jkti=] fgekpy izns'k
fgekpy izns'k jkT; 'kklu }kjk izdkf'kr
lkseokj] 01 Qjojh] 2021@12 ek?k] 1942
fgekpy izns'k ljdkj
LABOUR AND EMPLOYMENT DEPARTMENT
NOTIFICATION
Shimla-2, the 24th December, 2020
No. Shram(A) 6-2/2020 (Awards) Dharamshala.—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
208&jkti=@2021&01&02&2021
¼7017½
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Officer, Labour Court Dharamshala on the website of the Department of Labour & Employment
Government of Himachal Pradesh:—
Sl.
No.
Ref. No.
Petitioner
Respondent
Date of
Award/Order
1.
139/19
Rajesh Kumar
M/s Kailash Print Media
09-10-2020
2.
128/19
Deepak Kumar
-do-
09-10-2020
3.
141/19
Tarlok Chand
-do-
09-10-2020
4.
137/19
Pawan Kumar
-do-
09-10-2020
5.
129/19
Piar Chand
-do-
09-10-2020
6.
134/19
Anjna Kumari
-do-
09-10-2020
7.
310/14
Raj Mal
E.E. HPPWD, Joginder Nagar
05-10-2020
8.
311/14
Guddi Devi
E.E. HPPWD, Joginder Nagar
06-10-2020
9.
370/14
Vinod Kumar
E.E. B&R HPPWD, Joginder Nagar 07-10-2020
10.
21/15
Pyar Chand
E.E. B&R HPPWD, Joginder Nagar 08-10-2020
11.
244/16
Anil Kumar
M.D. M/s, GVK Solan, H.P. &
other
26-10-2020
12.
114/16
Om Prakash
M.D. M/s, GVK Solan, H.P. &
other
26-10-2020
13.
75/20
Mansha Ram
M/s TR Enterprises, Bilaspur
28-10-2020
14.
03/18
Savitri Devi
Principal, DAV School, Una
28-10-2020
15.
37/17
Pawan Kumar
C.S.K. HP KVV Palampur
29-10-2020
16.
89/20
Sumit Singh
M/s Tigaksha Metallics Gagret Una 29-10-2020
17.
90/20
Vikas Thakur
M/s Tigaksha Metallics Gagret Una 29-10-2020
18.
45/20
Mohammad
Aslam
Khan
M/s Cosilight Una
29-10-2020
By order,
KAMLESH KUMAR PANT, IAS
Principal Secretary (Lab. & Emp.).
7019
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BEFORE THE e-LOK ADALAT HELD AT DHARAMSHALA
[Organized by Labour Court-cum-Industrial Tribunal, Dharamshala under Section 19, of Legal
Services Authorities Act, 1987 (Central Act)]
Applicant : Sh. Rajesh Kumar s/o Sh. Surender Kumar
r/o village Khainda, P.O. Jhanyara, Tehsil &
District
Hamripur, H.P.
Respondent
: M/s Kailash Print Media Pvt. Ltd., Office at
village Sasan, P.O. Jhanyari, Tehsil & District
Hamirpur, H.P.
Number of proceedings of the
Labour Court-cum-Industrial
Tribunal, Dharamshala
: 139/2019
Present:—
Name of Judicial Officer
: Sh. Yogesh Jaswal
Name of Member
: Sh. B.S. Pathania
AWARD
The dispute between the parties having been referred for determination to the e-Lok Adalat
and the parties having compromised/settled the case/matter, the following award is passed in terms
of the settlement:
Today a separate statement was made by Shri Ravinder Aggarwal, authorized
representative for the petitioner before the Bench of e-Lok Adalat that the matter stands amicably
settled between the parties and that he has been authorized by the petitioner to withdraw this
reference. This settlement is found not opposed to public policy or against any provisions of law.
The Bench of e-Lok Adalat today on the day of e-Lok Adalat through a digital means i.e. by
making a video call to the petitioner on his mobile no. 95019-22764 from mobile No. 94593-25669
of Shri Sunit Sharma, an official of this Court verified the fact regarding settlement from the
petitioner. He accepted the settlement and consented to the withdrawal this petition by his
Authorized Representative.
Accordingly, the present reference is hereby withdrawn as compromised. The reference is
answered in the aforesaid terms. A copy of this Order/Award be sent to the appropriate
Government for necessary action at its end and the file after due completion be consigned to the
Record Room.
The parties are informed that the Court fee, if any, paid by any of them shall be refunded.
Petitioner
:
Sh. Ravinder Aggarwal, AR
Respondent
: Sh. Anand Sharma, Adv.
Judicial Officer
Member
Date: 09.10.2020
7020
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BEFORE THE e-LOK ADALAT
HELD AT DHARAMSHALA
[Organized by Labour Court-cum-Industrial Tribunal, Dharamshala under Section 19, of Legal
Services Authorities Act, 1987 (Central Act)]
Applicant
: Sh. Deepak Kumar s/o Sh. Mehar Chand, r/o
VPO Muhal, Tehsil Dehra, District Kangra, H.P.
Respondent
: M/s Kailash Print Media Pvt. Ltd., Office at
Village Sasan, P.O. Jhanyari, Tehsil & District
Hamirpur, H.P.
Number of proceedings of the
Labour Court-cum-Industrial
Tribunal, Dharamshala : 128/2019
Present:—
Name of Judicial Officer
: Sh. Yogesh Jaswal
Name of Member
: Sh. B.S. Pathania
AWARD
The dispute between the parties having been referred for determination to the e-Lok Adalat
and the parties having compromised/settled the case/matter, the following award is passed in terms
of the settlement:
Today a separate statement was made by Shri Ravinder Aggarwal, authorized
representative for the petitioner before the Bench of e-Lok Adalat that the matter stands amicably
settled between the parties and that he has been authorized by the petitioner to withdraw this
reference. This settlement is found not opposed to public policy or against any provisions of law.
The Bench of e-Lok Adalat today on the day of e-Lok Adalat through a digital means i.e. by
making a video call to the petitioner on his mobile No. 95019-22764 from mobile no. 94593-25669
of Shri Sunit Sharma, an official of this Court verified the fact regarding settlement from
the petitioner. He accepted the settlement and consented to the withdrawal this petition by his
Authorized Representative.
Accordingly, the present reference is hereby withdrawn as compromised. The reference is
answered in the aforesaid terms. A copy of this Order/Award be sent to the appropriate
Government for necessary action at its end and the file after due completion be consigned to the
Record Room.
The parties are informed that the Court fee, if any, paid by any of them shall be refunded.
Petitioner
: Sh. Ravinder Aggarwal, AR
Respondent : Sh. Anand Sharma, Adv.
Judicial Officer
Member
Date: 09.10.2020
7021
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BEFORE THE e-LOK ADALAT
HELD AT DHARAMSHALA
[Organized by Labour Court-cum-Industrial Tribunal, Dharamshala under Section 19, of Legal
Services Authorities Act, 1987 (Central Act)]
Applicant
: Sh. Tarlok Chand s/o Sh. Yog Raj, r/o village
Swahal, P.O. Mohin, Tehsil & District Hamirpur, H.P.
Respondent
: M/s Kailash Print Media Pvt. Ltd., Office at
Village Sasan, P.O. Jhanyari, Tehsil & District Hamirpur, H.P.
Number of proceedings of the
Labour Court-cum-Industrial
Tribunal, Dharamshala : 141/2019
Present:—
Name of Judicial Officer
: Sh. Yogesh Jaswal
Name of Member
: Sh. B.S. Pathania
AWARD
The dispute between the parties having been referred for determination to the e-Lok Adalat
and the parties having compromised/settled the case/matter, the following award is passed in terms
of the settlement:
Today a separate statement was made by Shri Ravinder Aggarwal, authorized
representative for the petitioner before the Bench of e-Lok Adalat that the matter stands amicably
settled between the parties and that he has been authorized by the petitioner to withdraw this
reference. This settlement is found not opposed to public policy or against any provisions of law.
The Bench of e-Lok Adalat today on the day of e-Lok Adalat through a digital means i.e. by
making a video call to the petitioner on his mobile No. 95019-22764 from mobile No. 94593-25669
of Shri Sunit Sharma, an official of this Court verified the fact regarding settlement from the
petitioner. He accepted the settlement and consented to the withdrawal this petition by his
Authorized Representative.
Accordingly, the present reference is hereby withdrawn as compromised. The reference is
answered in the aforesaid terms. A copy of this Order/Award be sent to the appropriate
Government for necessary action at its end and the file after due completion be consigned to the
Record Room.
The parties are informed that the Court fee, if any, paid by any of them shall be refunded.
Petitioner
: Sh. Ravinder Aggarwal, AR
Respondent : Sh. Anand Sharma, Adv.
Judicial Officer
Member
Date: 09.10.2020
7022
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BEFORE THE e-LOK ADALAT
HELD AT DHARAMSHALA
[Organized by Labour Court-cum-Industrial Tribunal, Dharamshala under Section 19, of Legal
Services Authorities Act, 1987 (Central Act)].
Applicant
: Sh. Pawan Kumar s/o Sh. Raju Ram, r/o VPO
Jakhyol, Tehsil Bhoranj, District Hamirpur,
H.P.
Respondent
: M/s Kailash Print Media Pvt. Ltd., Office at
village Sasan, P.O. Jhanyari, Tehsil & District
Hamirpur, H.P.
Number of proceedings of the
Labour Court-cum-Industrial
Tribunal, Dharamshala
: 137/2019
Present:-
Name of Judicial Officer : Sh. Yogesh Jaswal
Name of Member : Sh. B.S. Pathania
AWARD
The dispute between the parties having been referred for determination to the e-Lok Adalat
and the parties having compromised/settled the case/matter, the following award is passed in terms
of the settlement:
Today a separate statement was made by Shri Ravinder Aggarwal, authorized
representative for the petitioner before the Bench of e-Lok Adalat that the matter stands amicably
settled between the parties and that he has been authorized by the petitioner to withdraw this
reference. This settlement is found not opposed to public policy or against any provisions of law.
The Bench of e-Lok Adalat today on the day of e-Lok Adalat through a digital means i.e. by
making a video call to the petitioner on his mobile No. 95019-22764 from mobile No. 94593-25669
of Shri Sunit Sharma, an official of this Court verified the fact regarding settlement from the
petitioner. He accepted the settlement and consented to the withdrawal this petition by his
Authorized Representative.
Accordingly, the present reference is hereby withdrawn as compromised. The reference is
answered in the aforesaid terms. A copy of this Order/Award be sent to the appropriate
Government for necessary action at its end and the file after due completion be consigned to the
Record Room.
The parties are informed that the Court fee, if any, paid by any of them shall be refunded.
Petitioner
: Sh. Ravinder Aggarwal, AR
Respondent
: Sh. Anand Sharma, Adv.
Judicial Officer
Member
Date: 09.10.2020
7023
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BEFORE THE e-LOK ADALAT
HELD AT DHARAMSHALA
[Organized by Labour Court-cum-Industrial Tribunal, Dharamshala under Section 19, of Legal
Services Authorities Act, 1987 (Central Act)]
Applicant
: Sh. Piar Chand s/o Sh. Kangru Ram, r/o
Village Rakkar, P.O.Putrial, Tehsil Nadaun,
District Hamirpur, H.P.
Respondent
: M/s Kailash Print Media Pvt. Ltd., Office at
village Sasan, P.O. Jhanyari, Tehsil & District Hamirpur, H.P.
Number of proceedings of the
Labour Court-cum-Industrial
Tribunal, Dharamshala : 129/2019
Present:—
Name of Judicial Officer : Sh. Yogesh Jaswal
Name of Member
: Sh. B.S. Pathania
AWARD
The dispute between the parties having been referred for determination to the e-Lok Adalat
and the parties having compromised/settled the case/matter, the following award is passed in terms
of the settlement:
Today a separate statement was made by Shri Ravinder Aggarwal, authorized
representative for the petitioner before the Bench of e-Lok Adalat that the matter stands amicably
settled between the parties and that he has been authorized by the petitioner to withdraw this
reference. This settlement is found not opposed to public policy or against any provisions of law.
The Bench of e-Lok Adalat today on the day of e-Lok Adalat through a digital means i.e. by
making a video call to the petitioner on his mobile No. 95019-22764 from mobile No. 94593-25669
of Shri Sunit Sharma, an official of this Court verified the fact regarding settlement from the
petitioner. He accepted the settlement and consented to the withdrawal this petition by his
Authorized Representative.
Accordingly, the present reference is hereby withdrawn as compromised. The reference is
answered in the aforesaid terms. A copy of this Order/Award be sent to the appropriate
Government for necessary action at its end and the file after due completion be consigned to the
Record Room.
The parties are informed that the Court fee, if any, paid by any of them shall be refunded.
Petitioner
: Sh. Ravinder Aggarwal, AR
Respondent
: Sh. Anand Sharma, Adv.
Judicial Officer
Member
Date: 09.10.2020
7024
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BEFORE THE e-LOK ADALAT
HELD AT DHARAMSHALA
[Organized by Labour Court-cum-Industrial Tribunal, Dharamshala under Section 19, of Legal
Services Authorities Act, 1987 (Central Act)]
Applicant : Miss Anjna Kumari d/o Sh. Hari Singh, r/o
village Seu, P.O. Kharwar, Tehsil Bhoranj,
District Hamirpur, H.P.
Respondent
: M/s Kailash Print Media Pvt. Ltd., Office at
village Sasan, P.O. Jhanyari, Tehsil & District
Hamirpur, H.P.
Number of proceedings of the
Labour Court-cum-Industrial
Tribunal, Dharamshala : 134/2019
Present:—
Name of Judicial Officer
: Sh. Yogesh Jaswal
Name of Member
: Sh. B.S. Pathania
AWARD
The dispute between the parties having been referred for determination to the e-Lok Adalat
and the parties having compromised/settled the case/matter, the following award is passed in terms
of the settlement:
Today a separate statement was made by Shri Ravinder Aggarwal, authorized
representative for the petitioner before the Bench of e-Lok Adalat that the matter stands amicably
settled between the parties and that she has been authorized by the petitioner to withdraw this
reference. This settlement is found not opposed to public policy or against any provisions of law.
The Bench of e-Lok Adalat today on the day of e-Lok Adalat through a digital means i.e. by
making a video call to the petitioner on her mobile No. 95019-22764 from mobile No. 94593-
25669 of Shri Sunit Sharma, an official of this Court verified the fact regarding settlement
from the petitioner. She accepted the settlement and consented to the withdrawal this petition by
her Authorized Representative.
Accordingly, the present reference is hereby withdrawn as compromised. The reference is
answered in the aforesaid terms. A copy of this Order/Award be sent to the appropriate
Government for necessary action at its end and the file after due completion be consigned to the
Record Room.
The parties are informed that the Court fee, if any, paid by any of them shall be refunded.
Petitioner
: Sh. Ravinder Aggarwal, AR
Respondent
: Sh. Anand Sharma, Adv.
Judicial Officer
Member
Date: 09.10.2020
7025
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IN THE COURT OF SHRIYOGESH JASWAL, PRESIDING JUDGE, LABOUR COURT-
CUM-INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (H.P.)
Ref. No.
: 310/2014
Date of Institution : 18.10.2014
Date of Decision : 05.10.2020
Shri Raj Mal s/o Shri Bajiru Ram, r/o Village Delhar, P.O. Sainthal, Tehsil Joginder Nagar,
District Mandi, H.P.
..Petitioner.
Versus
The Executive Engineer, B&R Division, H.P.P.W.D., Joginder Nagar, District Mandi,
H.P.
..Respondent.
Reference under Section 10 (1) of the Industrial Disputes Act, 1947
For the Petitioner : Sh. N.L. Kaundal, AR.
For the Respondent : Sh. Anil Sharma, Dy. D.A.
AWARD
The below given reference has been received from the appropriate Government for
adjudication:
“Whether time to time termination of the services of Shri Raj Mal, s/o Shri Bajiru Ram, r/o
Village Delhar, P.O. Sainthal, Tehsil Joginder Nagar, District Mandi, H.P. during March,
2001 to 31-08-2007 by the Executive Engineer, B&R Division H.P.P.W.D., Joginder Nagar,
District Mandi, H.P., without complying with the provisions of the Industrial Disputes
Act, 1947, is legal and justified? If not, what amount of back wages, seniority, past
service benefits and compensation the above worker is entitled to from the above
employer(s)?”
2.
The case of the petitioner as set out in the statement of claim is that his services were
engaged by the respondent in B&R Sub Division No. II, HPPWD Joginder Nagar, District Mandi,
H.P. w.e.f. March, 2001 on muster-roll and that he had worked under the Assistant Engineer,
HPPWD, Sub Division No. II, Joginder Nagar. No appointment letter was ever given to him at the
time of his appointment. The muster rolls were issued to the petitioner only for 15, 18 and 20 days
in a month. The respondent had given fictional breaks to the petitioner from time to time from the
date of his initial engagement uptil 31.8.2007. Thereafter, the services of the petitioner have been
engaged continuously by the respondent. A pick and choose policy was adopted by the respondent,
as some junior workers were engaged continuously, whereas the seniors, like the petitioner, were
being engaged with fictional breaks to deprive them of the permanent status as per Section 25-B of
the Industrial Disputes Act, 1947 (hereinafter referred to as ‘the Act’ for short). The principle of
‘last come first go’ was not adhered to by the respondent and persons, namely, S/Sh./Smt. Rajnder
Singh, Subhash Chand, Sumer Singh, Sanjeev Kumar, Gudi Devi, Prithi Pal, Rajinder Pal, Dalip
Singh, Gautam Ram, Bhawani, Ram and Ram Dhan were engaged without giving them any
fictional breaks. The act of the respondent was wrong, illegal and against the provisions of Sections
25-G and 25-H of the Act. The petitioner has continuously worked w.e.f. March, 2001 and has
7026
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completed eight years of continuous service on 31.3.2009. As per the policy of the State
Government, he is entitled for regularization w.e.f. 1.4.2009. Hence, the petition.
3.
On notice, the respondent appeared. He filed a reply taking preliminary objections
regarding lack of maintainability, that the petition was bad for non joinder of necessary parties and
also on account of delay and laches. The contents of the petition were denied on merits. It is
asserted that the services of the petitioner were engaged in March, 2001. The petitioner was
employed by the Executive Engineer, National Highway Division, HPPWD, Joginder Nagar. The
respondent’s office was created in the month of January, 2004 vide notification dated 9th
December, 2003. The office started functioning w.e.f. 2nd January, 2004 and after the creation of
the respondent’s office, the petitioner and some other workmen were transferred to the newly
created Division from the National Highway Division, Joginder Nagar. The claim of the petitioner
prior to 01.1.2004 pertains to the office of the Executive Engineer, National Highway Division,
Joginder Nagar, who is not a party to the case. It is denied that fictional breaks were given to the
petitioner by the respondent uptil the year 2007. Rather, the services of the petitioner were engaged
as per the availability of work and funds and on his oral requests from time to time. The respondent
had been providing work to the petitioner for the whole month. Hence, it was prayed that the
petition be dismissed.
4.
While filing the rejoinder, the petitioner controverted the averments made in the
reply and reiterated those in the statement of claim.
5.
Out of the pleadings of the parties, the following issues were settled for determination
and adjudication by this Court vide order dated 02.01.2020:
1.
Whether time to time termination of services of the petitioner during March, 2001 to
31-08-2007 by the respondent is illegal and unjustified, as alleged?
. .OPP.
2.
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, as alleged?
. .OPR .
4.
Whether the claim petition is bad for non joinder of the necessary parties, as
alleged?
. .OPR.
5.
Whether the claim petition is bad on account of delay and latches, as alleged? . .OPR.
Relief.
6.
Thereafter, the parties to the lis were directed to adduce evidence in support of the
issues so framed.
7.
Arguments of the learned Authorized Representative for the petitioner and the learned
Deputy District Attorney for the respondent heard and records gone through.
8.
For the reasons to be recorded hereinafter while discussing the issues for
determination, my findings thereon are as under:
Issue No. 1
: Yes
Issue No. 2
: Discussed
7027
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Issue No. 3
: No
Issue No. 4
: Not pressed
Issue No. 5
: No
Relief
: Petition is allowed as per the operative portion of the Award.
REASONS FOR FINDINGS
Issues No. 1 and 2 :
9.
Both these issues are intrinsically connected with each other and required common
appreciation of evidence, hence are taken together for the purpose of determination and
adjudication.
10. The short and simple case of the petitioner is that the respondent had been
resorting to giving fictional breaks from the very inception uptil 31.8.2007, as only muster rolls for
15 to 20 days were issued to him.
11. In this regard Sh. Raj Mal (petitioner) stepped into the witness box as PW1. He in his
affidavit Ex. PW1/A submitted under Order 18 Rule 4 of the Code of Civil Procedure has deposed
that the respondent had engaged him since March, 2001 on muster rolls, but they were issued only
for 15 to 20 days. The said process continued till 31.8.2007.
12. Conversely, Shri B.S. Thakur, Executive Engineer, Joginder Nagar (respondent)
testified as RW1. He placed on record copy of office order as Ex. RW1/B, copy of notification as
Ex.RW1/C and copy of year-wise mandays chart of the petitioner as Ex. RW1/D. In his cross-
examination, he denied that fictional breaks were given to the petitioner by the department from the
year 2001 uptil the year 2007. Volunteered that, the petitioner himself had not been coming to
work. However, he admitted that there was no correspondence of the department with the petitioner
regarding his not reporting for work. He also admitted that Ex. PW1/B is a document of their
department, which reflects names of some of the workers. He was not aware that any junior to
the petitioner had been engaged regularly. He admitted that as per Ex. PW1/E, Smt. Ruma Devi
was also working in their department. Further, he admitted that as per Ex. PW1/F, Smt. Ruma Devi
has been regularized. He cannot say that the petitioner is entitled for regularization from the year
2008.
13. There is no denial of the fact that Reference No. 304/2014 titled as Smt. Ruma Devi vs.
The Executive Engineer, HPPWD, (B&R) Division, Joginder Nagar, District Mandi, H.P was
decided by this Court/Tribunal on 28.7.2015. While deciding the said reference, it was held
by this Court/Tribunal that the workman therein was in continuous service with the respondent
from her respective date of engagement and the breaks which were given to her by the respondent
being fictional in nature shall have no effect on her seniority and continuity of service. Manifest
that it is not in one odd case, but in the case of a number of workmen that such procedure had been
adopted by the respondent. Why, how and under what circumstances the muster rolls were issued
only for 15 to 20 days to the workman has not been clearly spelt out by the respondent either in his
pleadings or in the evidence. It is the version of the respondent that the work was made available to
the petitioner as per the requirement of work and availability of funds. There is no cogent,
convincing, strong and reliable evidence on record to substantiate this plea, except for the self
serving testimony of the respondent.
14. On the other hand, the mandays chart of ten workmen Ex. PW1/B shows that
7028
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workmen, namely, Shri Prithi Pal Singh was engaged in October, 2001, Shri Ravinder Kumar in
December, 2001, Shri Dalip Singh in July, 2002, Shri Gautam Ram in April, 2002, and Shri Ram
Dhan in February, 2003. Their names figure at serial Nos. 6, 7, 8, 9 and 11 in Ex. PW1/B. A
perusal of Ex. PW1/B shows that all the aforenamed workmen were being offered muster rolls for a
full month. Admittedly, even these workmen are employed in B&R Division HPPWD, Joginder
Nagar. The respondent while appearing as RW1 has not clarified as to why all the above-named
workmen, who were junior to the petitioner, were not being given any breaks. Indisputably, the
nature of job of all these workmen was similar to that of the petitioner. Why the petitioner, who
admittedly was senior to the aforesaid workmen, was not granted the muster rolls for the entire
month from the year 2001 uptil 31.8.2007, has neither been explained nor there seems to be
any plausible reason for the same. As discussed above, the reasons to that effect being obscure only
go to show that the story put forth by the respondent that as adequate work and funds were not
available, the petitioner was not being granted the muster rolls for the entire month is incorrect.
After August, 2007 the respondent had started giving muster roll for the entire month to the
petitioner, as is evident from the substantive evidence of the petitioner. He continued working
uninterruptedly but only for 15 to 20 days in a month right from the year 2001 till 31.8.2007.
Certain similarly situated persons, however, continued to be granted full muster roll. The
respondent was either resorting to favourtism or acting in a partisan manner to the petitioner or was
simply resorting to such process with an object of depriving him of the status and privileges of a
permanent workman, entitling him to regularization as per the policy of the State Government. It is
an act of gross discrimination which is ex-facie borne out from the record. There can be no two
opinions about it. Mere glance at the record highlights the glaring discrepancy and discrimination
perpetuated by the respondent.
15. The aforesaid act of the respondent, as discussed above, is not only an ‘unfair labour’
practice as per the provisions of the Section 2(ra) of the Act, but is also against the provisions of
Section 25-B of the Act, which stipulates that the workman shall be in ‘continuous service’,
except
because of an interruption on account of sickness authorized leave, accident, strike, which is
illegal or lock out and the cessation of work which is not due to any fault on the part of the
workman. The action of the respondent in not intentionally issuing muster roll for the entire month
to the petitioner was not due to any fault of the petitioner. The cessation of work was caused due
to the arbitrary and discriminatory attitude of the respondent. Therefore, it has to be
presumed that the workman i.e. petitioner was in ‘continuous service’. He continued serving the
respondent uninterruptedly from the month of March, 2001. The sole inference which can be drawn
from the entire circumstances as discussed above is that the action of the respondent in giving
fictional breaks to the petitioner and in the process disengaging him after 15 to 20 days every
month from the month of March, 2001 till 31.8.2007 was illegal and against the provisions of the
Act.
16. The upshot is that the petitioner was in continuous uninterrupted service with the
respondent from the month of March, 2001 till 31.8.2007. The breaks given to him by the
respondent were fictional in nature and they shall have no effect on his seniority and continuity in
service. His seniority shall be reckoned from the month of March, 2001.
17. These issues under discussion are accordingly decided in favour of the petitioner and
against the respondent.
Issue No. 3 :
18. In view of what has been held under the foregoing issues, the petition is perfectly
maintainable to the extent the same relates to the relief(s) the petitioner is found entitled to. Even
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otherwise, nothing has been brought to my notice by the respondent to show as to how the
reference is not maintainable. The issue under discussion is accordingly decided against the
respondent and in favour of the petitioner.
Issue No. 4 :
19. Not pressed.
Issue No. 5 :
20. 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”.
21. In view of the trite laid down in this ruling, it cannot be said that the petition is hit by
the vice of delay and laches. Hence, this issue under discussion is decided in favour of the
petitioner and against the respondent.
Relief :
22. As a sequel to my findings on issues above, the instant claim petition succeeds and the
same is allowed. It is held that the petitioner was in continuous uninterrupted service with the
respondent from the month of March, 2001 uptil 31.8.2007. The breaks given by the respondent to
the petitioner from the month of March, 2001 uptil 31.8.2007 were artificial/fictional in
nature. This period of fictional breaks is ordered to be counted for the purpose of continuous
service, except back wages. His seniority shall be reckoned from the month of March, 2001. Parties
to bear their own costs. The reference is answered in the aforesaid terms. A copy of this Award be
sent to the appropriate Government for publication in the official gazette. File after due completion
be consigned to the Record Room.
Announced in the open Court today this 5th day of October, 2020.
Sd/-
(YOGESH JASWAL)
Presiding Judge,
Labour Court-cum-Industrial Tribunal,
Kangra at Dharamshala, H.P.
_________
IN THE COURT OF SHRIYOGESH JASWAL, PRESIDING JUDGE, LABOUR COURT-
CUM-INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (H.P.)
Ref. No.
: 311/2014
Date of Institution : 18.10.2014
Date of Decision : 06.10.2020
Smt. Guddi Devi w/o Shri Nihal Singh, r/o Village Raja, P.O. Tramat, Tehsil Joginder
Nagar, District Mandi, H.P.
. .Petitioner.
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Versus
The Executive Engineer, B&R Division, H.P.P.W.D., Joginder Nagar, District Mandi, H.P.
. .Respondent .
Reference under Section 10 (1) of the Industrial Disputes Act, 1947
For the Petitioner
: Sh. N.L. Kaundal, AR.
For the Respondent : Sh. Anil Sharma, Dy. D.A.
AWARD
The below given reference has been received from the appropriate Government for
adjudication:
“Whether time to time termination of the services of Smt. Guddi Devi, w/o Shri Nihal
Singh, r/o Village Raja, P.O. Tramat, Tehsil Joginder Nagar, District Mandi, H.P.
during January, 1999 to 31-08-2007 by the Executive Engineer, B&R Division
H.P.P.W.D., Joginder Nagar, District Mandi, H.P., without complying with the provisions
of the Industrial Disputes Act, 1947, is legal and justified? If not, what amount of back
wages, seniority, past service benefits and compensation the above worker is entitled to
from the above employer(s)?”
2.
The case of the petitioner as set out in the statement of claim is that her services were
engaged by the respondent as a daily waged beldar on muster-roll basis w.e.f. January, 1999 and
that she had worked under Assistant Engineer, HPPWD, Sub Division B&R Joginder Nagar. No
appointment letter was ever given to her at the time of her appointment. The muster rolls were
issued to the petitioner only for 15, 18 and 20 days in a month. The respondent had given fictional
breaks to the petitioner from time to time from the date of her initial engagement uptil 31.8.2007.
Thereafter, the services of the petitioner have been engaged continuously by the respondent. A
pick and choose policy was adopted by the respondent, as some junior workers were engaged
continuously, whereas the seniors, like the petitioner, were being engaged with fictional breaks to
deprive them of the permanent status as per Section 25-B of the Industrial Disputes Act, 1947
(hereinafter referred to as ‘the Act’ for short). The principle of ‘last come first go’ was not adhered
to by the respondent and persons, namely, S/Sh./Smt. Sanjeev Kumar, Guddi Devi w/o Sh. Mahal
Chand, Prithi Paul, Rajinder Paul, Dalip Singh, Gautam Ram, Bhawani Ram and Ram Dhan were
engaged without giving them any fictional breaks. The act of the respondent was wrong, illegal and
against the provisions of Sections 25-G and 25-H of the Act. Shri Sanjeev Kumar workman, who
is junior to the petitioner had been regularized on 29.11.2008, whereas her services have only
been regularized by the respondent on 19.8.2015. She is entitled for regularization from the date of
the regularization of her junior with other consequential benefits. Hence, the petition.
3.
On notice, the respondent appeared. He filed a reply taking preliminary objections
regarding lack of maintainability, that the petition was bad for non joinder of necessary parties and
also on account of delay and laches. The contents of the petition were denied on merits. It is
asserted that the services of the petitioner were engaged in January, 1999. The petitioner was
employed by the Executive Engineer, National Highway Division, HPPWD, Joginder Nagar. The
respondent’s office was created in the month of January, 2004 vide notification dated 9th
December, 2003. The office started functioning w.e.f. 2nd January, 2004 and after the creation of
the respondent’s office, the petitioner and some other workmen were transferred to the newly
created Division from the National Highway Division, Joginder Nagar. The claim of the petitioner
7031
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prior to 01.1.2004 pertains to the office of the Executive Engineer, National Highway Division,
Joginder Nagar, who is not a party to the case. It is denied that fictional breaks were given to the
petitioner by the respondent uptil the year 2007. Rather, the services of the petitioner were engaged
as per the availability of work and funds. The petitioner had not completed 240 days in any
calendar year uptil the year 2007. Since the year 2008 she has worked with a minimum of 240 days
in each calendar year and had completed eight years of continuous service as on 31.12.2014.
Her services have been regularized vide order dated 19.8.2015. It is specifically denied that the
respondent had regularized similar situated persons by ignoring the petitioner. Hence, it was
prayed that the petition be dismissed.
4.
While filing the rejoinder, the petitioner controverted the averments made in the
reply and reiterated those in the statement of claim.
5.
Out of the pleadings of the parties, the following issues were settled for determination
and adjudication by this Court vide order dated 11.12.2019:
1.
Whether time to time termination of the services of petitioner during January, 1999 to
31-08-2007 by the respondent is illegal and unjustified, as alleged?
. .OPP.
2.
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, as alleged?
. .OPR.
4.
Whether the claim petition is bad for non-joinder of parties, as alleged?
. .OPR.
5.
Whether the claim petition is bad on account of delay and laches, as alleged? . .OPR .
Relief :
6.
Thereafter, the parties to the list were directed to adduce evidence in support of
the issues so framed.
7.
Arguments of the learned Authorized Representative for the petitioner and the learned
Deputy District Attorney for the respondent heard and records gone through.
8.
For the reasons to be recorded hereinafter while discussing the issues for
determination, my findings thereon are as under:
Issue No. 1
: Yes
Issue No. 2
: Discussed
Issue No. 3
: No
Issue No. 4
: Not pressed
Issue No. 5
: No
Relief
: Petition is allowed as per the operative portion of the Award.
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REASONS FOR FINDINGS
Issues No. 1 and 2 :
9.
Both these issues are intrinsically connected with each other and required common
appreciation of evidence, hence are taken together for the purpose of determination and
adjudication.
10. The short and simple case of the petitioner is that the respondent had been
resorting to giving fictional breaks from the very inception uptil 31.8.2007, as only muster rolls for
15 to 20 days were issued to her.
11. In this regard Smt. Guddi Devi (petitioner) stepped into the witness box as PW1. She
in her affidavit Ex. PW1/A submitted under Order 18 Rule 4 of the Code of Civil Procedure has
deposed that the respondent had engaged her since January, 1999 on muster rolls, but they were
issued only for 15 to 20 days. The said process continued till 31.8.2007.
12. Conversely, Shri B.S. Thakur, Executive Engineer, Joginder Nagar (respondent)
testified as RW1. He placed on record copy of office order as Ex. RW1/B, copy of notification as
Ex. RW1/C, copy of year-wise working days of the petitioner as Ex. RW1/D and copy of office
order as Ex. RW1/E. In his cross-examination, he denied that fictional breaks were given to the
petitioner by the department from the year 1999 uptil the year 2007. Volunteered that, the petitioner
herself had not been coming to work. However, he admitted that there was no correspondence of
the department with the petitioner regarding her not reporting for work. He also admitted that Ex.
PW1/B is a document of their department, which reflects names of some of the workers. He was
not aware that any junior to the petitioner had been engaged regularly. He admitted that document
Ex. Rx-1 was of their department. He also admitted that as per award Ex. Rx-2, Ruma Devi was
working in the department, whose case regarding time to time termination was decided on
28.7.2015. He cannot say that the petitioner is entitled for regularization from the year 2008.
13. There is no denial of the fact that Reference No. 304/2014 titled as Smt. Ruma Devi vs.
The Executive Engineer, HPPWD, (B&R) Division, Joginder Nagar, District Mandi, H.P was
decided by this Court/Tribunal on 28.7.2015. While deciding the said reference, it was held
by this Court/Tribunal that the workman therein was in continuous service with the respondent
from her respective dates of engagement and the breaks which were given to her by the respondent
being fictional in nature shall have no effect on her seniority and continuity of service. Manifest
that it is not in one odd case, but in the case of a number of workmen that such procedure had been
adopted by the respondent. Why, how and under what circumstances the muster rolls were issued
only for 15 to 20 days to the workman has not been clearly spelt out by the respondent either in his
pleadings or in the evidence. It is the version of the respondent that on her own request the
petitioner was engaged as a daily waged beldar, as per the availability of work and funds with the
department. There is no cogent, convincing, strong and reliable evidence on record to substantiate
this plea, except for the self serving testimony of the respondent.
14. On the other hand, the mandays chart of ten workmen Ex. Rx-1 shows that workmen,
namely, Shri Prithi Pal Singh was engaged in October, 2001, Shri Ravinder Kumar in
December, 2001, Shri Dalip Singh in July, 2002, Shri Gautam Ram in April, 2002, Sh. Bhawani
Singh in November, 2000 and Shri Ram Dhan in February, 2003. Their names figure at serial Nos.
6 to 11 in Ex. Rx-1. A perusal of Ex. Rx-1 shows that all the aforenamed workmen were being
offered muster rolls for a full month. Admittedly, even these workmen are employed in B&R
Division HPPWD, Joginder Nagar. The respondent while appearing as RW1 has not explained as to
why all the above-named workmen, who were junior to the petitioner, were not being given any
7033
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breaks. Indisputably, the nature of job of all these workmen was similar to that of the
petitioner. Why the petitioner, who admittedly was senior to the aforesaid workmen, was not
granted the muster rolls for the entire month from the month of January, 1999 uptil 31.8.2007, has
neither been explained nor there seems to be any plausible reason for the same. As discussed above,
the reasons to that effect being obscure only go to show that the story put forth by the respondent
that as adequate work and funds were not available, the petitioner was not being granted the muster
rolls for the entire month is incorrect. After August, 2007 the respondent had started giving muster-
roll for the entire month to the petitioner, as is evident from the substantive evidence of the
petitioner. She continued working uninterruptedly but only for 15 to 20 days in a month right from
the month of January, 1999 till 31.8.2007. Certain similarly situated persons, however, continued to
be granted full muster roll. The respondent was either resorting to favourtism or acting in a partisan
manner to the petitioner or was simply resorting to such process with an object of depriving her of
the status and privileges of a permanent workman, entitling her to regularization as per the policy
of the State Government. It is an act of gross discrimination which is ex facie borne out from the
record. There can be no two opinions about it. Mere glance at the record highlights the glaring
discrepancy and discrimination perpetuated by the respondent.
15. The aforesaid act of the respondent, as discussed above, is not only an ‘unfair labour’
practice as per the provisions of the Section 2(ra) of the Act, but is also against the provisions of
Section 25-B of the Act, which stipulates that the workman shall be in ‘continuous service’,
except because of an interruption on account of sickness authorized leave, accident, strike,
which is illegal or lock out and the cessation of work which is not due to any fault on the part of the
workman. The action of the respondent in not intentionally issuing muster roll for the entire month
to the petitioner was not due to any fault of the petitioner. The cessation of work was caused due
to the arbitrary and discriminatory attitude of the respondent. Therefore, it has to be
presumed that the workman i.e. petitioner was in ‘continuous service’. She continued
serving the respondent uninterruptedly from January, 1999. The sole inference which can be drawn
from the entire circumstances as discussed above is that the action of the respondent in giving
fictional breaks to the petitioner and in the process disengaging her after 15 to 20 days every month
from the month of January, 1999 till 31.8.2007 was illegal and against the provisions of the Act.
16. The upshot is that the petitioner was in continuous uninterrupted service with the
respondent from the month of January, 1999 till 31.8.2007. The breaks given to her by the
respondent were fictional in nature and they shall have no effect on her seniority and continuity in
service. Her seniority shall be reckoned from the month of January, 1999.
17. These issues under discussion are accordingly decided in favour of the petitioner
and against the respondent.
Issue No. 3 :
18. In view of what has been held under the foregoing issues, the petition is perfectly
maintainable to the extent the same relates to the relief(s) the petitioner is found entitled to. Even
otherwise, nothing has been brought to my notice by the respondent to show as to how the
reference is not maintainable. The issue under discussion is accordingly decided against the
respondent and in favour of the petitioner.
Issue No. 4 :
19. Not pressed.
Issue No. 5 :
7034
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20. 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”.
21. In view of the trite laid down in this ruling, it cannot be said that the petition is hit by
the vice of delay and laches. Hence, this issue under discussion is decided in favour of the
petitioner and against the respondent.
Relief :
22. As a sequel to my findings on issues above, the instant claim petition succeeds and the
same is allowed. It is held that the petitioner was in continuous uninterrupted service with the
respondent from the month of January, 1999 uptil 31.8.2007. The breaks given by the respondent to
the petitioner from the month of January, 1999 uptil 31.8.2007 were artificial/fictional in
nature. This period of fictional breaks is ordered to be counted for the purpose of continuous
service, except back wages. Her seniority shall be reckoned from the month of January, 1999.
Parties to bear their own costs. The reference is answered in the aforesaid terms. A copy of this
Award be sent to the appropriate Government for publication in the official gazette. File after due
completion be consigned to the Record Room.
Announced in the open Court today this 6th day of October, 2020.
Sd/-
(YOGESH JASWAL),
Presiding Judge,
Labour Court-cum-Industrial Tribunal,
Kangra at Dharamshala, H.P.
__________
IN THE COURT OF SHRI YOGESH JASWAL, PRESIDING JUDGE, LABOUR COURT-
CUM-INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (H.P.)
Ref. No.
: 370/2014
Date of Institution : 16.12.2014
Date of Decision : 07.10.2020
Shri Vinod Kumar s/o Shri Pyar Chand, r/o Village Passal, P.O. Chauntra, Tehsil Joginder
Nagar, District Mandi, H.P.
. .Petitioner.
Versus
The Executive Engineer, B&R Division, H.P.P.W.D., Joginder Nagar, District Mandi, H.P.
. .Respondent.
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Reference under Section 10 (1) of the Industrial Disputes Act, 1947
For the Petitioner
: Sh. N.L. Kaundal, AR.
For the Respondent
: Sh. Anil Sharma, Dy. D.A.
AWARD
The below given reference has been received from the appropriate Government for
adjudication:
“Whether time to time termination of the services of Shri Vinod Kumar, s/o Shri Pyar
Chand, r/o Village Passal, P.O. Chauntra, Tehsil Joginder Nagar, District Mandi, H.P.
during June 1999 to 31-08-2007 by the Executive Engineer, B&R Division H.P.P.W.D.,
Joginder Nagar, District Mandi, H.P., without complying with the provisions of the
Industrial Disputes Act, 1947, is legal and justified? If not, what amount of back wages,
seniority, past service benefits and compensation the above worker is entitled to from the
above employer(s)?”
2.
The case of the petitioner as set out in the statement of claim is that his services were
engaged by the respondent in B&R Sub Division No. II, HPPWD Joginder Nagar, District Mandi,
H.P. w.e.f. June, 1999 on muster roll and that he had worked under the Assistant Engineer,
HPPWD, Sub-Division No.II, Joginder Nagar. No appointment letter was ever given to him at the
time of his appointment. The muster rolls were issued to the petitioner only for 15, 18 and 20 days
in a month. The respondent had given fictional breaks to the petitioner from time to time from the
date of his initial engagement uptil 31.8.2007. Thereafter, the services of the petitioner have been
engaged continuously by the respondent. A pick and choose policy was adopted by the respondent,
as some junior workers were engaged continuously, whereas the seniors, like the petitioner, were
being engaged with fictional breaks to deprive them of the permanent status as per Section 25-B of
the Industrial Disputes Act, 1947 (hereinafter referred to as ‘the Act’ for short). The principle of
‘last come first go’ was not adhered to by the respondent and persons, namely, S/Sh./Smt. Rajnder
Singh, Subhash Chand, Sumer Singh, Sanjeev Kumar, Gudi Devi, Prithi Pal, Rajinder Pal, Dalip
Singh, Gautam Ram, Bhawani Ram and Ram Dhan were engaged without giving them any fictional
breaks. The act of the respondent was wrong, illegal and against the provisions of Sections 25-G
and 25-H of the Act. The petitioner has continuously worked w.e.f. June, 1999 and has completed
eight years of continuous service on 30.6.2007. As per the policy of the State Government, he is
entitled for regularization w.e.f. 1.7.2007. Hence, the petition.
3.
On notice, the respondent appeared. He filed a reply taking preliminary objections
regarding lack of maintainability, that the petition was bad for non joinder of necessary parties and
also on account of delay and laches. The contents of the petition were denied on merits. It is
asserted that the services of the petitioner were engaged in June, 1999. The petitioner was
employed by the Executive Engineer, National Highway Division, HPPWD, Joginder Nagar. The
respondent’s office was created in the month of January, 2004 vide notification dated 9th
December, 2003. The office started functioning w.e.f. 2nd January, 2004 and after the creation of
the respondent’s office, the petitioner and some other workmen were transferred to the newly
created Division from the National Highway Division, Joginder Nagar. The claim of the petitioner
prior to 01.1.2004 pertains to the office of the Executive Engineer, National Highway Division,
Joginder Nagar, who is not a party to the case. It is denied that fictional breaks were given to the
petitioner by the respondent uptil the year 2007. Rather, the services of the petitioner were engaged
as per the availability of work and funds and on his oral requests from time to time. The respondent
had been providing work to the petitioner for the whole month. Hence, it was prayed that the
7036
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petition be dismissed.
4.
While filing the rejoinder, the petitioner controverted the averments made in the reply
and reiterated those in the statement of claim.
5.
Out of the pleadings of the parties, the following issues were settled for determination
and adjudication by this Court vide order dated 02.01.2020:
1.
Whether time to time termination of services of the petitioner during June, 1999 to 31-
08-2007 by the respondent is illegal and unjustified, as alleged?
. .OPP.
2.
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, as alleged?
. .OPR.
4.
Whether the claim petition is bad for non joinder of the necessary parties, as
alleged?
. .OPR.
5.
Whether the claim petition is bad on account of delay and laches, as alleged? . .OPR.
Relief :
6.
Thereafter, the parties to the list were directed to adduce evidence in support of the
issues so framed.
7.
Arguments of the learned Authorized Representative for the petitioner and the learned
Deputy District Attorney for the respondent heard and records gone through.
8.
For the reasons to be recorded hereinafter while discussing the issues for
determination, my findings thereon are as under:
Issue No. 1
: Yes
Issue No. 2
: Discussed
Issue No. 3
: No
Issue No. 4
: Not pressed
Issue No. 5
: No
Relief
: Petition is allowed as per the operative portion of the Award.
REASONS FOR FINDINGS
Issues No. 1 and 2 :
9.
Both these issues are intrinsically connected with each other and required common
appreciation of evidence, hence are taken together for the purpose of determination and
adjudication.
10. The short and simple case of the petitioner is that the respondent had been
7037
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resorting to giving fictional breaks from the very inception uptil 31.8.2007, as only muster rolls for
15 to 20 days were issued to him.
11. In this regard Sh. Vinod Kumar (petitioner) stepped into the witness box as PW1. He
in his affidavit Ex. PW1/A submitted under Order 18 Rule 4 of the Code of Civil Procedure has
deposed that the respondent had engaged him since June, 1999 on muster rolls, but they were
issued only for 15 to 20 days. The said process continued till 31.8.2007.
12. Conversely, Shri B.S. Thakur, Executive Engineer, Joginder Nagar (respondent)
testified as RW1. He placed on record copy of office order as Ex. RW1/B, copy of notification as
Ex. RW1/C, copy of year-wise mandays chart of the petitioner as Ex. RW1/D, copy of office order
as Ex. RW1/E and copy of joining report as Ex. RW1/F. In his cross-examination, he denied
that fictional breaks were given to the petitioner by the department from the year 1999 uptil the
year 2007. Volunteered that, the petitioner himself had not been coming to work. However, he
admitted that there was no correspondence of the department with the petitioner regarding his not
reporting for work. He also admitted that Ex. PW1/B is a document of their department, which
reflects names of some of the workers. He was not aware that any junior to the petitioner had
been engaged regularly. He admitted that as per Ex. PW1/E, Smt. Ruma Devi was also working in
their department. Further, he admitted that as per Ex. PW1/F, Smt. Ruma Devi has been
regularized. He cannot say that the petitioner is entitled for regularization from the year 2008.
13. There is no denial of the fact that Reference No. 304/2014 titled as Smt. Ruma Devi vs.
The Executive Engineer, HPPWD, (B&R) Division, Joginder Nagar, District Mandi, H.P. was
decided by this Court/Tribunal on 28.7.2015. While deciding the said reference, it was held
by this Court/Tribunal that the workman therein was in continuous service with the respondent
from her respective date of engagement and the breaks which were given to her by the respondent
being fictional in nature shall have no effect on her seniority and continuity of service. Manifest
that it is not in one odd case, but in the case of a number of workmen that such procedure had been
adopted by the respondent. Why, how and under what circumstances the muster rolls were issued
only for 15 to 20 days to the workman has not been clearly spelt out by the respondent either in his
pleadings or in the evidence. It is the version of the respondent that the work was made available to
the petitioner as per the requirement of work and availability of funds. There is no cogent,
convincing, strong and reliable evidence on record to substantiate this plea, except for the self
serving testimony of the respondent.
14. On the other hand, the mandays chart of ten workmen Ex. PW1/B shows that
workmen, namely, Smt. Guddi Devi was engaged in July, 2000, Shri Prithi Pal Singh in October,
2001, Shri Ravinder Kumar in December, 2001, Shri Dalip Singh in July, 2002, Shri Gautam Ram
in April, 2002, Sh. Bhawani Singh in November, 2000 and Shri Ram Dhan in February, 2003.
Their names figure at serial Nos. 5 to 11 in Ex. PW1/B. A perusal of Ex. PW1/B shows that all the
aforenamed workmen were being offered muster rolls for a full month. Admittedly, even these
workmen are employed in B&R Division HPPWD, Joginder Nagar. The respondent while
appearing as RW1 has not clarified as to why all the above-named workmen, who were junior to
the petitioner, were not being given any breaks. Indisputably, the nature of job of all these
workmen was similar to that of the petitioner. Why the petitioner, who admittedly was senior to the
aforesaid workmen, was not granted the muster rolls for the entire month from the month of June,
1999 uptil 31.8.2007, has neither been explained nor there seems to be any plausible reason for the
same. As discussed above, the reasons to that effect being obscure only go to show that the story
put forth by the respondent that as adequate work and funds were not available, the petitioner was
not being granted the muster rolls for the entire month is incorrect. After August, 2007 the
respondent had started giving muster roll for the entire month to the petitioner, as is evident from
the substantive evidence of the petitioner. He continued working uninterruptedly but only for 15
7038
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to 20 days in a month right from the month of June, 1999 till 31.8.2007. Certain similarly situated
persons, however, continued to be granted full muster roll. The respondent was either
resorting to favourtism or acting in a partisan manner to the petitioner or was simply resorting to
such process with an object of depriving him of the status and privileges of a permanent
workman, entitling him to regularization as per the policy of the State Government. It is an act of
gross discrimination which is ex-facie borne out from the record. There can be no two opinions
about it. Mere glance at the record highlights the glaring discrepancy and discrimination
perpetuated by the respondent.
15. The aforesaid act of the respondent, as discussed above, is not only an ‘unfair labour’
practice as per the provisions of the Section 2(ra) of the Act, but is also against the provisions of
Section 25-B of the Act, which stipulates that the workman shall be in ‘continuous service’,
except because of an interruption on account of sickness authorized leave, accident, strike,
which is illegal or lock out and the cessation of work which is not due to any fault on the part of the
workman. The action of the respondent in not intentionally issuing muster roll for the entire month
to the petitioner was not due to any fault of the petitioner. The cessation of work was caused due
to the arbitrary and discriminatory attitude of the respondent. Therefore, it has to be
presumed that the workman i.e. petitioner was in ‘continuous service’. He continued serving the
respondent uninterruptedly from the month of June, 1999. The sole inference which can be drawn
from the entire circumstances as discussed above is that the action of the respondent in giving
fictional breaks to the petitioner and in the process disengaging him after 15 to 20 days every
month from the month of June, 1999 till 31.8.2007 was illegal and against the provisions of the
Act.
16. The upshot is that the petitioner was in continuous uninterrupted service with the
respondent from the month of June, 1999 till 31.8.2007. The breaks given to him by the respondent
were fictional in nature and they shall have no effect on his seniority and continuity in service. His
seniority shall be reckoned from the month of June, 1999.
17. These issues under discussion are accordingly decided in favour of the petitioner
and against the respondent.
Issue No. 3 :
18. In view of what has been held under the foregoing issues, the petition is perfectly
maintainable to the extent the same relates to the relief(s) the petitioner is found entitled to. Even
otherwise, nothing has been brought to my notice by the respondent to show as to how the
reference is not maintainable. The issue under discussion is accordingly decided against the
respondent and in favour of the petitioner.
Issue No. 4 :
19. Not pressed.
Issue No. 5 :
20. 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
7039
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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”.
21. In view of the trite laid down in this ruling, it cannot be said that the petition is hit by
the vice of delay and laches. Hence, this issue under discussion is decided in favour of the
petitioner and against the respondent.
Relief :
22. As a sequel to my findings on issues above, the instant claim petition succeeds and the
same is allowed. It is held that the petitioner was in continuous uninterrupted service with the
respondent from the month of June, 1999 uptil 31.8.2007. The breaks given by the respondent to
the petitioner from the month of June, 1999 uptil 31.8.2007 were artificial/fictional in nature.
This period of fictional breaks is ordered to be counted for the purpose of continuous service,
except back wages. His seniority shall be reckoned from the month of June, 1999. Parties to bear
their own costs. The reference is answered in the aforesaid terms. A copy of this Award be sent to
the appropriate Government for publication in the official gazette. File after due completion be
consigned to the Record Room.
Announced in the open Court today this 7th day of October, 2020.
Sd/-
(YOGESH JASWAL),
Presiding Judge,
Labour Court-cum-Industrial Tribunal,
Kangra at Dharamshala, H.P.
_________
IN THE COURT OF SHRI YOGESH JASWAL, PRESIDING JUDGE, LABOUR COURT-
CUM-INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (H.P.)
Ref. No.
: 21/2015
Date of Institution : 13.01.2015
Date of Decision
: 08.10.2020
Shri Pyar Chand s/o Shri Mangat Ram, r/o Village Passal, P.O. Chauntra, Tehsil Joginder
Nagar, District Mandi, H.P.
. .Petitioner.
Versus
The Executive Engineer, B&R Division, H.P.P.W.D., Joginder Nagar, District Mandi,
H.P.
. .Respondent.
Reference under Section 10 (1) of the Industrial Disputes Act, 1947
For the Petitioner
: Sh. N.L. Kaundal, AR.
For the Respondent
: Sh. Anil Sharma, Dy. D.A.
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AWARD
The below given reference has been received from the appropriate Government for
adjudication:
“Whether time to time termination of the services of Shri Pyar Chand, s/o Shri Mangat
Ram, r/o Village Passal, P.O. Chauntra, Tehsil Joginder Nagar, District Mandi, H.P.
during August 1998 to 31-08-2007 by the Executive Engineer, B&R Division H.P.P.W.D.,
Joginder Nagar, District Mandi, H.P., without complying with the provisions of the
Industrial Disputes Act, 1947, is legal and justified? If not, what amount of back wages,
seniority, past service benefits and compensation the above worker is entitled to from the
above employer(s)?”
2.
The case of the petitioner as set out in the statement of claim is that his services were
engaged by the respondent in B&R Sub Division No. II, HPPWD Joginder Nagar, District Mandi,
H.P. w.e.f. August, 1998 on muster roll and that he had worked under the Assistant Engineer,
HPPWD, Sub Division No. II, Joginder Nagar. No appointment letter was ever given to him at the
time of his appointment. The muster rolls were issued to the petitioner only for 15, 18 and 20 days
in a month. The respondent had given fictional breaks to the petitioner from time to time from the
date of his initial engagement uptil 31.8.2007. Thereafter, the services of the petitioner have been
engaged continuously by the respondent. A pick and choose policy was adopted by the respondent,
as some junior workers were engaged continuously, whereas the seniors, like the petitioner, were
being engaged with fictional breaks to deprive them of the permanent status as per Section 25-B of
the Industrial Disputes Act, 1947 (hereinafter referred to as ‘the Act’ for short). The principle of
‘last come first go’ was not adhered to by the respondent and persons, namely, S/Sh./Smt. Rajnder
Singh, Subhash Chand, Sumer Singh, Sanjeev Kumar, Gudi Devi, Prithi Pal, Rajinder Pal, Dalip
Singh, Gautam Ram, Bhawani, Ram and Ram Dhan were engaged without giving them any
fictional breaks. The act of the respondent was wrong, illegal and against the provisions of Sections
25-G and 25-H of the Act. The petitioner has continuously worked w.e.f. August, 1998 and has
completed eight years of continuous service on 31.7.2006. As per the policy of the State
Government, he is entitled for regularization w.e.f. 1.8.2006. Hence, the petition.
3.
On notice, the respondent appeared. He filed a reply taking preliminary objections
regarding lack of maintainability, that the petition was bad for non joinder of necessary parties and
also on account of delay and laches. The contents of the petition were denied on merits. It is
asserted that the services of the petitioner were engaged in August, 1998. The petitioner was
employed by the Executive Engineer, National Highway Division, HPPWD, Joginder Nagar. The
respondent’s office was created in the month of January, 2004 vide notification dated 9th
December, 2003. The office started functioning w.e.f. 2nd January, 2004 and after the creation of
the respondent’s office, the petitioner and some other workmen were transferred to the newly
created Division from the National Highway Division, Joginder Nagar. The claim of the petitioner
prior to 01.1.2004 pertains to the office of the Executive Engineer, National Highway Division,
Joginder Nagar, who is not a party to the case. It is denied that fictional breaks were given to the
petitioner by the respondent uptil the year 2007. Rather, the services of the petitioner were engaged
as per the availability of work and funds and on his oral requests from time to time. The respondent
had been providing work to the petitioner for the whole month. Hence, it was prayed that the
petition be dismissed.
4.
While filing the rejoinder, the petitioner controverted the averments made in the
reply and reiterated those in the statement of claim.
5.
Out of the pleadings of the parties, the following issues were settled for determination
7041
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and adjudication by this Court vide order dated 02.01.2020:
1.
Whether time to time termination of services of the petitioner during August, 1998 to
31-08-2007 by the respondent is illegal and unjustified, as alleged?
. .OPP.
2.
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, as alleged?
. .OPR.
4.
Whether the claim petition is bad for non joinder of the necessary parties, as
alleged?
. .OPR.
5.
Whether the claim petition is bad on account of delay and laches, as alleged? . .OPR.
Relief :
6.
Thereafter, the parties to the list were directed to adduce evidence in support of the
issues so framed.
7.
Arguments of the learned Authorized Representative for the petitioner and the learned
Deputy District Attorney for the respondent heard and records gone through.
8.
For the reasons to be recorded hereinafter while discussing the issues for
determination, my findings thereon are as under:
Issue No. 1
: Yes
Issue No. 2
: Discussed
Issue No. 3
: No
Issue No. 4
: Not pressed
Issue No. 5
: No
Relief
: Petition is allowed as per the operative portion of the Award.
REASONS FOR FINDINGS
Issues No. 1 and 2 :
9.
Both these issues are intrinsically connected with each other and required common
appreciation of evidence, hence are taken together for the purpose of determination and
adjudication.
10. The short and simple case of the petitioner is that the respondent had been resorting to
giving fictional breaks from the very inception uptil 31.8.2007, as only muster rolls for 15 to 20
days were issued to him.
11. In this regard Sh. Pyar Chand (petitioner) stepped into the witness box as PW1. He in
his affidavit Ex. PW1/A submitted under Order 18 Rule 4 of the Code of Civil Procedure has
7042
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deposed that the respondent had engaged him since August, 1998 on muster rolls, but they were
issued only for 15 to 20 days. The said process continued till 31.8.2007.
12. Conversely, Shri B. S. Thakur, Executive Engineer, Joginder Nagar (respondent)
testified as RW1. He placed on record copy of office order as Ex. RW1/B, copy of notification as
Ex. RW1/C, copy of year-wise mandays chart of the petitioner as Ex. RW1/D, copy of office order
as Ex. RW1/E and copy of joining report as Ex. RW1/F. In his cross- examination, he denied
that fictional breaks were given to the petitioner by the department from the year 1998 uptil the
year 2007. Volunteered that, the petitioner himself had not been coming to work. However, he
admitted that there was no correspondence of the department with the petitioner regarding his not
reporting for work. He also admitted that Ex. PW1/B is a document of their department, which
reflects names of some of the workers. He was not aware that any junior to the petitioner had
been engaged regularly. He admitted that as per Ex. PW1/E, Smt. Ruma Devi was also working in
their department. Further, he admitted that as per Ex. PW1/F, Smt. Ruma Devi has been
regularized. He cannot say that the petitioner is entitled for regularization from the year 2008.
13. There is no denial of the fact that Reference No. 304/2014 titled as Smt. Ruma Devi vs.
The Executive Engineer, HPPWD, (B&R) Division, Joginder Nagar, District Mandi, H.P was
decided by this Court/Tribunal on 28.7.2015. While deciding the said reference, it was held
by this Court/Tribunal that the workman therein was in continuous service with the respondent
from her respective date of engagement and the breaks which were given to her by the respondent
being fictional in nature shall have no effect on her seniority and continuity of service. Manifest
that it is not in one odd case, but in the case of a number of workmen that such procedure had been
adopted by the respondent. Why, how and under what circumstances the muster rolls were issued
only for 15 to 20 days to the workman has not been clearly spelt out by the respondent either in his
pleadings or in the evidence. It is the version of the respondent that the work was made available to
the petitioner as per the requirement of work and availability of funds. There is no cogent,
convincing, strong and reliable evidence on record to substantiate this plea, except for the self
serving testimony of the respondent.
14. On the other hand, the mandays chart of ten workmen Ex. PW1/B shows that
workmen, namely, Shri Sanjeev Kumar was engaged in 1999, Smt. Guddi Devi in July, 2000, Shri
Prithi Pal Singh in October, 2001, Shri Ravinder Kumar in December, 2001, Shri Dalip Singh in
July, 2002, Shri Gautam Ram in April, 2002, Sh. Bhawani Singh in November, 2000 and Shri Ram
Dhan in February, 2003. Their names figure at serial Nos. 4 to 11 in Ex. PW1/B. A perusal of Ex.
PW1/B shows that all the aforenamed workmen were being offered muster rolls for a full month.
Admittedly, even these workmen are employed in B&R Division HPPWD, Joginder Nagar. The
respondent while appearing as RW1 has not clarified as to why all the above-named workmen, who
were junior to the petitioner, were not being given any breaks. Indisputably, the nature of job of all
these workmen was similar to that of the petitioner. Why the petitioner, who admittedly was senior
to the aforesaid workmen, was not granted the muster rolls for the entire month from the month of
August, 1998 uptil 31.8.2007, has neither been explained nor there seems to be any plausible
reason for the same. As discussed above, the reasons to that effect being obscure only go to show
that the story put forth by the respondent that as adequate work and funds were not available, the
petitioner was not being granted the muster rolls for the entire month is incorrect. After August,
2007 the respondent had started giving muster roll for the entire month to the petitioner, as is
evident from the substantive evidence of the petitioner. He continued working uninterruptedly but
only for 15 to 20 days in a month right from the month of August, 1998 till 31.8.2007. Certain
similarly situated persons, however, continued to be granted full muster roll. The respondent was
either resorting to favourtism or acting in a partisan manner to the petitioner or was simply
resorting to such process with an object of depriving him of the status and privileges of a
permanent workman, entitling him to regularization as per the policy of the State Government. It is
7043
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an act of gross discrimination which is ex facie borne out from the record. There can be no two
opinions about it. Mere glance at the record highlights the glaring discrepancy and discrimination
perpetuated by the respondent.
15. The aforesaid act of the respondent, as discussed above, is not only an ‘unfair labour’
practice as per the provisions of the Section 2(ra) of the Act, but is also against the provisions of
Section 25-B of the Act, which stipulates that the workman shall be in ‘continuous service’,
except because of an interruption on account of sickness authorized leave, accident, strike,
which is illegal or lock out and the cessation of work which is not due to any fault on the part of the
workman. The action of the respondent in not intentionally issuing muster roll for the entire month
to the petitioner was not due to any fault of the petitioner. The cessation of work was caused due
to the arbitrary and discriminatory attitude of the respondent. Therefore, it has to be
presumed that the workman i.e. petitioner was in ‘continuous service’. He continued serving the
respondent uninterruptedly from the month of August, 1998. The sole inference which can be
drawn from the entire circumstances as discussed above is that the action of the respondent in
giving fictional breaks to the petitioner and in the process disengaging him after 15 to 20 days
every month from the month of August, 1998 till 31.8.2007 was illegal and against the provisions
of the Act.
16. The upshot is that the petitioner was in continuous uninterrupted service with the
respondent from the month of August, 1998 till 31.8.2007. The breaks given to him by the
respondent were fictional in nature and they shall have no effect on his seniority and continuity in
service. His seniority shall be reckoned from the month of August, 1998.
17. These issues under discussion are accordingly decided in favour of the petitioner
and against the respondent.
Issue No. 3 :
18. In view of what has been held under the foregoing issues, the petition is perfectly
maintainable to the extent the same relates to the relief(s) the petitioner is found entitled to. Even
otherwise, nothing has been brought to my notice by the respondent to show as to how the
reference is not maintainable. The issue under discussion is accordingly decided against the
respondent and in favour of the petitioner.
Issue No. 4 :
19. Not pressed.
Issue No. 5 :
20. 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”.
21. In view of the trite laid down in this ruling, it cannot be said that the petition is hit by
7044
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the vice of delay and laches. Hence, this issue under discussion is decided in favour of the
petitioner and against the respondent.
Relief :
22. As a sequel to my findings on issues above, the instant claim petition succeeds and the
same is allowed. It is held that the petitioner was in continuous uninterrupted service with the
respondent from the month of August, 1998 uptil 31.8.2007. The breaks given by the respondent to
the petitioner from the month of August, 1998 uptil 31.8.2007 were artificial/fictional in
nature. This period of fictional breaks is ordered to be counted for the purpose of continuous
service, except back wages. His seniority shall be reckoned from the month of August, 1998.
Parties to bear their own costs. The reference is answered in the aforesaid terms. A copy of this
Award be sent to the appropriate Government for publication in the official gazette. File after due
completion be consigned to the Record Room.
Announced in the open Court today this 8th day of October, 2020.
Sd/-
(YOGESH JASWAL),
Presiding Judge,
Labour Court-cum-Industrial Tribunal,
Kangra at Dharamshala, H.P.
__________
IN THE COURT OF SHRI YOGESH JASWAL, PRESIDING JUDGE, LABOUR COURT-
CUM-INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (H.P.)
Ref. No.
: 244/2016
Date of Institution : 2
1.04.2016
Date of Decision : 26.10.2020
Shri Anil Kumar s/o Shri Tek Chand, r/o Village Behi, P.O. Koti, Tehsil & District
Chamba, H.P.
.
Versus
1.
The Employer/Managing Director, M/s GVK Emergency Management and Research
Institute, Dharampur, District Solan, H.P. (Principal Employer).
2.
The Managing Director, M/s Adecco Flexione Workforce Solutions Private Limited,
C-127, Basement Level, Satguru Infotech, Phase-VIII, Industrial Area Mohali, Punjab
(Contractor Company)
. .Respondents.
Reference under Section 10 (1) of the Industrial Disputes Act, 1947
For the Petitioner
: None for the petitioner
For Respondent No. 1 : Sh. Rajat Sahotra, Adv.
For Respondent No. 2 : Sh. Manish Katoch, Adv.
7045
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AWARD
The reference given below has been received from the appropriate Government for
adjudication:
“Whether termination of the services of Shri Anil Kumar s/o Shri Tek Chand, r/o Village
Behi, P.O. Koti, Tehsil & District Chamba, H.P. w.e.f. 10-02-2014 by (i) the Employer/
Managing Director, M/s GVK Emergency Management and Research Institute,
Dharampur, District Solan, H.P. (Principal Employer) (ii) the Managing Director, M/s
Adecco Flexione Workforce Solutions Private Limited, C-127, Basement Level, Satguru
Infotech, Phase-VIII, Industrial Area Mohali, Punjab. (Contractor Company), without
complying with the provisions of the Industrial Disputes Act, 1947, is legal and justified? If
not, what amount of back wages, seniority, past service benefits and compensation the
above worker is entitled to from the above employer?”
2.
The case was listed for appearance of the petitioner for today but, however, neither the
petitioner nor his counsel had put in appearance before this Tribunal, despite the case being called
several times since morning. Hence, despite due notice of the date of hearing, the
workman/petitioner had remained ex-parte.
3.
It will be apt at this stage to take note of the relevant provisions of the Industrial
Disputes Act, 1947 (hereinafter referred to as ‘the Act’ for brevity sake). Section 2 (b) of the Act
defines the Award as under:—
“(b) “award” means an interim or a final determination of any industrial dispute or of any
question relating thereto by any Labour Court, Industrial Tribunal or National Industrial
Tribunal and includes an arbitration award made under Section 10A;”.
4.
Sub-Section (1) of Section 11 of the Act provides that subject to any rules that may be
made in this behalf, an arbitrator, a Board, Court, Labour Court, Tribunal or National Tribunal shall
follow such procedure as the arbitrator or other authority concerned may think it fit. The Central
Government has framed rules called “The Industrial Disputes (Central) Rules, 1957.” Rule 10-B (9)
reads thus:—
“10-B (9) In case any party defaults or fails to appear at any stage the Labour Court,
Tribunal, or National Tribunal, as the case may be, may proceed with the reference ex-
parte and decide the reference application in the absence of the defaulting party.”
5.
Rule 22 reads thus:—
“Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator may proceed ex-
parte.—If without sufficient cause being shown, any party to the proceeding before a
Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator fails to attend or to
be represented, the Board, Court, Labour Court, Tribunal, National Tribunal or
Arbitrator may proceed, as if the party had duly attended or had been represented.”
6.
The State of Himachal Pradesh has also framed rules called “The Industrial Disputes
Rules, 1974.” Rule 25 thereof reads thus:—
“Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator may proceed ex-
parte.—If without sufficient cause being shown, any party to the proceeding before a
Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator fails to attend or to
7046
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be represented, the Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator
may proceed, as if the party had duly attended or had been represented.”
7.
Rule 22 of the Industrial Disputes (Central) Rules, 1957 and Rule 25 of the Industrial
Disputes Rules, 1974 authorize the adjudicating authority to proceed in the absence of a party. It
creates a fiction which enables the Tribunal to presume that all the parties are present before it
although, infact, it is not true, and thus make an ex parte award. This Tribunal in these
circumstances has to imagine that the absentee workman is present and having done so, can give
full effect to its imagination and carry it to its logical end. Under Rule 25, this Tribunal, thus, has to
imagine that the workman is present, he is unwilling to file the statement of claim, adduce evidence
or argue his case.
8.
In the instant case, neither the workman nor his counsel has put in appearance before
this Tribunal today. In these circumstances, the Tribunal can proceed and pass ex-parte award on
its merits.
9.
As per the reference, it was required of the petitioner to plead and prove on record that
the termination of his services w.e.f. 10.02.2014 by the respondents was without complying with
the provisions of the Act and, thus, illegal and unjustified. However, there is neither any pleading
nor any evidence to this effect on record on the part of the petitioner/workman. At the risk of
repetition the petitioner/workman had not put in appearance before this Tribunal. In this view of the
matter, the petitioner is not entitled to any back wages, seniority, past service benefits and
compensation. Accordingly, this reference is answered in the negative. Parties to bear their own
costs.
10. The reference is answered in the aforesaid terms.
11. A copy of this Award be sent to the appropriate Government for publication in the
official gazette and the file after due completion be consigned to the Record Room.
Announced in the open Court today this 26th day of October, 2020.
Sd/-
(YOGESH JASWAL),
Presiding Judge,
Labour Court-cum-Industrial Tribunal,
Kangra at Dharamshala, H.P.
__________
IN THE COURT OF SHRI YOGESH JASWAL, PRESIDING JUDGE, LABOUR COURT-
CUM-INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (H.P.)
Ref. No.
: 114/2016
Date of Institution : 04.03.2016
Date of Decision : 26.10.2020
Shri Om Prakash s/o Shri Pratap Singh, r/o Village Chamera, P.O. Janghi, Tehsil & District
Chamba, H.P.
. .Petitioner.
7047
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Versus
3.
The Employer/Managing Director, M/s GVK Emergency Management and Research
Institute, Dharampur, District Solan, H.P. (Principal Employer).
4.
The Managing Director, M/S Adecco Flexione Workforce Solutions Private Limited,
C-127, Basement Level, Satguru Infotech, Phase-VIII, Industrial Area Mohali, Punjab
(Contractor Company)
. .Respondents.
Reference under Section 10 (1) of the Industrial Disputes Act, 1947
For the Petitioner
: None for the petitioner
For Respondent No. 1 : Sh. Rajat Sahotra, Adv.
For Respondent No. 2 : Sh. Manish Katoch, Adv.
AWARD
The reference given below has been received from the appropriate Government for
adjudication:
“Whether termination of the services of Shri Om Prakash s/o Shri Pratap Singh, r/o
Village Chamera, P.O. Janghi, Tehsil & District Chamba, H.P. w.e.f. 31-08-2013 by (i) the
Employer/Managing Director, M/s GVK Emergency Management and Research Institute,
Dharampur, District Solan, H.P. (Principal Employer) (ii) the Managing Director, M/s
Adecco Flexione Workforce Solutions Private Limited, C-127, Basement Level, Satguru
Infotech, Phase-VIII, Industrial Area Mohali, Punjab. (Contractor Company), without
complying with the provisions of the Industrial Disputes Act, 1947, is legal and justified? If
not, what amount of back wages, seniority, past service benefits and compensation the
above worker is entitled to from the above employer?”
2.
The case was listed for appearance of the petitioner for today but, however, neither the
petitioner nor his counsel had put in appearance before this Tribunal, despite the case being called
several times since morning. Hence, despite due notice of the date of hearing, the
workman/petitioner had remained ex-parte.
3.
It will be apt at this stage to take note of the relevant provisions of the Industrial
Disputes Act, 1947 (hereinafter referred to as ‘the Act’ for brevity sake). Section 2 (b) of the Act
defines the Award as under:—
“(b) “award” means an interim or a final determination of any industrial dispute or of any
question relating thereto by any Labour Court, Industrial Tribunal or National Industrial
Tribunal and includes an arbitration award made under Section 10A;”.
4.
Sub-Section (1) of Section 11 of the Act provides that subject to any rules that may be
made in this behalf, an arbitrator, a Board, Court, Labour Court, Tribunal or National Tribunal shall
follow such procedure as the arbitrator or other authority concerned may think it fit. The Central
Government has framed rules called “The Industrial Disputes (Central) Rules, 1957.” Rule 10-B (9)
reads thus:—
“10-B (9) In case any party defaults or fails to appear at any stage the Labour Court,
7048
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Tribunal, or National Tribunal, as the case may be, may proceed with the reference ex-
parte and decide the reference application in the absence of the defaulting party.”
5.
Rule 22 reads thus:—
“Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator may proceed ex-
parte.—If without sufficient cause being shown, any party to the proceeding before a
Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator fails to attend or to
be represented, the Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator
may proceed, as if the party had duly attended or had been represented.”
6.
The State of Himachal Pradesh has also framed rules called “The Industrial Disputes
Rules, 1974.” Rule 25 thereof reads thus:—
“Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator may proceed ex-
parte.—If without sufficient cause being shown, any party to the proceeding before a
Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator fails to attend or to
be represented, the Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator
may proceed, as if the party had duly attended or had been represented.”
7.
Rule 22 of the Industrial Disputes (Central) Rules, 1957 and Rule 25 of the Industrial
Disputes Rules, 1974 authorize the adjudicating authority to proceed in the absence of a party. It
creates a fiction which enables the Tribunal to presume that all the parties are present before it
although, infact, it is not true, and thus make an ex parte award. This Tribunal in these
circumstances has to imagine that the absentee workman is present and having done so, can give
full effect to its imagination and carry it to its logical end. Under Rule 25, this Tribunal, thus, has to
imagine that the workman is present, he is unwilling to file the statement of claim, adduce evidence
or argue his case.
8.
In the instant case, neither the workman nor his counsel has put in appearance before
this Tribunal today. In these circumstances, the Tribunal can proceed and pass ex-parte award on
its merits.
9.
As per the reference, it was required of the petitioner to plead and prove on record that
the termination of his services w.e.f. 31.8.2013 by the respondents was without complying with the
provisions of the Act and, thus, illegal and unjustified. However, there is neither any pleading nor
any evidence to this effect on record on the part of the petitioner/workman. At the risk of repetition
the petitioner/workman had not put in appearance before this Tribunal. In this view of the matter,
the petitioner is not entitled to any back wages, seniority, past service benefits and compensation.
Accordingly, this reference is answered in the negative. Parties to bear their own costs.
10. The reference is answered in the aforesaid terms.
11. A copy of this Award be sent to the appropriate Government for publication in the
official gazette and the file after due completion be consigned to the Record Room.
Announced in the open Court today this 26th day of October, 2020.
Sd/-
(YOGESH JASWAL),
Presiding Judge,
Labour Court-cum-Industrial Tribunal,
Kangra at Dharamshala, H.P.
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IN THE COURT OF SHRI SHRI YOGESH JASWAL, PRESIDING JUDGE, LABOUR
COURT-CUM-INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (H.P.)
Ref. No.
: 75/2020
Date of Institution : 10.09.2020
Date of Decision : 28.10.2020
Shri Mansha Ram s/o Shri Badru, r/o Village Niharkhan Basla, P.O. Brahampukhar,
Tehsil Sadar, District Bilaspur, H.P.
. .Petitioner.
Versus
The Employer, M/s T.R. Enterprises Dealers of Ashoka Leyland Limited, Vinayakghat,
National Highway, Brahampukhar, Tehsil Sadar, District Bilaspur, H.P.
. .Respondent.
Reference under Section 10 (1) of the Industrial Disputes Act, 1947
For the Petitioner : None for the petitioner
For the Respondent : Sh. Kumar Karan, Adv.
AWARD
The reference given below has been received from the appropriate Government for
adjudication:
“Whether the termination of services of Shri Mansha Ram s/o Shri Badru, r/o Village
Niharkhan Basla, P.O. Brahampukhar, Tehsil Sadar, District Bilaspur, H.P. during October,
2017 (as alleged by workman) by the Employer, M/s T.R. Enterprises Dealers of Ashoka
Leyland Limited Vinayakghat on National Highway, Brahampukhar, Tehsil Sadar,
District Bilaspur, H.P., without complying with the provisions of the Industrial Disputes
Act, 1947, is legal and justified? If not, what amount of back wages, seniority, past service
benefits and compensation the above worker is entitled to from the above employer?”
2.
The case was listed for appearance of the petitioner for today but, however, neither the
petitioner nor his counsel had put in appearance before this Tribunal, despite the case being called
several times since morning. Hence, despite due notice of the date of hearing, the
workman/petitioner had remained ex-parte.
3.
It will be apt at this stage to take note of the relevant provisions of the Industrial
Disputes Act, 1947 (hereinafter referred to as ‘the Act’ for brevity sake). Section 2 (b) of the Act
defines the Award as under:—
“(b) “award” means an interim or a final determination of any industrial dispute or of any
question relating thereto by any Labour Court, Industrial Tribunal or National Industrial
Tribunal and includes an arbitration award made under Section 10A;”.
4.
Sub-Section (1) of Section 11 of the Act provides that subject to any rules that may be
made in this behalf, an arbitrator, a Board, Court, Labour Court, Tribunal or National Tribunal shall
follow such procedure as the arbitrator or other authority concerned may think it fit. The Central
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Government has framed rules called “The Industrial Disputes (Central) Rules, 1957.” Rule 10-B (9)
reads thus:—
“10-B (9) In case any party defaults or fails to appear at any stage the Labour Court,
Tribunal, or National Tribunal, as the case may be, may proceed with the reference ex-parte
and decide the reference application in the absence of the defaulting party.”
5.
Rule 22 reads thus:—
“Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator may proceed ex-
parte.—If without sufficient cause being shown, any party to the proceeding before a
Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator fails to attend or to
be represented, the Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator
may proceed, as if the party had duly attended or had been represented.”
6.
The State of Himachal Pradesh has also framed rules called “The Industrial Disputes
Rules, 1974.” Rule 25 thereof reads thus:—
“Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator may proceed ex-
parte.—If without sufficient cause being shown, any party to the proceeding before a
Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator fails to attend or to
be represented, the Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator
may proceed, as if the party had duly attended or had been represented.”
7.
Rule 22 of the Industrial Disputes (Central) Rules, 1957 and Rule 25 of the Industrial
Disputes Rules, 1974 authorize the adjudicating authority to proceed in the absence of a party. It
creates a fiction which enables the Tribunal to presume that all the parties are present before it
although, infact, it is not true, and thus make an ex parte award. This Tribunal in these
circumstances has to imagine that the absentee workman is present and having done so, can give
full effect to its imagination and carry it to its logical end. Under Rule 25, this Tribunal, thus, has to
imagine that the workman is present, he is unwilling to file the statement of claim, adduce evidence
or argue his case.
8.
In the instant case, neither the workman nor his counsel has put in appearance before
this Tribunal today. In these circumstances, the Tribunal can proceed and pass ex parte award on its
merits.
9.
As per the reference, it was required of the petitioner to plead and prove on record that
the termination of his services in the month of October, 2017 by the respondent was without
complying with the provisions of the Act and, thus, illegal and unjustified. However, there is
neither any pleading nor any evidence to this effect on record on the part of the
petitioner/workman. At the risk of repetition the petitioner/workman had not put in appearance
before this Tribunal. In this view of the matter, the petitioner is not entitled to any back wages,
seniority, past service benefits and compensation. Accordingly, this reference is answered in the
negative. Parties to bear their own costs.
10. The reference is answered in the aforesaid terms.
11. A copy of this Award be sent to the appropriate Government for publication in the
official gazette and the file after due completion be consigned to the Record Room.
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Announced in the open Court today this 28th day of October, 2020.
Sd/-
(YOGESH JASWAL),
Presiding Judge,
Labour Court-cum-Industrial Tribunal,
Kangra at Dharamshala, H.P.
__________
IN THE COURT OF SHRI SHRI YOGESH JASWAL, PRESIDING JUDGE, LABOUR
COURT-CUM-INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (H.P.)
Ref. No.
: 03/2018
Date of Institution : 19.02.2018
Date of Decision : 28.10.2020
Smt. Savitri Devi w/o Late Shri Bansi Lal, r/o Village Ward No.4, Una, through Shri Vinod
Kumar, Vikas Nagar, Near DAV Centenary Senior Secondary School, Una, District Una, H.P.
. .Petitioner.
Versus
The Principal, D.A.V. Centenary Public School Una, Tehsil and District Una, H.P.
. .Respondent.
Reference under Section 10 (1) of the Industrial Disputes Act, 1947
For the Petitioner
: Nemo
For the Respondent : Sh. Rohit Joshi, Adv.
AWARD
The reference given below has been received from the appropriate Government for
adjudication:
“Whether termination of the services of Smt. Savitri Devi w/o Late Shri Bansi Lal,
(employed as sweeper) r/o Ward No. 4, Una, through Shri Vinod Kumar, Vikas Nagar,
Near DAV Centenary Senior Secondary School, Una, District Una, H.P. during
September, 2016 by the Principal D.A.V. Centenary Public School Una, Tehsil & District
Una, H.P., without complying with the provisions of the Industrial Disputes Act, 1947, is
legal and justified? If not, what amount of back wages, seniority, past service benefits and
compensation the above worker is entitled to from the above employer/Management?”
2.
The case of the petitioner as it emerges from the statement of claim is that she was
appointed/engaged as a peon by the respondent w.e.f. 4.1.2020 and that she had worked
continuously without any break. The respondent has paid to her salary of Rs. 5,500/- per month.
She had performed her duties diligently, honestly and to the best of her ability to the satisfaction of
all. Her services were orally terminated by the respondent on 30.9.2016. Several requests were
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made by her for her re-engagement, but without success. Persons junior to her were retained by the
respondent. Even a new/fresh hand had been engaged by the respondent as a peon in her place.
The respondent had completely ignored the provisions of Sections 25-F, 25-G and 25-H of
the Industrial Disputes Act, 1947 (hereinafter referred to as ‘the Act’ for short). The petitioner is
having no source of income and is unemployed since the date of her disengagement. The petitioner,
thus, prays for her re-engagement with all consequential benefits.
3.
On notice, the respondent appeared. He filed a reply alleging therein that the services
of the petitioner were engaged as a sweeper in the School on rate contract basis. She had never
been engaged as a peon. The petitioner had been creating a bad atmosphere in the school campus
by claiming to be possessed of abnormal powers and by indulging in occult activities. Written
complaints have been received from the teachers as well as class-IV employees of the school
against the petitioner. Since the petitioner was engaged on rate contract basis, her services were
liable to be terminated at any time without giving any notice. The petitioner is not fit to be kept in
an educational institute on account of her act and conduct. The respondent, thus, prays for the
dismissal of the claim.
4.
While filing the rejoinder the petitioner controverted the averments made in the reply
and reiterated those in the statement of claim.
5.
Out of the pleadings of the parties, the following issues were settled for determination
and adjudication by this Court vide order dated 15.7.2019:
1.
Whether termination of the services of the petitioner by the respondent during
September, 2016 is/was illegal and unjustified, as alleged?
. .OPP.
2.
If issue No.1 is proved in affirmative to what service benefits the petitioner is entitled
to?
. .OPP.
Relief :
6.
Arguments of the learned Counsel for the respondent heard and records gone through.
7.
For the reasons to be recorded hereinafter while discussing the issues for
determination, my findings thereon are as under:
Issue No. 1
: No
Issue No. 2
: No
Relief
: Claim petition dismissed vide operative portion of the Award.
REASONS FOR FINDINGS
Issues No. 1 and 2 :
8.
Being interlinked and to avoid repetition, both these issues are taken up together for
discussion and disposal.
9.
The statement of claim has been filed by the petitioner claiming that her services
were illegally and unjustifiably terminated by the respondent in September, 2016 by violating the
provisions of Sections 25-F, 25-G and 25-H of the Act. It was asserted that the petitioner had been
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engaged as a peon by the respondent w.e.f. 04.1.2010. It was also her claim that she had
continuously worked thereafter without any breaks in service. It was also asserted that no
opportunity was afforded to the petitioner for re-engagement. Persons junior to her were retained in
service by the respondent. New/fresh hand had also been engaged in her place. These averments
were required to be established on record by the petitioner by way of ocular and/or documentary
evidence.
10. However, when the case was listed for the evidence of the petitioner today i.e.
28.10.2020, neither she nor her counsel had put in appearance before this Tribunal, despite the case
being called several times since morning. Hence, despite due notice of the date of hearing, the
petitioner had remained ex-parte.
11. It will be apt at this stage to take note of the relevant provisions of the Act. Section 2
(b) of the Act defines the Award as under:—
“(b) “award” means an interim or a final determination of any industrial dispute or of any
question relating thereto by any Labour Court, Industrial Tribunal or National Industrial
Tribunal and includes an arbitration award made under Section 10A;”.
12. Sub-Section (1) of Section 11 of the Act provides that subject to any rules that may be
made in this behalf, an arbitrator, a Board, Court, Labour Court, Tribunal or National Tribunal shall
follow such procedure as the arbitrator or other authority concerned may think it fit. The Central
Government has framed rules called “The Industrial Disputes (Central) Rules, 1957.” Rule 10-B (9)
reads thus:—
“10-B (9) In case any party defaults or fails to appear at any stage the Labour Court,
Tribunal, or National Tribunal, as the case may be, may proceed with the reference ex-
parte and decide the reference application in the absence of the defaulting party.”
13. Rule 22 reads thus:—
“Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator may proceed ex-
parte.—If without sufficient cause being shown, any party to the proceeding before a
Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator fails to attend or to
be represented, the Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator
may proceed, as if the party had duly attended or had been represented.”
14. The State of Himachal Pradesh has also framed rules called “The Industrial Disputes
Rules, 1974.” Rule 25 thereof reads thus:—
“Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator may proceed ex-
parte.—If without sufficient cause being shown, any party to the proceeding before a
Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator fails to attend or to
be represented, the Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator
may proceed, as if the party had duly attended or had been represented.”
15. Rule 22 of the Industrial Disputes (Central) Rules, 1957 and Rule 25 of the Industrial
Disputes Rules, 1974 authorize the adjudicating authority to proceed in the absence of a party. It
creates a fiction which enables the Tribunal to presume that all the parties are present before it
although, in fact, it is not true, and thus make an ex-parte award. This Tribunal in these
circumstances has to imagine that the absentee workman is present and having done so, can give
full effect to its imagination and carry it to its logical end. Under Rule 25, this Tribunal, thus, has to
7054
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imagine that the workman is present, he is unwilling to adduce evidence or argue his case.
16. In the instant case, neither the petitioner nor her counsel had put in appearance before
this Tribunal today i.e. 28.10.2020. In these circumstances, the Tribunal can proceed and pass ex-
parte award on its merits.
17. Since, it is disputed by the respondent that the services of the petitioner had been
engaged as a peon, so firstly it was required of the petitioner to prove on record that she had been
engaged by the respondent as a peon and then to establish on record, as per the reference, that the
termination of her services in September, 2016 by the respondent was without complying with the
provisions of the Act and, thus, illegal and unjustified. Though, a statement of claim has been filed
by the petitioner, but her allegations therein have remained a mere saying on record, as no evidence
in support thereof has been led by her. At the risk of repetition, the petitioner had not put in
appearance before this Tribunal. In this view of the matter, the petitioner is not entitled to any
relief, as claimed for in the statement of claim. Hence, both these issues are decided against the
petitioner and in favour of the respondent.
Relief :
18. In the light of what has been discussed hereinabove, the present claim petition
merits dismissal and is accordingly dismissed, with no order as to costs. The reference is answered
in the aforesaid terms. A copy of this Award be sent to the appropriate Government for publication
in the official gazette and the file after due completion be consigned to the Record Room.
Announced in the open Court today this 28th day of October, 2020.
Sd/-
(YOGESH JASWAL),
Presiding Judge,
Labour Court-cum-Industrial Tribunal,
Kangra at Dharamshala, H.P.
__________
IN THE COURT OF SHRI YOGESH JASWAL, PRESIDING JUDGE, LABOUR COURT-
CUM-INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (H.P.)
Ref. No.
: 37/2017
Date of Institution : 07.1.2017
Date of Decision : 29.10.2020
Shri Pawan Kumar s/o Shri Parkash Chand, r/o Village Mainyara, P.O. Pahra, Tehsil
Palampur, District Kangra, H.P.
. .Petitioner.
Versus
1.
The Vice Chancellor, Chaudhry Sarwan Kumar Himachal Pradesh Krishi Vishav
Vidyailya, Palampur, District Kangra, H.P.
2.
The Registrar, Chaudhry Sarwan Kumar Himachal Pradesh Krishi Vishav Vidhyalya,
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Palampur, District Kangra, H.P.
. .Respondents.
Reference under Section 10 (1) of the Industrial Disputes Act, 1947
For the Petitioner
: Sh. Rajat Chaudhary, Adv.
For the respondents : Smt. Rajni Katoch, Adv.
AWARD
The below given reference has been received from the appropriate Government for
adjudication:
“Whether the verbal termination of services of Shri Pawan Kumar s/o Shri Parkash Chand,
r/o Village Maniyara, P.O. Pahra, Tehsil Palampur, District Kangra, H.P. by (1) The Vice
Chancellor, Chaudhry Sarwan Kumar, Himachal Pradesh Krishi Vishva Vidyalya,
Palampur, District Kangra, H.P. (2) The Registrar, Chaudhry Sarwan Kumar, Himachal
Pradesh Krishi Vishva Vidyalya, Palampur, District Kangra, H.P. during year, 2010
without serving notice, without holding enquiry and without complying with the provisions
of the Industrial Disputes Act, 1947, as alleged by the workman, is legal and justified? If
not, what back wages, service benefits and relief the above named daily wages worker is
entitled to from the above employers?”
2.
In furtherance to the reference, it is averred by the petitioner in the statement of claim
that the services of the petitioner were engaged by the respondents as a daily waged worker on
daily rated basis in Agro Forestry department w.e.f. 23.6.2006 and he continued to work as such
uptil 01.9.2010 without any breaks. During the aforesaid period the petitioner had worked
under the head of the department, his attendance was being marked by field assistant/supervisor,
regular employees of the respondents. The payment was made to the petitioner through head of the
department of Lab/Animal Husbandry department. The act and conduct of the petitioner was
satisfactory. During the aforesaid period, no show cause notice had ever been issued to him by the
respondents. No appointment letter, identity card, casual/attendance card or wages slip were issued
to him at the time of his appointment by the department. In the year 2008 H.P. Krishi
Vishvavidyaya Mazdoor Sangh had served a demand notice upon the respondents, raising various
demands. The meeting was held on 4.4.2009, which was presided over by the Vice Chancellor.
Meeting was also held with the representatives of the union on 18.6.2009, but the respondents had
not discussed the demands of the workmen. On 25th March, 2010, the HOD/Director Research had
verbally asked the petitioner and other co-workmen of the Live Stock Farm department to join the
rolls of the contractor, namely Sahayta Security Services Pvt. Ltd. The petitioner alongwith others
had not filed the application when verbal instructions were issued not to allow him and the others to
join the services. The services of the petitioner and other co-workmen were unlawfully terminated
by the respondents in the year 2010. No show cause notice, charge-sheet had ever been issued to
the petitioner, nor any inquiry had been conducted against him. No one month salary in lieu of
notice period and retrenchment compensation had been paid. The petitioner had worked
continuously and had completed 240 days in each calendar year w.e.f. the year 2006 uptil the year
2010. The petitioner was also a member of the union and reference had been made to this court vide
Reference No. 207/2010. During the pendency of this reference, services of the petitioner and about
200 workmen were terminated in different departments. An application under Section 33-A of the
Industrial Disputes Act, 1947 (hereinafter referred to as ‘the Act’ for short) had been filed.
However, on 14.7.2011 the Director of Research had offered appointment to the retrenched workers
to join the duties in the rolls of the contractor subject to final disposal of the reference No.
207/2010. It was accepted by the President of the union and application No. 25/2010 was
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withdrawn by the union. Reference No. 207/2010 was also withdrawn by the union on technical
grounds on 20.3.2014. After termination of the services of the petitioner, he had raised a dispute
in individual capacity against the respondents under Section 2-A of the Act. Conciliation
proceedings took place before the Labour-cum-Conciliation Officer, Dharamshala, but failed. A
failure report under Section 12(4) of the Act had been forwarded to the Labour Commissioner
for making a reference. The dispute was then forwarded by the appropriate Government to this
Court. In the year 2010-2011 services of M/s Sahayta Security Services had been engaged by the
respondents vide an agreement. On the expiry of the contract, new contractor, namely, M/s Sun
Security Services Pvt. Ltd. was appointed in the year 2011-2012. On 14.7.2011, the petitioner had
joined the services and had worked continuously uptil 31.3.2012. After the termination of the
contract of M/s Sahayta Security Services, the respondents had adjusted the petitioner alongwith
the other workmen in the rolls of new contractor M/s. Sun Security Services Pvt. Ltd. and had
worked uptil 31.3.2013 continuously. The contract agreement of M/s. Sun Security Services Pvt.
Ltd. had been terminated by the respondents w.e.f. 31.3.2013 and from 1.4.2013 a new contractor,
namely, M/s Nu Vision Shimla was appointed, who is presently working with the respondents. The
workmen who were engaged in the rolls of M/s. Sun Security Services Pvt. Ltd. were again
adjusted in the rolls of new contractor, M/s. Nu Vision, Shimla. During his services, the petitioner
had worked under the supervisions and control of project investigator, and he had only been
making payment to the petitioner from the year 2005 to 31.3.2010. Thereafter, when the petitioner
had worked in the rolls of contractor, namely, M/s Sun Security Services and M/s Nu Vision,
Shimla his attendance was marked by the Field Assistant of Fodder department from 18.7.2011
uptil 11.6.2014. Payment was made by the respondents to the contractor on the basis of attendance
records of its Field Assistant. As per the statute persons could not be employed on daily rated basis
or on contract basis. The services of Smt. Promila Devi had been engaged as a worker without any
appointment letter for 89 days w.e.f. 22.1.2000 on contract basis and her services have been
regularized as a clerk by the respondents since 2010. As and when the respondents had engaged the
contractor, namely, M/s Sahayta Securities Services Pvt. Ltd. had not moved an application for
registration of the establishment under Section 7 of the Contract Labour (Regulation &
Abolition) Act, 1970. M/s Sahayata Security Services Pvt. Ltd. had also not applied for a licence to
Licensing Authority under Section 12(1) of the Act. Without complying with the provisions, no
principal employer could engage a contract labourer. Workmen whose services had been engaged
by the respondents without any appointment letter had worked for various operations in the field
work of university. They had been discharging the same work and nature of duties as those of
regular employees of the university. They have been paid minimum wages as fixed by the State
Government/Labour Department but the service conditions of the petitioner had been changed by
the respondents from time to time without making any application. The act and conduct of the
respondents was highly unjustified, arbitrary, contrary, unconstitutional and against the mandatory
provisions of the Act. The petitioner, thus, prays for his re-engagement with all consequential
benefits.
3.
On notice, the respondents appeared. They filed a joint reply taking preliminary
objections regarding lack of maintainability, locus standi, jurisdiction, that the petitioner had never
worked as a daily paid labourer with the respondents and that the petitioner had not approached the
Court with clean hands and had suppressed the material facts. The contents of the petition were
denied on merits. It was asserted that as per policy of the Government of H.P. of Finance
Department vide order No. FIN.1-C(14)-1/83 dated 8.7.1998, the policy/system to engage the
worker on muster roll basis stood banned. The petitioner was never engaged as a daily paid
labourer on muster roll basis. He was engaged on work contract basis from the year 2006 uptil the
year 2009, for which he had been raising bills for the work performed and had been paid at the rate
not below the Government rate by the Project Investigators of the Project/HOD. His wages were
paid from the funds of the project funded by ICAR/GOI and no wages had ever been paid to him
from the Grant-in-Aid of the university. Had the petitioner been engaged as a daily paid labourer on
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muster roll basis, his name would have figured in the seniority lists of daily paid labourers of the
university circulated in 2006 and 2008. The activities carried out by the respondents are purely of
scientific research nature and do not have a motive of gain or profit. The petitioner had never
worked against any sanctioned post in the university. The tender to outsource the workers was
floated by the department of Soil Science of the respondents university and tender of M/s. Sahayata
Security Services was approved. The services of the labourers/workers were outsourced to the said
agency. Prior to it work was got done from unregistered contractors. It is specifically denied that
the petitioner had never been allowed to enter the premises of the department by the HOD and his
services had been unlawfully terminated. The worker had not turned to seek work from the
respondents university at his own will. He had worked as a contractor from the month of August,
2006. He raised various bills from time to time. The head of department had not violated any
provisions of the Act. The petitioner did not come to attend his work at his own, as he was not
interested to work as a labourer. The Director of Research of the respondents had not offered any
appointment to any of the workers. Reference No. 207/2010 was dismissed as withdrawn. It had
been instituted by using false registration number, which had been issued to Himachal Pradesh
Krishi Vishvavidyalaya Dhiadidar Mazdoor Sangh. Registered contractors, namely, M/s. Sahayata
Security Services, M/s. Sun Securities Services Pvt. Ltd. and M/s. Nuvision had been hired by the
university for outsourcing of labour for various works related with research and scientific purposes.
The deployment had been made for seasonal work, as per the requirement of the work. The
petitioner had been deployed in various adhoc projects as per the requirement of the project work.
From the year 2006 uptil the year 2009 the petitioner had raised bills as a contractor. The HOD
concerned used to verify the work done, monthly attendance and wages bill by the
Contractor/individual concerned, to see that excess payments were not made. The petitioner had
been paid from recurring contingencies sub head and on the termination of one project, he had
worked in other similar projects from time to time. He is not a regular employee of the university. It
is admitted that Smt. Promila Devi had initially been appointed as a Data Entry Operator on
contractual basis and that her services were regularized as per the policy of the Government of
Himachal Pradesh to regularize contract appointees. The case of the petitioner has no direct
connection/resemblance with that of Smt. Promila Devi. The respondents had got itself
registered with the competent authority and M/s. Sahayata Security was having a registration
license. In the absence of regular staff, the manpower is being outsourced through the approved
registered contractor to carry out field operations and in lieu of the services of outsourced, the
payment is made to the contractor at the rate of minimum wages fixed by the State Government
with respect to each category of workers. The petitioner is not entitled to salary and benefits at par
with regular employees. The respondents, thus, pray for the dismissal of the claim.
4.
While filing the rejoinder, the petitioner controverted the averments made in the reply
and reiterated those in the statement of claim.
5.
Out of the pleadings of the parties, the following issues were settled for determination
and adjudication by this Court vide order dated 24.6.2019:
1.
Whether the verbal termination of the services of the petitioner by the respondents
during the year, 2010 is/was illegal and unjustified as alleged?
..OPP.
2.
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, as alleged?
. .OPR.
4.
Whether the petitioner has no locus standi and cause of action to file the present case,
as alleged?
. .OPR.
7058
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5.
Whether this Court has no jurisdiction to try the present case, as alleged?
. .OPR.
6.
Whether the petitioner is/was not daily paid labourer of the respondents, as alleged?
. .OPR.
7.
Whether the petitioner has not approached the Court with clean hands and has
suppressed true and material facts from this Court, as alleged?
..OPR.
Relief :
6.
Thereafter, the parties to the list were directed to adduce evidence in support of
the issues so framed. No evidence was led by the petitioner and his evidence stood closed under the
orders of the Court, as despite being afforded ample and last opportunities, he had failed to lead his
evidence. Since, no evidence was led on record by the petitioner, the learned counsel for the
respondents, as per her statement made at bar did not want to lead any evidence on behalf of the
respondents.
7.
Arguments of the learned counsel for the parties heard and records gone through.
8.
For the reasons to be recorded hereinafter while discussing the issues for
determination, my findings thereon are as under:
Issue No. 1
: No
Issue No. 2 : No
Issue No. 3 : Yes
Issue No. 4 : Yes
Issue No. 5 : Not pressed
Issue No. 6 : Yes
Issue No. 7 : Yes
Relief
: Claim petition dismissed vide operative portion of the Award.
REASONS FOR FINDINGS
Issues No.1, 2 and 6 :
9.
Being interlinked and to avoid repetition, all these issues are taken up together for
discussion and disposal.
10. The statement of claim has been filed by the petitioner claiming that he was engaged as
a daily waged worker by the respondents w.e.f. 23.6.2006 and had continuously worked as such till
01.9.2010. A plea was also taken to the effect by the petitioner that his services were illegally and
unlawfully terminated by the respondents in the year 2010, without adhering to the principles
of the Act. These averments were required to be established on record by the petitioner by way
of ocular and/or documentary evidence, as the same were refuted by the respondents.
11. The first question which arises for consideration, as per the arguments, is whether the
7059
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petitioner was an employee of respondents or not. It is by now well settled that the burden of proof
is on the workman to establish the employer-employee relationship. In Workmen of Nilgiri Coop.
Maktg. Soc. Ltd. vs. State of Tamil Nadu, (2004) 3 SCC 514, it has been laid down by the
Hon’ble Supreme Court that it is a well settled principle of law that the person who sets up a plea of
existence of relationship of employer and employee, the burden would be upon him. It was also
observed therein that where a person asserts that he was a workman of the company, and it is
denied by the company, it is for him to prove the fact. It is not for the company to prove that he was
not an employee of the company but of some other person.
12. At the risk of repetition, as in the case on hand it is asserted by the petitioner that he
was a workman of the respondents, being appointed on daily waged basis and which fact had been
denied by the respondents, therefore, in view of the aforesaid binding precedent, the onus lay on the
petitioner to prove the employer-employee relationship in between himself and the respondents.
Neither any oral nor documentary evidence has been led on record by the petitioner to show that he
was appointed as a daily waged worker by the respondents. Had it been that the petitioner was a
daily paid worker of the respondents, he ought to have been engaged on the muster rolls. No muster
roll in his name has been placed and exhibited on record by the petitioner. This only goes to show
that he had never been engaged on the muster roll.
13. It was also claimed in the statement of claim by the petitioner that he had worked
continuously with the respondents from the year 2006 uptil the year 2010, without any breaks and
as such had been completing 240 days in each calendar year.
14. Section 25-B of the Act defines “continuous service”. In terms of Sub Section (2) of
Section 25-B that if a workman during a period of twelve calendar months preceding the date with
reference to which calculation is to be made, has actually worked under the employer 240 days
within a period of one year, he will be deemed to be in continuous service. The burden of proof is
on the petitioner to show that he had worked for 240 days in preceding twelve calendar months
prior to his alleged retrenchment. The law on this issue is well settled. In R.M. Yellatty vs.
Assistant Executive Engineer, (2006) 1 SCC 106, it has been laid by the Hon’ble Supreme Court
that the burden of proof is on the claimant to show that he had worked for 240 days in a given
year.
15. Applying the principles laid down in the above case by the Hon’ble Supreme Court, it
was required of the petitioner to establish on record that he had worked continuously for a period
240 days in a block of twelve calendar months anterior to the date of his alleged termination,
which as per the reference took place in the year 2010. No such record is there on the file to
establish that the petitioner had worked continuously for a period of 240 days in a block of twelve
calendar months prior to the date of his alleged termination, as envisaged under Section 25-B of the
Act. Therefore, the provisions of Section 25-F of the Act are not attracted in this case.
16. It is not the case of the petitioner that after his alleged disengagement, his
juniors had been retained and that new/fresh hands had also been engaged by the respondents. That
being so, the provisions of Sections 25-G and 25-H of the Act are also not attracted in this case.
17. In view of the above, it can safely be concluded that the petitioner has not been able to
show that he was engaged as a daily paid worker by the respondents. No muster roll has been filed
nor any seniority list of daily wagers showing his name has been placed and exhibited on record by
the petitioner. Therefore, the petitioner is not a daily paid worker. He is not entitled to any relief as
claimed for by him. Hence, issues No. 1 and 2 are decided against the petitioner, while issue No. 6
is decided in favour of the respondents.
Issues No. 3, 4 & 7 :
7060
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18. Taking in to account my findings on issues No. 1, 2 and 6 above, it is held that neither
the petitioner has the cause of action nor the locus standi to sue. The claim petition is not
maintainable in the present form. The petitioner has not approached the Court with clean hands and
has suppressed material facts. The claim petition is frivolous and vexatious. It has been instituted
by the petitioner with a malafide intention to derive undue advantage(s). These issues are
answered in favour of the respondents.
Issue No. 5 :
19. Not pressed.
Relief :
20. In the light of what has been discussed hereinabove, while recording the findings on
issues supra, the present claim petition merits dismissal and is accordingly dismissed, with no order
as to costs. The reference is answered in the aforesaid terms. A copy of this Award be sent to the
appropriate Government for publication in the official gazette and the file after due completion be
consigned to the Record Room.
Announced in the open Court today this 29th day of October, 2020.
Sd/-
(YOGESH JASWAL),
Presiding Judge,
Labour Court-cum-Industrial Tribunal,
Kangra at Dharamshala, H.P.
__________
IN THE COURT OF SHRI YOGESH JASWAL, PRESIDING JUDGE, LABOUR COURT-
CUM-INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (H.P.)
Ref. No.
: 89/2020
Date of Institution : 11.09.2020
Date of Decision : 29.10.2020
Shri Sumit Singh s/o Shri Sukhdev Singh, r/o VPO Dharamshala Mahanta, Ward No. 4,
Tehsil Amb, District Una, H.P.
. .Petitioner.
Versus
The Employer/Manager, M/s Tigaksha Metallics Private Limited, Ram Nagar, Industrial
Area, Gagret, District Una, H.P.
. .Respondent.
Reference under Section 10 (1) of the Industrial Disputes Act, 1947
For the Petitioner
: None for the petitioner
For the Respondent
: Sh. N.L. Kaundal, AR
7061
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AWARD
The reference given below has been received from the appropriate Government for
adjudication:
“Whether the termination of services of Shri Sunit Singh s/o Shri Sukhdev Singh, r/o
V.P.O. Dharamshala Mahanta, Ward No.4, Tehsil Amb, District Una, H.P. w.e.f. 08-07-
2020 by the Employer/Manager, M/s Tigaksha Metallics Private Limited, Ram Nagar,
Industrial Area, Gagret, District Una, H.P., without complying with the provisions of the
Industrial Disputes Act, 1947, is legal and justified? If not, what amount of back wages,
seniority, past service benefits and compensation the above worker is entitled to from the
above employer?
2.
The case was listed for appearance of the petitioner for today but, however, neither the
petitioner nor his counsel had put in appearance before this Tribunal, despite the case being called
several times since morning. Hence, despite due notice of the date of hearing, the
workman/petitioner had remained ex-parte.
3.
It will be apt at this stage to take note of the relevant provisions of the Industrial
Disputes Act, 1947 (hereinafter referred to as ‘the Act’ for brevity sake). Section 2 (b) of the Act
defines the Award as under:—
“(b) “award” means an interim or a final determination of any industrial dispute or of any
question relating thereto by any Labour Court, Industrial Tribunal or National Industrial
Tribunal and includes an arbitration award made under Section 10A;”.
4.
Sub-Section (1) of Section 11 of the Act provides that subject to any rules that may be
made in this behalf, an arbitrator, a Board, Court, Labour Court, Tribunal or National Tribunal shall
follow such procedure as the arbitrator or other authority concerned may think it fit. The Central
Government has framed rules called “The Industrial Disputes (Central) Rules, 1957.” Rule 10-B (9)
reads thus:—
“10-B (9) In case any party defaults or fails to appear at any stage the Labour Court,
Tribunal, or National Tribunal, as the case may be, may proceed with the reference ex-
parte and decide the reference application in the absence of the defaulting party.”
5.
Rule 22 reads thus:—
“Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator may proceed ex-
parte.—If without sufficient cause being shown, any party to the proceeding before a
Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator fails to attend or to
be represented, the Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator
may proceed, as if the party had duly attended or had been represented.”
6.
The State of Himachal Pradesh has also framed rules called “The Industrial Disputes
Rules, 1974.” Rule 25 thereof reads thus:—
“Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator may proceed ex-
parte.—If without sufficient cause being shown, any party to the proceeding before a
Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator fails to attend or to
be represented, the Board, Court, Labour Court, Tribunal, National Tribunal or
Arbitrator may proceed, as if the party had duly attended or had been represented.”
7062
jkti=] fgekpy izns'k] 01 Qjojh] 2021@12 ek?k] 1942
7.
Rule 22 of the Industrial Disputes (Central) Rules, 1957 and Rule 25 of the Industrial
Disputes Rules, 1974 authorize the adjudicating authority to proceed in the absence of a party. It
creates a fiction which enables the Tribunal to presume that all the parties are present before it
although, infact, it is not true, and thus make an ex parte award. This Tribunal in these
circumstances has to imagine that the absentee workman is present and having done so, can give
full effect to its imagination and carry it to its logical end. Under Rule 25, this Tribunal, thus, has to
imagine that the workman is present, he is unwilling to file the statement of claim, adduce evidence
or argue his case.
8.
In the instant case, neither the workman nor his counsel has put in appearance before
this Tribunal today. In these circumstances, the Tribunal can proceed and pass ex-parte award on
its merits.
9.
As per the reference, it was required of the petitioner to plead and prove on record that
the termination of his services w.e.f. 08-07-2020 by the respondent was without complying with the
provisions of the Act and, thus, illegal and unjustified. However, there is neither any pleading nor
any evidence to this effect on record on the part of the petitioner/workman. At the risk of repetition
the petitioner/workman had not put in appearance before this Tribunal. In this view of the matter,
the petitioner is not entitled to any back wages, seniority, past service benefits and compensation.
Accordingly, this reference is answered in the negative. Parties to bear their own costs.
10. The reference is answered in the aforesaid terms.
11. A copy of this Award be sent to the appropriate Government for publication in the
official gazette and the file after due completion be consigned to the Record Room.
Announced in the open Court today this 29th day of October, 2020.
Sd/-
(YOGESH JASWAL),
Presiding Judge,
Labour Court-cum-Industrial Tribunal,
Kangra at Dharamshala, H.P.
__________
IN THE COURT OF SHRI YOGESH JASWAL, PRESIDING JUDGE, LABOUR COURT-
CUM-INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (H.P.)
Ref. No.
: 90/2020
Date of Institution : 11.09.2020
Date of Decision : 29.10.2020
Shri Vikas Thakur s/o Shri Ishwar Singh, r/o Village Mandwara, P.O. Marwari, Tehsil
Ghanari, District Una, H.P.
. .Petitioner.
Versus
The Employer/Manager, M/s Tigaksha Metallics Private Limited, Ram Nagar,
Industrial Area, Gagret, District Una, H.P.
. .Respondent.
7063
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Reference under Section 10 (1) of the Industrial Disputes Act, 1947
For the Petitioner
: None for the petitioner
For the Respondent : Sh. N.L. Kaundal, AR
AWARD
The reference given below has been received from the appropriate Government for
adjudication:
“Whether the termination of services of Shri Vikas Thakur s/o Shri Ishwar Singh r/o Village
Mandwara, P.O. Marwari, Tehsil Ghanari, District Una, H.P. w.e.f. 08-07-2020 by the
Employer/Manager, M/s Tigaksha Metallics Private Limited, Ram Nagar, Industrial Area,
Gagret, District Una, H.P., without complying with the provisions of the Industrial Disputes
Act, 1947, is legal and justified? If not, what amount of back wages, seniority, past service
benefits and compensation the above worker is entitled to from the above employer?”
2.
The case was listed for appearance of the petitioner for today but, however, neither the
petitioner nor his counsel had put in appearance before this Tribunal, despite the case being called
several times since morning. Hence, despite due notice of the date of hearing, the
workman/petitioner had remained ex-parte.
3.
It will be apt at this stage to take note of the relevant provisions of the Industrial
Disputes Act, 1947 (hereinafter referred to as ‘the Act’ for brevity sake). Section 2 (b) of the Act
defines the Award as under:—
“(b) “award” means an interim or a final determination of any industrial dispute or of any
question relating thereto by any Labour Court, Industrial Tribunal or National Industrial
Tribunal and includes an arbitration award made under Section 10A;”.
4.
Sub-Section (1) of Section 11 of the Act provides that subject to any rules that may be
made in this behalf, an arbitrator, a Board, Court, Labour Court, Tribunal or National Tribunal shall
follow such procedure as the arbitrator or other authority concerned may think it fit. The Central
Government has framed rules called “The Industrial Disputes (Central) Rules, 1957.” Rule 10-B (9)
reads thus:—
“10-B (9) In case any party defaults or fails to appear at any stage the Labour Court,
Tribunal, or National Tribunal, as the case may be, may proceed with the reference ex-
parte and decide the reference application in the absence of the defaulting party.”
5.
Rule 22 reads thus:—
“Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator may proceed ex-
parte.—If without sufficient cause being shown, any party to the proceeding before a Board,
Court, Labour Court, Tribunal, National Tribunal or Arbitrator fails to attend or to be
represented, the Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator
may proceed, as if the party had duly attended or had been represented.”
6.
The State of Himachal Pradesh has also framed rules called “The Industrial Disputes
Rules, 1974.” Rule 25 thereof reads thus:—
“Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator may proceed ex-
7064
jkti=] fgekpy izns'k] 01 Qjojh] 2021@12 ek?k] 1942
parte.—If without sufficient cause being shown, any party to the proceeding before a
Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator fails to attend or to
be represented, the Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator
may proceed, as if the party had duly attended or had been represented.”
7.
Rule 22 of the Industrial Disputes (Central) Rules, 1957 and Rule 25 of the Industrial
Disputes Rules, 1974 authorize the adjudicating authority to proceed in the absence of a party. It
creates a fiction which enables the Tribunal to presume that all the parties are present before it
although, infact, it is not true, and thus make an ex-parte award. This Tribunal in these
circumstances has to imagine that the absentee workman is present and having done so, can give
full effect to its imagination and carry it to its logical end. Under Rule 25, this Tribunal, thus, has to
imagine that the workman is present, he is unwilling to file the statement of claim, adduce evidence
or argue his case.
8.
In the instant case, neither the workman nor his counsel has put in appearance before
this Tribunal today. In these circumstances, the Tribunal can proceed and pass ex parte award on its
merits.
9.
As per the reference, it was required of the petitioner to plead and prove on record that
the termination of his services w.e.f. 08-07-2020 by the respondent was without complying with the
provisions of the Act and, thus, illegal and unjustified. However, there is neither any pleading nor
any evidence to this effect on record on the part of the petitioner/workman. At the risk of repetition
the petitioner/workman had not put in appearance before this Tribunal. In this view of the matter,
the petitioner is not entitled to any back wages, seniority, past service benefits and compensation.
Accordingly, this reference is answered in the negative. Parties to bear their own costs.
10. The reference is answered in the aforesaid terms.
11. A copy of this Award be sent to the appropriate Government for publication in the
official gazette and the file after due completion be consigned to the Record Room.
Announced in the open Court today this 29th day of October, 2020.
Sd/-
(YOGESH JASWAL),
Presiding Judge,
Labour Court-cum-Industrial Tribunal,
Kangra at Dharamshala, H.P.
__________
IN THE COURT OF SHRI YOGESH JASWAL, PRESIDING JUDGE, LABOUR COURT-
CUM-INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (H.P.)
Ref. No.
:
45/2020
Date of Institution : 02.03.2020
Date of Decision : 29.10.2020
Shri Mohamad Aslam Khan s/o Shri Karam Deen, r/o Village Biru Patela, P.O. Lad Bharol,
Tehsil Joginder Nagar, District Mandi, H.P.
. .Petitioner.
7065
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Versus
The Director, M/s Cosilight India Telecom Private Limited, Village and Post Office
Dhamandri, Tehsil and District Una, H.P.
. .Respondent.
Reference under Section 10 (1) of the Industrial Disputes Act, 1947
For the Petitioner : None for the petitioner
For the Respondent : Sh. Neeraj Bhatnagar, Adv.
AWARD
The reference given below has been received from the appropriate Government for
adjudication:
“Whether the termination of services of Shri Mohamad Aslam Khan s/o Shri Karam Deen
r/o Village Biru Patela, P.O. Lad Bharol, Tehsil Joginder Nagar, District Mandi, H.P. by
the Director, M/s Cosilight India Telecom Private Limited, Village and Post Office
Dhamandri, Tehsil and District Una, H.P. w.e.f. 22.12.2018 without complying with the
provisions of the Industrial Disputes Act, 1947, is legal and justified? If not, what
amount of back wages, past service benefits, seniority and compensation the above worker
is entitled to from the above employers?”
2.
The case was listed for appearance of the petitioner for today but, however, neither the
petitioner nor his counsel had put in appearance before this Tribunal, despite the case being called
several times since morning. Hence, despite due notice of the date of hearing, the
workman/petitioner had remained ex-parte.
3.
It will be apt at this stage to take note of the relevant provisions of the Industrial
Disputes Act, 1947 (hereinafter referred to as ‘the Act’ for brevity sake). Section 2 (b) of the Act
defines the Award as under:—
“(b) “award” means an interim or a final determination of any industrial dispute or of any
question relating thereto by any Labour Court, Industrial Tribunal or National Industrial
Tribunal and includes an arbitration award made under Section 10A;”.
4.
Sub-Section (1) of Section 11 of the Act provides that subject to any rules that may be
made in this behalf, an arbitrator, a Board, Court, Labour Court, Tribunal or National Tribunal shall
follow such procedure as the arbitrator or other authority concerned may think it fit. The Central
Government has framed rules called “The Industrial Disputes (Central) Rules, 1957.” Rule 10-B (9)
reads thus:—
“10-B (9) In case any party defaults or fails to appear at any stage the Labour Court,
Tribunal, or National Tribunal, as the case may be, may proceed with the reference ex-
parte and decide the reference application in the absence of the defaulting party.”
5.
Rule 22 reads thus:—
“Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator may proceed ex-
parte.—If without sufficient cause being shown, any party to the proceeding before a
Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator fails to attend or to
7066
jkti=] fgekpy izns'k] 01 Qjojh] 2021@12 ek?k] 1942
be represented, the Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator
may proceed, as if the party had duly attended or had been represented.”
6.
The State of Himachal Pradesh has also framed rules called “The Industrial Disputes
Rules, 1974.” Rule 25 thereof reads thus:—
“Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator may proceed ex-
parte.—If without sufficient cause being shown, any party to the proceeding before a
Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator fails to attend or to
be represented, the Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator
may proceed, as if the party had duly attended or had been represented.”
7.
Rule 22 of the Industrial Disputes (Central) Rules, 1957 and Rule 25 of the Industrial
Disputes Rules, 1974 authorize the adjudicating authority to proceed in the absence of a party. It
creates a fiction which enables the Tribunal to presume that all the parties are present before it
although, infact, it is not true, and thus make an ex parte award. This Tribunal in these
circumstances has to imagine that the absentee workman is present and having done so, can give
full effect to its imagination and carry it to its logical end. Under Rule 25, this Tribunal, thus, has to
imagine that the workman is present, he is unwilling to file the statement of claim, adduce evidence
or argue his case.
8.
In the instant case, neither the workman nor his counsel has put in appearance before
this Tribunal today. In these circumstances, the Tribunal can proceed and pass ex parte award on its
merits.
9.
As per the reference, it was required of the petitioner to plead and prove on record that
the termination of his services w.e.f. 22.12.2018 by the respondent was without complying with the
provisions of the Act and, thus, illegal and unjustified. However, there is neither any pleading nor
any evidence to this effect on record on the part of the petitioner/workman. At the risk of repetition
the petitioner/workman had not put in appearance before this Tribunal. In this view of the matter,
the petitioner is not entitled to any back wages, seniority, past service benefits and compensation.
Accordingly, this reference is answered in the negative. Parties to bear their own costs.
10. The reference is answered in the aforesaid terms.
11. A copy of this Award be sent to the appropriate Government for publication in the
official gazette and the file after due completion be consigned to the Record Room.
Announced in the open Court today this 29th day of October, 2020.
Sd/-
(YOGESH JASWAL),
Presiding Judge,
Labour Court-cum-Industrial Tribunal,
Kangra at Dharamshala, H.P.
7067
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GENERAL ADMINISTRATION DEPARTMENT
B-Section
NOTIFICATION
Shimla-2, the 1st Feb,2021
No.:GAD-B(A)1-9/2018 –I.—In continuation to this department notification of even no.
dated 7-08-2021 the Governor, Himachal Pradesh is pleased to notify that administrative
boundaries of all the Districts, Sub-Divisions, Tehsils, Sub-Tehsils, Blocks, Villages, Towns,
Wards etc. shall now stand frozen with effect from 1st April, 2021 instead of 1st January, 2021 in
view of prevailing conditions due to COVID-19, till Census is over.
By order,
Anil Kumar Khachi
Chief Secretary.
________
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fgekpy izns'k
c eqdíek %
Lkksue Mksyek ifRu Jh NksKky] fuoklh xkao o Mkd?kj I;wdj] rglhy ykgkSy] ftyk ykgkSy ,oa
fLifr ¼fg0 iz0½A
cuke
vke turk
fo"k;-&&izkFkZuk&i= cjk, jktLo vfHkys[k esa uke nq#Lrh djus ckjsA
Jherh Lkksue Mksyek ifRu Jh NksKky] fuoklh xkao o Mkd?kj I;wdj] rglhy ykgkSy] ftyk
ykgkSy ,oa fLifr ¼fg0 iz0½ us ,d vkosnu i= 'kiFk&i= lfgr bl vnkyr esa izLrqr fd;k gS ftlesa
eqrkfcd vk/kkj dkMZ] ifjokj jftLVj udy] oksVj dkMZ bR;kfn esa Lkksue Mksyek iq=h lksue ntZ gSA
tksfd lgh o nq#Lr gSA ysfdu Hkw&jktLo vfHkys[k egky I;wdj] rglhy ykgkSy] ftyk ykgkSy ,oa fLifr
esa Mksyek iq=h lksue ntZ gSA ftl dkj.k mUgsa Hkkjh ijs'kkuh dk lkeuk djuk iM+ jgk gSA vc izkfFkZ;k
jktLo foHkkx esa Mksyek iq=h lksue ds LFkku ij Lkksue Mksyek iq=h lksue ntZ djkuk pkgrh gSA
vr% bl uksfVl }kjk vke turk ,oa lEcfU/kr fj'rsnkjksa dks lwfpr fd;k tkrk gS fd fdlh dks
mijksDr Mksyek iq=h lksue ds uke dks nq#Lr djds Lkksue Mksyek iq=h lksue ntZ djus esa dksbZ mtj o
,rjkt gks rks og bl vnkyr esa fnukad 12&02&2021 rd vlkyru ;k odkyru gkftj vkdj viuk
,rjkt is'k dj ldrk gS vU;Fkk eqrkfcd 'kiFk&i= o vU; nLrkostksa ds vk/kkj ij izkfFkZ;k dk uke
jktLo vfHkys[k egky I;wdj esa Lkksue Mksyek iq=h lksue nq#Lr djus ds vkns'k ikfjr dj fn, tk;saxsA
vkt fnukad 12&01&2021 dks gekjs gLrk{kj o eksgj vnkyr }kjk tkjh fd;k x;kA
eksgjA
gLrk{kfjr@&
lgk;d lekgrkZ izFke Js.kh] rglhy ykgkSy]
ftyk ykgkSy ,oa fLifr] fgekpy izns'kA
&&&&&&&
c vnkyr lgk;d lekgrkZ izFke Js.kh] rglhy ykgkSy] ftyk ykgkSy ,oa fLifr]
fgekpy izns'k
c eqdíek %
Nsisy iq= Jh ehQe] fuoklh xkao o Mkd?kj nkjpk lwenks] rglhy ykgkSy] ftyk ykgkSy ,oa
fLifr ¼fg0 iz0½A
cuke
vke turk
fo"k;-&&izkFkZuk&i= cjk, jktLo vfHkys[k esa uke nq#Lrh djus ckjsA
Nsisy iq= Jh ehQe] fuoklh xkao o Mkd?kj nkjpk lwenks] rglhy ykgkSy] ftyk ykgkSy ,oa
fLifr ¼fg0 iz0½ us ,d vkosnu i= 'kiFk&i= lfgr bl vnkyr esa izLrqr fd;k gS ftlesa eqrkfcd jk'ku
7069
jkti=] fgekpy izns'k] 01 Qjojh] 2021@12 ek?k] 1942
dkMZ] ifjokj jftLVj udy] oksVj dkMZ bR;kfn esa Nsisy ntZ gSA tksfd lgh o nq#Lr gSA ysfdu Hkw&
jktLo vfHkys[k egky nkjpk lwenks] rglhy ykgkSy] ftyk ykgkSy ,oa fLifr esa Nksisy ntZ gSA ftl
dkj.k mUgsa Hkkjh ekufld ijs'kkuh dk lkeuk djuk iM+ jgk gSA vc izkFkhZ jktLo foHkkx esa Nksisy ds
LFkku ij Nsisy ntZ djkuk pkgrk gSA
vr% bl uksfVl }kjk vke turk ,oa lEcfU/kr fj'rsnkjksa dks lwfpr fd;k tkrk gS fd fdlh dks
mijksDr Nksisy ds uke dks nq#Lr djds Nsisy ntZ djus esa dksbZ mtj o ,rjkt gks rks bl vnkyr esa
fnukad 12&02&2021 rd vlkyru ;k odkyru gkftj vkdj viuk ,rjkt is'k dj ldrk gS vU;Fkk
eqrkfcd 'kiFk&i= o vU; nLrkostksa ds vk/kkj ij izkFkhZ dk uke jktLo vfHkys[k egky nkjpk lwenks esa
Nsisy nq#Lr djus ds vkns'k ikfjr dj fn, tk;saxsA
vkt fnukad 12&01&2021 dks gekjs gLrk{kj o eksgj vnkyr }kjk tkjh fd;k x;kA
eksgjA
gLrk{kfjr@&
lgk;d lekgrkZ izFke Js.kh] rglhy ykgkSy]
ftyk ykgkSy ,oa fLifr] fgekpy izns'kA
&&&&&&&
In the Court of Marriage Officer-cum-Sub-Divisional Magistrate, Bangana, District Una,
Himachal Pradesh
In the matter of :
1.
Sh. Roop Singh s/o Sh. Raj Kumar, r/o Village Chouli, P.O. Sohari, Tehsil Bangana,
District Una (H.P.).
2.
Santosh Devi d/o Sh. Fumman Singh, r/o Village Polian Beet, Tehsil Haroli, District
Una (H.P.)
. . Applicants.
Versus
General Public
Subject.—Application for the registration of Marriage under section 15 of the Special Marriage
Act, 1954 (H.P.).
Sh. Roop Singh s/o Sh. Raj Kumar, r/o Village Chouli, P.O. Sohari, Tehsil Bangana,
District Una (H.P.) and Santosh Devi d/o Sh. Fumman Singh, r/o Village Polian Beet, Tehsil
Haroli, District Una (H.P.) at present w/o Sh. Roop Singh s/o Sh. Raj Kumar, r/o Village Chouli,
P.O. Sohari, Tehsil Bangana, District Una (H.P.) have filed an application alongwith affidavits in
the court of undersigned under section 15 of the Special Marriage Act, 1954 (H.P.) that they have
solemnized their marriage on 20-03-2020 according to Hindu rites and customs at Mata Jamasni
Devi Mandir, Sarian, Tehsil Bangana, District Una (H.P.) and they are living together as husband
and wife since then. Hence, their marriage may be registered under section 15 of the Special
Marriage Act, 1954 (H.P.). Therefore, the general public is hereby informed through this notice that
any person who has any objection regarding this marriage, can file the objection personally or in
writing before this court on or before 15-02-2021 after that no objection will be entertained and
marriage will be registered.
7070
jkti=] fgekpy izns'k] 01 Qjojh] 2021@12 ek?k] 1942
Issued today on 4th January, 2020 under my hand and seal of the court.
Seal.
Sd/-
Marriage Officer-cum-Sub-Divisional Magistrate,
Bangana, District Una, Himachal Pradesh.
____________
c vnkyr uk;c rglhynkj ,oa lgk;d lekgrkZ ¼f}rh; Js.kh½] mi&rglhy nqySgM+]
ftyk Åuk ¼fg0 iz0½
¼uksfVl tsjs vkns'k 5] fu;e 20] lh0ih0lh0 ½
Jh deyfd'kksj nqxkZth tkV iq= Jh nqxkZ nkl iq= Jh rksrk] oklh egky o ekStk Ns=ka]
mi&rglhy nqySgM+] ftyk Åuk ¼fg0 iz0½A
cuke
vke turk
nj[okLr ceqjkn nq#Lrh uke jktLo fjdkMZ egky o ekStk Ns=ka] mi&rglhy nqySgM+] ftyk Åuk
¼fg0 iz0½A
Jh deyfd'kksj nqxkZth tkV iq= Jh nqxkZ nkl iq= Jh rksrk] oklh egky o ekStk Ns=ka]
mi&rglhy nqySgM+] ftyk Åuk ¼fg0 iz0½ us bl U;k;ky; esa vkosnu&i= nq#Lrh uke izLrqr fd;k gS fd
jktLo fjdkMZ egky o ekStk Ns=ka esa mldk uke dey nso iq= nqxkZ nkl iq= rksrk xyr ntZ gqvk gSA
ftldh nq#Lrh djds jktLo fjdkMZ egky o ekStk Ns=ka esa mldk uke dey nso iq= nqxkZ nkl iq= rksrk
dh ctk, dey nso miuke deyfd'kksj nqxkZth tkV iq= Jh nqxkZ nkl iq= Jh rksrk fd;k tkosA
vr% bl b'rgkj ds ek/;e ls loZlk/kkj.k dks lwfpr fd;k tkrk gS fd ;fn fdlh O;fDr dks
nq#Lrh ckjs dksbZ vkifÙk gks rks og viuk mtj@,rjkt fyf[kr ;k ekSf[kd rkSj ij bl U;k;ky; esa
fu/kkZfjr rkjh[k is'kh fnukad 15&02&2021 dks izkr% 10-00 cts rd vlkyru@odkyru izLrqr dj
ldrk gSA fu/kkZfjr rkjh[k is'kh rd mtj izkIr u gksus dh lwjr esa ,drjQk dk;Zokgh vey esa ykbZ
tkdj uke nq#Lrh ckjs vkns'k ikfjr dj fn, tk,axsA fu/kkZfjr rkjh[k is'kh ds mijkUr dksbZ Hkh mtj
dkfcys lek;r u gksxkA
vkt gLrk{kj esjs o eksgj vnkyr }kjk tkjh gqvkA
eksgjA
gLrk{kfjr@&
uk;c rglhynkj ,oa lgk;d lekgrkZ ¼f}rh; Js.kh½]
mi&rglhy nqySgM+] ftyk Åuk ¼fg0 iz0½A
&&&&&&&
CHANGE OF NAME
I, Arjun Agarwaal s/o Sh. Sunil Kumar Aggarwal, resident of Village Bara, P.O.
Kumarhatti, Tehsil & District Solan (H. P.)-173229 wish to state that I have changed spellings of
my name from Arjun Aggarwal to Arjun Agarwaal.
ARJUN AGARWAAL,
s/o Sh. Sunil Kumar Aggarwal, resident of Village Bara,
P.O. Kumarhatti, Tehsil & District Solan (H. P.).
7071
jkti=] fgekpy izns'k] 01 Qjojh] 2021@12 ek?k] 1942
uke ifjorZu
eSa] lwjt dqekj lqiq= Jh dqynhi dqekj] fuoklh xkao Bkdqj}kjk] Mkd?kj gyksx] /kkeh] rglhy
/kkeh] ftyk f'keyk] fgekpy izns'k ?kks"k.kk djrk gwa fd esjs vk/kkj dkMZ o iSu dkMZ esa esjs firk th dk
uke jhrq jkt xyr ntZ gqvk gS ftls nq#Lr djds dqynhi dqekj fd;k tk,A lEcfU/kr nLrkost esa bls
nq#Lr fd;k tk,A
lwjt dqekj
lqiq= Jh dqynhi dqekj] fuoklh xkao Bkdqj}kjk]
Mkd?kj gyksx] /kkeh] rglhy /kkeh]
ftyk f'keyk] fgekpy izns'kA
7072
jkti=] fgekpy izns'k] 01 Qjojh] 2021@12 ek?k] 1942
fu;U=d] eqnz.k rFkk ys[ku lkexzh] fgekpy izns'k] f'keyk&5 }kjk eqfnzr rFkk izdkf'kr
bysDVªkWfud gLrk{kfjr jkti=] oSclkbV http://rajpatrahimachal.nic.in ij miyC/k gS ,oe~ vkWuykbu lR;kfir fd;k tk ldrk gS