the

mandays chart, this would show that immediately preceding his termination in 2001, petitioner has

factually worked for 45 days in 2001 days prior to termination. A bare glance at the mandays chart

Ex. RW1/B would reveal petitioner had not worked for more than 240 days immediately prior to

his retrenchment as stated above. Be it noticed that Fouza Singh and Swarna had been appointed in

2003 and 2008 respectively. It is pertinent to mention to state here that when persons mentioned in

para No. 4 of the affidavit Ex. PW1/A were engaged petitioner was factually not given offer for re-

employment which manifestly violates the provisions of Section 25-H of the Act. From evidence, it

is evidently clear that after termination of petitioner he was available for job who was not appointed

however some persons fresh were allowed to join in service. As such, action of respondent in doing

so clearly violates Section 25-H of the Industrial Disputes Act.

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

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

established that whenever petitioner absented from his duty, respondent had not issued any notice

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

abandoned the job. RW1 specifically admitted that no departmental inquiry was initiated against

petitioner even after April, 2001. No reason whatsoever has been assigned for such any action or

omission on the part of respondent in not initiating any departmental proceedings or making

correspondence calling upon the petitioner to join service. This prima facie belies the stand taken

by the respondent as abandonment has to be proved like any other fact in issue. As such, in absence

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

had established plea of abandonment.

14. In so far as violation of provisions of Section 25-G of the Act is concerned, suffice

would be to state here that persons mentioned in Senioirty list Ex. PW1/E were engaged after

termination of petitioner but no opportunity was given to petitioner for re-employment which

violates the provisions of Section 25-H of the Act. Close scrutiny of the petitioner in cross-

examination would reveal that principle of 'Last come First go' was not followed for all the

workmen appointed in between 1999 to 2010 whereas petitioner had been retrenched in April, 2001

and thereafter several persons were engaged in service but petitioner has not given any opportunity

for re-employment. Since the persons mentioned in para 5 of claim petition as well as affidavit of

petitioner Ex. PW1/A had been appointed by 1999 to 2008 provisions of Section 25-G of the Act

could not be stated to have been violated. It is pertinent to mention to state here that when persons

mentioned in Para No. 5 of the claim petition were engaged and petitioner was not given offer for

re-employment which manifestly violates the provisions of Section 25-H of the Act. From

evidence, it is evidently clear that after termination of petitioner he was available for job who was

not appointed however some persons fresh were allowed to join in service. As such, which is

clearly violation of Section 25-H of the Act.

15. Ld. Counsel for the petitioner has contended with vehemence that petitioner be treated

in continuous service for eight years and for said reason the left period after April, 2001 be treated

as regular period. It is not understood as to how petitioner claim this benefit as petitioner never

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worked with the respondent/department after his termination as well as there is no adequate

evidence on record suggesting that petitioner had represented the respondent/department after his

termination, although petitioner had issued demand notice i.e. 4-11-2013 after about 9 years and

thus judgment of Hon'ble High Court reported in 2012 (132) FLR 528 (SC) titled as H.S.

Rajashekara and State Bank of Mysore and another does not come to the rescue of the

petitioner. Therefore, the entire period cannot be treated in service. As stated above that petitioner

remained out of job after his termination but there is nothing authenticated in evidence suggesting

that he remained without earning and petitioner as PW1 has nowhere stated that he had opted out

for job when terminated from service. As such, it is held that after his termination he was not in

government job and cross-examination of PW1 reveals that he had not been paid retrenchment

compensation and notice at the time of retrenchment. Since the respondent had failed to prove on

record any seniority list by which it would be stated that persons who were junior to petitioner were

retained in service whereas petitioner who was senior to persons mentioned and thus respondent

had clearly violated Section 25-G of Industrial Disputes Act. In view of ratio of judgment of

Hon'ble Apex Court reported in AIR 2015 SC 1373 titled as Mackinon Machenize & Company

Ltd. Vs. Mackinon Employees Union which mandatorily requires the employer to circulate

seniority list as prepared. There is no iota of evidence on record remotely suggesting that

respondent had provided seniority list of daily waged workers. As such, plea of petitioner that he

was ignored and new hands were allowed to join is to be accepted. In view of foregoing

discussions, respondent is held to have violated the provisions of Section 25-H of the Act.

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

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

Sangh and Employers in Relation to Management of Kenduahih Colliery of M/s BCCL and

Ors., in which Hon'ble Apex Court has awarded compensation of Rs.4 lakh to each workman.

Similarly, reliance has placed on judgment of Hon'ble High Court of Punjab & Haryana reported in

2014 LLR 967 titled as Deshsewak Foundry Vs. Presiding Officer, Labour Court, Gurdaspur

& Ors., in which compensation of Rs.5 lakh was awarded. In another judgment of Hon'ble High

Court of Rajasthan, Jaipur Bench reported in 2017 (152) FLR 206, titled as Youth Co-ordinator,

Nehru Yuva Kendra and Labour Court No. 2, Jaipur and Anr. in which compensation of Rs. 2

lakh was granted to the workman who had merely worked for two years. Thus, above said

judgments disclosing awarding larger amount of compensation which the claimant/petitioner has

prayed for. Ld. Dy. D.A. for State has relied upon judgment of Assistant Engineer Rajasthan

Development Corporation and another Vs. Geetam Singh reported in 2013 (136) FLR 893

(SC), in which various criteria to be looked by the Hon'ble Apex Court in awarding compensation.

It has been held that before exercising its judicial discretion, the Labour Court has to keep in view

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

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

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

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

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

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

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

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

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

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

nearly 27 years had elapsed since the time of retrenchment. Moreover, the workers who were

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

relied upon by ld. Counsel/Authorized Representative for petitioner does not apply to present case

rather applying the criteria laid down by Hon'ble Apex Court in Geetam Singh's case 2013 (136)

FLR 893 (SC) has been followed and applied.

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18. Ld. Counsel representing respondent department has also contended with vehemence

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

termination of petitioner in this case took place in the month of April, 2001 and the industrial

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

AR for the petitioner has placed reliance upon judgment reported in 2007 LHLJ 903 Hon'ble High

Court of H.P. (Bhatag Ram's case) in which it has been held that delay in raising dispute may be

considered by court at the time of granting final relief however in various other judgments even

longer delay has been condoned. In Divisional Manager, HPFC & another Vs. Garibu Ram,

Latest HLJ 2007 (HP) 1160, delay of more than 10 years was condoned besides Hon'ble High

Court has held that principle of Limitation Act is not applicable to the industrial dispute. Similar

view was taken by Hon'ble Apex Court in Ajayab Singh Vs. Sirhind Co-operative Marketing-

cum-Processing Society Limited and Another, (1999) 6 SCC 82 in which it has been held that

the principle of Limitation Act, 1963 did not apply to the proceeding under the Industrial Disputes

Act.

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

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

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

Joint Director Sericulture Department and another. Relying upon the aforesaid judgment, it has

been contended that while making reference to the Labour Court by the Government, the competent

authority has to see that there is existence of an industrial dispute or apprehension of an industrial

dispute and if there is no live dispute or if dispute was no longer existing reference could not be

made at belated stage. On the other hand, ld. Authorized Representative for the petitioner has

contended that the judgment of Hon'ble Apex Court referred to above does not come to the rescue

to the respondents moreso when government itself made reference and has not challenged the

correctness of reference before the Hon'ble High Court. I have carefully gone through the judgment

referred to above and of the view that the contention of the ld. Dy. D.A. is fallacious. It would be

relevant to refer to para 7 of the judgment in which the Hon'ble Apex Court has categorically held

that the issue which fell for determination is whether reference of such a belated claim was

appropriate. It was further observed that order of reference cannot be made mechanically without

forming an opinion as referred to in the other paragraphs of the judgment and order of making

reference is open to judicial review if it is shown that the appropriate government had no material

before it or it has not applied its mind to the material before it or has not taken into consideration

certain vital facts which it ought to have taken into consideration. In paragraph 23 Sub para (8) of

the judgment of Hon'ble Apex Court in which it has been specially observed that the High Court

can exercise its powers under Article 226 of the Constitution to consider the question of the very

jurisdiction of the Labour Court. It was submitted before the Hon'ble Apex Court that once a

reference has been made under Section 10 of the Industrial Disputes Act, Labour Court has to

decide the same and the High Court in writ jurisdiction cannot interfere in the proceedings of the

Labour Court which was found be not correct proposition but certainly correctness of reference

under Section 10 of Industrial Disputes Act is not in challenge before this Court. Reliance has been

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

Industries Ltd. Vs. State of Rajasthan in judgment of 2016 (supra). In Sapan Kumar Pandit's

(2000), case it was held that the period of making of reference is co extensive with the existence of

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

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

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

Court. The judgment referred in 2016 primarily reveals guidelines how reference under Section 10

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

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

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

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

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Section 10 of Industrial Disputes Act and not for wrongful termination under Section 25 of

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

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

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

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

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

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

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

20. Applying the ratio of aforesaid judgments more specifically judgment reported in 2013

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

non-skilled worker ageing 47 years when his services were illegally terminated who is not likely to

get government job at this age and had factually worked for 618 days in all the four years

aforestated and that demand notice was issued after a period of 9 years by the petitioner and in view

peculiar facts and circumstances as stated above, a lump-sum compensation of Rs. 60,000/-

(Rupees sixty thousand only) would be appropriate relief to the petitioner in lieu of back wages,

seniority, past service benefits. It is further made clear that amount of compensation shall be paid

within four months from the date of receipt of Award failing which the petitioner would be entitled

for interest @ 9% per annum from date of Award till its realization. Issues No. 1, 2 and 4 are

answered accordingly.

Issue No. 3 :

21. On the plea of non-maintainability of the claim petition under Section 10 of the

Industrial Disputes Act, ld. Dy. D.A. representing respondent department has failed to allege in

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

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

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

petitioner and against the respondent.

Relief :

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

the compensation of Rs. 60,000/- (Rupees sixty thousand only) to the petitioner in lieu of the back

wages, seniority and past service benefits. Amount of compensation so awarded shall be paid by

the respondent to the petitioner within four months from the date of receipt of Award failing which

the respondents shall be liable to pay the interest @ 9% per annum on the said amount from the

date of award till the date of its realization. In the peculiar circumstances of the case, the parties are

left to bear their own costs.

23. The reference is answered in the aforesaid terms.

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

official gazette.

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

Announced in the open Court today this 2nd day of April, 2018.

Sd/-

(K. K. SHARMA),

Presiding Judge,

Labour Court-cum-Industrial Tribunal,

Kangra at Dharamshala, H.P.

1105

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

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

Ref. No.

: 206/2016

Date of Institution

: 11-04-2016

Date of Decision

: 04-04-2018

Shri Gulab Deen s/o Shri Meer Deen, r/o Village Manoharan, P.O. Sadwan, Tehsil Nurpur,

District Kangra, H.P.

. .Petitioner.

Versus

The Executive Engineer, H.P.P.W.D. Nurpur, Tehsil Nurpur, District Kangra, H.P.

The Executive Engineer, H.P.P.W.D. Jawali Division, Jawali, District Kangra, H.P.

. .Respondents.

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

For the Petitioner :

Sh. S.D. Sharma, Adv.

For the Respondent(s) :

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

AWARD

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

adjudication:

“Whether alleged termination of services Sh. Gulab Deen s/o Sh. Meer Deen r/o Village

Manoharan, P.O. Sadwan, Tehsil Nurpur, Distt. Kangra, H.P. from 1-9-1988 by the

Executive Engineer, HPPWD, Nurpur Division, Nurpur, Distt. Kangra, H.P., and (ii) the

Executive Engineer, HPPWD Jawali Division, Jawali, Distt. Kangra, (H.P.) who had

worked as beldar on daily wages basis only for 75.5 days during the year 3/1988 to 8/1988

and raised his Industrial dispute vide demand notice dated 24-11-2013 after more than 24

years, allegedly without complying with the provisions of the Industrial Disputes Act, 1947

is legal and justified? If not, keeping in view of working period as mentioned above and

delay of more than 24 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/management?”

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

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

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

beldar on daily wages in the month of September, 1986 in Suliali Sub Division HPPWD falling

under HPPWD Division Nurpur, District Kangra, H.P. where he continuously worked till October,

1990 when he was disengaged by respondent illegally despite availability of work and funds. It is

alleged that HPPWD Division Nurpur, District Kangra, H.P. was involved in construction of road

Bodh Chakki Dhar Aund Haddal and Suliali to Dev Barari road and various sites adjoining to it but

service of petitioner was disengaged orally in October, 1990 in violation of law. It is further alleged

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that petitioner had been engaged in construction of roads leading to villages, national highway and

had worked to the satisfaction of respondent and other superiors and there was no complaint against

him. It further transpires from claim petition that after termination of petitioner by the respondent,

he had made several verbal request to respondent by visiting its office as well as office at Sub

Division Suliali who was assured of re-engagement in 3-4 months but did not receive any response

from the respondent when petitioner had written various letters to department for re-engagement on

daily wage basis but was not engaged. It is alleged that a resolution on behalf of retrenched

workmen were also sent to Assistant Registrar to the Hon'ble H.P. State Administrative Tribunal,

Shimla which was pending and not decided till date. The grievance of the petitioner further remains

that petitioner and similarly situated workmen who had been engaged on daily wage basis by

HPPWD constituted one unit and procedure for retrenchment which involved applicability of

principle of 'Last come First go'. It is alleged that in utter disregard to the provisions of Section 25

G of Industrial Disputes Act junior persons had been retained whereas petitioner had been

disengaged more specifically one Smt. Kusam Sharma w/o Sh. Roshan Lal, Village & P.O. Suliali,

Tehsil Nurpur, District Kangra, H.P. who was retained in pursuance to letter of Engineer-in-Chief

vide letter No. 3058/61 dated 18-1-2000. It is claimed that said Kusam Sharma had joined HPPWD

Division Nurpur in the year 2000 after disengagement of petitioner in 1987 which clearly violates

Section 25-G of the Industrial Disputes Act, 1947 (hereinafter called 'the Act' for brevity).

Accordingly, petitioner prays for setting aside the order of verbal termination as petitioner had

completed 240 days in preceding one year from date of termination and thus respondent had

violated Section 25-F of the Act. It is alleged that respondent had also not followed the procedure

envisaged under Section 25-G of the Act after disengaging petitioner junior persons were engaged

and at the same time no notice for re-employment/re-engagement was issued calling upon

petitioner to join before engaging junior which violates Section 25-G of the Act. Accordingly,

petitioner seeks his reinstatement in service by respondent with seniority, back wages and all the

other consequential benefits.

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

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

that petitioner had been engaged as beldar in September, 1986 in HPPWD Division Nurpur rather

he was disengaged in October, 1990. It has been categorically stated that petitioner was engaged as

daily wager in Sub Division HPPWD Suliali falling under Jassur Division where he worked

intermittently between March, 1988 to August, 1988 and thereafter left the work and did not

approach the respondent/department. It is alleged that HPPWD Division Jassur was shifted to

Jawali Division vide HP Government Notification No. PBW-(A)-A (I) 17/1994 dated 21st July,

1994 and strength and staff of Jassur Division was shifted to Jawali but area of Suliali Sub Division

was shifted to Nurpur Division. It has been emphatically denied that petitioner had completed 240

days rather claimed that petitioner merely worked from March, 1988 till August, 1988 who did not

complete 240 days in any calendar year as reflected in mandays chart. It is alleged that since Suliali

Sub Division was shifted to HPPWD Division Nurpur in 1994. As such, question of termination of

service of petitioner in October, 1990 did not arise. Moreover, petitioner is alleged to be gainfully

employed as an agriculturist. Reiterating his stand, it has been contended that petitioner left the

work of beldar in August, 1988. However, denied that any resolution was pending before Assistant

Registrar, H.P. State Administrative Tribunal for want of knowledge. In so far as Kusam Sharma is

concerned, it has been categorically stated that Kusam Sharma was engaged as helper on daily

wage basis by HPPWD Division Dalhousie in 1983 who worked intermittently till November, 1998

when said Kusam Sharma made representation to Engineer-in-Chief HPPWD Shimla in December,

1999 stipulating therein that she belonged to Suliali village as such permission be granted to work

in HPPWD Division Nurpur and request was considered and allowed and adjusted against the post

of daily waged Store Clerk. As such, said Kusam Sharma even after joining HPPWD Division

Nurpur from Dalhousie Division continued to work with the respondent who was senior to the

petitioner having joined service with the respondent/department in 1983. As such, there can be no

1107

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violation of Section 25-H of the Industrial Disputes Act and for similar reasons, it was not required

for respondent to have issued notice calling upon the petitioner for re-employment. It has

categorically stated that no other junior persons has been retained or re-employed by the respondent

besides maintained that only those workmen were regularized who continuously worked and fulfill

the requisite criteria for regularization as per government policy however, denied that petitioner

was terminated by the respondent. Accordingly, claim petition was sought to be dismissed.

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

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

his affidavit under Order 18, Rule 4 CPC Ex. PW1/A and closed evidence. On the other hand,

repudiating the evidence led by the petitioner, respondent examined RW1 Shri Inder Singh Uttam,

the then Executive Engineer, B&R Division HPPWD Nurpur, District Kangra, H.P. as RW1

tendered/proved his affidavit Ex. RW1/A, copy of mandays chart of petitioner Ex. RW1/B, copy of

Notification dated 21-7-1994 Ex. RW1/C, copy of office order dated 23-7-1994 Ex. RW1/D, copy

of letter dated 18-1-2000 Ex. RW1/E, copy of mandays chart of Smt. Kusum Ex. RW1/F and

Ex. RW1/G, copy of letter dated 18-12-1999 Ex. RW1/H and closed evidence.

I have heard the ld. Counsel of petitioner and ld. Dy. D.A. representing respondent,

gone through records of the case carefully relevant for disposed of this case.

From the contentions raised, following issues were framed on 31-08-2017 for

determination which are as under:

Whether termination of services of the petitioner by the respondents w.e.f. 1-9-1988

is/was illegal and unjustified as alleged?

. .OPP.

If issue No.1 is proved in affirmative, to what service benefits the petitioner is entitled

to?

. .OPP.

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

Whether the claim petition is bad on the ground of delay and laches on the part of

petitioner as alleged?

. .OPR.

Relief.

9. For the reasons detailed hereunder, my findings on the above issues are as follows:—

Issue No. 1 : No

Issue No. 2 : No

Issue No. 3 : No

Issue No. 4 : No

Relief :

Claim petition is dismissed per operative part of Award.

REASONS FOR FINDINGS

Issues No.1 and 2 :

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

which can be disposed of simultaneously without repetition of evidence.

11. Stepping into witness box as PW1 petitioner has sworn in affidavit Ex. PW1/A

reiterated his stand as maintained in the claim petition. The Petitioner has specifically stated on

oath that he had completed 240 days having worked from September, 1986 to October, 1990

besides maintained to have remained engaged in construction site of road Bodh Chakki Dhar Aund

Haddal and Suliali to Dev Barari road and that his service had been terminated/disengaged verbally

in the year 1990 in violation of law by respondent. The respondent in its reply as well as statement

on oath as RW1 has maintained that petitioner had not worked from September, 1986 but was

engaged in March, 1988 and continued to work till August, 1988 during this period also, he had

worked intermittently. The testimony of RW1 corresponds with mandays chart Ex. RW1/B which

reveals that petitioner had merely worked for 75½ days in the year 1988. As such, from oral as well

as documentary evidence on record, it cannot be stated that petitioner had worked for 240 days. Be

it stated that for applicability of Section 25-F of the Act, petitioner was required to prove that he

had worked for 240 days continuously in preceding one year before termination and testimony of

petitioner is not substantiated from any corresponding evidence to this effect. As such, when

petitioner had not completed 240 days, respondent was not required to issue any notice while

disengaging him from service which is not the plea of respondent as it has pleaded that petitioner

had abandoned the job.

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

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

established that whenever petitioner absented from his duty as also reflected in mandays chart

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

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

admitted that no departmental inquiry was initiated against petitioner even after 1988. No reason

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

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

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

proved like any other fact in issue. Ld. Dy. D.A. for the State has contended that even if the

respondent has not been able to prove abandonment of job by respondent as required under law yet

petitioner was not absolved from his accountability to prove to have worked for a minimum period

of 240 days in preceding 12 months from termination. In view of the foregoing, it is held that

respondent has not violated Section 25-F of the Act who was not required issue any notice or pay

compensation as contended by petitioner.

13. In so far as violation of provisions of Section 25-G of the Act is concerned, it deals

with procedure for retrenchment to be adopted by employer. In the case in hand, petitioner has

emphasized enough that juniors were retained by respondent whereas petitioner had been

disengaged despite availability of funds and work. In his affidavit petitioner has stated that one

Kusum Sharma had been engaged who was junior to him and was retained in service. To appreciate

the pleas so raised by petitioner, it would be relevant to go through evidence qua period when said

Kusum Sharma had been engaged. Before proceeding further it may not be erroneous to mention

here that petitioner has failed to prove seniority list of workmen of Suliali Sub Division which was

to proved so as to establish violation of Section 25-G of the Act. Ld. Dy. D.A. for respondent has

placed reliance upon mandays chart of Kusum Sharma d/o Daulat Ram who was working in

Banikhet Sub Division No.1 HPPWD Banikhet as reflected in Ex. RW1/G. This document shows

that Kusum Sharma had been engaged in November, 1983. Said Kusum Sharma continued to work

till November, 1988 at Dalhousie Division when she had made representation to Engineer-in-Chief,

HPPWD Shimla vide application Ex. RW1/H requesting her transfer from HPPWD Dalhousie to

Suliali HPPWD Sub Division which was allowed as letter Ex. RW1/E dated 18-1-2000 revealed

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that one post of Store Clerk (work charged brought in regular cadre) had been allotted to HPPWD

Nurpur Circle. Said Kusum Sharma was engaged in February, 2000 under HPPWD as is evident

from Ex. RW1/F who continued to work uninterruptedly till January, 2009. It is admittedly not the

case of the petitioner that said Kusum Sharma had been disengaged rather she is stated to be still

working under HPPWD Division Nurpur. If said Kusum Sharma had joined in Suliali HPPWD

Division in February, 2000 she cannot be stated to be junior to petitioner as her service had been

placed at the disposal of Executive Engineer HPPWD Nurpur in pursuance to her request allowed

by competent authority who had been initially engaged in November, 1983 whereas petitioner had

been engaged in 1988.

14. Before proceeding further, it would be relevant to go through the evidence concerning

creation of Sub Division of Jwali and Nurpur in the year 1994. In the case in hand, evidence qua

petitioner revealed that he had been initially engaged in Suliali Sub Division in September, 1986.

This Suliali Sub Division was under Jassur Division out of which Jawali Sub Division was made in

the year 1990 as is evident from Notification dated 21st July 1994 Ex. RW1/C and Ex. RW1/D on

record. These documents further show that Jassur Sub Division cease to exist upon creation of

Nurpur and Jawali Sub Division meaning thereby that on creation of Jawali Sub Division and

Nurpur, Suliali Sub Division falling under the Nurpur Division got merged in Nurpur Sub Division.

Said Kusum Sharma is shown to have joined at Suliali Sub Division which consequently fell under

Nurpur Sub Division as discussed in foregoing paragraphs. It is evident from evidence on record

that petitioner had been working under Suliali Sub Division since 1988 as stated above but with the

bifurcation of Divisions as stated above, it cannot be concluded that petitioner was disengaged in

the month of August, 1988 by respondent rather prior to creation of these two new Sub-Divisions

i.e. Nurpur and Jawali, petitioner himself was not in job as he had left the job who did not report for

duty. This plea of respondent has although not been accepted by this court for want of issuance of

notice or charge-sheet but it cannot be stated that petitioner had been disengaged by respondent by

a verbal order. In view of foregoing plea of petitioner that Section 25-G was violated cannot be

accepted and for similar reasons plea of petitioner that respondent had violated Section 25-H of the

Act can also not accepted. Accordingly, petitioner has failed to establish that respondent had

violated provisions of Sections 25-F, 25-G and 25-H of the Act. In view of forgoing discussions,

issue No. 1 is decided in negative holding that termination of service of petitioner by the

respondent in August 1988 is neither illegal and nor unjustified and since the petitioner has been

lawfully terminated, he would not be entitled for any service benefits. Both these issues are

answered in negative in favour of respondent and against the petitioner.

Issue No.3:

15. On the plea non-maintainability of the claim petition under Section 10 of the Industrial

Disputes Act, ld. Dy. D.A. representing respondent department has contended that present claim

petition is not maintainable as the petitioner had abandoned the job of his own and did not join his

duty despite issuance of muster roll for the relevant period. From the pleadings of the parties and

evidence on record as discussed in foregoing paras, no inference of claim petition being not

maintainable could be raised instead the same is held to be maintainable. As such, the issue in hand

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

Issue No. 4:

16. It is settled preposition of law that in case a dispute is referred to for determination, the

Court will have to return a finding on merits and the delay in raising the dispute may be considered

by the Court at the time of granting the final relief, as has been held by our own Hon'ble High

Court in Bhatag Ram's case (2007 LHLJ 903). In Divisional Manager, HPFC & another Vs.

Garibu Ram, Latest HLJ 2007 (HP) 1160, the delay of more than 10 years was held to have not

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come in the way of the workman whose services were illegally terminated by holding that the

provisions of Limitation Act is not applicable to industrial dispute but however, depending upon

the facts and circumstances of each case, the principle of delay and laches have to be seen and

applied. In Deepa Ram Vs. State of H.P. and Ors., 2005 (1) Himachal Law Journal 248, there

was a delay of 12 years. In Ramesh Chand Vs. Union of India, CWP No. 812 of 2000, there was

a delay of 9 years. In CWP No. 95 of 2000 titled as Divisional Manager Vs. Mohinder Kumar,

there was a delay of 14 years. In Naginder Kumar Vs. HPSEB and anr. 2008 (1) SLJ (H.P.)

425, it has been held by the Hon'ble High Court of H.P. that the Labour Court cannot dismiss the

claim on the ground of delay and laches once the same has been referred by the State Government

and the Labour Court is bound to decide the reference which was made by the State Government

and same is required to be adjudicated upon the merits without touching the aspect of delay and

laches. The Hon'ble Apex Court in the Bombay Gas Co. Ltd. Vs. Gopal Bhiva & Ors., AIR 1964

SC 752, has categorically held that as such of all those employees, who are entitled to take the

benefit of Section 33-C (2) may not always be conscious of their rights and it may not be right to

put the restriction of limitation in respect of claim which they may have to make under the

provision and in absence of any provision for limitation, it may not be open to the Court to

introduce the limitation on the ground of fairness and justice. In Ajayab Singh Vs. Sirhind Co-

operative Marketing-cum-Processing Society Limited and Another, (1999) 6 SCC 82, it has

been observed by the Hon'ble Supreme Court that:

“The provisions of Article 137 of Limitation Act, 1963 are not applicable to the proceeding

under the ID Act. The relief under the ID Act cannot be denied merely on the ground of

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

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

the Labour Court can be generally questioned on the ground of delay alone”.

17. No material has been placed on record by the respondents to establish that there was

inordinate delay on the part of the petitioner in raising the dispute in the instant case or that any

prejudice had been caused to respondent. Accordingly, the petition as filed by the petitioner cannot

be held to be hit by the vice of delays and laches as alleged by the respondent. Hence, this issue is

decided against the respondent and is answered accordingly.

Relief :

18. As a sequel to my findings on foregoing issues No. 1 and 2, the instant claim petition

fails and the same is hereby dismissed, leaving the parties to bear their own costs.

19. The reference is answered in the aforesaid terms.

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

official gazette.

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

Announced in the open Court today this 4th day of April, 2018.

Sd/-

(K. K. SHARMA),

Presiding Judge,

Labour Court-cum-Industrial Tribunal,

Kangra at Dharamshala, H.P.

1111

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

INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)

Ref. No.

: 228/2016

Date of Institution

: 16-06-2016

Date of Decision

: 04-04-2018

Shri Prem Singh s/o Shri Munshi Lal, r/o Village Nera, P.O. Suliali, Tehsil Nurpur, District

Kangra, H.P.

. .Petitioner.

Versus

The Executive Engineer, Nurpur, Division, H.P.P.W.D. Nurpur, Tehsil Nurpur, District

Kangra, H.P.

. .Respondent.

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

For the Petitioner :

Sh. S.D. Sharma, Adv.

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

AWARD

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

adjudication:

“Whether alleged termination of services between Sh. Prem Singh s/o Sh. Munshi Lal r/o &

Village Nera, P.O. Suliali, Tehsil Nurpur, Distt. Kangra, H.P. w.e.f. 1-10-1988 by the

Executive Engineer, HPPWD Nurpur Division, Nurpur, Distt. Kangra, H.P. who had

worked as beldar on daily wages basis only for 77.5 days during the year 3/1988 to 9/1988

and has raised his Industrial dispute vide demand notice dated 24/11/13 after more than 24

years, allegedly without complying with the provisions of the Industrial Disputes Act, 1947

is legal and justified? If not, keeping in view of working period as mentioned above and

delay of more than 24 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/management?”

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

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

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

beldar on daily wages in the month of September, 1987 in Suliali Sub Division HPPWD falling

under HPPWD Division Nurpur, District Kangra, H.P. where he continuously worked till October,

1989 when he was disengaged by respondent illegally despite availability of work and funds. It is

alleged that HPPWD Division Nurpur, District Kangra, H.P. was involved in construction of road

Bodh Chakki Dhar Aund Haddal and Suliali to Dev Barari road and various sites adjoining to it but

service of petitioner was disengaged orally in October, 1989 in violation of law. It is further alleged

that petitioner had been engaged in construction of roads leading to villages, national highway and

had worked to the satisfaction of respondent and other superiors and there was no complaint against

him. It further transpires from claim petition that after termination of petitioner by the respondent,

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he had made several verbal request to respondent by visiting its office as well as office at Sub

Division Suliali who was assured of re-engagement in 3—4 months but did not receive any

response from the respondent when petitioner had written various letters to department for

reengagement on daily wage basis but was not engaged. It is alleged that a resolution on behalf of

retrenched workmen were also sent to Assistant Registrar to the Hon'ble H.P. State Administrative

Tribunal, Shimla which was pending and not decided till date. The grievance of the petitioner

further remains that petitioner and similarly situated workmen who had been engaged on daily

wage basis by HPPWD constituted one unit and procedure for retrenchment which involved

applicability of principle of 'Last come First go'. It is alleged that in utter disregard to the provisions

of Section 25-G of Industrial Disputes Act junior persons had been retained whereas petitioner had

been disengaged more specifically one Smt. Kusam Sharma w/o Sh. Roshan Lal, Village & P.O.

Suliali, Tehsil Nurpur, District Kangra, H.P. who was retained in pursuance to letter of Engineer-

in-Chief vide letter No. 3058/61 dated 18-1-2000. It is claimed that said Kusam Sharma had joined

HPPWD Division Nurpur in the year 2000 after disengagement of petitioner in 1987 which clearly

violates Section 25-G of the Industrial Disputes Act, 1947 (hereinafter called 'the Act' for brevity).

Accordingly, petitioner prays for setting aside the order of verbal termination as petitioner had

completed 240 days in preceding one year from date of termination and thus respondent had

violated Section 25-F of the Act. It is alleged that respondent had also not followed the procedure

envisaged under Section 25-G of the Act after disengaging petitioner junior persons were engaged

and at the same time no notice for re-employment/re-engagement was issued calling upon

petitioner to join before engaging junior which violates Section 25-G of the Act. Accordingly,

petitioner seeks his reinstatement in service by respondent with seniority, back wages and all the

other consequential benefits.

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

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

that petitioner had been engaged as beldar in September, 1987 in HPPWD Division Nurpur rather

he was disengaged in October, 1989. It has been categorically stated that petitioner was engaged as

daily wager in Sub Division HPPWD Suliali falling under Jassur Division where he worked

intermittently between March, 1988 till September, 1988 and thereafter left the work and did not

approach the respondent/department. It is alleged that HPPWD Division Jassur was shifted to

Jawali Division vide HP Government Notification No.PBW-(A)-A (I) 17/1994 dated 21st July,

1994 and strength and staff of Jassur Division was shifted to Jawali but area of Suliali Sub Division

was shifted to Nurpur Division. It has been emphatically denied that petitioner had completed 240

days rather claimed that petitioner merely worked for 20½ days in March 1988, 09 days in April,

1988, 24 days in August, 1988 and 24 days in September, 1988 aggregating to 77 ½ days who did

not complete 240 days in any calendar year as reflected in mandays chart. It is alleged that since

Suliali Sub Division was shifted to HPPWD Division Nurpur in 1994. As such, question of

termination of service of petitioner in October, 1987 did not arise. Moreover, petitioner is alleged to

be gainfully employed as an agriculturist. Reiterating his stand, it has been contended that

petitioner left the work of beldar in March, 1988. However, denied that any resolution was pending

before Assistant Registrar, H.P. State Administrative Tribunal for want of knowledge. In so far as

Kusam Sharma is concerned, it has been categorically stated that Kusam Sharma was engaged as

helper on daily wage basis by HPPWD Division Dalhousie in 1983 who worked intermittently till

November, 1998 when said Kusam Sharma made representation to Engineer-in-Chief HPPWD

Shimla in December, 1999 stipulating therein that she belonged to Suliali village as such

permission be granted to work in HPPWD Division Nurpur and request was considered and

allowed and adjusted against the post of daily waged Store Clerk. As such, said Kusam Sharma

even after joining HPPWD Division Nurpur from Dalhousie Division continued to work with the

respondent who was senior to the petitioner having joined service with the respondent/department

in 1983. As such, there can be no violation of Section 25-H of the Industrial Disputes Act and for

similar reasons, it was not required for respondent to have issued notice calling upon the petitioner

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jkti=] fgekpy izns'k] 29 vizSy] 2019@9 oS'kk[k] 1941

for re-employment. It has categorically stated that no other junior persons has been retained or

reemployed by the respondent besides maintained that only those workmen were regularized who

continuously worked and fulfill the requisite criteria for regularization as per government policy

however, denied that petitioner was terminated by the respondent. Accordingly, claim petition was

sought to be dismissed.

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

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

his affidavit under Order 18 Rule, 4 CPC Ex. PW1/A and closed evidence. On the other hand,