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LABOUR AND EMPLOYMENT DEPARTMENT

NOTIFICATION

Dharamshala, the 03rd December, 2019

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

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

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

214&jkti=@2021&08&02&2021

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

Himachal Pradesh:—

Sl.

No.

Ref. No.

Petitioner

Respondent

Date of

Award/Order

47/17

Bhim Sen

Secy. M/s Dholpur Krishi Sewa

02-09-2019

889/16

Suta Ram

E.E.HPPWD, Nurpur & other

02-09-2019

880/16

Amar Singh

E.E.HPPWD, Nurpur & other

03-09-2019

771/16

Nasib Singh

E.E.HPPWD, Nurpur & other

03-09-2019

26/18

Jotu Ram

M/s Sahoo Hydro Power Project

05-09-2019

31/18

Aaso Ram

M/s Sahoo Hydro Power Project

05-09-2019

24/18

Kishori Lal

M/s Sahoo Hydro Power Project

05-09-2019

29/18

Gianu

M/s Sahoo Hydro Power Project

05-09-2019

30/18

Karmo

M/s Sahoo Hydro Power Project

05-09-2019

10.

28/18

Sato Ram

M/s Sahoo Hydro Power Project

05-09-2019

11.

32/18

Angrejo

M/s Sahoo Hydro Power Project

05-09-2019

12.

27/18

Chhanga Ram

M/s Sahoo Hydro Power Project

05-09-2019

13.

35/18

Rasilu

M/s Sahoo Hydro Power Project

05-09-2019

14.

25/18

Man Singh

M/s Sahoo Hydro Power Project

06-09-2019

15.

221/16

Hari Singh

E.E. HPPWD, Division Killar

06-09-2019

16.

631/16

Sato Devi

-do-

06-09-2019

17.

51/17

Devi Chand

-do-

06-09-2019

332/15

Soni Ram

-do-

06-09-2019

19.

417/15

Chandro Devi

-do-

06-09-2019

20.

428/16

Anita Kumari

-do-

06-09-2019

21.

375/16

Neel Dei

-do-

06-09-2019

22.

485/16

Ved Viyas

-do-

06-09-2019

23.

297/16

Dev Singh

-do-

06-09-2019

24.

448/16

Jeet Singh

-do-

06-09-2019

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25.

242/16

Khem Raj

-do-

06-09-2019

26.

196/15

Girdhari Lal

E.E. I&PH Mandi

09-09-2019

27.

336/14

Shyam Lal

Secy.

Bilaspur

Distt.

Co-opt.

Federation

11-09-2019

28.

349/14

Arun Kumar

Secy.

Bilaspur

Distt.

Co-opt.

Federation

11-09-2019

29.

348/14

Kamal Kumar

Secy.

Bilaspur

Distt.

Co-opt.

Federation

11-09-2019

30.

202/17

Baljeet Singh

M.D., M/s Hotel Centre Point

14-09-2019

31.

648/16

Bhari Devi

Employer,

M/S

Baijnath

Tea

Estate Co.

14-09-2019

32.

650/16

Sandhi Devi

-do-

14-09-2019

33.

647/16

Pawna Devi

-do-

14-09-2019

34.

649/16

Feek Devi

-do-

14-09-2019

35.

229/14

Gen.Secy. Baijnath

-do-

14-09-2019

36.

15/18

Lekh Raj

E.E. HPPWD, Jawali

16-09-2019

37.

13/18

Shyam Lal

E.E. HPPWD, Jawali

16-09-2019

38.

389/15

Reeta Sharma

Principal Govt.Sr.Sec. Sch.Soldha

17-09-2019

39.

24/19

Onkar Singh

M/s Divya Himachal Prakashan

23-09-2019

40.

25/19

Lekh Raj

M/s Divya Himachal Prakashan

23-09-2019

41.

714/16

Rajiv Goswami

M/s Jagran Prakashan Ltd.

23-09-2019

42.

272/16

Vikas

Incharge Regional Mountaineering 23-09-2019

43.

16/18

Dharam Chand

E.E. HPPWD, Jawali

23-09-2019

44.

07/18

Bir Singh

E.E. HPPWD, Jawali

23-09-2019

45.

200/17

Balvinder Singh

M.D. M/s Sunshine Hydro Ltd.,

Nali.

23-09-2019

46.

355/16

Jai Chand

The D.F.O. Suket

26-09-2019

By order,

NISHA SINGH, IAS

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

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IN THE COURT OF SHRI YOGESH JASWAL, PRESIDING JUDGE, LABOUR

COURT- CUM-INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)

Ref. No.

: 47/2017

Date of Institution

: 24.01.2017

Date of decision

: 02.9.2018

Shri Bhim Sen s/o Shri Mulk Raj, r/o V.P.O. Tatwali, Tehsil Fatehpur, District Kangra,

H.P. through his legal representatives:

(i)

Smt. Shashi Kanta (wife)

(ii) Shri Amit Kumar (son)

. .Petitioners.

Versus

The Secretary, M/s the Dholpur Krishi Sewa Sahkari Sabha Managing Committee, P.O.

Tatwali, Tehsil Fatehpur, District Kangra, H.P.

. .Respondent.

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

For the Petitioner

: Sh. Rajat Chaudhary, Adv.

For the Respondent

: Respondent already ex parte

AWARD

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

adjudication:

“Whether termination of services of Shri Bhim Sen s/o Shri Mulk Raj, r/o V.P.O.

Tatwali, Tehsil Fatehpur, District Kangra, H.P. w.e.f. 30-09-2015 by the Secretary, M/s the

Dholpur Krishi Sewa Sahkari Sabha Managing Committee, P.O. Tatwali, Tehsil Fatehpur,

District Kangra, 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/managing committee?”

The case of the workman (deceased Bhim Sen) as it emerges from the statement of

claim is that he was appointed as a watchman on 26th July, 2011 at Dholpur Krishi Sewa

Sahkari Sabha, Fatehpur, District Kangra, H.P. by the managing committee through proper

channel on monthly salary of Rs. 1800/. He had been discharging his duties honestly and

diligently. He had never been given any breaks in service and had worked continuously and

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uninterruptedly with the respondent. As per the policy of Government, the workman was

eligible for regularization as a watchman. The act and conduct of workman was found

satisfactory and there was no complaint against him during his service period. On August, 2015

the workman had received a letter to the effect that his services had been shifted from night duty

to day duty. Another letter dated 30.9.2015 had also been sent by the respondent to him, vide

which his service had been terminated as per the provisions of Section 25-F of the Industrial

Disputes Act, 1947 (hereinafter called the ‘Act’ for short). No inquiry was conducted by the

respondent nor the workman had ever been associated in the preliminary report/resolution. The

retrenchment of the workman was illegal, unjust and contrary to law. The provisions of Section

25-F of the Act had been violated by the respondent, as no notice in writing had been given to

the workman, nor any reason had been assigned for his retrenchment. The act of the respondent

amounted to unfair labour practice as envisaged under Section 2(ra) of the Act. The principle of

natural justice had also been violated. The wrokman was entitled to equal pay for equal work as

provided under Article 39 (d) of the Constitution. The workman had completed more than 240

days in each calendar year. He, thus, was entitled for regularization. Therefore, the workman

prays for his re-engagement with all consequential benefits.

The respondent despite being properly served had failed to put in appearance

before this Court on 19.9.2017, hence was proceeded against ex parte.

Thereafter, the workman was directed to adduce ex parte evidence. He examined

himself as PW1 and tendered in evidence post cards Ex.PW1/B and Ex.PW1/B and copy of

complaint as Ex.PW1/C. Be it noted that during the pendency of the proceedings Shri Bhim Sen,

the workman expired and his legal representatives were brought on record by order dated

14.9.2018. Thereafter, the legal representatives, namely, Smt. Shashi Kanta and Shri Amit Kumar

also examined themselves as PW2 and PW3 and tendered in evidence their statements by way of

affidavits Ex.PW2/A and Ex.PW3/A respectively.

PW1 Shri Bhim Sen (now deceased) in his chief-examination reiterated the stand

taken by him in his statement of claim. His legal representatives, namely, Smt. Shashi Kanta and

Shri Amit Kumar have also duly endorsed and supported his case. Ex.PW1/A is the post card

sent by the respondent to Shri Bhim Sen to the effect that vide resolution no. 9 dated 10.8.2015, it

had been resolved that the workman shall perform day duty instead of night duty. Ex.PW1/B is

another post card, which shows that vide resolution no. 2 dated 27.9.2015, he had been relieved

of the duty of chowkidar since 30.9.2015.

The aforesaid evidence of the workman and his legal representatives has remained

unrebutted on record, as the respondent has not come forward to contest the statement of claim

or to cross-examine the workman and his legal representatives. It, thus, stands proved from the

ocular evidence on record that the workman Shri Bhim Sen was appointed by the respondent as a

watchman on 26.7.2011 and he had worked as such uptil 30.9.2015. It is also evident from the

evidence on record that the workman had not been allowed to join his duties after his termination

by the respondent. Evidence also stands led to the effect that the services of the workman had

been terminated illegally by the respondent. The non appearance of the respondent is suggestive

of the fact that he has nothing to say in the matter. The unrebutted evidence of the workman and

his legal representatives clearly establishes on record that the workman had worked for more

than 240 days preceding twelve calendar months from the date of his termination. It is also

apparent from the evidence that no notice had been issued to the workman prior to the

termination of his services, nor any compensation had been paid to him. No inquiry had ever

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been conducted against the workman before terminating his services. As regards the salary, it

stands clearly stated by the workman and his legal representatives that the workman had been

drawing a salary of Rs.1800/- per month on the date of his termination.

No doubt, it has also been alleged that the principle of ‘last come first go’ had not

been adhered to by the respondent, but neither any seniority list has seen the light of the day, nor

in the ocular evidence there is a mention of the names of the persons junior to the workman, who

had been retained in service, after his services had been terminated. So, it cannot be said that the

respondent had violated the provisions of Section 25-G of the Act.

Oral evidence has also been led on record to the effect that the workman was not

gainfully employed during his forced idleness. Therefore, this Court, in the absence of any

rebuttal to it, has no option but to hold that after the disengagement/termination of the workman,

he had remained unemployed. The unrebutted evidence of the workman and his legal

representatives on record clearly establishes the violation of Section 25-F of the Act by the

respondent.

In view of the foregoing discussion and findings arrived at by me above, the

termination of the services of the workman Shri Bhim Sen (deceased) by the respondent on

30.9.2015 is hereby set aside and quashed. Since, the termination of the workman has been found

to be illegal, Smt. Shashi Kanta (one of the petitioners), who is his legal representative, being his

wife, is entitled to seek reinstatement and with continuity in service till the workman was alive.

As to back wages, both the petitioners are held to be entitled to 50% back wages from the

respondent from the date of illegal termination of the workman till the reinstatement of

Smt. Shashi Kanta, one of the legal representatives, by the respondent. Consequently, the petition

is allowed to the extent above. There shall be no 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. File, after due completion be consigned to the Record Room.

Announced in the open Court today this 2nd day of September, 2019.

Sd/-

(YOGESH JASWAL),

Presiding Judge,

Labour Court-cum-Industrial Tribunal,

Kangra at Dharamshala, H.P.

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IN THE COURT OF SHRI YOGESH JASWAL, PRESIDING JUDGE, LABOUR COURT-

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

Ref No.

: 889/2016

Date of Institution

: 24.12.2016

Date of Decision

: 02.09.2019

Shri Suta Ram s/o Shri Dikti Ram, r/o Village Khajjan Basa, P.O. Sadwan, Tehsil

Nurpur, District Kangra, H.P.

. .Petitioner.

Versus

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

H.P.

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

. .Respondents.

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

For the Petitioner

: Sh. Mukul Vaid, Adv. Vice

For the Respondents

: Sh. B. C. Katoch, ADA

AWARD

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

adjudication:

“Whether the alleged termination of services of Shri Suta Ram s/o Shri Dikti Ram, r/o

Village Khajjan Basa, P.O. Sadwan, Tehsil Nurpur, District Kangra, H.P. during

December, 1986 by (i) the Executive Engineer, H.P.P.W.D., Division Nurpur, District

Kangra, H.P., (ii) the Executive Engineer, H.P.P.W.D., Division Jawali, District Kangra,

H.P., who had worked on daily wages as beldar and has raised his industrial dispute

after more than 24 years vide demand notice dated nil received in the Labour Office

Kangra at Dharamshala on 13-06-2011, without complying the provisions of the

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

than 24 years in raising the industrial dispute, what amount of back wages, seniority,

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

above employers/management?”

The case of the petitioner, as it emerges from the statement of claim is that he was

engaged by Himachal Pradesh Public Works Department on daily basis during the year 1985 in

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HPPWD Sub Divisions-I and II, Nurpur and had worked as such uptil the year 1990. He had

completed 240 days in twelve calendar months from the date of his retrenchment and many

juniors were retained. HPPWD Division Nurpur was involved in the construction and

maintenance of roads, building and bridges, besides the repair and maintenance of tools and

plants etc. and the patch work of metalled roads. The petitioner had worked for the preparation of

roads with many juniors, retained by the employer and also with the reengaged employees as

detailed in para No. 3 of the petition. The mates of the petitioner were Shri Prakash and

Shri Kishan Bahadur. More than 1000 workers were engaged for a number of years by

HPPWD Division Nurpur and in the year 1990 a pick and choose policy was adopted and the

petitioner alongwith some other daily waged workers were retrenched on the false assurance

that they would be retained after some time, declaring them surplus. Respondent No. 1 had

illegally terminated/retrenched the services of the petitioner in the year 1990 and the juniors

mentioned in para 3 of the petition were reengaged on 25.5.2010. After his oral termination,

many verbal requests were made by the petitioner to the department and he was being given the

assurance that he would be engaged after three or four months. When nothing was heard from

the side of the department, the petitioner had communicated in writing for his reengagement

on daily wage basis, but without success. The action of the employer in orally terminating the

services of the petitioner is violative of the provisions of Section 25-F of the Industrial

Disputes Act, 1947 (hereinafter referred to as ‘the Act’ for short). No notice was served upon

him. The provisions of Sections 25-G, 25-H and 25-N of the Act have also been violated. The

petitioner is having no source of income and is unemployed since his disengagement, hence he

is entitled to full back wages, as his termination/retrenchment is illegal and arbitrary. The

petitioner, thus, prays for his re-engagement with all consequential benefits.

On notice, the respondents appeared. They filed a joint reply taking preliminary

objections, regarding lack of maintainability and that the petition was bad on the grounds of

delay and laches. On merits, it is denied that the services of the petitioner had been engaged as

beldar in the year 1985 in HPPWD Division, Nurpur. It is also denied that the petitioner was

disengaged by the respondents in the year 1990. It is asserted that he was engaged as a daily

wager by HPPWD Sub Division Suliali, Division Jassur and had worked intermittently w.e.f.

December, 1986. He had not completed 240 days in every calendar year. The petitioner thereafter

had left the work of his own sweet will and had never approached the department. It is claimed

that HPPWD Division Jassur was shifted/re-named as HPPWD Division Jawali vide HP

Government Notification No. PBW-(A)-A (I) 17/1994 dated 21st July, 1994. It is denied

thatrespondent No. 1 had reengaged workers on 25.5.2010. Infact workers were reengaged by

the respondents as per the orders of the Hon’ble High Court. It is admitted that HPPWD

Divisions Nurpur and Jawali are involved in the construction and maintenance of roads,

buildings and bridges, repair and maintenance of tools and plants etc. It is denied that a pick and

choose policy had been adopted by the respondents. Neither any junior had been retained nor

engaged by the respondent, so there was no violation of the provisions of Sections 25-G and 25-H

of the Act. It is denied that the petitioner had made various requests and that assurances had been

given to him by the respondents. After leaving the work in December, 1986, the petitioner had

never approached the respondents and had raised the demand notice only in the year 2011, i.e.

after about 25 years. The respondents, thus, pray for the dismissal of the claim.

In the rejoinder, the petitioner has reiterated the contents of the petition/statement of

claim and refuted the objections put forth by the respondents.

Out of the pleadings of the parties, the following issues were settled for

determination and adjudication by this Court vide order dated 7.7.2018:

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Whether termination of the services of petitioner by the respondents during

December, 1986 is/was legal and justified as alleged?

. .OPP.

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

entitled to?

. .OPP.

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

. . OPR.

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

alleged?

. .OPR.

Relief.

Thereafter, the parties to the lis were directed to adduce evidence in support of the

issues so framed. The petitioner, namely, Shri Suta Ram examined himself as PW1 and also

examined Shri Sukar Deen (PW2) and Shri Gian Chand (PW3) as his witnesses. Besides this the

petitioner tendered in evidence his statement by way of affidavit Ex. PW1/A, copy of letter dated

19.8.1998 as Ex. PW1/B, copy of letter dated 18.12.1999 as Ex. PW1/C, copy of notice dated

4.5.2002 as Ex. PW1/D, copy of resolution dated 18.7.2002 as Ex. PW1/E, copy of UPC and

registered postal receipts as Ex. PW1/F & G and copy of letter dated 18.1.2000 as Ex. PW1/H.

The respondents examined one Shri Dinesh Kumar Dhiman as RW1, who tendered his statement

by way of affidavit Ex. RW1/A and placed on the file copy of notification dated 21st July, 1994 as

Ex. RW1/B, copy of office order dated 23.7.1994 as Ex. RW1/C, copy of office order dated

29.11.2010 as Ex. RW1/D, copy of letter dated 19.8.1998 as Ex. RW1/E, copy of application

dated 18.12.1999 filed by Smt. Kusum Lata as Ex. RW1/F, copy of letter dated 18.1.2000 as Ex.

RW1/G, copy of mandays chart of the petitioner as Ex. RW1/H and copies of working days chart

of Smt. Kusum Lata as Ex. RW1/I & Ex. RW1/J.

Arguments of the learned Counsel for the petitioner and the learned Assistant

District Attorney for the respondents heard and records gone through.

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

: Negative

Issue No. 3

: Yes

Issue No. 4

: Not pressed

Relief

: Claim petition dismissed vide operative portion of the Award.

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REASONS FOR FINDINGS

Issue No. 1 and 2 :

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. Shri Suta Ram (petitioner) stepped into the witness box as PW1. In his affidavit

Ex.PW1/A submitted under Order 18 Rule 4 of the Code of Civil Procedure, he reiterated on

oath the contents of the petition/statement of claim in its entirety.

11. In the cross-examination, he admitted that before the year 1994, HPPWD Division

was at Jassur. He also admitted that HPPWD Division Jawali was established on 21st July, 1994

vide government notification No.PBW-(A)-A(1)17/94. He denied that he had not worked with

the respondents. Volunteered that, he had worked regularly from the year 1985 uptil the year 1990.

He denied that he had not worked from the year 1985 uptil November, 1986 and from February,

1987 upto the year 1990. He also denied that he had only worked for 06 days in December, 1986.

He further denied that no breaks had been given by the department. He also denied that he was

never disengaged by the respondents/department. It was also denied by him that no juniors to him

had been kept. He feigned ignorance that Smt. Kusum Lata was appointed as a daily waged beldar

in HPPWD Division Dalhousie in the year 1983. He denied that he had never worked for 240

days and above in any year. However, he admitted that he owns land, which he cultivates. He

also admitted that he is doing days’ drudgery privately. Self stated that, as and when the work is

available.

12. Ex. PW1/B is the copy of letter dated 19.8.1998 regarding the posting of

Smt. Kusum Sharma as a daily waged Store Clerk.

13. Ex. PW1/C is the copy of letter dated 18.12.1999 to the Chief Executive Engineer,

HPPWD, US Club, Shimla by Smt. Kusum Lata.

14. Ex. PW1/D is the copy of letter dated 4.5.2002 regarding notice under Section 80 of

CPC to The Secretary, HP Public Works Department, Government of Himachal Pradesh,

Shimla.

15. Ex. PW1/E is the copy of letter dated 18.7.2002 regarding issuance of muster rolls to

the daily waged beldars from President, Him Shakti P.W.D. Karamchari Sangh, Nurpur,

District Kangra, H.P. to the Finance Secretary, Government of Himachal Pradesh.

16. Ex. PW1/F is the copy of letter/UPC dated 18.7.2002 regarding issuance of muster

rolls to the daily waged beldars from President, Him Shakti P.W.D. Karamchari Sangh, Nurpur,

District Kangra, H.P. to the Finance Secretary, Government of Himachal Pradesh and others.

17. Ex. PW1/G is the copy of postal receipts.

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18. Ex. PW1/H is the copy of letter dated 18.1.2000 from Chief Engineer, HPPWD,

Shimla to Executive Engineer, HPPWD, 9th Circle, HPPWD, Nurpur.

19. PW2 Shri Sukar Deen testified that he had worked as beldar from the year 1986

uptil the year 2016 in HPPWD Division, Nurpur. He knows the petitioner, who had also been

working with them in the department. He denied in the cross-examination that the petitioner had

never worked in the department.

20. PW3 Shri Gian Chand stated that he was engaged in the year 1986 as a Mate in

HPPWD Division, Nurpur. He was removed by the department in the year 1990, when he had

obtained a stay from the H.P. Administrative Tribunal. Thereafter, he was again kept at work. He

knows the petitioner, who had also worked with them in the department. He was also a member

of their union. In the cross-examination, he was categorical that the petitioner had never worked

with him. Volunteered that, he had worked in the other section.

21. Conversely, Shri Dinesh Kumar Dhiman, Executive Engineer, HPPWD, Division

Nurpur (respondent) testified as RW1. In his affidavit Ex. RW1/A preferred as per Order 18 Rule 4

of the Code of Civil Procedure, he corroborated on oath the contents of the reply filed by the

respondents.

22. In the cross-examination, he admitted that when the workers had been removed

from HPPWD Division, Nurpur in the year 1990, he was not working in any capacity in this

Division. He also admitted that in HPPWD Nurpur the works of road repair, maintenance, patch

work and widening are done continuously. He admitted that the work increases during the

monsoons. He further admitted that the persons named in para 3 of the claim petition, in para 2

of the affidavit of the petitioner and as shown in Ex. RW1/D are still working with HPPWD

Division, Nurpur. He cannot say that when 24 workers were removed, any notice under Section

25-F was issued or not. Self stated that, they had left the work of their own. No other worker had

been kept at work after 29.11.2010, except for those shown in Ex. RW1/D. He denied that wrong

mandays of the petitioner has been given.

23. Ex. RW1/B is the copy of notification dated 21st July, 1994 with regard to shifting of

HPPWD Division Jassur to Jawali along-with sanctioned strength and staff.

24. Ex. RW1/C is the copy of Office Order dated 23.7.1994 regarding the closure of

HPPWD Jassur Division at Nurpur and its functioning at Jawali, HPPWD Jawali Division.

25. Ex. RW1/D is the copy of another Office Order dated 29.11.2010 with regard to

implementation of the award of this Court dated 22.12.2007.

26. Ex. RW1/E is the copy of letter dated 19.8.1998 regarding posting of Smt. Kusum

Sharma as daily waged store clerk.

27. Ex. RW1/F is the copy of letter dated 18.12.1999 regarding representation of

Smt. Kusum Lata.

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28. Ex. RW1/G is the copy of letter dated 18.1.2000 written by the Engineer-in-Chief

HPPWD Shimla to The Superintending Engineer, 9th Circle, HP HPPWD, Nurpur relating to the

engagement of Store Clerk on daily waged basis.

29. Ex. RW1/H is the copy of mandays chart pertaining to the petitioner.

30. Ex. RW1/I is the copy of working days chart of Smt. Kusum Lata working under

Banikhet Sub Division HPPWD Banikhet.

31. Ex. RW1/J is the copy of working days chart of Smt. Kusum Lata working under

Suliali Sub Division HPPWD Suliali.

32. The version of the petitioner is that his services were engaged as a daily waged

beldar by the respondents in the year 1985 and that he had worked as such uptil the year 1990.

The respondents took the stand that the petitioner had been engaged as a daily waged beldar in

HPPWD Sub Division Suliali w.e.f. December, 1986 intermittently. The petitioner denied this

case of the respondents. He while under cross-examination categorically denied that he had not

worked with the department from the year 1985 uptil November, 1986 and from February, 1987

uptil the year 1990. However, the respondents have place and proved on record the mandays

chart pertaining to the petitioner as Ex. RW1/H. Its perusal discloses that the services of the

petitioner were engaged by respondent No. 2 in the month of December, 1986, for the first time as

a daily waged beldar and he had worked only for six days. The claimant/petitioner has not placed

and exhibited on record any document to show that he had regularly worked with the

respondents from the year 1985 uptil the year 1990.

33. A plea was taken by the respondents that the petitioner had abandoned the work

himself. It is well known that the abandonment has to be proved like any other fact by the

respondent/employer. In Eagle Hunter Solutions Ltd. vs. Sh. Prem Chand reported in [2019

(160) FLR 16], it has been held by the Hon’ble Delhi High Court that burden of proving of

abandonment is upon the management. Simply because a workman fails to report for duty, it

cannot be presumed that he/she has left/abandoned the job. There is nothing on the record to

show that a notice was served upon the petitioner by the respondents calling upon him to resume

the duties. Absence from duty is a serious misconduct. Admittedly, no disciplinary proceedings

were initiated against the petitioner by the respondents for his alleged willful absence from duty.

Thus, the plea of abandonment put forth by the respondents/employers is not established.

34. No mandays chart of the petitioner is there on the file to establish that he had

worked continuously for a period of 240 days in a block of 12 calendar months anterior to the

date of his alleged termination, as envisaged under Section 25-B of the Act. As per the mandays

chart Ex. RW1/H, the petitioner had only worked for 06 days in the month of December, 1986.

Thus, in his total service for a period of about one month in December, 1986 he had only worked

for 06 days. Therefore, the provisions of Sections 25-F and 25-N of the Act are not attracted in

this case.

35. It is claimed by the petitioner that at the time of termination of his services,

persons junior to him were retained in service by the respondents. A detail of such persons has

been given in para 3 of the statement of claim. Shri Suta Ram (PW1) also named such persons to

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be junior to him in his chief-examination, being in the shape of affidavit Ex. PW1/A. The

respondents, and in particular respondent No. 1, refuted such allegations and claimed that no

person junior to the petitioner had ever been retained in service by the respondents after his

alleged termination. Significantly, no seniority list has been placed and exhibited on record or

any other witness examined so as to show that the persons named in the statement of claim and

in his affidavit by the petitioner were junior to him and who had been retained by the respondents

at the time of the termination of his services. The statements of the witnesses examined by

the petitioner as Shri Sukar Deen (PW2) and Shri Gian Chand (PW3) are silent in this regard.

There is also no whisper in their testimonies that persons junior to the petitioner are still in

service. Both these witnesses claimed that their services were engaged by respondent No. 1 in the

year 1986. However, they both have not mentioned the dates and months of their initial

engagements in their substantive evidence. It is also not made out from their sworn testimonies

that they were junior to the petitioner. It is apparent from the record that the services of the

petitioner as a daily waged beldar for the first time were engaged by respondent No. 2 in the

month of December, 1986. So, the testimonies of the aforesaid witnesses are of no help to the

petitioner to establish on record that the principle of ‘last come first go’ had not been adhered to by

the respondents. Then, no prayer had ever been made by the petitioner for the production of the

seniority list from the respondents during the pendency of this case.

36. Faced with the situation, by referring to the copy of mandays chart pertaining to

Smt. Kusum Lata which has been placed on record by respondent No. 1 as Ex. RW1/J, it was

contended by the learned Counsel for the petitioner that she is certainly junior to the petitioner,

as she is shown to have been engaged in service in Suliali Sub Division, HPPWD Suliali in

February, 2000. This cannot be accepted. Placed on record by respondent No. 1 is another copy of

mandays chart pertaining to said Smt. Kusum Lata as Ex. RW1/I. As per this document Smt.

Kusum Lata had initially been engaged in the month of November, 1983 in Sub Division No.1

HPPWD, Banikhet and that she had continued to work as such there uptil November, 1988.

Placed on record is also her representation to the Engineer-in-Chief, HPPWD Shimla, copy of

which is Ex. RW1/F. On her representation, it is evident that she stood transferred and posted as a

daily waged Store Clerk from 7th Circle HPPWD Dalhousie to 9th Circle HPPWD Nurpur.

Reference in this regard can be made to the copy of letter dated 18.1.2000 of Engineer-in-Chief,

HPPWD Shimla, Ex. RW1/G. On allotment of one post of Store Clerk in 9th Circle, HPPWD

Nurpur, vide the aforesaid letter, Smt. Kusum Lata was adjusted as such there, where she has

been working regularly from the year 2000 uptil January, 2009, as is evident from the copy of

her mandays days chart, Ex. RW1/J. So, she can also not be termed as a junior to the petitioner.

There is nothing on record to show that the services of said Smt. Kusum Lala had ever been

disengaged at any point of time. Rather she appears to have been working with the HPPWD

Division Nurpur. Her joining in the 9th Circle HPPWD Nurpur, on her request in the month of

February, 2000 cannot make her junior to the petitioner, particularly when her year of joining is

much prior to that of the petitioner in the HPPWD department i.e. she was engaged in the year

1983, whereas the petitioner, as discussed above, had initially been engaged in December, 1986.

So, it cannot be said that Smt. Kusum Lata being a junior to the petitioner had been retained in

service by the respondents. Therefore, it cannot be said that the respondents had violated the

principle of ‘last come first go’, as envisaged in Section 25-G of the Act.

37. It is not the case of the petitioner that after his alleged disengagement, new/fresh

hands have been engaged by the respondents. That being so, the provisions of Section 25-H of

the Act are also not attracted in this case.

38. In view of the discussion and findings aforesaid, the petitioner is held to be not

entitled to any relief. Hence, both these issues are decided against the petitioner and in favour of

the respondents.

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Issue No. 3 :

39. Taking into account my findings on issues No. 1 and 2 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 same is frivolous and vexatious. The claim petition has

been instituted by the petitioner with a malafide intention to derive undue advantage(s). This

issue is decided in favour of the respondents and against the petitioner.

Issue No. 4 :

40. Not pressed.

Relief :

41. 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 accordingly. 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 2nd day of September, 2019.

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.

: 880/2016

Date of Institution

: 07.12.2016

Date of Decision

: 03.09.2019

Shri Amar Singh s/o Shri Diwan Chand, r/o Village Bariara, P.O. Khel, Tehsil Nurpur,

District Kangra, H.P.

. .Petitioner.

Versus

The Executive Engineer, HPPWD, Division, Nurpur, District Kangra, H.P.

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The Executive Engineer, HPPWD Division, Jawali, District Kangra, H.P.

. .Respondents.

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

For the Petitioner

: Sh. Mukul Vaid, Adv. Vice

For the Respondent(s)

: Sh. B.C. Katoch, A.D.A.

AWARD

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

adjudication:

“Whether the alleged termination of services of Shri Amar Singh s/o Shri Diwan Chand,

r/o Village Bariara, P.O. Khel, Tehsil Nurpur, District Kangra, H.P. during year 1990 by

(i) the Executive Engineer, H.P.P.W.D., Division Nurpur, District Kangra, H.P., (ii) the

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

worked on daily wages as beldar and has raised his industrial dispute after about 21

years vide demand notice dated nil received in the Labour Office Kangra at Dharamshala

on 13-06-2011, without complying the provisions of the Industrial Disputes Act, 1947,

is legal and justified? If not, keeping in view delay of about 21 years in raising the

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

compensation the above ex-worker is entitled to from the above employers/management?”

The case of the petitioner, as it emerges from the statement of claim is that he was

engaged by Himachal Pradesh Public Works Department on daily basis in the year 1979 in

HPPWD Sub Divisions-I and II, Nurpur and had worked as such till the year 1990. HPPWD

Division Nurpur was involved in the construction and maintenance of roads, building and bridges,

besides the repair and maintenance of tools and plants etc. and the patch work of metalled

roads. The petitioner had worked for the preparation of roads with many juniors, retained by

the employer and also with the reengaged employees as detailed in para No. 3 of the petition.

The mate of the petitioner was Shri Sahib Singh. More than 1000 workers were engaged for a

number of years by HPPWD Division Nurpur and in the year 1990 a pick and choose policy was

adopted and the petitioner alongwith some other daily waged workers were retrenched on the

false assurance that they would be retained after some time, declaring them surplus. Respondent

No. 1 had illegally terminated/retrenched the services of the petitioner in the year 1990 and the

juniors mentioned in para 3 of the petition were reengaged on 25.5.2010. After his oral

termination, many verbal requests were made by the petitioner to the department and he was being

given the assurance that he would be engaged after three or four months. When nothing was

heard from the side of the department, the petitioner had communicated in writing for his

reengagement on daily wage basis, but without success. The action of the employer in orally

terminating the services of the petitioner is violative of the provisions of Section 25-F of the

Industrial Disputes Act, 1947 (hereinafter referred to as ‘the Act’ for short). No notice was

served upon him. The provisions of Sections 25-G, 25-H and 25-N of the Act have also been

violated. The petitioner is having no source of income and is unemployed since his

disengagement, hence he is entitled to full back wages, as his termination/retrenchment is illegal

and arbitrary. The petitioner, thus, prays for his re-engagement with all consequential benefits.

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On notice, the respondents appeared. They filed a joint reply taking preliminary

objections regarding lack of maintainability and that the petition was bad on the ground of delay

and laches. The contents of the petition were denied on merits. It is admitted that HPPWD

Division Jassur was shifted/re-named as HPPWD Division Jawali vide H.P. Government

Notification no. PBW-(A)-A (I) 17/1994 dated 21st July, 1994. It was denied that the petitioner

had worked with the department from the year 1979 uptil the year 1990. It was asserted that the

petitioner had never been engaged by the respondent so the question of completing 240 days and

retrenchment of the petitioner did not arise. It is admitted that HPPWD Division Nurpur was

involved in the construction and maintenance of roads, buildings and bridges, repair and

maintenance of tools and plants etc. Since, the petitioner had never been engaged by the

respondents, so the question of violation of the provisions of Section 25-B does not arise. It was

denied that juniors to the petitioner had been engaged by the respondents. However, claimed that

when some workers had been engaged by the respondents as per the directions of the Hon’ble

High Court only then the demand notice was issued by the petitioner in the year 2011, i.e. after

about 21 years. The respondents, thus, pray for the dismissal of the claim.

In the rejoinder, the petitioner has reiterated the contents of the petition/statement of

claim and refuted the objections put forth by the respondents.

Out of the pleadings of the parties, the following issues were settled for

determination and adjudication by this Court vide order dated 24.3.2018:

Whether termination of services of the petitioner by the respondents during year,

1990 is/was illegal and unjustified as alleged?

. .OPP.

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

to?

. .OPP.

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

Whether the claim petition is bad on the ground of delay and laches as alleged.

If so, its effect?

. .OPR.

Relief.

Thereafter, the parties to the lis were directed to adduce evidence in support of the

issues so framed. The petitioner, namely, Shri Amar Singh examined himself as PW1 and also

examined Shri Sukar Deen (PW2) and Shri Harnam Singh (PW3) as his witnesses. Besides this

the petitioner tendered in evidence his statement by way of affidavit Ex. PW1/A, copy of letter

dated 19.8.1998 as Ex. PW1/B, copy of letter dated 18.12.1999 as Ex. PW1/C, copy of notice

dated 4.5.2002 as Ex. PW1/D, copy of resolution dated 18.7.2002 as Ex. PW1/E, copy of UPC

and registered postal receipts as Ex. PW1/F & G and copy of letter dated 18.1.2000. The

respondents examined one Shri Dinesh Kumar Dhiman as RW1, who tendered his statement by

way of affidavit Ex. RW1/A and placed on the file copy of notification dated 21st July, 1994 as

Ex. RW1/B, copy of office order dated 23.7.1994 as Ex. RW1/C, copy of office order dated

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29.11.2010 as Ex. RW1/D, copy of letter dated 19.8.1998 as Ex. RW1/E, copy of application

dated 18.12.1999 filed by Smt. Kusum Lata as Ex. RW1/F, copy of letter dated 18.1.2000

as Ex. RW1/G, copy of mandays chart of the petitioner as Ex. RW1/H and copies of working

days chart of Smt. Kusum Lata as Ex. RW1/I & Ex. RW1/J.

Arguments of the learned Counsel for the petitioner and the learned Assistant

District Attorney for the respondents heard and records gone through.

For the reasons to be recorded hereinafter while discussing the issues for

determination, my findings thereon are as under:

Issue No. 1

: Negative

Issue No. 2

: Negative

Issue No. 3

: Affirmative

Issue No. 4

: Not pressed/redundant

Relief

: Claim petition dismissed as per the operative portion of the Award.

REASONS FOR FINDINGS

Issue No.1 and 2 :

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 petitioner, namely, Shri Amar Singh examined himself as PW1 and filed his

affidavit in evidence, which is exhibited as Ex. PW1/A. In his affidavit, he reiterated the

contents of his statement of claim. He also filed certain documents purportedly in support of his

claim, which are exhibited as Ex. PW1/B to Ex. PW1/H.

11. In the cross-examination, he admitted that before 1994, HPPWD Division was at

Jassur. He admitted that HPPWD Division Jawali was established on 21st July, 1994 vide

government notification no.PBW-(A)-A(1)17/94. He admitted that he had never worked in Jawali

Division. Volunteered that, he had worked in Nurpur Division. He denied that he had not worked

in Nurpur Division. He also denied that he had never worked with the respondents. Self stated

that, he had worked regularly from the year 1979 uptil the year 1990. He denied that he had

never worked for the period from the year 1979 uptil the year 1990. He further denied that he

was never disengaged by the respondents/department. It was also denied by him that no

juniors to him had been kept. He feigned ignorance that Smt. Kusum Lata was appointed as a

daily waged beldar in HPPWD Division Dalhousie in the year 1983. He denied that he had never

worked for 240 days and above in any year. However, he admitted that he owns land, which he

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cultivates. He also admitted that he is doing the days’ drudgery privately. Self stated that, as and

when the work is available.

12. Ex. PW1/B is the copy of letter dated 19.8.1998 regarding posting of Smt. Kusum

Sharma as a daily waged Store Clerk.

13. Ex. PW1/C is the copy of letter dated 18.12.1999 to the Chief Executive Engineer,

HPPWD, US Club, Shimla by Smt. Kusum Lata.

14. Ex. PW1/D is the copy of letter dated 4.5.2002 regarding notice under Section 80 of

CPC to The Secretary, HP Public Works Department, Government of Himachal Pradesh,

Shimla.

15. Ex. PW1/E is the copy of letter dated 18.7.2002 regarding issuance of muster rolls to

the daily waged beldars from the President, Him Shakti P.W.D. Karamchari Sangh, Nurpur,

District Kangra, H.P. to the Finance Secretary, Government of Himachal Pradesh.

16. Ex. PW1/F is the copy of letter/UPC dated 18.7.2002 regarding issuance of muster

rolls to the daily waged beldars from the President, Him Shakti P.W.D. Karamchari Sangh,

Nurpur, District Kangra, H.P. to the Finance Secretary, Government of Himachal Pradesh and

others.

17. Ex. PW1/G is the copy of postal receipts.

18. Ex. PW1/H is the copy of letter dated 18.1.2000 from Chief Engineer, HPPWD,

Shimla to Executive Engineer, HPPWD, 9th Circle, HPPWD, Nurpur.

19. PW2 Shri Sukar Deen testified that he had worked as beldar from the year 1986

uptil the year 2016 in HPPWD Division, Nurpur. He knows the petitioner, who had also been

working with them in the department. He denied in the cross-examination that the petitioner had

never worked in the department.

20. PW3 Shri Harnam Singh stated that he was engaged in the year 1986 as a Mate in

HPPWD Division, Nurpur. He was removed by the department in the year 1990, when he had

obtained a stay from the H.P. Administrative Tribunal. Thereafter, he was again kept at work. He

knows the petitioner, who had also worked with them in the department. He was also a member

of their union. In the cross-examination, he was categorical that the petitioner had never worked

with him. Volunteered that, he had worked in the other section.

21. Conversely, Shri Dinesh Kumar Dhiman, Executive Engineer, HPPWD, Division

Nurpur (respondent No.1) testified as RW1. In his affidavit Ex. RW1/A preferred as per Order 18

Rule 4 of the Code of Civil Procedure, he corroborated on oath the contents of the reply filed by

him.

22. In the cross-examination, he admitted that when the workers had been removed

from HPPWD Division, Nurpur in the year 1990, he was not working in any capacity in this

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Division. He also admitted that in HPPWD Nurpur the works of road repair, maintenance, patch

work and widening are done continuously. He admitted that the work increases during the

monsoons. He further admitted that the persons named in para 3 of the claim petition, in para 2

of the affidavit of the petitioner and as shown in Ex. RW1/D are still working with HPPWD

Division, Nurpur. He cannot say that when 24 workers were removed, any notice under Section

25-F was issued or not. Self stated that, they had left the work of their own. No other worker had

been kept at work after 29.11.2010, except for those shown in Ex. RW1/D. He denied that wrong

mandays of the petitioner has been given.

23. Ex. RW1/B is the copy of notification dated 21st July, 1994 with regard to the

shifting of HPPWD Division Jassur to Jawali along-with sanctioned strength and staff.

24. Ex. RW1/C is the copy of Office Order dated 23.7.1994 regarding the closure of

HPPWD Jassur Division at Nurpur and its functioning at Jawali, HPPWD Jawali Division.

25. Ex. RW1/D is the copy of another Office Order dated 29.11.2010 with regard to

implementation of the award of this Court dated 22.12.2007.

26. Ex. RW1/E is the copy of letter dated 19.8.1998 regarding posting of Smt. Kusum

Sharma as daily waged store clerk.

27. Ex. RW1/F is the copy of letter dated 18.12.1999 regarding representation of

Smt. Kusum Lata.

28. Ex. RW1/G is the copy of letter dated 18.1.2000 written by the Engineer-in-Chief

HPPWD Shimla to The Superintending Engineer, 9th Circle, HPPWD, Nurpur relating to the

engagement of Store Clerk on daily waged basis.

29. Ex. RW1/H is the copy of mandays chart pertaining to the petitioner.

30. Ex. RW1/I is the copy of working days chart of Smt. Kusum Lata working under

Banikhet Sub Division HPPWD Banikhet.

31. Ex. RW1/J is the copy of working days chart of Smt. Kusum Lata working under

Suliali Sub Division HPPWD Suliali.

32. The version of the petitioner is that his services were engaged as a daily waged

beldar by respondent No. 1 in the year 1979 and that he had worked as such uptil the year 1990. It

was the stand taken by the respondents that the petitioner had never been engaged by the

department. Although, the petitioner (PW1) in his cross-examination denied the fact that he had

never been engaged as a daily waged beldar in the year 1979 by the respondents and that he had

not worked as such uptil the year 1990, but, however, respondent No.1 has proved on record the

mandays chart pertaining to the petitioner as Ex. RW1/H. This mandays chart pertains to HPPWD

Division Jawali. Its perusal reveals that the petitioner had not worked with respondent No. 2 even

for a single day from the year 1986 uptil the year 1990. The petitioner in his substantive evidence

also clearly admitted that he never worked in Jawali Division. No mandays chart has been

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proved on record by the petitioner showing him to have ever worked with respondent No.1.

In view of this fact, I am at a loss to understand as to how and on what basis it lies in the mouth

of the petitioner to say that there existed a relationship of employer and employee/workman

in between the parties. Significantly, the petitioner neither in his pleadings, nor in his ocular

evidence has stated the date on which he was engaged by respondent No.1. There is also no

pleading or evidence to the effect as to on which specific date his services stood terminated by this

respondent. Only the years of joining and termination of the petitioner stand specified in the

statement of claim and his statement by way of affidavit Ex. PW1/A. Although, witnesses,

namely, Shri Sukar Deen (PW2) and Shri Harnam Singh (PW3), were examined by the

petitioner in support of his case, but I find that their statements are of no help to him, as their

service records were not brought on the file to show that they had ever been engaged by the

department. Then, it is nowhere the case of the petitioner that he had ever marked his attendance

in all those twelve years, the period for which he claims to have worked with respondent No.1.

Had there been any attendance register in which the petitioner had appended his signatures, he

ought to have placed and exhibited on record the same so as to show that his services had been

engaged by the respondents from the year 1979 uptil the year 1990. But, so is not the case here.

No such attendance register has seen the light of the day, nor any prayer had been made by the

petitioner for the production of the same from the respondents during the pendency of this case.

Further, he could have easily proved the muster rolls for the period for which he had worked.

But, no such muster roll has been produced. Even no appointment letter to show that the services

of the petitioner had been engaged by the respondents, has been placed on record by him.

33. From the ocular and documentary evidence of the respondents available on record, it

can be gathered that the petitioner had never been appointed in any capacity at any point of

time by the respondents.

34. Since, there is no cogent, convincing and reliable evidence on the file establishing the

relationship of employer and employee/workman in between the petitioner and the respondents,

therefore, the provisions of Section 25-F of the Act are not attracted in this case. The

respondents can also not be held to have violated the provisions of Sections 25-G, 25-H and 25-N

of the Act, as the relationship of the petitioner and the respondents being that of a

workman and employer stands not established on record.

35. In view of the discussion and findings aforesaid, it appears to me that the avarice of

the petitioner to grab government job and money had forced him to file a totally false and

baseless claim. He is not entitled to any relief. Hence, both these issues are decided against the

petitioner and in favour of the respondents.

Issue No. 3 :

36. Taking into account my findings on issues No. 1 and 2 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 same is frivolous and vexatious. The claim petition has

been instituted by the petitioner with a malafide intention to derive undue advantage(s). This

issue is decided in favour of the respondents and against the petitioner.

Issue No. 4 :

37. Not pressed. Even otherwise, the plea of delay and laches would have been

relevant had the petitioner been able to prove the demand notice as well as the fact of he being a

workman under the respondents for the alleged period. Hence, this issue becomes redundant.

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Relief :

38. 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 accordingly. 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 3rd day of September, 2019.

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.

: 771/2016

Date of Institution

: 19.11.2016

Date of Decision

: 03.09.2019

Shri Nasib Singh s/o Shri Labh Singh, r/o Village and Post Office Mastgarh, Tehsil

Nurpur, District Kangra, H.P.

. .Petitioner.

Versus

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

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

. .Respondents.

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

For the Petitioner

: Sh. Mukul Vaid, Adv vice.

For the Respondent(s)

: Sh. B.C. Katoch, A.D.A.

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AWARD

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

adjudication:

“Whether alleged termination of services of Shri Nasib Singh s/o Shri Labh Singh, r/o

Village and Post Office Mastgarh, Tehsil Nurpur, District Kangra, H.P. during year,

1990 by (1) The Executive Engineer, H.P.P.W.D. Division, Nurpur, Tehsil Nurpur,

District Kangra, H.P. (2) The Executive Engineer, H.P.P.W.D. Division, Jawali, Tehsil

Nurpur, District Kangra, H.P., who had worked on daily wages and has raised his

industrial dispute after more than 21 years vide demand notice dated-nil-received on

29.11.2012, without complying the provisions of the Industrial Disputes Act, 1947, as

alleged by the workman, is legal and justified? If not, keeping in view of delay of more

than 21 years in raising the industrial dispute, what amount of back wages, seniority,

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

above employer/management?”

The case of the petitioner, as it emerges from the statement of claim is that he was

engaged by Himachal Pradesh Public Works Department on daily basis during the year 1980 in

HPPWD Sub Divisions-I and II, Nurpur and had worked as such till the year 1990. HPPWD

Division Nurpur was involved in the construction and maintenance of roads, building and bridges,

besides the repair and maintenance of tools and plants etc. and the patch work of metalled

roads. The petitioner had worked for the preparation of roads with many juniors retained by the

employer and also with the reengaged employees as detailed in para No. 3 of the petition. The

mates of the petitioner were S/Shri Kushal Singh, Dhian Chand and Pritam Singh. More than

1000 workers were engaged for a number of years by HPPWD Division Nurpur and in the year

1990 a pick and choose policy was adopted and the petitioner alongwith some other daily waged

workers were retrenched on the false assurance that they would be retained after some time,

declaring them surplus. Respondent No. 1 had illegally terminated/retrenched the services of

the petitioner in the year 1990 and the juniors mentioned in para 3 of the petition were

reengaged on 25.5.2010. After his oral termination, many verbal requests were made by the

petitioner to the department and he was being given the assurance that he would be engaged after

three or four months. When nothing was heard from the side of the department, the petitioner had

communicated in writing for his reengagement on daily wage basis, but without success. The

action of the employer in orally terminating the services of the petitioner is violative of the

provisions of Section 25-F of the Industrial Disputes Act, 1947 (hereinafter referred to as ‘the

Act’ for short). No notice was served upon him. The provisions of Sections 25-G, 25-H and 25-N

of the Act have also been violated. The petitioner is having no source of income and is

unemployed since his disengagement, hence he is entitled to full back wages, as his

termination/retrenchment is illegal and arbitrary. The petitioner, thus, prays for his re-

engagement with all consequential benefits.

On notice, the respondents appeared. They filed a joint reply taking preliminary

objections regarding lack of maintainability and that the petition was bad on the ground of delay

and laches. The contents of the petition were denied on merits. It is admitted that HPPWD

Division Jassur was shifted/re-named as HPPWD Division Jawali vide HP Government

Notification no. PBW-(A)-A (I) 17/1994 dated 21st July, 1994. It was denied that the petitioner

had worked with the department from the year 1980 uptil the year 1990. It was asserted that the

petitioner had never been engaged by the respondents so the question of completing 240 days

and retrenchment of the petitioner did not arise. It is admitted that HPPWD Division Nurpur was

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