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fgekpy izns'k ljdkj

LABOUR AND EMPLOYMENT DEPARTMENT

NOTIFICATION

Shimla-2, the 2ndFebruary, 2021

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

236&jkti=@2021&08&03&2021

¼8849½

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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

307/14

Phulla Devi

E. E. HPPWD, Joginder Nagar

17-08-2020

519/15

Amro

E. E. HPPWD, Chamba

18-08-2020

518/15

Des Raj

E. E. HPPWD, Chamba

19-08-2020

01/18

Subhash Chand

D. F.O. Nurpur

24-08-2020

120/16

Bhag Dei

E. E. HPPWD, Killar

28-08-2020

373/12

Pyar Chand

E. E. HPPWD, Joginder Nagar

31-08-2020

By order,

KAMLESH KUMAR PANT, IAS

Principal Secretary (Lab. & Emp.).

____________

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

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

Ref. No.

: 307/2014

Date of Institution

: 26.09.2014

Date of Decision

: 17.8.2020

Smt. Phulla Devi w/o Shri Gusaun Ram, r/o V.P.O. Khaddar, 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. Rajat Chaudhary, Adv. Vice

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 Smt. Phulla Devi, w/o

Shri Gusaun Ram, r/o V.P.O. Khaddar, Tehsil Joginder Nagar, District Mandi,

H.P. during January 2000 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)?”

The case of the petitioner as set out in the statement of claim is that her

services were engaged by the respondent in National Highway Division, Joginder

Nagar as a daily rated beldar w.e.f. 01.01.2000. Later on the workmen of the Division

including the petitioner were absorbed in the newly created HPPWD Division, Joginder

Nagar in January, 2004. The respondent had given fictional breaks to the petitioner

from time to time from the date of her initial engagement uptil 31.8.2007. The

muster rolls were issued to the petitioner only for 15 days in a month. Some of the

juniors, namely, S/Sh./Smt. Dalip Singh, Gautam Singh, Geeta Devi, Pradeep Kumar,

Kishori Lal, Sanjay Kumar, Bhag Mal, Nihal Chand, Anil Kumar and Chanchal were

allowed to complete 240 days in each calendar year. Some of them have been

regularized by the department. The respondent had only stopped giving her fictional

breaks from 1.9.2007. Since then she has completed 240 days in each calendar year

and is still working with the respondent/department. The act of the respondent was

wrong, illegal and against 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). During the

period from 01.01.2000 to 31.8.2007, the petitioner had requested the respondent not

to give her fictional breaks, but without success. A demand notice was then

raised by her before the Labour department. She, thus, prays that she be given the

benefits of seniority for the period of fictional breaks along-with back wages and be

regularized with other consequential benefits.

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 May, 2000. 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 31.8.2007. Rather, the services of the

petitioner were engaged as per the availability of work and funds, on her request from

time to time. She had been informed at the time of her engagement that she had

been engaged for 10/15/20 days and the office of the respondent was not in a position

to provide her work for the whole month. The workmen whose names have been

mentioned by the petitioner in the statement of claim had worked continuously and

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that their services had been regularized as per the seniority and on completion of 240

days in requisite years. The petitioner was engaged at Makriri Section under Sub

Division No. II, HPPWD Joginder Nagar. Hence, it was prayed that the petition be

dismissed.

While filing the rejoinder, the petitioner controverted the averments made

in the reply and reiterated those in the statement of claim.

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

determination and adjudication by this Court vide order dated 07.10.2015:

Whether time to time termination of services of the petitioner by the

respondent during the year January, 2000 to 31-08-2007 is/was illegal and unjustified

as alleged?

. .OPP.

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

entitled to?

. .OPP.

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

. .OPR.

Whether the claim petition is bad for non-joinder of necessary parties as

alleged?

. .OPR.

Whether the petition is bad on account of delay and laches on the part of

the applicant as alleged?

. .OPR.

Relief.

Thereafter, evidence was led by the parties to the list in support of the issues

so framed.

Arguments of the learned vice counsel for the petitioner and the learned

Deputy District Attorney for the respondent 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

: Partly yes

Issue No. 2

: Discussed

Issue No. 3

: No

Issue No. 4

: No

Issue No. 5

: No

Relief

: Petition is partly allowed as per the operative portion of the

Award.

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REASONS FOR FINDINGS

Issues 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 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 days were issued to her.

11. In this regard Smt. Phulla 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, 2000 on

muster rolls, but they were issued only for 15 days. The said process continued till

31.8.2007.

12. Conversely, Shri B. M. Thakur, Executive Engineer, Joginder Nagar

(respondent) testified as RW1. He placed on record office order as Ex. RW1/B, copy

of notification as Ex.RW1/C, year-wise working days as Ex.RW1/D, year-wise mandays

chart of the petitioner as Ex.RW1/E, copy of year-wise working days of ten workmen

as Ex.RW1/F and copies of judgments dated 3.7.2013 and 22.11.2013 passed by the

Hon’ble High Court of H.P. in CWPs No.4468 of 2013-G and 8922 of 2013

respectively, as Ex.RW1/G and Ex.RW1/H. In his cross-examination, he admitted that as

per Ex.RW1/F the workmen, namely, Dalip Singh, Gautam, Geeta Devi, Pradeep

Kumar, Kishori Lal, Nihal Chand and Anil Kumar are junior to the petitioner. He further

admitted that they all were being provided work for full month from the dates of their

initial engagement regularly. Further, he further admitted that all the above-said

workers have been regularized in the year 2008.

13. There is no denial of the fact that Reference No.110/2006 titled as The

General Secretary, Himshakati PWD Karamchari Sangh Jogindernagar, District Mandi,

H.P. vs. The Executive Engineer, HPPWD (B&R) Division, Joginder Nagar, District

Mandi, H.P. was decided by this Court/Tribunal on 2.11.2010. While deciding the said

reference, it was held by this Court/Tribunal that the workmen therein were in continuous

service with the respondent from their respective dates of engagement and the breaks

which were given to them by the respondent being fictional in nature shall have no effect

on their 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 15-20 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

services of the petitioner were only being engaged for 10/15/20 days for want of work

and 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.RW1/F shows

that workmen, namely, Shri Dalip Singh was engaged in July, 2002, Shri Gautam Ram

in November, 2002, Shri Pradeep Kumar and Shri Kishori Lal in January, 2004, Shri

Nihal Chand in October, 2003 and Shri Anil Kumar in February, 2003. Their names

figure at serial Nos. 1, 2, 4, 5, 8 and 9 in Ex.RW1/F. A perusal of Ex.RW1/F shows

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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 admitted that all the above-named

workmen, who were junior to the petitioner, were not 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 months w.e.f. May, 2000 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 months 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 her inception 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 her’s. 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 the date of her engagement. 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 15-20 days every month 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 date of her initial engagement. 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 her initial date

of engagement.

17. Both the 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

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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. No arguments were addressed on this issue nor it was pressed for at the

time of arguments by the learned Deputy District Attorney for the respondent. Otherwise

also, from the pleadings, it cannot be said that the petition/statement of claim is bad for

non-joinder of necessary parties. Then, Shri B. M. Thakur (RW1) while under cross-

examination was categorical that B&R and National Highway, both are wings of the

same department, i.e. Himachal Pradesh Public Works Department. The issue under

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

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 in part and the same is partly allowed. It is held that the petitioner was in

continuous uninterrupted service with the respondent from the date of her engagement.

The breaks given by the respondent to the petitioner from the month May, 2000 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 her initial date of engagement. 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 17th day of August, 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 YOGESH JASWAL, PRESIDING JUDGE, LABOUR

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

Ref. No.

: 519/2015

Date of Institution : 21.11.2015

Date of Decision

: 18.8.2020

Shri Amro s/o Shri Sarvan, r/o Village Digar, P.O. Baat, Tehsil Chamba,

District Chamba, H.P.

. .Petitioner.

Versus

The Executive Engineer, Chamba Division, H.P.P.W.D. Chamba, District

Chamba, H.P.

. .Respondent.

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

For the Petitioner

: Sh. Rajat Chaudhary, Adv. Vice

For the Respondent

: Sh. Anil Sharma, Dy. D.A.

AWARD

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

adjudication:

“Whether the industrial dispute raised by the worker Shri Amro s/o Shri Sarvan,

r/o Village Digar, P.O. Baat, Tehsil Chamba, District Chamba, H.P. before the

Executive Engineer, Chamba Division, H.P.P.W.D. Chamba, District Chamba,

H.P. vide demand notice dated nil received in the Labour Office Chamba on dated

14-05-2013 regarding his alleged illegal termination of services during

September, 1999 suffers from delay and latches? If not, Whether termination of

services of Shri Amro s/o Shri Sarvan, r/o Village Digar, P.O. Baat, Tehsil

Chamba, District Chamba, H.P. by the Executive Engineer, Chamba Division,

H.P.P.W.D. Chamba, District Chamba, H.P. during September, 1999, without

complying 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 aggrieved workman is entitled to from the above

employer?”

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

he was initially engaged as a daily waged beldar on muster roll basis, without any

appointment letter, in the year 1994. He continuously worked with intermittent breaks

uptil October, 1999 with the respondent. Fictional breaks were given from time to

time so that 240/180 days could not be completed in each calendar year. The breaks

were to be counted as continuous service for the purpose of calculation of 240/180 days,

as provided under Section 25-B of the Industrial Disputes Act, 1947 (hereinafter referred

to as ‘the Act’ for short). It is further the case of the petitioner that he had been

retrenched without giving notice of retrenchment and compensation in lieu thereof. At

the time of his termination, persons junior to him were retained in service by the

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respondent. The respondent had not adhered to the principle of ‘last come first go’. No

opportunity of re-employment was ever given to the petitioner. He was never charge-

sheeted for any act of indiscipline, negligence of work or misconduct. From the date of

his disengagement, he is unemployed. He had approached the respondent time and again

to re-engage his services, but in vain. The act and conduct of the respondent is illegal

and unjustified. It is also violative of Sections 25-F, 25-G and 25-H of the Act. The

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

3. On notice, the respondent appeared. He filed a reply taking preliminary

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

delay and laches. The contents of the petition were denied on merits. It was asserted that

the petitioner was initially engaged in the month of March, 1995 and had worked as

such uptil September, 1999 intermittently. He had not completed 240 days in any

calendar year. He had left the job of his own sweet will. No fictional breaks were ever

given to him. He is gainfully employed as an agriculturist. Since the petitioner had not

completed 240 days in any calendar year and had not fulfilled the conditions of

Section 25-B of the Act, there was no need to serve any notice under Section 25-F

of the Act. The respondent/department had not engaged any new workmen, as claimed

by the petitioner. Neither any junior was retained nor re-engaged by the respondent.

The department had regularized only those daily waged workers who had completed

the required criteria of 10/8 years with 240 days in each calendar year, as per the

policy of the State Government. The respondent, thus, prays for the dismissal of the

claim.

While filing the rejoinder, the petitioner controverted the averments made

in the reply and reiterated those in the statement of claim.

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

determination and adjudication by this Court vide order dated 5.12.2016:

Whether the industrial dispute raised by petitioner vide demand notice

dated nil qua his termination of service during September, 1999 by

respondent suffers from the vice of delay and laches as alleged? If so, its

effect?

. .OPP.

Whether termination of services of the petitioner by the respondent w.e.f.

September, 1999 is/was improper and unjustified as alleged?

. .OPP.

If issue No. 2 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.

Relief.

Thereafter, the parties to the list were directed to adduce evidence in

support of the issues so framed.

Arguments of the learned vice counsel for the petitioner and the learned

Deputy District Attorney for the respondent heard and records gone through.

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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

: No

Issue No. 4

: No

Relief

: Claim petition dismissed vide operative portion of the Award.

REASONS FOR FINDINGS

Issue No.1

9. 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”.

10. 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.

Issues No.2 and 3 :

11. 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.

12. The petitioner, namely, Shri Amro examined himself as PW1 and filed his

affidavit in evidence under Order 18 Rule 4 of the Code of Civil Procedure, which is

exhibited as Ex. PW1/A. In his affidavit, he reiterated the contents of his statement of

claim.

In the cross-examination, he denied that he had not worked continuously as a

daily waged beldar from October, 1995 to September, 1999 with the HPPWD

Chamba in Sub-Division No. 1. He also denied that during this period, he of his own had

absented from work. Volunteered that, he had worked from the year 1994 uptil October,

1999. He denied that he had not worked with the department from the year 1994 to

September, 1995 and in the month of October, 1999. He further denied that he had left

the work after September, 1999. He also denied that the department had not engaged

any junior. He owns land, which he cultivates. He admitted that he is doing the days’

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drudgery privately. Self stated as and when the work is available. He denied that

neither the department had given him breaks, nor had removed him from service. He

denied that he is giving a phoney statement.

13. Ex.PW1/B is the copy of seniority list relating to the petitioner.

14. Ex.PW1/C is the copy of demand notice pertaining to the petitioner.

15. Ex.PW1/D is the copy of order dated 22.9.2015 passed in CWP Nos. 3851,

3852 and 3856 of 2015 by the Hon’ble High Court of Himachal Pradesh.

16. Mark-A is the copy of order dated 9.3.2015 passed by the Hon’ble High Court

of H.P. in CWP No.674 of 2014.

17. Mark-B1 to B11 are the copies of seniority lists of various daily waged beldars

working in Sub Divisions I and II of HPPWD Chamba.

18. Mark-C is the copy of order dated 9.3.2015 passed by the Hon’ble High Court

of H.P. in CWP No. 1522 of 2015.

19. Mark-D is the copy of Award dated 1.8.2012 passed by this Tribunal in

Reference No.270 of 2010.

20. Conversely, Shri J. S. Thakur, Executive Engineer, HPPWD Chamba, District

Chamba, H.P. (respondent) testified as RW1. He corroborated on oath the contents of the

reply filed by him. He also stated that the petitioner had served as a daily waged beldar

from March, 1995 to September, 1999.

In the cross-examination, he admitted that the petitioner had worked as a

daily waged beldar in the department. He also admitted that no appointment letter had

ever been issued to him (petitioner) at the time of his engagement. He denied that the

department had removed the petitioner from work. He admitted that no departmental

inquiry had been initiated against the petitioner during the period of his work. He also

admitted that as per the record the petitioner had not been called back to work.

Volunteered that, he himself had left the work. He admitted that as per the record neither

any notice nor any compensation had been given to the petitioner by the

department. He denied that new/fresh hands have been kept by the department after

removing the petitioner from work. He also denied that the petitioner had completed

240 days or more in each year. He admitted that the petitioner had worked on muster

roll.

21. Ex.RW1/A is the copy of mandays chart relating to the petitioner.

22. From the statement made by the respondent (RW1), it can be gathered that

the petitioner had worked intermittently as a daily waged beldar with the department

w.e.f. March, 1995 to September, 1999. The version of the petitioner is that his

services were wrongly and illegally terminated by the respondent in the month of

September, 1999. While denying the said fact, the respondent has pleaded that the

petitioner had left the job of his own free will and volition in the month of

September, 1999.

23. The first and foremost point which comes to the fore for determination is

whether the petitioner had been disengaged from service or he himself had abandoned

the job.

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24. It is well known that abandonment has to be proved by the employer

like any other fact. Therefore, the burden of proving of abandonment is upon the

respondent. It has been laid down by our own Hon’ble High Court in case titled as

Narain Singh vs. The State of Himachal Pradesh & Ors., 2016 (3) Him L.R. 1875 that

voluntarily abandonment of work by a workman is required to be established by way of

cogent and reliable evidence by the employer. Similarly, in case titled as State of

Himachal Pradesh & another vs. Shri Partap Singh, 2017 (1) Him L.R. 286, it has been

held by our own Hon’ble High Court that abandonment is not to be lightly presumed,

but it has to be unequivocally proved by the employer. Simply because a workman fails

to report for duty, it cannot be presumed that he has left/abandoned the job. Mere

statement of Shri J.S. Thakur, (RW1) alleging that the workman had abandoned the

services is entirely insufficient to discharge the said onus. Admittedly, no disciplinary

proceedings were initiated against the petitioner by the respondent for his alleged

willful absence from duty. Absence from duty is a serious misconduct and the

principle of natural justice did require that some sort of a fact finding inquiry was got

conducted by the respondent. In the present case as it emerges from the evidence on

record, so was not done by the respondent. Then, ‘animus’ to abandon, it is well settled,

must necessarily be shown to exist, before a case of abandonment can be said to

have been made out. No evidence of any such ‘animus’ on the part of the petitioner is

forthcoming in the present case. Thus, the plea of abandonment put forth by the

respondent/employer is not established.

25. It was contended by the learned counsel for the respondent that the petitioner

had not worked for 240 days or more in a year preceding twelve calendar months

from the date of his alleged termination, therefore, the petitioner cannot claim any

protection under the provisions of the Act. The case of the petitioner is that he had

worked for more than 240 days in a year, the purported order of retrenchment is

illegal, as the conditions precedent as contained in Section 25-F of the Act were not

complied with.

26. 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 the 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.

27. 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

month of September, 1999. From the copy of detail of working days of the petitioner,

which is there on the file as Ex.PW1/B (also Ex.RW1/A), it becomes abundantly clear that

the petitioner had not completed 240 days of continuous work in a block of twelve

calendar months preceding the date/month of his retrenchment i.e. September, 1999, 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.

28. The principle of “last come first go” is envisaged under Section 25G of the

Act. The said Section provides:

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“25-G. Procedure for retrenchment.—Where any workman in an industrial

establishment, who is a citizen of India, is to be retrenched and she belongs to a

particular category of workmen in that establishment, in the absence of any

agreement between the employer and the workman in this behalf, the employer

shall ordinarily retrench the workman who was the last person to be employed

in that category, unless for reasons to be recorded the employer retrenches any

other workman”.

29. 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 respondent. No detail of such

persons has been given in the statement of claim by the petitioner nor it has been so

stated by him in his sworn testimony (PW1) before this Tribunal. The respondent has

refuted such allegations and claimed that no person junior to the petitioner had ever

been retained in service by the department. Significantly, no seniority list has been

placed and exhibited on record nor any other witness examined by the petitioner so as

to show that persons junior to him had been retained by the respondent at the time of the

termination of his services. Mark-B1 to Mark-B11 the copies of seniority lists of daily

waged beldars working in Sub Divisions No. I and II of HPPWD Chamba go to show

that all the daily wagers named therein were senior to the petitioner, they all having

been engaged in the year 1994, whereas the petitioner had initially been engaged in

the year 1995. Therefore, it cannot be said that the respondent had violated the principle

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

30. The petitioner’s allegation that the respondent had violated the provisions of

Section 25-H of the Act as well, to my mind, also does not appear to have been

substantiated. The petitioner’s statement of claim is non-existent in the names of the

persons who were allegedly appointed by the respondent after his retrenchment. There

is also no ocular evidence in this regard on the file. The material on record, thus,

being too scanty and nebulous to lend assurance to his allegation that new workers

were appointed after the termination of his services, the respondent cannot be said to

have been proved to have violated the provisions of Section 25-H of the Act.

31. 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 respondent.

Issue No. 4 :

32. It has not been shown by the respondent as to how the present petition/

statement of claim is not maintainable. Moreover, this issue was not pressed for by

the learned Deputy District Attorney appearing for the respondent at the time of

arguments. Otherwise also, from the pleadings, it cannot be said that the petition/

statement of claim is not maintainable. Hence, this issue is decided in favour of the

petitioner and against the respondent.

Relief :

33. 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.

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Announced in the open Court today this 18th day of August, 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.

: 518/2015

Date of Institution

: 21.11.2015

Date of Decision

: 19.8.2020

Shri Des Raj s/o Shri Prabhu, r/o Village Digar, P.O. Baat, Tehsil Chamba,

District Chamba, H.P.

. .Petitioner.

Versus

The Executive Engineer, Chamba Division, H.P.P.W.D. Chamba, District

Chamba, H.P.

. .Respondent.

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

For the Petitioner

: Sh. Rajat Chaudhary, Adv. Vice

For the Respondent

: Sh. Anil Sharma, Dy. D.A.

AWARD

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

adjudication:

“Whether the industrial dispute raised by the worker Shri Des Raj s/o Shri

Prabhu, r/o Village Digar, P.O. Baat, Tehsil Chamba, District Chamba, H.P. before

the Executive Engineer, Chamba Division, H.P.P.W.D. Chamba, District Chamba, H.P.

vide demand notice dated nil received in the Labour Office Chamba on dated 14-05-2013

regarding his alleged illegal termination of services during April, 2000 suffers from

delay and latches? If not, whether termination of services of Shri Des Raj s/o Shri

Prabhu, r/o Village Digar, P.O. Baat, Tehsil Chamba, District Chamba, H.P. by the

Executive Engineer, Chamba Division, H.P.P.W.D. Chamba, District Chamba, H.P.

during April, 2000, without complying 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 aggrieved workman is entitled to from the above

employer?”

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2. The case of the petitioner as it emerges from the statement of claim is that

he was initially engaged as a daily waged beldar on muster roll basis, without any

appointment letter, in the year 1994. He continuously worked with intermittent breaks

uptil October, 2004 with the respondent. Fictional breaks were given from time to time

so that 240/180 days could not be completed in each calendar year. The breaks were to

be counted as continuous service for the purpose of calculation of 240/180 days,

as provided under Section 25-B of the Industrial Disputes Act, 1947 (hereinafter

referred to as ‘the Act’ for short). It is further the case of the petitioner that he had

been retrenched without giving notice of retrenchment and compensation in lieu

thereof. At the time of his termination, persons junior to him were retained in service

by the respondent. The respondent had not adhered to the principle of ‘last come first

go’. No opportunity of re-employment was ever given to the petitioner. He was never

charge-sheeted for any act of indiscipline, negligence of work or misconduct. From the

date of his disengagement, he is unemployed. He had approached the respondent time

and again to re-engage his services, but in vain. The act and conduct of the respondent

is illegal and unjustified. It is also violative of Sections 25-F, 25-G and 25-H of the Act.

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

3. On notice, the respondent appeared. He filed a reply taking preliminary

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

delay and laches. The contents of the petition were denied on merits. It was asserted that

the petitioner was initially engaged in the month of March, 1995 and had worked as

such uptil April, 2000 intermittently. He had not completed 240 days in any calendar

year. He had left the job of his own sweet will. No fictional breaks were ever given to him.

He is gainfully employed as an agriculturist. Since the petitioner had not completed

240 days in any calendar year and had not fulfilled the conditions of Section 25-B of

the Act, there was no need to serve any notice under Section 25-F of the Act. The

respondent/department had not engaged any new workmen, as claimed by the petitioner.

Neither any junior was retained nor re-engaged by the respondent. The department

had regularized only those daily waged workers who had completed the required

criteria of 10/8 years with 240 days in each calendar year, as per the policy of the

State Government. The respondent, thus, prays for the dismissal of the claim.

While filing the rejoinder, the petitioner controverted the averments made

in the reply and reiterated those in the statement of claim.

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

determination and adjudication by this Court vide order dated 5.12.2016:

Whether the industrial dispute raised by petitioner vide demand notice

dated nil qua his termination of service during April, 2000 by respondent

suffers from the vice of delay and laches as alleged? If so, its effect?

. .OPP.

Whether termination of services of the petitioner by the respondent w.e.f.

April, 2000 is/was improper and unjustified?

. .OPP.

If issue No. 2 is proved in affirmative, to what service benefits the petitioner is

entitled to?

. .OPP.

Whether the petition is not maintainable in the present form?

. .OPR.

Relief.

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

support of the issues so framed.

Arguments of the learned vice counsel for the petitioner and the learned

Deputy District Attorney for the respondent 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

: No

Issue No. 2

: No

Issue No. 3

: No

Issue No. 4

: No

Relief

: Claim petition dismissed vide operative portion of the Award.

REASONS FOR FINDINGS

Issue No. 1 :

9. 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”.

10. 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.

Issues No. 2 and 3 :

11. 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.

12. The petitioner, namely, Shri Des Raj examined himself as PW1 and filed his

affidavit in evidence under Order 18 Rule 4 of the Code of Civil Procedure, which is

exhibited as Ex. PW1/A. In his affidavit, he reiterated the contents of his statement of

claim.

In the cross-examination, he denied that he had not worked continuously as a

daily waged beldar from March, 1995 to April, 2000 with the HPPWD Chamba in Sub

Division No. 1. He also denied that during this period, he of his own had absented

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from work. Volunteered that, he had worked from March, 1994 uptil October, 2004.

He denied that he had not worked with the department from March, 1994 to February,

1995 and from May 2000 uptil October, 2004. He further denied that he had left the

work after April, 2000. He also denied that the department had not engaged any junior.

He owns land, which he cultivates. He admitted that he is doing the days’ drudgery

privately. Self stated as and when the work is available. He denied that neither the

department had given him breaks, nor had removed him from service. He denied that he

is giving a phoney statement.

13. Ex.PW1/B is the copy of seniority list relating to the petitioner.

14. Ex.PW1/C is the copy of demand notice pertaining to the petitioner.

15. Ex.PW1/D is the copy of order dated 22.9.2015 passed in CWP Nos. 3851,

3852 and 3856 of 2015 by the Hon’ble High Court of Himachal Pradesh.

16. Mark-A is the copy of order dated 9.3.2015 passed by the Hon’ble High Court

of H.P. in CWP No.674 of 2014.

17. Mark-B1 to B11 are the copies of seniority lists of various daily waged beldars

working in Sub Divisions I and II of HPPWD Chamba.

18. Mark-C is the copy of order dated 9.3.2015 passed by the Hon’ble High Court

of H.P. in CWP No. 1522 of 2015.

19. Mark-D is the copy of Award dated 1.8.2012 passed by this Tribunal in

Reference No.270 of 2010.

20. Conversely, Shri J.S. Thakur, Executive Engineer, HPPWD Chamba, District

Chamba, H.P. (respondent) testified as RW1. He corroborated on oath the contents of the

reply filed by him. He also stated that the petitioner had served as a daily waged beldar

from March, 1995 to April, 2000.

In the cross-examination, he admitted that the petitioner had worked as a

daily waged beldar in the department. He also admitted that no appointment letter had

ever been issued to him (petitioner) at the time of his engagement. He denied that the

department had removed the petitioner from work. He admitted that no departmental

inquiry had been initiated against the petitioner during the period of his work. He also

admitted that as per the record the petitioner had not been called back to work.

Volunteered that, he himself had left the work. He admitted that as per the record

neither any notice nor any compensation had been given to the petitioner by the

department. He denied that new/fresh hands have been kept by the department after

removing the petitioner from work. He also denied that the petitioner had completed

240 days or more in each year. He admitted that the petitioner had worked on muster

roll.

21. Ex.RW1/A is the copy of mandays chart relating to the petitioner.

22. From the statement made by the respondent (RW1), it can be gathered that

the petitioner had worked intermittently as a daily waged beldar with the department

w.e.f. March, 1995 to April, 2000. The version of the petitioner is that his services were

wrongly and illegally terminated by the respondent in the month of October, 2004.

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While denying the said fact, the respondent has pleaded that the petitioner had left the

job of his own free will and volition in the month of April, 2000.

23. The first and foremost point which comes to the fore for determination is

whether the petitioner had been disengaged from service or he himself had abandoned

the job.

24. It is well known that abandonment has to be proved by the employer

like any other fact. Therefore, the burden of proving of abandonment is upon the

respondent. It has been laid down by our own Hon’ble High Court in case titled as

Narain Singh vs. The State of Himachal Pradesh & Ors., 2016 (3) Him L.R. 1875 that

voluntarily abandonment of work by a workman is required to be established by way of

cogent and reliable evidence by the employer. Similarly, in case titled as State of

Himachal Pradesh & another vs. Shri Partap Singh, 2017 (1) Him L.R. 286, it has been

held by our own Hon’ble High Court that abandonment is not to be lightly presumed,

but it has to be unequivocally proved by the employer. Simply because a workman fails

to report for duty, it cannot be presumed that he has left/abandoned the job. Mere

statement of Shri J.S. Thakur, (RW1) alleging that the workman had abandoned the

services is entirely insufficient to discharge the said onus. Admittedly, no disciplinary

proceedings were initiated against the petitioner by the respondent for his alleged

willful absence from duty. Absence from duty is a serious misconduct and the principle

of natural justice did require that some sort of a fact finding inquiry was got conducted

by the respondent. In the present case as it emerges from the evidence on record, so

was not done by the respondent. Then, ‘animus’ to abandon, it is well settled, must

necessarily be shown to exist, before a case of abandonment can be said to have been

made out. No evidence of any such ‘animus’ on the part of the petitioner is

forthcoming in the present case. Thus, the plea of abandonment put forth by the

respondent/employer is not established.

25. It was contended by the learned counsel for the respondent that the petitioner

had not worked for 240 days or more in a year preceding twelve calendar months

from the date of his alleged termination, therefore, the petitioner cannot claim any

protection under the provisions of the Act. The case of the petitioner is that he had

worked for more than 240 days in a year, the purported order of retrenchment is

illegal, as the conditions precedent as contained in Section 25-F of the Act were not

complied with.

26. 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 the 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.

27. 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 month

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of April, 2000. From the copy of detail of working days of the petitioner, which is there

on the file as Ex.PW1/A (also Ex.RW1/A), it becomes abundantly clear that the petitioner

had not completed 240 days of continuous work in a block of twelve calendar months

preceding the date/month of his retrenchment i.e. April, 2000, 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.