jkti=] fgekpy izns'k

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eaxyokj] 10 vxLr] 2021@19 Jko.k] 1943

fgekpy izns'k ljdkj

LABOUR AND EMPLOYMENT DEPARTMENT

NOTIFICATION

Dated, the 15th June, 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

77—jkti=@2021&10&08&2021

¼2437½

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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

71/20

Narinder Sharma

M/s Shree Balaji Hospital Kangra

03-03-2021

53/20

Tenzin Dolma

E.E. HPPWD, Kaza

05-03-2021

14/16

Sanjeev Kumar

S.O. Dhramshala

08-03-2021

613/15

Raj Kumari

Secy. SMC, Army School, Yol Cantt. 17-03-2021

25/15

Gian Chand

E.E. HPPWD, Jogindernagar

23-03-2021

140/15

Vipin Kumar

B.M.O. Tiara

24-03-2021

295/15

Tara Chand

E.E. IP & H, Mandi

26-03-2021

65/13

Murari Lal

Director, M/s Suket Hospital

26-03-2021

592/15

Bharat Kumar

D.F.O. Nachan

31-03-2021

10.

28/17

Dalip Singh

V.C. CSK HPKVV, Palampur

31-03-2021

11.

34/17

Vinod Kumar

-do-

31-03-2021

31/17

Rohit

-do-

31-03-2021

By order,

RAM SUBHAG 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 (H.P.)

Ref. No.

: 71/2020

Date of Institution

: 09-09-2020

Date of Decision

: 03-03-2021

Shri Narinder Sharma c/o Er. Uday Bhanu Dhiman, r/o Village Sibkaran, Tehsil & District

Kangra, H.P

. . Petitioner.

Versus

The Employer/Proprietor, M/s Shree Balaji Hospital Kangra, Tehsil & District Kangra, H.P.

. . Respondent.

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

For the Petitioner

: None for the petitioner

For the Respondent

: Sh. Jitender Sharma, Adv.

AWARD

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

adjudication:

“Whether termination of services of Shri Narinder Sharma c/o Er. Uday Bhanu Dhiman, r/o

Village Sibkaran, Tehsil & District Kangra, H.P. w.e.f. 16-04-2020 (as alleged by workman)

by the Employer/Proprietor, M/s Shree Balaji Hospital Kangra, Tehsil & 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?”

The case was listed for appearance of the petitioner for today but, however, neither the

petitioner nor his counsel had put in appearance before this Tribunal, despite the case being called

several times since morning. Hence, despite due notice of the date of hearing, the workman/

petitioner had remained ex parte.

It will be apt at this stage to take note of the relevant provisions of the Industrial

Disputes Act, 1947 (hereinafter referred to as ‘the Act’ for brevity sake). Section 2 (b) of the Act

defines the Award as under:—

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“(b) “award” means an interim or a final determination of any industrial dispute or of any

question relating thereto by any Labour Court, Industrial Tribunal or National Industrial

Tribunal and includes an arbitration award made under Section 10A;”.

Sub-Section (1) of Section 11 of the Act provides that subject to any rules that may be

made in this behalf, an arbitrator, a Board, Court, Labour Court, Tribunal or National Tribunal shall

follow such procedure as the arbitrator or other authority concerned may think it fit. The Central

Government has framed rules called “The Industrial Disputes (Central) Rules, 1957.” Rule 10-B (9)

reads thus:—

“10-B (9) In case any party defaults or fails to appear at any stage the Labour Court,

Tribunal, or National Tribunal, as the case may be, may proceed with the reference ex-parte

and decide the reference application in the absence of the defaulting party.”

Rule 22 reads thus:—

“Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator may proceed ex-

parte.—If without sufficient cause being shown, any party to the proceeding before a Board,

Court, Labour Court, Tribunal, National Tribunal or Arbitrator fails to attend or to be

represented, the Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator may

proceed, as if the party had duly attended or had been represented.”

The State of Himachal Pradesh has also framed rules called “The Industrial Disputes

Rules, 1974.” Rule 25 thereof reads thus:—

“Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator may proceed ex-

parte.— If without sufficient cause being shown, any party to the proceeding before a

Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator fails to attend or to

be represented, the Board, Court, Labour Court, Tribunal, National Tribunal or Arbitrator

may proceed, as if the party had duly attended or had been represented.”

Rule 22 of the Industrial Disputes (Central) Rules, 1957 and Rule 25 of the Industrial

Disputes Rules, 1974 authorize the adjudicating authority to proceed in the absence of a party. It

creates a fiction which enables the Tribunal to presume that all the parties are present before it

although, infact, it is not true, and thus make an ex parte award. This Tribunal in these

circumstances has to imagine that the absentee workman is present and having done so, can give

full effect to its imagination and carry it to its logical end. Under Rule 25, this Tribunal, thus, has to

imagine that the workman is present, he is unwilling to file the statement of claim, adduce evidence

or argue his case.

In the instant case, neither the workman nor his counsel has put in appearance before

this Tribunal today. In these circumstances, the Tribunal can proceed and pass ex parte award on its

merits.

As per the reference, it was required of the petitioner to plead and prove on record that

the termination of his services w.e.f. 16-04-2020 by the respondent was without complying with the

provisions of the Act and, thus, illegal and unjustified. However, there is neither any pleading nor

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any evidence to this effect on record on the part of the petitioner/workman. At the risk of repetition

the petitioner/workman had not put in appearance before this Tribunal. In this view of the matter,

the petitioner is not entitled to any back wages, seniority, past service benefits and compensation.

Accordingly, this reference is answered in the negative. Parties to bear their own costs.

10. The reference is answered in the aforesaid terms.

11. A copy of this Award be sent to the appropriate Government for necessary action at its

end and the file after due completion be consigned to the Record Room.

Announced in the open Court today this 3rd day of March, 2021.

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.

: 53/2020

Date of Institution

: 08-9-2020

Date of Decision

: 05-03-2021

Smt. Tenzin Dolma w/o Shri Sher Singh, r/o VPO Hikkam, Tehsil Kaza, District Lahaul &

Spiti, H.P.

. .Petitioner.

Versus

The Executive Engineer, HPPWD B&R Division Kaza, District Lahaul Spiti, H.P.

. .Respondent.

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

For the Petitioner

: Petitioner in person

For the Respondent

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

AWARD

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

adjudication:

“Whether termination of services of Smt. Tenzin Dolma w/o Shri Sher Singh, r/o VPO-

Hikkam, Tehsil Kaza, Distt. Lahaul Spiti, H.P. by the Executive Engineer, HPPWD, B & R

Division Kaza, Distt. Lahaul Spiti (H.P.) during June, 2019, without complying with the

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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 ex-worker is

entitled to from the above employer?”

The case is listed for appearance of the petitioner but, however, Smt. Tenzin Dolma

(petitioner) has made the below given statement in the Court today:—

“C;ku fd;k fd eSa ;g case u pykuk pkgrh gwa vkSj eSa viuk case (Ref. No.53/20) okfil ysrh

gwaAa nkf[ky nQrj fd;k tkosA

RO&AC

Sd/-

Identified by

Sh. Vijay Kaundal, Adv.

Sd/-

In view of the above statement, this reference is dismissed as withdrawn. 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 necessary action at its

end and the file after due completion be consigned to the Record Room.

Announced in the open Court today this 5th day of March, 2021.

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.

: 14/2016

Date of Institution

: 04-1-2016

Date of Decision

: 08-03-2021

Shri Sanjeev Kumar s/o Shri Jagdish Chand, r/o Village Daridh, P.O. Sanhoon, Tehsil

Jaisinghpur, District Kangra, H.P.

. .Petitioner.

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Versus

The Settlement Officer, Kangra Division at Dharamshala, District Kangra, H.P.

. .Respondent.

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

For the Petitioner

: Sh. N.L. Kaundal, AR

For 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 Sanjeev Kumar s/o Shri Jagdish

Chand, r/o Village Daridh, P.O. Sanhoon, Tehsil Jaisinghpur, District Kangra, H.P. before

the Settlement Officer, Kangra Division at Dharamshala, District Kangra, H.P. vide demand

notice dated 09-05-2012 regarding his alleged illegal termination of services w.e.f. 31-07-

2003 suffers from delay and laches? If not, whether termination of the services of Shri

Sanjeev Kumar s/o Shri Jagdish Chand, r/o Village Daridh, P.O. Sanhoon, Tehsil

Jaisinghpur, District Kangra, H.P. by the Settlement Officer, Kangra Division at

Dharamshala, District Kangra, H.P. w.e.f. 31-07-2003 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 set out in the statement of claim is that he was initially

engaged on daily waged basis as a chainman by the respondent/department vide office order dated

20-3-1997 and he joined as such on 16-4-1997. The initial engagement of the petitioner was only

for 89 days but thereafter he continued in the department as a chainman uptil 30-7-2003. However,

the services of the petitioner were terminated by the respondent vide notice dated 21-7-2003 w.e.f.

31-7-2003. Along-with him the services of thirteen other co-workers had also been terminated. It

has been alleged that the notice dated 21-7-2003 is arbitrary. No retrenchment compensation had

been paid at the time of terminating the services of the petitioner. The notice terminating the

services of the petitioner is malafide. The petitioner had completed 238 days in the year 1997, 365

days in 1998, 365 days in 1999, 364 days in 2000, 362 days in 2001, 365 days in 2002 and 207

days in 2003 respectively. Mahinder Singh and Durga Dass, juniors to the petitioner have been re-

engaged in service. The principle of ‘first come last go’ has not been applied. No opportunity was

afforded to the petitioner for re-engagement. The act of the respondent was highly unjustified,

arbitrary, unconstitutional, contrary and against the mandatory provisions of the Act. The

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

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

regarding lack of maintainability and that the petition is bad on account of delay and laches. The

contents of the petition were denied on merits. However, it is admitted that the petitioner was

engaged on 20-3-1997 as a daily waged chainman and that he had joined his duty on 17-4-1997. It

is asserted that the services of the petitioner were retrenched after serving him ten days notice w.e.f.

31-7-2003. The department had deployed chainmen as per Section 118 of H.P. Land Revenue Act,

1954 read with Appendix E of Land Record Manual, 1954 in a phased manner. On 3-4-2003, sixty

four chainmen were deployed by the respondent/department. Thereafter sanction/approval of the

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posts of 116 patwaris and 50 daily waged chainmen had been accorded on 26-8-2002. In view of

this sanction, the department by following the principle of ‘last come first go’ had retrenched the

services of chainmen figuring at serial nos. 51 to 64 of the seniority list on 31-7-2003 by serving

them due notice. Mahinder Singh and Durga Dass were re-engaged by the department as per the

orders of the Hon’ble High Court. No junior to the petitioner had been engaged. The petitioner is

gainfully employed as an agriculturist. The respondent, thus, prays for the dismissal of the claim

petition.

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 18-10-2016:

Whether the industrial dispute raised by petitioner vide demand notice dated 09-05-

2012 qua his termination of service w.e.f. 31-07-2003 by respondent suffers from the

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

. .OPP.

Whether termination of the services of petitioner by the respondent w.e.f. 31-07-2003

is/was illegal 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 as alleged? . .OPR.

Relief.

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

issues so framed.

Oral arguments of the learned Authorized Representative for the petitioner and the

learned Deputy District Attorney for respondent heard and records gone through. Written

arguments filed by both the parties have also been gone through by me.

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

: Yes

Issue No. 3

: Re-engagement with seniority and continuity in service from

31-7-2003, except back wages.

Issue No. 4

: No

Relief.

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

Award.

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REASONS FOR FINDINGS

Issue No. 1 :

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 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 Sanjeev Kumar 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/G.

In the cross-examination, he admitted that the department had given him a notice. He

feigned ignorance that on completion of the settlement, the work of the chainman decreases in the

department. He was not aware that for this reason the department by following the principle of ‘last

come first go’ had terminated the services of some chainmen by issuing a notice. He admitted that

the department had served upon him a notice dated 21-7-2003. He also admitted that the Mahinder

Singh and Durga Dass had been re-engaged as per the orders of the Court. He owns land, which he

cultivates.

13. The petitioner examined one Shri Kulvinder Singh, Senior Assistant with the

Settlement Officer, Kangra at Dharamshala as PW2. He proved on record documents Ex.PW2/A to

Ex.PW2/E. In the cross-examination, he admitted that seniority lists Ex.PW2/C to E were the

combined seniority lists pertaining to Kangra and Shimla Divisions.

14. Conversely, Smt. Rakhil Kahlon, Managind Director, H.P. Backwards Classes Finance

& Development Corporation, Kangra, who is holding the additional charge of Settlement Officer,

Kangra Division at Dharamshala (respondent) testified as RW1. In her affidavit Ex. RW1/A

preferred as per Order 18 Rule 4 CPC, she corroborated on oath the contents of the reply filed by

the respondent.

In the cross-examination, she admitted that as per Ex.PW1/B, a document of their

department, the petitioner was engaged for 89 days. She also admitted that besides this letter, no

other appointment letter had been issued. She further admitted that vide Ex.PW1/C, the services of

the petitioner had been retrenched. She clearly admitted that as per Ex.RW1/B, the petitioner before

his retrenchment had worked for 240 days in the preceding twelve calendar months. Further, she

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admitted that as per Ex.PW1/C, ten days notice had been given to the petitioner. She was also

categorical that as per the record no retrenchment compensation had been paid to the petitioner. She

also admitted that Durga Dass is junior to the petitioner. Volunteered that, he had been re-engaged

as per the orders of the Court.

15. Ex. RW1/B is the copy of mandays chart pertaining to the petitioner.

16. Ex. RW1/C is the copy of list showing particulars of daily waged chainmen of

Settlement Officer, Kangra Division as on 31-3-2003.

17. Ex.RW1/D is the copy of letter dated 26-2-2002 regarding continuation of 116 posts of

casual patwaris and 50 posts of daily waged chainmen for the year 2002-2003.

18. Ex.RW1/E is the copy of retrenchment notice dated 21-7-2003 relating to the

petitioner.

19. Ex.RW1/F is the copy of office order dated 28-6-2010 regarding re-engagement of

Shri Mahinder Singh and Shri Durga Dass as per the orders of the Hon’ble High Court.

20. It is the admitted case of the parties that the petitioner was engaged vide office order

dated 20-3-1997, copy of which is placed on record as Ex.PW1/B. He joined on 17-4-1997. This

has not been denied by the respondent. The petitioner continued to work with the respondent after

his initial engagement of 89 days as per Ex.PW1/B. His services were abruptly terminated vide

order dated 21-7-2003, copy of which is Ex. PW1/C (also Ex.RW1/E). The petitioner was a

workman, which has not been denied. In these circumstances, the engagement of the petitioner was

to be regulated by the Industrial Disputes Act, 1947 (hereinafter referred to as ‘the Act’ for short).

The defence of the respondent is that the services of the petitioner were disengaged because of the

non-availability of work. However, the respondent has not placed on the file any document

evidencing that the petitioner was employed subject to the availability of work and funds.

21. Now the question: Whether in terminating the services of the petitioner, the respondent

is proved to have violated the provisions of Section 25-F of the Act. The answer, to my thinking, is

in the affirmative in view of the material on record.

22. Claiming to have worked for 238 days in 1997, 365 days in 1998, 365 days in 1999,

364 days in 2000, 362 days in 2001, 365 days in 2002 and 207 days in 2003, as on 31-3-2003, the

petitioner in his affidavit Ex.PW1/A claimed to have thus completed 240 days in each of the said

calendar years. This claim having not been challenged during his cross- examination by the

respondent deserves acceptance. More so, in view of the mandays chart Ex.RW1/B, the own

document of the respondent. The said document is indicative of the petitioner having worked for

202 days in the year 1997, 355 days in the year 1998, 310 days in the year 1999, 353 days in the

year 2001, 351 days in the year 2001, 358 days in the year 2002 and 205 days in the year 2003 uptil

28-7-2003 in the department. Then, it stands clearly admitted by the respondent (RW1) that the

petitioner had worked for 240 days in the preceding twelve calendar months prior to his

disengagement, as per Ex.RW1/B. Section 25-F of the Act, which is alleged to have been violated

by the respondent, says:

“25-F. Conditions precedent to retrenchment of workmen.—No workman employed in any

industry who has been in continuous service for not less than one year under an employer

shall be retrenched by that employer until.—

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(a) the workman has been given one month’s notice in writing indicating the reasons for

retrenchment and the period of notice has expired, or the workman has been paid in

lieu of such notice, wages for the period of the notice:

(b) the workman has been paid, at the time of retrenchment compensation which shall be

equivalent to fifteen days’ average pay for every completed year of continuous service

or any part thereof in excess of six months; and

(e) notice in the prescribed manner is served on the appropriate Government or such

authority as may be specified by the appropriate Government by notification in the

Official Gazette.”

23. In view of this provision, no workman employed in any industry, who has been in

“continuous service” for not less than one year, can be retrenched by the employer unless he has

been given one month’s notice in writing indicating the reasons for retrenchment and the period of

notice has expired or the workman has been paid in lieu of such notice, wages for the period of

notice. The expression “continuous service” has been defined under Section 25-B of the Act, which

in its material part reads:

“25B. Definition of continuous service.— For the purposes of this Chapter,—

(1) a workman shall be said to be in continuous service for a period if he is, for that period,

in uninterrupted service, including service which may be interrupted on account of

sickness or authorised leave or an accident or a strike which is not illegal, or a lock-out

or a cessation of work which is not due to any fault on the part of the workman;

(2) where a workman is not in continuous service within the meaning of clause (1) for a

period of one year or six months, he shall be deemed to be in continuous service under

an employer.—

(a) for a period of one year, if the 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 for not less than.—

(i)

one hundred and ninety days in the case of a workman employed below ground in

a mine; and

(ii) two hundred and forty days, in any other case….”

24. Since, the petitioner is proved to have completed more than 240 days during the period

of twelve calendar months preceding the date of his retrenchment, his services could not have been

terminated unless he was served with one month’s notice and paid the retrenchment compensation

as envisaged under Section 25-F of the Act. Admittedly, the provisions of Section 25-F of the Act

were not complied with by the respondent. The notice terminating the services of the petitioner

dated 21-7-2003 (Ex.PW1/B and also Ex.RW1/E) is not in conformity with Section 25-F of the

Act. The respondent did no pay the retrenchment compensation to the petitioner, nor had issued any

requisite notice to the petitioner.

25. In terminating the services of the petitioner, the respondent appears to have violated

the provisions of Section 25-G of the Act as well. The said Section provides:

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

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

category of workmen in that establishment, in the absence of any agreement between the

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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”.

26. The petitioner in paragraph 5 of his affidavit Ex.PW1/A, which was tendered by way

of his examination-in-chief, maintained that Mahinder Singh and Durga Dass, who were junior to

him, were re-engaged in the year 2010. His such deposition has not been challenged during his

cross- examination by the respondent. Moreover, Smt. Rakhil Kahlon (RW1) admitted in her cross-

examination that Durga Dass was junior to the petitioner. Ex.PW1/E is the seniority list of daily

waged chainmen of Settlement Officer, Kangra Division. Ex.PW2/B and Ex. RW1/C are similar to

it. The seniority list is an admitted document on the part of the respondent. It is admitted by

Smt. Rakhil Kahlon (RW1) that seniority list Ex.PW1/E pertains to their office. From this

document, it is clear that the services of Durga Dass and Mahinder Singh, whose names figure at

serial No. 60 and 61, were engaged on 25-7-1997 respectively. Admittedly, their services were

engaged after the engagement of the services of the petitioner, whose initial date of appointment as

per Ex.PW1/E (also Ex.PW2/B and Ex.RW1/C) is 17-4-1997. It is not disputed by the respondent

that Mahinder Singh and Durga Dass were re-engaged by the department in the month of June,

2010. It was claimed by the respondent (RW1) that they both were re-engaged as per Court orders.

There is nothing on record to show that the above-named persons who were re-engaged as per

Court orders were senior to the petitioner. This indicates that the persons junior to the petitioner are

still serving the respondent/department. There is nothing on the file to establish that at the time of

re-engaging the persons junior to the petitioner, an opportunity of re-employment was afforded to

him (petitioner). Thus, the respondent has failed to adhere to the principle of ‘last come first go’.

Retaining the juniors at the cost of the senior is nothing but unfair labour practice.

27. Such being the situation, the respondent can safely be held to have violated the

provisions of Section 25-G of the Act as well.

28. Faced with the situation, it was contended for the respondent that the junior workers

above-named had been re-engaged in service as per the orders of the Court. No doubt the petitioner

(PW1) admitted that Mahinder Singh and Durga Dass had been re-engaged as per the orders of the

Court but, however, to my mind that would not defeat his claim that they were junior to him.

29. However, the petitioner’s allegation that the respondent had violated the provisions of

Sections 25-H of the Act as well, to my mind, does not appear to have been substantiated. The

petitioner’s affidavit Ex.PW1/A as also his cross-examination as PW1 are non-existent in the

names of the persons who were allegedly appointed by the respondent after his disengagement. The

materials on record, thus, being too scanty and nebulous to lend assurance to his allegation that

new/fresh 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.

30. It is, thus, held that the disengagement of the petitioner was illegal and against the

mandate of the provisions of Sections 25-F and 25-G of the Act. The termination of the petitioner

is, thus, set aside and quashed. The respondent is directed to re-engage the petitioner forthwith on

the same post. The petitioner shall be entitled to seniority and continuity in service from the date of

his disengagement.

31. While testifying in the Court as PW1, the petitioner has given his age as 41 years. It is

well known that a person like the petitioner will not sit at home during the period he is/was out of

the service. The petitioner while under cross-examination clearly admitted that he owns land, which

he cultivates. The petitioner has failed to discharge the initial onus that during the period of his

forced idleness, he is/was not gainfully employed, so he is not entitled to the back wages.

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32. Issue No. 2 is accordingly decided in favour of the petitioner, while issue No. 3 is also

decided in favour of the petitioner, but partly.

Issue No. 4 :

33. 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

and evidence on record, it cannot be said that the petition/statement of claim is not maintainable.

Hence, this issue is decided against the respondent.

Relief :

34. In the light of what has been discussed hereinabove, the present reference/claim

petition succeeds in part and the same is allowed partly. The retrenchment of the petitioner is set

aside and quashed. The respondent is hereby directed to re-engage the petitioner forthwith. He shall

be entitled to seniority and continuity in service from the date of his illegal termination i.e. 31-7-

2003, except back wages. In the peculiar facts and circumstances of the case, the parties are left 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 and the file after due

completion be consigned to the Record Room.

Announced in the open Court today this 8th day of March, 2021.

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.

: 613/2015

Date of Institution

: 19-12-2015

Date of Decision

: 17-03-2021

Smt. Raj Kumari w/o Shri Babu Ram, r/o Village Gupt Ganga, P.O. & Tehsil Kangra, H.P.

. .Petitioner.

Versus

The Chairman-cum-Secretary, School Management Committee, Army School Yol Cantt.

District Kangra, H.P.

. .Respondent.

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

For the Petitioner

: Sh. N.L. Kaundal, AR

For the Respondent(s)

: Smt. Nitika Sharma, Adv.

AWARD

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

adjudication:

“Whether time to time termination of the services of Smt. Raj Kumari w/o Shri Babu Ram,

r/o Village Gupt Ganga, P.O.& Tehsil Kangra, District Kangra, H.P. w.e.f. 01-09-2003 to

31-07-2013 and finally during August, 2013 by the Chairman-cum-Secretary, School

management Committee, Army School Yol Cantt., 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?”

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

initially appointed as a peon by the Principal, Army School Yol Cantt on daily wage basis for 27

days i.e. from 1-9-2003 to 27-9-2003, vide letter No.36, dated 01-09-2003. Thereafter, her services

were engaged by the respondent as Group ‘D’ staff vide order dated 1-10-2003 for a period of six

months as an office peon on probation on a basic pay of Rs. 2,550/- along-with 50% D.A. per

month, as provided to the Central Government Employees. She had continuously worked uptil

26.3.2004 without any breaks. Her work and conduct during this period was to the satisfaction of

the management of the school but, however her services were unlawfully terminated by the

Principal, Army School, Yol Cantt. on 27-3-2004, as per letter dated 27-2-2004. Her services

were again taken as a peon by the respondent vide letter No. 64, dated 2-4-2004 and she had

worked uptil 13-10-2004. Her services were again terminated by the respondent vide letter dated

4-9-2004 on false disciplinary ground. Neither any show cause notice was given, nor she was ever

charge-sheeted for any misconduct. Even no inquiry had been conducted against her and her

termination was in violation of the principle of natural justice. She was again appointed by the

respondent in the month of October, 2004 and had worked uptil 25-3-2005. Her services were then

terminated by the respondent. She was again appointed by the respondent on temporary basis as a

Group ‘D’ employee w.e.f. 1-4-2005 to 31-5-2005. Her service condition had been changed by the

management by reducing her salary from Rs. 2550/- plus 50% D.A. to Rs. 1800/- per month, being

violative of the provisions of Section 9-A of the Industrial Disputes Act, 1947 (hereinafter referred

to as ‘the Act’ for short). Thereafter, she was again appointed for a period from 6-7-2005 to

30-9-2005 as a Group D employee vide appointment order No.44/93 dated 1-7-2005. She was again

appointed in the same capacity w.e.f. 1-10-2005 to 31-3-2006 vide appointment order No.108 dated

1-10-2005. She was then terminated on 31-3-2006 and again appointed on temporary/adhoc basis

as an Ayah in Group D post on a consolidated salary of Rs. 2550/- per month uptil 12-5-2006. Her

services were again terminated on 13-5-2006 and she was again appointed as Group D Ayah in

administrative staff on contractual basis w.e.f. 1-6-2006 to 31-3-2007 @ Rs. 2550/- per month. She

was disengaged vide advance notice dated 28-2-2007 and was again engaged as Group D Ayah in

administrative staff (adhoc basis) @ Rs. 3200/- per month w.e.f. 9-4-2007 to 31-3-2008. Her

services were disengaged on 1-4-2008. She thereafter was engaged by the respondent on daily

waged basis w.e.f. 8-4-2008 to 13-7-2008 @ Rs.130/- per day and on completion of the said period

she was appointed as a Group D (safai karamchari) on a consolidated salary of Rs. 3250/- per

month for a period w.e.f. 14-7-2008 to 13-6-2009. Her services were terminated vide advance

notice dated 4-6-2009 w.e.f. 13-6-2009. She was again appointed in the same capacity, but on

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a consolidated salary of Rs. 4690/- per month for a period of eleven months w.e.f. 22-6-2009 to

21-5-2010. Her services were terminated vide advance notice dated 17-4-2010 w.e.f. 21-5-2010.

She was then appointed again for a period of eleven months in the same capacity and on the same

consolidated salary w.e.f. 1-6-2010 to 30-4-2011. Vide advance notice dated 31-3-2011 her services

were again terminated on 30-4-2011. She was then appointed again as a Group D (safai

karamchari) in the administrative staff on a consolidated salary of Rs. 4940/- per month for a period

of eleven months w.e.f. 9-5-2011 to 8-3-2012. Again vide advance notice dated 9-2-2012 her

services were terminated w.e.f. 8-3-2012. She was lastly engaged as Group D (safai karamchari) in

administrative staff on a consolidated salary of Rs. 5684/- per month for a period of eleven months

w.e.f. 23-2-2013 to 22-1-2014. However, before the completion of the period, her services were

illegally and unlawfully terminated by the respondent vide letter No.17 dated 30-7-2013. w.e.f. 31-

7-2013. No show cause notice was given to her nor she had ever been charge-sheeted for any

misconduct. No retrenchment compensation had been paid to her at the time of her unlawful

termination on 31-7-2013, as provided under Section 25-F of the Act. While terminating her

services, persons junior to her, namely, S/Smt. Vikrma Devi, Kamla Devi, Leela Devi, Pawna Devi,

Anju Devi, Urmila Devi, Sangeeta Devi and Rekha Devi were retained, being violative of the

provisions of Section 25-G of the Act. She was engaged and disengaged by the respondent time and

again w.e.f. the year 2003 uptil the year 2013 in different capacities i.e. peon, ayah and safai

karamchari, which amounts to unfair labour practice. Her final termination w.e.f. 31-7-2013 is

highly unjustifiable, arbitrary, unconstitutional and against the mandatory provisions of the Act.

Hence, the petition.

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

the case does not fall within the purview of Section 2-A of the Act, it being a private institution and

that the Army Public School is a member of Army Welfare Educational Society, which is not a

public body and that the contract of service between AWES and its employees does not come under

the domain of Public Law. The contents of the petition were denied on merits. It was asserted that

the services of the petitioner were engaged by the respondent w.e.f. 9-1-2003 to 27-9-2003 for a

period of 27 days and that she was again appointed on 1-10-2003 on probation at a salary of

Rs. 2,550/- per month along-with D.A. @ 50% of Central Government rates. The work of the

petitioner was found to be not satisfactory and she had been given several warnings for not doing

the duties sincerely. Her ACR was not good during the period from October, 2003 to February,

2004, but still was given a chance on contractual basis for a period of three years w.e.f. 5th April,

2004. Since there was not much improvement, the services of the petitioner were terminated on

disciplinary grounds by giving her one month’s advance notice on 13-9-2004. The petitioner was

appointed on temporary basis w.e.f. 1-4-2005 to 31-5-2005 @ Rs.1800/- per month, since her

services as a peon were not satisfactory. She had been appointed as an Ayah/Safai Karamchari on

temporary basis. The respondent had not violated the provisions of Section 9-A of the Act, because

the petitioner did not fall within the purview of the Act. It is admitted that the petitioner had been

appointed as a Group D employee w.e.f. 6-7-2005 to 30-9-2005 and 1-10-2005 to 31-3-2006. She

was then appointed as a Group D employee on temporary basis @ Rs.2550/- per month w.e.f.

1-4-2006 to 12-5-2006 and on contractual basis w.e.f. 1-6-2006 to 31-3-2007. She was again

appointed w.e.f. 9-4-2007 to 31-3-2008 as a Group D employee on adhoc basis @ Rs. 3200/- per

month. The appointments and terminations of the petitioner were as per AWES rules and

instructions. Her services were finally terminated by the respondent w.e.f. 31st July, 2013 by giving

her one month’s salary in lieu of the notice. Since, the petitioner was appointed on contractual

basis, as per Army Welfare Education Society Rules, the respondent could terminate the services of

any contractual employee by giving one month’s notice or on payment of one month’s salary

without assigning any reason. Smt. Vikrama Devi and Smt. Kamla Devi were senior to the

petitioner and the remaining were juniors, who still are working as their work is found to be

satisfactory. The respondent had not violated any norms. Hence, it was prayed that the petition be

dismissed.

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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 18-10-2016:

Whether time to time termination of the services of petitioner w.e.f. 01-09-2003 to

31-07-2013 by the respondent is/was illegal and unjustified?

. .OPP.

Whether final termination of services of the petitioner by the respondent during

August, 2013 is/was illegal and unjustified as alleged?

. .OPP.

If issue No.1 & issue No. 2 are proved in affirmative, to what relief petitioner is

entitled to?

. .OPP.

Whether the present claim petition/reference is not maintainable in the present form 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 Authorized Representative for the petitioner and the learned

counsel for the respondent heard and records gone through. Written arguments filed by both the

parties have also been gone through by me.

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

: Yes

Issue No. 3

: Discussed.

Issue No. 4

: No

Relief

: Petition allowed as per the operative part of the Award.

REASONS FOR FINDINGS

Issues No.1 to 3 :

All 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, Smt. Raj Kumari examined herself as PW1 and filed her

affidavit in evidence, which is exhibited as Ex. PW1/A. In her affidavit, she reiterated the contents

of her statement of claim. She also filed a document purportedly in support of her claim, which is

exhibited as Ex. PW1/B.

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11. In the cross-examination, she admitted that she was class-D employee and had initially

been engaged for a period of 27 days on 1-9-2003. She also admitted that she was again appointed

in October, 2003 on a basic pay of Rs. 2,550/- plus 50% D.A., as applicable to the Central

Employees. She admitted her signature in red circle on letter dated 4-2-2004, whereby she had been

given a warning. Volunteered that, she being an office peon had been asked to clean the toilets of

the children, when she had informed that she would intimate the safai karamchari. She denied that

she had received a termination notice Mark-A. She also denied that after September, 2004 her

services had been engaged as that of a safai karamchari, instead of a peon. She feigned ignorance

that in between November, 2004 to April, 2006 many a times she had been engaged an Ayah on

temporary basis. Self stated that in this regard she had not been informed in writing. However, she

admitted that she had not been compelled to join her duties by the respondent. She does not know

that the respondent had given her salary as per AWES rules. She admitted that she had been

availing the leave during the service. She admitted that Vikrama Devi and Kamla Devi were senior

to her. She specifically denied that she had been charge-sheeted and given a letter on her

termination in the year 2013. She feigned ignorance that she had been given a month’s notice at the

time of terminating her service. She admitted that every year after the year 2003 she was being

given a break of seven days after working for eleven months. She admitted that as and when she

had been terminated, she had never made a representation to the management. She also admitted

that she had been given all her dues for the work done by her.

12. On the other hand the respondent in support of his contentions existing in his reply has

relied upon the testimony of RW1 Shri Venkatesha G. Officiating Principal. Reliance has been

placed upon various documents i.e. Ex.RW1/A to Ex.RWZ/6.

In the cross-examination, he admitted that the petitioner was a Group D employee. He also

admitted that Army Public School is a society and registered under the Societies Act. Further, he

admitted that the petitioner had regularly worked with the respondent from September, 2003 to

31-7-2013. Volunteered that, she had not continuously worked, as there were contracts for eleven

months. He specifically admitted that as per Ex.PW1/B the petitioner had worked for 240 days or

more in each year. He also admitted that the petitioner had been removed from work on 31-7-2013

by the school management and the Principal. He clearly denied that no notice had been given to the

petitioner for her disengagement. The petitioner was given one month’s salary. She was not given

any retrenchment compensation. He also denied that prior to 31-7-2013 no show cause notice had

been given to the petitioner. Self stated that she was given counseling and show cause/warning

letters. He further denied that the petitioner had never been charge-sheeted. Volunteered that, the

counseling and warning letters itself amounted to charge-sheet of the employees who were kept on

eleven months contract. However, he admitted that no domestic inquiry had been conducted against

the petitioner. Self stated that it is conducted only in case of regular employees. He denied that the

school management had resorted to unfair labour practice. He admitted that in Ex.RW1/M all

class-D employees have been mentioned and that the name of the petitioner is there at serial No.4.

He also admitted that the employee whose name figures at serial no.5 in Ex.RW1/M is still working

with them. He further admitted that Rekha Devi, whose name figures at serial No. 9 in Ex.RW1/M

is also working with them. Self stated that she is working on outsource basis.

13. Before adverting to the rival legal contentions advanced on behalf of the parties, it is

important to consider the relevant provisions of the Act in play in the instant case.

The Industrial Disputes Act, 1947, is:

“An act to make provision for the investigation and settlement of industrial disputes, and

for certain other purposes”.

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Section 2(s) defines a Workman as:

“2(s). “workman” means any person (including an apprentice) employed in any industry to

do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for

hire or reward, whether the terms of employment be express or implied, and for the

purposes of any proceeding under this Act in relation to an industrial dispute, includes any

such person who has been dismissed, discharge or retrenched in connection with, or as a

consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that

dispute, but does not include any such person.—

(i)

who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of

1950), or the Navy Act, 1957 (62 of 1957); or

(ii) who is employed in the police service or as an officer or other employee of a prison; or

(iii) who is employed mainly in a managerial or administrative capacity; or

(iv) who, being employed in a supervisory capacity, draws wages exceeding [ten thousand

rupees] per mensem or exercises, either by the nature of the duties attached to the

office or by reason of the powers vested in him, functions mainly of a managerial

nature].”

Section 2(oo) lays down the concept of retrenchment as:

“Retrenchment means the termination by the employer of the service of a workman for any

reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action,

but does not include—

(a) voluntary retirement of the workman;

(b) retirement of the workman on reaching the age of superannuation if the contract of

employment between the employer and the workman concerned contains a stipulation

in that behalf;

(bb) termination of the service of the workman as a result of the non-renewal of the

contract of employment between the employer and the workman concerned on its expiry or

of such contract being terminated under a stipulation in that behalf contained therein;”

14. Smt. Nitika Sharma, the learned counsel appearing on behalf of the respondent

contended in her oral and written arguments that the present claim petition is not maintainable as

the Army Welfare Education Society is not an instrumentality of the State. Reliance is placed on

the decisions of the Hon’ble Allahabad High Court in the cases of V.K. Walia vs. Chairman, Army

School & Ors. (2003) 3 UPLBEC 2827: Army School vs. Smt. Shilpi Paul 2005 (1) ESC 342 and

the Hon’ble Supreme Court in the case of Integrated Rural Development vs. Ram Payre Pandey

1995 SCC, Supl. (2) 495.

15. On the other hand, Shri N.L. Kaundal, the learned Authorized Representative

appearing on behalf of the petitioner contended in his oral as well as written arguments that the

petitioner is squarely covered under the definition of “workman” under the Act and that the

educational institutions are an industry in terms of Section 2(j) of the Act. The learned Authorized

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Representative places strong reliance on the decisions of the Hon’ble Punjab and Haryana High

Court and the Hon’ble Karnataka High Court in the cases of Laxmi Devi vs. R.D.S. Public Girls

College and Ors. 2016 (148) FLR 856 and Principal, Government I.T.I., Kollegal vs. R. Hema

Kumar and Anr. 2016 (149) FLR 1047, wherein it has been held that college and school qualify as

industry within the meaning of Section 2(j) of the Act.

16. I am unable to agree with the contention advanced by the learned counsel appearing on

behalf of the respondent. The question “who is a workman” has been well settled by various

judgments of the Hon’ble Supreme Court. In the case of H.R. Adyanthaya vs. Sandoz (India) Ltd.

(1997) 5 SCC 737, a Constitution Bench of the Hon’ble Supreme Court has held as under:

“..We thus have three Judge Bench decisions which have taken the view that a person to be

qualified to be a workman must be doing the work which falls in any of the four categories,

viz, manual, clerical, supervisory or technical and two two-judge bench decisions which

have by referring to one or the other of the said three decisions have reiterated the said law.

As against this, we have three three-judge bench decisions which have without referring to

the decisions in May & Baker, WIMCO and Bunnah Shell cases (supra) have taken the

other view which was expressly negatived, viz., if a person does not fall within the four

exceptions to the said definition he is a workman within the meaning of the ID Act. These

decisions are also based on the facts found in those cases. They have, therefore, to be

confined to those facts. Hence the position in law as it obtains today is that a person to be a

workman under the ID Act must be employed to do the work of any of the categories, viz.,

manual, unskilled, skilled, technical, operational, clerical or supervisory. It is not enough

that he is not covered by either of the four exceptions to the definition. We reiterate the said

interpretation.”

17. The issue whether an educational institution is an “industry”, and its employees are

“workmen” for the purpose of the Act has been answered by a Seven Judge Bench of the Hon’ble

Supreme Court way back in the year 1978 in the case of Bangalore Water Supply and Sewerage

Board vs. A. Rajappa and Ors. (1978) 2 SCC 2013. It was held that educational institution is an

industry in terms of Section 2(j) of the Act, though not all of its employees are workmen. It was

held as under:

“The premises relied on is that the bulk of the employees in the university is the teaching

community. Teachers are not workmen and cannot raise disputes under the Act. The

subordinate staff being only a minor category of insignificant numbers, the institution must

be excluded, going by the predominant character test. It is one thing to say that an

institution is not an industry. It is altogether another thinking to say that a large number of

its employees are not 'workmen' and cannot therefore avail of the benefits of the Act so the

institution ceases to be an industry. The test is not the predominant number of employees

entitled to enjoy the benefits of the Act. The true test is the predominant nature of the

activity. In the case of the university or an educational institution, the nature of the activity

is, ex hypothesis, education which is a service to the community. Ergo, the university is an

industry. The error has crept in, if we may so say with great respect, in mixing up the

numerical strength of the personnel with the nature of the activity. Secondly there are a

number of other activities of the University Administration, demonstrably industrial which

are severable although ancillary to the main cultural enterprise. For instance, a university

may have a large printing press as a separate but considerable establishment. It may have a

large fleet of transport buses with an army of running staff. It may have a tremendous

administrative strength of officers and clerical cadres. It may have karamcharis of various

hues. As the Corporation of Nagpur has effectively ruled, these operations, viewed in

severalty or collectively, may be treated as industry. It would be strange, indeed, if a

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university has 50 transport buses, hiring drivers, conductors, cleaners and workshop

technicians. How are they to be denied the benefits of the Act, especially when their work is

separable from academic teaching, merely because the buses are owned by the same

corporate personality? We find, with all defence, little force in this process of nullification

of the industrial character of the University's multi-form operations.”

18. A perusal of the above mentioned two judgments of the Hon’ble Supreme Court

clearly show that the definition of “workman” as given in Section 2(s) of the Act has been

interpreted in the most wide terms. Even otherwise the import of the provisions itself is wide

ranging. It has been defined in such a way to include any person doing any manual, unskilled,

skilled, technical, operational, clerical or supervisory work. Once a person is engaged for hire or

reward, oblivious of the fact that whether the terms of employment are expressed or implied, a

person would fall within the parameters of a “workman” atleast for the purposes of this Act. Even if

a person is working on contract it cannot be said that he does not fall within the definition of a

“workman”. It could be that being a contractual employee his disengagement may not fall within

the definition of “retrenchment” but the same would be dependant upon the requirements of Sub

Section (bb) of the provisions of Section 2(oo) of the Act. However, merely being a contractual

employee does not mean that a person will not fall within the definition of “workman”. So, a

peon/Ayah/safai karamchari employed by a school, being an unskilled person, is a workman for the

purpose of the Act.

19. Now adverting to the core question regarding the fictional breaks and disengagement

of the petitioner. It is the admitted case of the parties that the services of the petitioner were

engaged as a Group ‘D’ employee by the respondent, some times as peon, at times as an Ayah and

most of the time as a safai karamchari. It is not in dispute that the petitioner was initially employed

on 1st September, 2003 and had worked upto 31-7-2013, as is admitted by Shri Venkatesha G,

Officiating Principal of the respondent while appearing as RW1. Reference in this regard can also

be made to the documents placed on record by the respondent itself as Ex.RW1/N to Ex.RW1/Z1

and Ex.RW1/Z3 to Ex.RW1/Z5. Admittedly, the services of the petitioner were disengaged by the

respondent w.e.f. 31st July, 2013 per letter dated 30th July, 2013, copy of which is Ex.RW1/B.

20. Smt. Nitika Sharma, the learned counsel appearing on behalf of the respondent

submitted that as the petitioner had been engaged on contract basis for fixed periods, and by taking

recourse to the condition/clause of the last appointment letter dated 20th February, 2013, as the

services of the petitioner had been disengaged by the respondent on 31-7-2013 during the currency

of the contract period, which was to come to an end on 22nd January, 2014, the petitioner is not

entitled to any relief.

21. Shri N.L. Kaundal, Learned Authorized Representative appearing for the petitioner,

on the other hand, urged that the petitioner having completed 240 days of service within a period of

twelve months preceding the date of her termination and in view of the fact that no compensation

had been paid as provided under Section 25-F of the Act, the petitioner is entitled for reinstatement

with full back wages.

22. In this case the petitioner was appointed from time to time. Her services used to be

terminated on the expiry of the period on regular basis, except on one occasion in September, 2004,

when her services came to be dispensed with on disciplinary grounds vide letter dated 4th

September, 2004 (Ex.RW1/Z2). It is the case of the respondent that since the petitioner was given

breaks between the appointments offered for specified periods, the petitioner had not completed

240 days in any calendar year. However, the perusal of the mandays chart Ex.PW1/B produced by

the petitioner, which is not disputed by the respondent, shows that the services of the petitioner

were initially engaged in September, 2003 by the respondent and that she had worked intermittently

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uptil July, 2013. It is, thus, more than clear that even while offering appointments to the petitioner

for specified periods vide Ex.RW1/N to Ex.RW1/Z1 and Ex.RW1/Z3 to Ex.RW1/Z5, the

respondent intended to avail the services of the petitioner uninterruptedly and she did work

continuously till her termination on 31-7-2013. The modus operandi adopted by the respondent to

appoint the petitioner for specified periods as per the appointment letters only shows that the said

exercise was conducted primarily to frustrate the provisions of the Act. No doubt the petitioner

continued to be appointed after each spell, but the respondent ensured that there was substantial

time gap between her fresh appointments. Even assuming it was so, it was at best red tapism, as the

perusal of the annexures show that the appointments were primarily made in continuation of

references made well in time by the petitioner. However, the fact remains that the purpose of

issuing successive appointments was to ensure continuity in the working of the petitioner at Army

Public School, Yol Cantt. In that sense of the matter even if all the appointments for specified

periods are kept in consideration, the petitioner had completed more than 240 days with the

respondent in each calendar year. The breaks in between can very safely be said to be fictional

breaks. The said breaks were given intentionally with a purpose to frustrate the rights of the

petitioner. The practice of the respondent to employ the petitioner continuously, but for the

specified periods, clearly falls within the ambit and scope of “unfair labour practice”. Even

otherwise, the Hon’ble Supreme Court in case of Haryana State Electronics Development

Corporation Ltd. vs. Mamni, AIR 2006 SC 2427 has deprecated such a course as was adopted by

the respondent to employ the workman for specified periods repeatedly.

23. Then, the entire evidence placed on record shows that in fact no specific contract(s)

had been entered into interse the parties. However, even if the last appointment letter (Ex.RW1/N)

and the earlier appointment letters themselves are considered to be contracts, admittedly the

petitioner had completed more than 240 days in the preceding twelve months of her disengagement.

The evidence on record also shows that because of the conduct of the petitioner all was not well

between the parties. Ex.RW1/C to Ex.RW1/I and Ex.RW1/Z2 do show that some punitive action

was also being contemplated against the petitioner. The deposition of Shri Venkatesha G (RW1)

also purports to show that because of the conduct of the petitioner her services had eventually been

terminated. Admittedly, no inquiry had been conducted against the petitioner. Shri Venkatesh G

(RW1) while under cross-examination was categorical that no domestic inquiry had been conducted

against the petitioner. In fact, if the petitioner had to be removed for some dereliction on her part,

some inquiry worth the name had to be conducted before taking any punitive action against

the petitioner. No doubt, as per stipulation No. 4 of the last appointment letter (Ex.RW1/N) the

services of the petitioner could be terminated by giving her one month’s notice or salary in lieu

thereof, but the said contention per se is against the basic and well recognized canons of principle

of justice. If nothing else, but for the sake of affording opportunity to explain her conduct the

respondent was duty bound to have sought some explanation or conducted some inquiry worth the

name before taking any action against the petitioner. No such endeavour was made by the

respondent in this behalf. Even otherwise, assuming that there were acts of misconduct on the part

of the petitioner, which as per the above mentioned documents were there since the year 2004

onwards till the year 2013, why the petitioner had been reappointed time and again by the

respondent as a Group ‘D’ employee? The reasons to that effect being obscure go to show that the

assertion of misconduct attributed to the petitioner or that the said misconduct was the reason for

terminating the services of the petitioner seems to be totally baseless. There is nothing on the file to

establish that except for the petitioner no one else was available to be engaged as a Group ‘D’

employee in the Army Public School, Yol Cantt.

24. Even if it is presumed that the services of the petitioner were not disengaged as a

punitive measure and Ex.RW1/N is deemed to be some sought of contract, I am afraid that the

respondent/management was under an obligation to have complied with the provisions of Section

25-F of the Act. The Hon’ble Supreme Court in S.M. Nilajkar & Ors. vs. Telecom, District

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Manager, Karnataka (2003 LLR 470) has held that even where a workman is recruited for

discharging work under a project or under some specific scheme the provisions of Section 25-F of

the Act are attracted. In case titled Sudershan Rajpoot vs. U.P. State Road Transport Corporation

(2015 LLR 95), it has been held by the Hon’ble Supreme Court that where a bus driver, who was

engaged on contractual basis, but had worked for more than 240 days, his termination without any

retrenchment compensation or holding of inquiry for alleged negligence was held to be illegal. The

engagement of the petitioner, as per my findings above, was continuous right from the year 2003

till the year 2013. The petitioner had completed more than 240 days in each calendar year. The

respondent, thus, was resorting to the process of issuing contractual appointments to merely

frustrate the provisions of the Act. The Hon’ble Madras High Court in Management of Tamil Nadu

State Transport Corporation (Madurai Division-1) Ltd., Madurai vs. Presiding Officer, Labour

Court Madurai and Anr. (2016 LLR 736) has held that when the services of the workman are

required perennially for a long time, either by renewing the contract periodically or otherwise,

termination of his services will amount to unfair labour practice since such a termination would not

be saved by Section 2(oo) (bb) of the Act. The action of the respondent does not seem to be

bonafide.

25. “Retrenchment”, otherwise in its original connotation means discharge of labour as

surplus though the business or work itself is continued. It is well settled by now that the labour laws

being beneficial pieces of legislation are to be interpreted in favour of the beneficiaries, both in

case of doubt or where it is possible to take two views of a provision. From the seniority list

(Ex.RW1/M) on record, which is an admitted document on the part of the respondent, it is clear that

the persons mentioned at serial No.5 to 9 of the list are junior to the petitioner, whose name figures

at serial No.4. Shri Venkatesh G (RW1) was categorical that Ex.RW1/M reflects all Class-D

employees. He was also categorical that the workman mentioned at serial No. 5 of Ex.RW1/M is

still working with them. He also clearly admitted that Rekha Devi whose name figures at serial

No.9 in Ex.RW1/M is also working in the school. In fact, had the action of the respondent been

bonafide it was the last person to have been engaged, to be shown the door first as per the principle

of ‘last come first go’ (Section 25-G of the Act). In the present case rather than disengaging the

last person the respondent chose to do away with the services of the petitioner. The respondent,

thus, also did not follow the mandatory Section 25-G of the Act. Admittedly, no notice as

contemplated under Section 25-F of the Act was issued to the petitioner nor any retrenchment

compensation was paid to her. As is clear from the ratio of the judgment laid down in

S.M.Nilajkar’s case, discussed hereinabove, the petitioner was entitled to the protection of Section

25-F of the Act. Admittedly, no such steps were taken by the respondent. It is, thus, held that the

disengagement of the petitioner was illegal and against the mandate of the provisions of Sections

25-F and 25-G of the Act.

26. In the statement of claim it has specifically been asserted by the petitioner that she is

not gainfully employed from the date of her illegal termination. In her oral statement by way of

affidavit on oath, the petitioner specifically took the stand that she was not gainfully employed

since her disengagement. This is sufficient evidence by a workman to prove her “non gainful

employment”. In this behalf support can ably be drawn from the judgment of our Hon’ble High

Court titled Pradhan Baijnath Tea Estate Majdoor Sangh vs. State of Himachal Pradesh & Ors.

(2019 LLR 1239). Therefore, the burden shifted upon the respondent to contradict the statement of

the petitioner by leading cogent, ocular or documentary evidence to prove her gainful employment.

Strangely enough so has not been done by the respondent. It has neither been pleaded nor proved

on record by the respondent that the petitioner was gainfully employed during the period of

litigation after her termination. The Hon’ble Supreme Court in Manorma Verma (Smt.) vs. State of

Bihar & Ors., 1995 Supreme Court Cases (L&S) 193 has held that once termination is found to be

illegal consequential order of grant of back wages must follow unless there are reasons justifying a

departure from normal order.

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27. It is, thus, held that fictional breaks were provided to the petitioner by the respondent,

which amounts to unfair labour practice as per the Fifth Schedule appended to the Act and that her

disengagement from service by the respondent was also not in consonance with the provisions of

the Act. Consequently, the termination of the petitioner w.e.f. 31-7-2013 is set aside and quashed

and the period of fictional breaks is ordered to be counted for the purpose of continuous service.

The respondent is directed to re-engage the petitioner forthwith on the same post. The petitioner

shall also be entitled to seniority and continuity from the date of her disengagement with 50% back

wages from the date of termination till the date of reinstatement.

28. The issues are accordingly decided in favour of the petitioner and against the

respondent.

Issue No. 4 :

29. 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 counsel

appearing for the respondent at the time of arguments. Otherwise also, from the pleadings and

evidence on record, it cannot be said that the petition/statement of claim is not maintainable. Hence,

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

Relief :

30. In the light of what has been discussed hereinabove, the present reference/claim

petition succeeds and the same is allowed. It is held that artificial/fictional breaks were provided to

the petitioner by the respondent w.e.f. 1-9-2003 to 31-7-2013 wrongly and illegally. The period of

fictional breaks is ordered to be counted for the purpose of continuous service. The termination of

the petitioner is also set aside and quashed. The respondent is hereby directed to re-engage the

petitioner forthwith. The petitioner shall be entitled to seniority and continuity in service from the

date of her illegal termination i.e. 31-7-2013, with 50% back wages from the date of termination till

the date of reinstatement. 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 and the file after due completion be consigned to the Record Room.

Announced in the open Court today this 17th day of March, 2021.

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.

: 25/2015

Date of Institution

: 13-01-2015

Date of Decision

: 23-3-2021

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Shri Gian Chand s/o Shri Hari Singh, r/o Village Path, P.O. Sainthal, Tehsil Joginder Nagar,

District Mandi, H.P.

. .Petitioner.

Versus

The Executive Engineer, B&R Division, H.P.P.W.D., Joginder Nagar, District Mandi, H.P.

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

For the Petitioner

: Sh. N.L. Kaundal, AR.

: Sh. Vijay Kaundal, Adv.

For the Respondent

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

AWARD

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

adjudication:

“Whether time to time termination of the services of Shri Gian Chand s/o Shri Hari Singh,

r/o Village Path, P.O. Sainthal, Tehsil Joginder Nagar, District Mandi, H.P. during October,

1998 to 31-08-2007 by the Executive Engineer, B&R Division H.P.P.W.D., Joginder Nagar,

District Mandi, H.P., without complying with the provisions of the Industrial Disputes Act,

1947, is legal and justified? If not, what amount of back wages, seniority, past service

benefits and compensation the above worker is entitled to from the above employer?”

The case of the petitioner as set out in the statement of claim is that his services were

engaged by the respondent as a daily waged beldar on muster roll basis w.e.f. October, 1998 and

that he had worked under Assistant Engineer, HPPWD, Sub Division B&R Joginder Nagar. No

appointment letter was ever given to him at the time of his appointment. The muster rolls were

issued to the petitioner only for 15, 18 and 20 days in a month. The respondent had given fictional

breaks to the petitioner from time to time from the date of his initial engagement uptil 31-8-2007.

Thereafter, the services of the petitioner have been engaged continuously by the respondent. A pick

and choose policy was adopted by the respondent, as some junior workers were engaged

continuously, whereas the seniors, like the petitioner, were being engaged with fictional breaks to

deprive them of the permanent status as per Section 25-B of the Industrial Disputes Act, 1947

(hereinafter referred to as ‘the Act’ for short). The principle of ‘last come first go’ was not adhered

to by the respondent and persons, namely, S/Sh./Smt. Rajinder Kumar, Subhash Chand, Sumer

Singh, Sanjeev Kumar, Gudi Devi, Prithi Chand, Rajinder Pal, Dalip Singh, Gautam Ram, Bhawani

Ram and Ram Dhan were engaged without giving them any fictional breaks. The act of the

respondent was wrong, illegal and against the provisions of Sections 25-G and 25-H of the Act.

Smt. Ruma Devi workman had been regularized on 24-11-2008. He is entitled for regularization

from the date of the regularization of his junior with other consequential benefits. Hence, the

petition.

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 October, 1998. The petitioner was

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employed by the Executive Engineer, National Highway Division, HPPWD, Joginder Nagar. The

respondent’s office was created in the month of January, 2004 vide notification dated 9th

December, 2003. The office started functioning w.e.f. 2nd January, 2004 and after the creation of

the respondent’s office, the petitioner and some other workmen were transferred to the newly

created Division from the National Highway Division, Joginder Nagar. The claim of the petitioner

prior to 01-1-2004 pertains to the office of the Executive Engineer, National Highway Division,

Joginder Nagar, who is not a party to the case. It is denied that fictional breaks were given to the

petitioner by the respondent uptil the year 2007. Rather, the services of the petitioner were engaged

as per the availability of work and funds. He was made aware of this fact at the time of his

engagement. His services have been regularized vide order dated 18-8-2015. It is specifically

denied that the respondent had regularized similar situated persons by ignoring the petitioner.

Hence, it was prayed that the petition be dismissed.

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 02-1-2020:

Whether time to time termination of services of the petitioner during October, 1998 to

31-08-2007 by the respondent is 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, as alleged?

. .OPR.

Whether the claim petition is bad for non-joinder of parties, as alleged?

. .OPR.

Whether the claim petition is bad on account of delay and latches, as alleged? . .OPR.

Relief.

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

issues so framed.

Arguments of the learned Counsel/Authorized Representative 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

: Yes

Issue No. 2

: Discussed

Issue No. 3

: No

Issue No. 4

: Not pressed

Issue No. 5

: No

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Relief

: Petition is allowed as per the operative portion of the

Award.

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 to 20

days were issued to him.

11. In this regard Gian Chand (petitioner) stepped into the witness box as PW1. He in his

affidavit Ex.PW1/A submitted under Order 18 Rule 4 of the Code of Civil Procedure has deposed

that the respondent had engaged him since October, 1998 on muster rolls, but they were issued only

for 15 to 20 days. The said process continued till 31-8-2007.

12. Conversely, Shri B.S. Thakur, Executive Engineer, Joginder Nagar (respondent)

testified as RW1. He placed on record copy of office order as Ex.RW1/B, copy of notification

dated 9-12-2003 as Ex.RW1/C and copy of year-wise working days of the petitioner as Ex.RW1/D.

In his cross-examination, he denied that fictional breaks were given to the petitioner by the

department from the month of October, 1998 uptil the year 2007. Volunteered that, the petitioner

himself had not been coming to work. However, he admitted that there was no correspondence of

the department with the petitioner regarding his not reporting for work. He also admitted that after

the issuance of letter dated 14-9-2007, Ex.PW1/C no fictional breaks were provided to the daily

wagers. Further, he admitted that Ex.PW1/B is a document of their department, which reflects the

names of some of the workers. He clearly admitted that the persons figuring at serial No. 4 to 11 in

Ex.PW1/B were junior to the petitioner. He cannot say that the petitioner is entitled for

regularization from the year 2007.

13. There is no denial of the fact that Reference No.306/2014 titled as Smt. Ruma Devi vs.

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

decided by this Court/Tribunal on 28-7-2015. Reference in this regard can be made to copy of such

Award placed on record as Ex.PW1/D. While deciding the said reference, it was held by this Court/

Tribunal that the workman therein was in continuous service with the respondent from her

respective date of engagement and the breaks which were given to her by the respondent being

fictional in nature shall have no effect on her seniority and continuity of service. Manifest that it is

not in one odd case, but in the case of a number of workmen that such procedure had been adopted

by the respondent. Why, how and under what circumstances the muster rolls were issued only for

15 to 20 days to the workman has not been spelt out by the respondent either in his pleadings or in

his evidence. It is the version of the respondent that at his own request the petitioner was engaged

as a daily waged beldar, as per the availability of work and funds with the department. There is no

cogent, convincing, strong and reliable evidence on record to substantiate this plea, except for the

self serving testimony of the respondent.

14. On the other hand, the mandays chart of eleven workmen Ex.PW1/B shows that

workmen, namely, Shri Sanjeev Kumar was engaged in the year 1999, Smt. Guddi Devi in July,

2000, Shri Prithi Pal Singh in October, 2001, Shri Ravinder Kumar in December, 2001, Shri Dalip

Singh in July, 2002, Shri Gautam Ram in April, 2002, Sh. Bhawani Singh in November, 2000 and

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Shri Ram Dhan in February, 2003. Their names figure at serial Nos. 4 to 11 in Ex.PW1/B. A

perusal of Ex.PW1/B shows that all the aforenamed workmen were being offered muster rolls for a

full month. Admittedly, even these workmen are employed in B&R Division HPPWD, Joginder

Nagar. The respondent while appearing as RW1 has placed on record the mandays chart of the

petitioner as Ex.RW1/D. Why the petitioner, who was admittedly senior to the aforesaid workmen,

was not granted the muster rolls for the entire months from the month of October, 1998 uptil

31-8-2007, has neither been explained nor there seems to be any plausible reason for the same. The

respondent has also not explained as to why all the above-named workmen, who were junior to the

petitioner, were not being given any breaks. Indisputably, the nature of job of all these workmen

was similar to that of the petitioner. As discussed above, the reasons to that effect being obscure

only go to show that the story put forth by the respondent that as adequate work and funds were not

available, the petitioner was not being granted the muster rolls for the entire month is incorrect.

After August, 2007 the respondent had started giving muster roll for the entire month to the

petitioner, as is evident from the pleadings and substantive evidence of the petitioner. He continued

working uninterruptedly but only for 15 to 20 days in a month right from the month of October,

1998 till 31-8-2007. Certain similarly situated persons, however, continued to be granted muster

roll for the full month. The respondent was either resorting to favourtism or acting in a partisan

manner to the petitioner or was simply resorting to such process with an object of depriving him of

the status and privileges of a permanent workman, entitling him to regularization, as per the policy

of the State Government. It is an act of gross discrimination which is ex facie borne out from the

record. There can be no two opinions about it. Mere glance at the record highlights the glaring

discrepancy and discrimination perpetuated by the respondent.

15. The aforesaid act of the respondent, as discussed above, is not only an ‘unfair labour

practice’ as per the provisions of the Section 2(ra) of the Act, but is also against the provisions of

Section 25-B of the Act, which inter-alia 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 his. The cessation of work was caused due to the

arbitrary and discriminatory attitude of the respondent. Therefore, it has to be presumed that the

workman i.e. petitioner was in ‘continuous service’. He continued serving the respondent

uninterruptedly from the date of his engagement i.e. October, 1998. The sole inference which can

be drawn from the entire circumstances discussed above is that the action of the respondent in

giving fictional breaks to the petitioner and in the process disengaging him after 15 to 20 days

every month from the month of October, 1998 till 31-8-2007 was illegal and against the provisions

of the Act.

16. The upshot is that the petitioner was in continuous uninterrupted service with the

respondent from the month of October, 1998 till 31-8-2007. The breaks given to him by the

respondent were fictional in nature and they shall have no effect on his seniority and continuity in

service. His seniority shall be reckoned from his initial date of engagement, i.e. October, 1998.

17. These issues under discussion are accordingly decided in favour of the petitioner and

against the respondent.

Issue No. 3 :

18. In view of what has been held under the foregoing issues, the petition is perfectly

maintainable to the extent the same relates to the relief(s) the petitioner is found entitled to. Even

otherwise, nothing has been brought to my notice by the respondent to show as to how the

reference is not maintainable. The issue under discussion is accordingly decided against the

respondent and in favour of the petitioner.

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Issue No. 4 :

19. Not pressed.

Issue No. 5 :

20. In Ajayab Singh vs. Sirhind Co-operative Marketing-cum-Processing Society Limited

and Another, (1999) 6 SCC 82, it has been observed by the Hon’ble Supreme Court that:

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

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

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

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

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

21. In view of the trite laid down in this ruling, it cannot be said that the petition is hit by

the vice of delay and laches. Hence, this issue under discussion is decided in favour of the

petitioner and against the respondent.

Relief:

22. As a sequel to my findings on issues above, the instant claim petition succeeds and the

same is allowed. It is held that the petitioner was in continuous uninterrupted service with the

respondent from the month of October, 1998 uptil 31-8-2007. The breaks given by the respondent

to the petitioner from the month of October, 1998 uptil 31-8-2007 were artificial/fictional in nature.

This period of fictional breaks is ordered to be counted for the purpose of continuous service,

except back wages. His seniority shall be reckoned from the month of October, 1998. Parties to

bear their own costs. The reference is answered in the aforesaid terms. A copy of this Award be

sent to the appropriate Government for publication in the official gazette. File after due completion

be consigned to the Record Room.

Announced in the open Court today this 23rd day of March, 2021.

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.

: 140/2015

Date of Institution

: 26-3-2015

Date of Decision

: 24-3-2021

Shri Vipan Kumar s/o Shri Bhim Singh, r/o Village Dehrian, P.O. Samirpur, Tehsil and

District Kangra, H.P.

. .Petitioner.

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Versus

The Block Medical Officer, Tiara, District Kangra, H.P.

. .Respondent.

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

For the Petitioner

: Sh. K.K. Chaudhary, Adv.

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 termination of the services of Shri Vipan Kumar s/o Shri Bhim Singh, r/o

Village Dehrian, P.O. Samirpur, Tehsil and District Kangra, H.P. by (1) The Block Medical

Officer, Tiara, Tehsil and District Kangra, H.P. (2) The Medical Officer-I/C-cum-Member

Secretary, Rogi Kalyan Samiti, Tiara (Kangra), Tehsil and District Kangra, H.P. w.e.f.

01-04-2013 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

amount of compensation the above aggrieved workman is entitled to?”

The case of the petitioner as set out in the statement of claim is that he was appointed

as a chowkidar (watchman) on daily waged basis by Rogi Kalyan Samiti at Public Health Centre,

Tiara Tehsil and District Kangra, H.P. vide appointment letter dated 16-2-2009. He had joined on

26-2-2009 and had worked as a chowkidar (watchman) continuously under the respondents uptil

31-3-2013. Earlier he was paid a salary of Rs.3,000/- per month i.e. Rs.100/- per day. He had lastly

drawn the salary @ Rs.150/- per day. He had discharged his duties honestly to the satisfaction of

the respondents. He had worked for more than four years without any break. However, his services

were terminated by the respondents on 31-3-2013 on the ground of lack of financial resources vide

letter dated 29-3-2013, which was received by him on 30-3-2013. Along-with him the services of

one lab assistant had also been terminated. However, subsequently the services of that lab assistant

had been restored, who was also working under the Rogi Kalyan Samiti. As per the information

received under the Right to Information Act, the closing balance of the Rogi Kalyan Samiti as on

31-3-2013 was Rs. 2,52,634/-, and which funds were being given to pay the salaries of the Rogi

Kalyan Samiti employees. It is also asserted that as per the notifications issued by the Department

of Health, on completion of three years of contractual service, it was to be converted into

Government contract. Since the petitioner had completed four years of service as a chowkidar, he

is liable to be reinstated on this ground alone. No seniority list of the employees who had been

working under Rogi Kalyan Samiti of the Government has been prepared by the respondents. The

services of the petitioner were terminated illegally. He, thus, prays for his re-engagement with all

consequential benefits.

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

regarding lack of maintainability. The contents of the petition were denied on merits. However, it is

admitted that the petitioner was engaged as a chowkidar on daily waged basis under Rogi Kalyan

Samiti in Primary Health Centre, Tiara, District Kangra, H.P. vide letter dated 16-2-2009. He had

joined the duties on 27-2-2009 in the afternoon. In the annual meeting of the governing body of

Rogi Kalyan Samiti of Primary Health Centre, Tiara on dated 9-1-2009, it was resolved to appoint a

chowkidar on daily wage basis as per Government rates. Only thereafter the petitioner was

appointed as such. Rogi Kalyan Samiti is an independent body governed by its guidelines. It is also

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admitted that the petitioner had served as a chowkidar at Primary Health Centre, Tiara uptil

31.3.2013. It is specificially denied that he had lastly drawn the salary @ Rs.45000/- per month.

The petitioner had been appointed temporarily on daily wage basis, as per the appointment letter

and the agreement entered into between the petitioner and the Rogi Kalyan Samiti for a period of

one year. On completion of the period, every year the annual meeting of the governing body of the

Rogi Kalyan Samiti, Tiara was held and on careful assessment of the resources, out of which the

wages were to be paid, new contracts with the petitioner were executed from time to time for a

period of one year each. It is denied that the lab assistant had also been terminated along-with the

petitioner. After 31-3-2013 the Rogi Kalyan Samiti had not entered into a new contract with the

petitioner, as the user charges, out of which the wages were to be paid to the petitioner, were found

insufficient. The policy of the State Government for the staff serving under the Rogi Kalyan Samiti

applied only to those employees who had been appointed by the Government through the Samiti

after taking approval of the Finance Department, i.e. for the posts of Medical Officer, Staff nurses,

Pharmacists etc. The petitioner had not been appointed by the Government through Rogi Kalyan

Samiti, so the Government policy did not apply to him. Since the petitioner had been engaged by

the Rogi Kalyan Samiti, no seniority list was prepared. The petitioner has been paid the full

payment uptil 31-3-2013 and there has been no violation of any of the provisions of Industrial

Disputes Act, 1947 (hereinafter referred to as ‘the Act’ for short). It is, thus, prayed that the claim

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 6-8-2015:

Whether termination of the services of the petitioner by the respondents w.e.f. 01-04-

2013 is/was improper 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 petition is not maintainable in the present form as alleged?

. .OPR.

Relief.

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

issues so framed.

Arguments of the learned counsel for the petitioner and the learned Deputy District

Attorney for respondents heard and records gone through. Written arguments only filed by the

petitioner have also been gone through by me.

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

: Negative

Issue No. 3

: Yes

Relief.

: Petition dismissed per operative 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 petitioner, namely, Shri Vipan Kumar 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 and Mark A1 to Mark A3.

In the cross-examination, he stated he is doing the days drudgery these days. He admitted

that he had joined on 27-2-2009 at PHC Tiara. He also admitted that he had joined as per the

agreement entered into between him and the Rogi Kalyan Samiti. He admitted his signatures on

Ex.PW1/E1 to PW1/E4. He feigned ignorance that he was being paid the wages through user

charges of Rogi Kalyan Samiti. However, he admitted that the user charges were self generated by

the Rogi Kalyan Samiti. He clearly admitted that persons were being employed through Rogi

Kalyan Samiti in two ways, one who were being appointed on behalf of the Government and the

others through a resolution passed in the meeting of the Samiti. Further, he admitted that due to

paucity of funds Sumit Kumar, Lab Technician had been removed on year ago. He also admitted

that thereafter Sumit Kumar has been working on outsourced basis and that no payment is being

made to him by the Rogi Kalyan Samiti. He denied that he is making a phoney statement.

11. Conversely, Dr. Sneh Sood, Block Medical Officer, Primary Health Centre, Tiara,

Tehsil & District Kangra testified as RW1. In her affidavit Ex. RW1/A filed as per Order 18 Rule 4

CPC, she corroborated on oath the contents of the reply preferred by the respondents.

In the cross-examination, she admitted that the petitioner was engaged as a chowkidar in the

hospital. Volunteered that, he was engaged from the funds of Rogi Kalyan Samiti. She admitted

that Rogi Kalyan Samiti is being run as per the instructions and directions issued by the

Government. Self stated that it is an autonomous body. She clearly admitted that the petitioner was

being paid the salary on monthly basis. Further, she admitted that the petitioner had continuously

worked uptil 31-3-2013. Self stated that he was being kept on contract basis yearly. She specifically

denied that no month’s notice had been served upon the petitioner prior to his disengagement.

Volunteered that, a notice had been given. She admitted that no one month’s advance salary had

been paid to the petitioner. She specifically denied that the services of the petitioner had wrongly

been dispensed with by them.

12. Ex. RW1/B is the copy of Office Order dated 9th September, 2010 regarding financial

guidelines for utilization of annual maintenance grant and untied funds at Primary Health

Centre/Community Health Centre Level.

13. Ex.RW1/C is the copy of quarterly meeting dated 9-1-2009 of PHC Tiara, Kangra.

14. Ex.RW1/D1 to Ex.RW1/D4 are the copies of yearly meetings of Governing Body of

RKS, PHC Tiara, Kangra.

15. Ex.RW1/E1 and Ex.RW1/E4 are the copies of agreements executed between Shri

Sumit Kumar and M.D.-cum-Chairman, Rogi Kalyan Samiti, PHC Tiara, Kangra.

16. Ex.RW1/F is the copy of guidelines for the Rogikalyan Samiti in Government Health

Institutions of Himachal Pradesh.

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17. Ex.RW1/G is the copy of mandays chart relating to the petitioner.

18. It is an admitted fact that the services of the petitioner were engaged as a chowkidar

(watchman) by the Rogi Kalyan Samiti in the Primary Health Centre, Tiara. Although, the

petitioner claimed that he had joined the service in the Primary Health Centre on 26-2-2009, but he

had to admit in his cross-examination that he had joined on 27-2-2009. The mandays chart

Ex.RW1/G produced by the respondent has not been disputed by the petitioner. It shows that the

petitioner had only worked for two days in the month of February, 2009. Manifest that the

petitioner had joined the service only on 27-2-2009 in the Primary Health Centre at Tiara. The

latter has not denied the fact that the petitioner was initially employed on 27-2-2009 and that he had

worked uptil 31-3-2013.

19. It is often said and rightly too that a man may tell lies, but the document does not. It is

the basic law that documentary evidence as compared to oral evidence has to be given weight.

20. From the evidence available on the file and in particular the documents Ex.PW1/E1 to

Ex.PW1/E4 and Ex. PY, being the copies of contracts/agreements executed in between the

petitioner and the Rogi Kalyan Samiti, Primary Health Centre, Tiara, it can be gathered that the

petitioner had worked as a chowkidar in the Primary Health Centre, Tiara on contractual basis from

time to time. Admittedly, all the above-mentioned documents are signed by the petitioner. It is well

known that a person signing a document is presumed to agree to its contents. Therefore, the

aforementioned contracts/agreements (Ex.PW1/E1 to Ex.PW1/4 and Ex.PY) unfold that the

services of the petitioner used to be engaged purely on contractual basis for a fixed period.

21. The petitioner as per his pleadings and evidence on record admitted that he was

relieved from his duties by the respondents on 31st March, 2013. It is not in dispute that the term of

contractual employment of the petitioner was not renewed vide a letter dated 29-3-2013

(Ex.PW1/C). As per the text and tenor of this letter, the governing body of the Rogi Kalyan Samiti,

Primary Health Centre, Tiara in its annual meeting held on 14-3-2013 had decided not to extend the

contractual employment of the petitioner further due to the paucity of funds and that with the

culmination of the contract w.e.f. 31-3-2013, his services would automatically come to an end.

22. Ex.PY is the copy of last contract/agreement dated 1st April, 2012, which was

executed in between the petitioner and Rogi Kalyan Samiti, Primary Health Centre, Tiara. It depicts

that the services of the petitioner were engaged as a chowkidar from 1st April, 2012 to 31st March,

2013 purely on temporary contract basis on payment of wages as paid to the daily wagers as per the

Government rates as applicable from time to time, which at that time were Rs.130/- per day. In

Ex.PY, it has been highlighted that the contractual appointment was purely temporary. As already

mentioned, it is the admitted case of the petitioner that he was relieved from his duties by the

respondents on 31st March, 2013, i.e. the day on which the term of the contractual employment

came to an end.

23. From the evidence available on the file, it is abundantly clear that the petitioner was

only a contractual employee/chowkidar who served the respondents/Primary Health Centre, Tiara

in different spells from 27th February, 2009 to 31st March, 2013 on payment of wages as payable

to the daily wagers on Government rates from time to time. The term of contractual employment of

the petitioner as per the last contract/agreement Ex.PY had come to an end on 31st March, 2013.

Vide letter Ex.PW1/C, the petitioner had been intimated that immediately after 31st March, 2013 on

the culmination of the contract his appointment would not be renewed due to scarcity of funds

available with the Rogi Kalyan Samiti. Non renewal of the term of contractual employment does

not come within the mischief of the word “retrenchment” as per the Clause (bb) of Section 2(oo) of

the Act.

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24. That being so, by no stretch of imagination it can be said that the services of the

petitioner were wrongly and illegally dispensed with by the respondents. The latter have not flouted

any of the provisions of the Act.

25. Otherwise too, the petitioner has not divulged the names of the persons who were

employed by the respondents after the termination of his services, either in his pleadings or the

evidence.

26. Such being the situation, I have no hesitation to conclude that the respondents have not

flouted the provisions of Sections 25-F, 25-G and 25-H of the Act. The termination of the services

of the petitioner by the respondents cannot be termed as “retrenchment” particularly when the

terms and conditions of engagement were to the knowledge of the petitioner and he had joined the

service after admitting the same to be correct.

27. It appears to me that the avarice of the petitioner to grab the job and money has forced

him to file a totally false and baseless claim. He is not entitled to any relief.

28. Both the issues are decided against the petitioner and in favour of his opponent.

Issue No. 3 :

29. Keeping in view my findings on issues No. 1 and 2 above, it is held that the claim

petition is not maintainable in the present form.

30. At the cost of reiteration, I will like to add that the term of contractual appointment of

the petitioner as per the contract/agreement dated 1-4-2012 (Ex.PY) was for a period of one year

w.e.f. 1st April, 2012 to 31-3-2013. Thus, the term of contractual appointment of the

petitioner/claimant came to an end on 31-3-2013. On the expiry of the period of the contractual

appointment, there cannot be an automatic extension of the period of the engagement of the

services of the petitioner. The term of contractual appointment could have further been extended at

the mutual discretion of both the parties only. In view of these facts, the petitioner has no right to

continue in service after 31-3-2013 and the respondents cannot be directed to reinstate his services.

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

Relief :

32. As a sequel to my findings on the various issues above, the present claim petition being

meritless, not maintainable and malafide, fails. It is, therefore, 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. File after due completion be consigned to the

Record Room.

Announced in the open Court today this 24thday of March, 2021.

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.)

(CAMP AT MANDI)

Ref. No.

: 295/2015

Date of Institution

: 13-7-2015

Date of Decision

: 26-3-2021

Shri Tara Chand s/o Shri Chaina Ram, r/o Village Khalada, P.O. Dharan, Tehsil Sadar,

District Mandi, H.P.

. .Petitioner.

Versus

The Executive Engineer, I.& P.H. Division, Mandi, District Mandi, H.P.

. .Respondent.

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

For the Petitioner

: Sh. S.S. Sippy, AR

For the Respondent

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

AWARD

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

adjudication:

Whether the industrial dispute raised by the worker Shri Tara Chand s/o Shri Chaina Ram,

r/o Village Khalada, P.O. Dharan, Tehsil Sadar, District Mandi, H.P. before the Executive

Engineer, I.&P.H. Division, Mandi, District Mandi, H.P. vide demand notice dated 07-09-

2011 regarding his alleged illegal termination of service during July, 1996 suffers from

delay and latches? If not, Whether termination of the services of Shri Tara Chand s/o Shri

Chaina Ram, r/o Village Khalada, P.O. Dharan, Tehsil Sadar, District Mandi, H.P. by the

Executive Engineer, I.&P.H. Division, Mandi, District Mandi, H.P. during July, 1996

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?”

In pursuance to the reference the petitioner has averred in the statement of claim that

he was engaged as a daily waged beldar by the respondent in the month of June, 1995. He had

worked as such till the month of June, 1996. His services were orally dispensed with by the

respondent on the pretext of lack of funds/budget. However, he was assured that he would be called

to work, as and when funds/budget were available. But, he was never called again thereafter. He

had approached the respondent time and again for his re-engagement, but without success.

81 persons junior to him were retained by the respondent. S/Sh. Ludermani, Anup Ram, Ram

Singh, Charitra etc., who were also junior to the petitioner, have been regularized. The petitioner

had completed more than 240 days of work. No opportunity of re-engagement was ever given to

him. The action of the respondent is stated to be in violation of the provisions of Sections 25-F (a),

25-F(b), 25-B, 25-G and 25-H of the Industrial Disputes Act, 1947 (hereinafter referred to as ‘the

Act’ for short). He is unemployed till date. Hence, the petition for his re-engagement with all

consequential benefits.

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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. However, it was admitted that the petitioner was

engaged as a daily waged beldar w.e.f. June, 1995. It is asserted that he had worked intermittently

and had left the job of his own sweet will. It is specifically denied that the services of the petitioner

had been terminated in the month of June, 1996. The petitioner had never made representation for

his re- engagement, except for raising the dispute by filing a demand notice after a lapse about ten

years on 7-9-2011. Only those workers had been regularized by the department, who had fulfilled

the criteria of regularization as per the Government policy. It is clearly asserted that as the

petitioner had not completed 240 days in any calendar year, there was no need to serve a notice

upon him under Section 25-F of the Act. Neither any junior had been retained nor engaged by the

respondent in place of the petitioner. There has been no violation of any of the provisions of the

Act by the respondent. The petitioner is gainfully employed, being an agriculturist. Hence, it is

prayed that the claim 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 5-1-2016:

Whether the industrial dispute raised by petitioner vide demand notice dated 7-09-2011

qua his termination of service w.e.f. July, 1996 by respondent suffers from the vice of

delay and latches as alleged? If so, its effect?

. .OPP.

Whether termination of the services of petitioner by the respondent w.e.f. July, 1996

is/was illegal 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 as alleged? . .OPR.

Relief.

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

issues so framed.

Arguments of the learned Authorized Representative 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

: Negative

Issue No. 2

: Decided accordingly

Issue No. 3

: Decided accordingly

Issue No. 4

: Not pressed

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Relief.

: Petition is partly allowed awarding lump sum compensation

of `50,000/- per operative part of the award.

REASONS FOR FINDINGS

Issues No.1 to 3 :

All 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 Tara Chand 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.

In the cross-examination, he admitted that he had worked till the year 1996. He denied

that only in the year 2011 he had issued a demand notice. Volunteered that, a legal notice was

given in the year 1998. He clearly admitted that from the year 1998 uptil September, 2011 he had

not made any representation. He specifically denied that he had left the job of his own sweet will.

He also denied that he had never been removed from work by the department. He does the days’

drudgery privately. He owns 3-4 big has land, which he cultivates. He denied that no junior to him

had been kept by the department. He admitted that only those persons have been regularized, who

had worked regularly. He denied that he was making a phoney statement.

11. Conversely, Shri Arun Kumar Sharma, Executive Engineer, I&PH Division, Mandi,

District Mandi, H.P. (respondent) testified as RW1. In his affidavit Ex. RW1/A filed as per Order

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

the respondent.

In the cross-examination, he admitted that the petitioner had worked from June, 1995 uptil

June, 1996. He also admitted that as per the record no notice had been issued to the petitioner

regarding his absence. He further admitted that as per the record the petitioner had completed 294

days of work in the preceding twelve months. Volunteered that, the department had never

terminated the petitioner. Further, he admitted that no opportunity of re-engagement was provided

to the petitioner before engaging the workers as per seniority list Ex.PW1/E. He denied that the

petitioner had wrongly been terminated by the department.

12. Ex.RW1/B is the copy of mandays chart relating to the petitioner.

13. It is an admitted fact that the services of the petitioner were engaged as a daily waged

beldar by the respondent. The latter has not denied the fact that the petitioner was initially

employed in the month of June, 1995 and that he had worked uptil the month June, 1996. Shri Arun

Kumar Sharma (RW1), the respondent in his substantive evidence was categorical that the

petitioner had worked in the department from the month of June, 1995 till the month of June, 1996.

The mandays charts, one produced by the petitioner as Ex.PW1/D and the other by the respondent

as Ex. RW1/B, disclose that the services of the petitioner were initially engaged in the month of

June, 1995 by the respondent and that he had worked uptil June, 1996.

14. The version of the petitioner is that his services were wrongly and illegally terminated

by the respondent in the month of July, 1996. While denying the said fact, the respondent has

pleaded that the petitioner, who had worked intermittently, had left the job of his own accord and

free volition.

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15. 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 Arun Kumar Sharma, (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.

16. Then, it was contended by the learned Deputy District Attorney for the respondent that

the petitioner had not worked for 240 days during the preceding twelve months on daily wages and,

therefore, the petitioner cannot claim any protection under the provisions of the Act. The case of

the petitioner is that as no one month’s notice in writing had been given to him by the department,

nor he had been paid the retrenchment compensation, the purported order of retrenchment is illegal,

because the conditions precedent as contained in Section 25-F of the Act were not complied with.

17. Claiming to have worked for more than 240 days from the month of June, 1995 till the

month of June, 1996, the petitioner in his affidavit Ex.PW1/A claimed to have thus been in

continuous service for one year prior to the month of his disengagement. This claim having not

been challenged during his cross-examination by the respondent deserves acceptance. More so, in

view of the mandays charts Ex.PW1/D (also Ex.RW1/B), the own document of the respondent. The

said document is indicative of the petitioner having worked for 294 days from the month of June,

1995 till the month of June, 1996. It also stands clearly admitted by the respondent (RW1) that the

petitioner had worked for 294 days in the preceding twelve calendar months as per the record.

Section 25-F of the Act, which is alleged to have been violated by the respondent, says:

“25-F. Conditions precedent to retrenchment of workmen.— No workman employed in any

industry who has been in continuous service for not less than one year under an employer

shall be retrenched by that employer until.—

(a) the workman has been given one month’s notice in writing indicating the reasons for

retrenchment and the period of notice has expired, or the workman has been paid in

lieu of such notice, wages for the period of the notice:

(b) the workman has been paid, at the time of retrenchment compensation which shall be

equivalent to fifteen days’ average pay for every completed year of continuous service

or any part thereof in excess of six months; and

authority as may be specified by the appropriate Government by notification in the

Official Gazette.”

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18. In view of this provision, no workman employed in any industry, who has been in

“continuous service” for not less than one year, can be retrenched by the employer unless he has

been given one month’s notice in writing indicating the reasons for retrenchment and the period of

notice has expired or the workman has been paid in lieu of such notice, wages for the period of

notice. The expression “continuous service” has been defined under Section 25-B of the Act, which

in its material part reads:

“25B. Definition of continuous service. For the purposes of this Chapter.—

(3) a workman shall be said to be in continuous service for a period if he is, for that period,

in uninterrupted service, including service which may be interrupted on account of

sickness or authorised leave or an accident or a strike which is not illegal, or a lock-out

or a cessation of work which is not due to any fault on the part of the workman;

(4) where a workman is not in continuous service within the meaning of clause (1) for a

period of one year or six months, he shall be deemed to be in continuous service under

an employer.—

(b) for a period of one year, if the 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 for not less than.—

(i)

one hundred and ninety days in the case of a workman employed below ground in

a mine; and

(ii) two hundred and forty days, in any other case….”

19. Since, the petitioner is proved to have completed more than 240 days during the period

of twelve calendar months preceding the date of his retrenchment, which as per the reference took

place in the month of July, 1996, his services could not have been terminated unless he was served

with one month’s notice and paid the retrenchment compensation as envisaged under Section 25-F

of the Act. Admittedly, the provisions of Section 25-F of the Act were not complied with by the

respondent. The respondent neither paid the retrenchment compensation nor issued any requisite

notice to the petitioner, as provided under Section 25-F of the Act. Therefore, the respondent

undoubtedly has violated the said provisions of the Act.

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

said Section provides:

“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”.

21. The petitioner’s allegations that the respondent had violated the provisions of Section

25-G of the Act as well, to my mind, does not appear to have been substantiated. The statement of

claim, the petitioner’s affidavit Ex.PW1/A as also his cross-examination as PW1 are non-existent in

the names of the persons, who being junior to him, were allegedly retained by the respondent after

his retrenchment. Then, no seniority list of daily waged category has been placed and exhibited

on record by the petitioner to show that persons junior to him were still serving the respondent/

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department. Even no co-worker has been examined by the petitioner to substantiate his claim. The

bald testimony made by the petitioner (PW1) to the effect that workers junior to him were retained

and that their services have been regularized by the respondent cannot be taken as a gospel truth.

The material on record, thus, being too scanty and nebulous to lend credence to his allegation that

workers junior to him were retained after the termination of his services, the respondent cannot be

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

22. It was also claimed by the petitioner that after his alleged disengagement, new/fresh

hands have been engaged by the respondent. As per the mandays chart, Ex.PW1/B (also

Ex.RW1/B) the petitioner appears to have worked as a daily waged beldar in Irrigation & Public

Health Department, Sub Division, Panarsa, District Mandi. Ex.PW1/E i.e. the list of beldar

category reveals that from the year 1997 uptil the year 2008 seventeen new/fresh hands were

engaged by the respondent in I&PH Sub Division, Panarsa. As per the reference the services of the

petitioner stood terminated by the respondent in July, 1996. This indicates that new/fresh hands

were employed by the respondent after the termination of the services of the petitioner. There is

nothing on the file to establish that at the time of engaging new/fresh hands an opportunity of re-

employment was afforded to the petitioner. Shri Arun Kumar Sharma (RW1) in his cross-

examination clearly admitted that prior to engaging the workers shown in the list Ex.PW1/E, no

opportunity of re-employment was afforded to the petitioner.

23. Such being the situation, I have no hesitation to conclude that the respondent has

contravened the provisions of Sections 25-F and 25-H of the Act. The termination of the services of

the petitioner is illegal and unjustified.

24. Faced with the situation, the learned Deputy District Attorney for the respondent

contended that there being an inordinate delay in the steps taken by the petitioner for the redressal

of his grievance, his claim suffers from the vice of delay and laches, which disentitles him to the

relief(s) he has prayed for. This contention, to my thinking, appears to be ill conceived. The

question of delay and laches was considered by the Hon’ble Supreme Court in case titled as

Ajayab Singh vs. Sirhind Co-operative Marketing-cum-Processing Society Limited and Another,

(1999) 6 SCC 82, wherein it was inter-alia held:

“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”.

25. In view of the aforesaid binding precedent, it cannot be said that the petition is hit by

the vice of delay and laches. Of course, the delay in raising the industrial dispute by a workman can

be taken into account by the Court while granting the relief(s) claimed. The observations made by

our own Hon’ble High Court in case titled as Liaq Ram vs. State of H.P. and ors., 2012 (2) Him.

L.R.(FB) 580 (majority view) will also be advantageous on this aspect of the matter.

26. In case titled as Assistant Engineer Rajasthan Development Corporation and another

vs. Geetam Singh reported in 2013 (136) FLR 893 (SC), it was held by the Hon’ble Supreme Court

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

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

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

before grant of relief in an industrial dispute. It was also observed that the workman had worked for

286 days and had raised industrial dispute in the year 1992, whereas his services had been

terminated in the year 1986 and had raised industrial dispute after six years. It was held that though

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the compensation awarded by the Single Judge of the Hon’ble High Court was too low and liable to

be enhanced by the Division Bench, but surely reinstatement of the workman in the facts and

circumstances was not the appropriate relief and thus a lump-sum of Rs.1 lakh along-with interest

@ 9% per annum had been awarded. Recently, in case titled as Deputy Executive Engineer vs.

Kuberbhai Kanjibhai 2019 (160) FLR 651, by relying upon the cases of Bharat Sanchar Nigam

Limited vs. Bhurumal (2014) 7 SCC 177 and District Development Officer & another vs. Satish

Kantilal Amerelia 2018 (156) FLR 266 (SC) , it has been held by the Hon’ble Supreme Court that

where the workman had worked as a daily wager or muster roll employee hardly for a few years

and where the dispute had been raised by him almost after 15 years of his alleged termination, he

was held entitled only for lump sum monetary compensation in full and final satisfaction of his

claim of reinstatement and other consequential benefits. Similarly, in case titled as State of

Uttarakhand & Anr. vs. Raj Kumar, 2019 (160) FLR 791, the Hon’ble Supreme Court has held that

where a daily wager has worked for about a year and a dispute was raised by him after 25 years of

the alleged termination, he had no right to claim regularization and was only entitled to lump sum

monetary compensation in full and final satisfaction of his claim of reinstatement and consequential

benefits. In the case on hand before this Court, the factors which have weighed are that the

petitioner in all remained engaged for about one year and actually worked for 294 days as per

mandays chart on record and that his services were disengaged in July, 1996, who had worked as

non- skilled worker and had raised the industrial dispute by issuance of demand notice after about

more than fifteen years i.e. demand notice was given on 7-9-2011. Although, the petitioner has

claimed that from time to time he had approached the respondent for being re-engaged, but in this

regard there is no document placed on the file. At the risk of repetition, the petitioner on the date of

filing the claim petition was aged 37 years and had a sufficient spell of life to work and earn his

livelihood. Taking into consideration the factors mentioned above and the precedents laid down by

the Hon’ble Supreme Court in the aforementioned cases, the petitioner is not entitled for

reinstatement or for back wages, but only for a lump sum compensation.

27. In view of the discussion and findings arrived at by me above, a lump-sum

compensation of 50,000/- (Rupees fifty thousand only) would be an appropriate relief to which the

petitioner is entitled to in the facts and circumstances of the given case. It is further made clear that

the amount of compensation shall be paid within four months from the date of receipt of Award,

failing which the petitioner would be entitled to interest @ 6% per annum from date of Award till

its realization. Issues No. 2 and 3 are answered and decided accordingly, while issue No.1 is

decided against the respondent and in favour of the petitioner.

Issue No. 4 :

28. Not pressed.

Relief :

29. In the light of what has been discussed hereinabove while recording the findings on

issues supra, the respondent is hereby directed to pay a compensation of `50,000/- (Rupees fifty

thousand only) to the petitioner in lieu of the reinstatement, back wages, seniority and past service

benefits. Amount of compensation so awarded shall be paid by the respondent to the petitioner

within four months from the date of receipt of Award failing which the respondent shall be liable to

pay interest @ 6% per annum on the said amount from the date of award till realization/deposit of

the amount. In the peculiar facts and circumstances of the case, the parties are left 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 and the file after due completion be

consigned to the Record Room.

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Announced in the open Court today this 26th day of March, 2021.

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.)

(CAMP AT MANDI)

Ref. No.

: 65/2013

Date of Institution

: 27-7-2013

Date of Decision

: 26-03-2021

Shri Murari Lal s/o Late Shri Brahma Ram, r/o Village Beena, P.O. Kalahod, Tehsil

Sunder Nagar, District Mandi, H.P.

. .Petitioner.

Versus

The Director, M/s Suket Hospital Pvt. Ltd. through its Directors, Near Lalit Chowk, Sunder

Nagar, District Mandi, H.P.

. .Respondent.

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

For the Petitioner

: Sh. Bimal Sharma, Adv.

For the Respondent

: Sh. Abhishek Lakhanpal, Adv.

AWARD

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

adjudication:

“Whether termination of the services of Sh. Murari Lal s/o Late Sh. Brahma Ram

(Pharmacist), r/o Village Beena, P.O. Kalahod, Tehsil Sunder Nagar, Distt. Mandi, H.P.

during March, 2009 by the management/employer of M/s Suket Hospital Pvt. Ltd., Near

Lalit Chowk, Sunder Nagar, Distt. Mandi, H.P. without complying the provisions of the

Industrial Disputes Act, 1947 is legal and justified? If not, what amount of back wages,

salary, seniority, continuity in service, past service benefits and compensation the above

workman is entitled to from the above management?”

In furtherance to the reference it is averred by the petitioner in the statement of claim

that he is a diploma holder in pharmacy and is registered under the State Pharmacy Council of

Himachal Pradesh vide registration No. 3979 dated 26-7-2002. After registration, the petitioner had

applied for the post of pharmacist in the office of the respondent. He was appointed by the

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respondent as a pharmacist on 14-2-2003 and had worked continuously. In the month of June,

2008, the petitioner had claimed for basic wages/salary of a pharmacist w.e.f. 14-2-2003 from the

respondent. However, the respondent in the month of July, 2008 had re-designated the petitioner to

the post of helper pharmacist without serving a notice under Section 9A of the Industrial Disputes

Act, 1947 (hereinafter referred to as ‘the Act’ for short). He had worked as a pharmacist

continuously uptil 7-3-2009. However, on 7-2-2009, the petitioner had fallen ill and could not join

his duties uptil 7-3-2009. He thereafter had submitted a medical certificate regarding his illness in

the office of the respondent. But the respondent after destroying his medical record had not allowed

him to join his duty. Without serving any notice under Section 25-F (b) of the Act, his services

were unlawfully terminated on 9-3-2009. His last basic salary as well as the retrenchment

compensation along-with other dues were not paid by the respondent. The respondent had

appointed a new/fresh hand in his place. At the time of his appointment, the petitioner was being

paid Rs. 1800/- per month and thereafter it was revised and fixed at Rs. 1900/-, Rs. 2200/- and

Rs. 2500/-. At the time of his termination the respondent had enhanced his pay to the tune of

Rs. 3280/- per month. However, he was entitled to the basic salary of Rs. 5910/- payable to a

pharmacist w.e.f. January, 2006. The petitioner had filed a complaint before the Labour Inspector,

Circle Sundernagar on 7-7-2008 against the respondent in this regard, but of no consequence. The

respondent on 5-7-2011 in the case titled as President/G.S. Niji Hasptal Karamchari Sangh vs. M/s

Suket Hospital Pvt. Ltd. had accepted the demands of other employees except the disengagement of

the petitioner and another. He then issued demand notice on dated 7-3-2009. State Government

after the receipt of the failure report from the Conciliation Officer made the present reference to

this Court. Since the petitioner has been appointed as a pharmacist by the department of Health and

Family Welfare under Rogi Kalyan Samiti on a fixed amount, he is entitled for the arrears and basic

salary of pharmacist w.e.f. 14-2-2003 uptil 30-5-2013 with interest, which amounts to

Rs. 2,00,000/-. Hence, it is prayed that the order of termination dated 9-3-2009, being illegal and

unconstitutional be set aside and the petitioner be awarded the arrears to the tune of Rs. 2,00,000/-

plus last salary and extra salary with interest.

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

regarding lack of maintainability, that the petitioner is estopped to file the petition on account of his

acts, deeds and acquiescence, that the petitioner has suppressed material facts and that the

petitioner himself had willfully abandoned the job. The contents of the petition were denied on

merits. However, it was asserted that the petitioner was appointment as a helper pharmacist purely

on temporary basis on 14-2-2003. He had abandoned the work of his own sweet will w.e.f.

9-2-2009 and despite repeated reminders had not report back on duty. While under the employment

of the respondent, the petitioner in a clandestine manner had remained in the whole time active

employment of Satyam Medical Hall near Milk Plant Chakkar, District Mandi, H.P. w.e.f. 30-4-

2005 to 29-4-2010. Despite repeated notices the petitioner had not filed his medical certificates,

investigation reports and other concerned documents. Notices dated 9-3-2009, 22-5-2009, 22-6-

2009, 10-7-2009, 18-7-2009 and 7-8-2009 were served upon the petitioner whereby he was

repeatedly asked to report back on duty, but of no avail. On 6-10-2009 a notice was then issued to

the petitioner informing him that his long absence from duty would be treated as abandonment of

the job. The petitioner was being paid the basic salary as per the Minimum Wages Act. It was

denied that he was entitled to the basic salary of a pharmacist w.e.f. January, 2006. The petitioner

is himself guilty of professional misconduct. He has filed the claim totally different to the reference

made by the appropriate Government. Hence, it is prayed that the petitioner 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 25-2-2014:

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

month of March, 2009 is/was illegal and unjustified?

. .OPP.

Whether the petitioner has concealed the true and material facts from the Court as

alleged?

. .OPR.

Whether the petitioner is estopped to file the present petition/claim by his act and

conduct as alleged. If so, its effect?

. .OPR.

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

. .OPR.

Relief.

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

issues so framed.

Arguments of the learned counsel for the parties 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

: Not pressed.

Issue No. 3

: No

Issue No. 4

: Yes

Relief.

: Petition dismissed as per the operative portion of the Award

REASONS FOR FINDINGS

Issue No.1 :

The petitioner, namely, Shri Murari Lal 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.

In the cross-examination, he admitted that he was appointed on 14-2-2003 in Suket

Hospital. He also admitted that Ex.D-1 was issued to him. Volunteered that, he had not done the

work. He feigned ignorance that the job of a pharmacist is a whole time job. These days he is in

government service. He had fallen ill on 9-2-2009 and thereafter could not report back on duty till

7-3-2009. He clearly admitted that Ex.D-2 had been issued to him by the department. He denied

that despite repeated letters he neither had filed the prescription slip nor his medical certificate etc.

He also denied that during his employment, he had been working in Satyam Hospital. He admitted

that he has been paid the salary from February, 2003 to February, 2009. He clearly denied that after

February, 2009 he himself had abandoned the job. He does not want to work with the respondent,

as he is in regular employment.

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10. The petitioner through the statement of his counsel tendered in evidence documents

Ex.PA to Ex.PJ and Mark-A, Mark-A1, Mark-A2 and Mark-B.

11. Conversely, Shri Amar Singh, Administrative Officer, Suket Hospital, Sundernagar,

Mandi (respondent) testified as RW1. He corroborated on oath the contents of the reply filed by the

respondent.

In the cross-examination, he stated that as per the record the petitioner was engaged on

14-2-2003. He denied that they had appointed the petitioner as a pharmacist. He admitted that the

petitioner had been marking his presence with them. The petitioner had worked with them till

February, 2009. He specifically denied that till June, 2008 they had been taking the services of the

petitioner as a pharmacist. He also denied that thereafter he was designated as helper pharmacist.

He was not aware that the petitioner had remained ill till 7-3-2009. He denied that the petitioner

had informed in this regard. He also denied that the petitioner had filed his medical certificate, but

since 8-3-2009 he was not allowed to join the duty. No termination notice had been issued by them,

as the petitioner had not turned up on work. No retrenchment compensation was paid by them to

the petitioner. He admitted that Ramesh Kumar and Saroj Kumari had been working with them.

Volunteered that, Ramesh Kumar was a pharmacist, while Saroj Kumari was a Drug Store

Attendant. Ramesh Kumar had been kept in place of the petitioner. He denied that they had

removed the petitioner from job on 8-3-2009 and that despite his services being taken as a

pharmacist, he was not being given the pay of a pharmacist.

12. Ex. R-A is the copy of appointment letter relating to the petitioner.

13. Ex. R-B is the copy of letter dated 22-5-2009 regarding complaint made for non

payment of minimum wages.

14. Ex. R-C to Ex. R-F are copies of letters dated 22-6-2009, 10-7-2009, 18-7-2009 &

7-8-2009 issued to the petitioner by the respondent.

15. Mark R-7 is the copy of letter dated 6-10-2008 pertaining to the petitioner.

16. The engagement of the petitioner by the respondent in Suket Hospital, Sundernagar on

14-2-2003 is not in dispute. The respondent as per the pleadings and ocular evidence clearly

admitted that the petitioner had been engaged as a help pharmacist purely on temporary basis on

14-2-2003. It is an admitted fact of the parties that the petitioner had worked with the respondent

uptil 9-2-2009. The core question which comes to the fore for determination is whether the

petitioner had been disengaged from service or he himself had abandoned the job, as it is claimed

by the petitioner that he had been terminated by the respondent on 9-3-2009, whereas the stand

taken by the respondent is that since 9-2-2009 the petitioner had remained absent from duty.

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

respondent/employer. The burden of proving of abandonment is upon the respondent. There is

statement of Shri Amar Singh Verma (RW1) alleging that the workman had abandoned the services

w.e.f. 9-2-2009. The respondent has placed and exhibited on record photocopy of explanation letter

dated 9th March, 2009 as Ex.D-2, whereby the petitioner had been asked to explain his absence

from duty w.e.f. 9-2-2009 to 8-3-2009. The petitioner admitted the issuance of this document by the

respondent. The other facts and circumstances appearing against the petitioner are that he was

subsequently issued notices dated 22-6-2009, 10-7-2009, 18-7-2009 and 7-8-2009 as Ex.RC to

Ex.RF respectively regarding his absence from duty and he being called upon to resume the duties.

The petitioner admitted of having received the notice dated 22-5-2009. Although, he has denied the

fact of having received the subsequent notices 18-7-2009 and 7-8-2009, it appears to me that after

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having come to know that the same would go against him, he retracted from his statement

regarding the receipt of letters Ex.RD to Ex.RF. To my mind, had he denied the receipt of

explanation and all the letters, it would have had been a different matter. But, after admitting the

receipt of the explanation letter as well as one of the notices, he could not deny the rest. At the sake

of reiteration the letters Ex. RC to Ex. RF show that the respondent had time and again been asking

the petitioner to explain his position regarding his absence from duty since 9th February, 2009 and

to submit documents and also to report back on duty. There is nothing on the file to establish that

the petitioner had ever replied the explanation letter (Ex.D-2) or the notices (Ex.RC to Ex.RF). The

petitioner claimed that as he had remained ill w.e.f. 7.2.2009 till 7-3-2009, he could not report for

duty. Though, the petitioner in his letter dated 12-6-2009 addressed to the respondent, copy of

which is placed on record as Ex.PJ, claimed that he could not attend the duties w.e.f. 9-2-2009 to

7-3-2009 on account of his illness, but the fact remains that the petitioner has not cited and

examined as a witness the doctor who had treated upon him. He is also not shown to have called for

any record from the hospital where he had remained under treatment. He even did not examine any

family member or person who ought to have attended upon him during the course of his illness,

which as per his admitted case lasted for about one month. In Ex.PJ it has been claimed by the

petitioner that on the 11th of March, 2009 he had submitted his joining letter along-with the

medical certificate to Shri A.S. Verma (RW1), but his certificate was destroyed and he had been

asked to leave with a threatening of dire consequences. Strangely enough, it was merely suggested

to Shri Amar Singh Verma (RW1) that the petitioner had furnished the medical certificate. He

denied the suggestion. It is by now well settled that denied suggestion does not amount to proof. It

was nowhere suggested to this witness that the medical certificate had been destroyed and that he

had been turned away with dire consequences. Then, it is not shown that the petitioner had ever

moved any letter/notice asking the respondent to produce his joining letter dated 11-3-2009 before

the Court. Even otherwise, if it is assumed for the sake of arguments that the medical certificate of

the petitioner had been destroyed, he could have easily obtained and produce a duplicate medical

certificate on record or could have called for the record in this regard from the issuing agency. But,

so has not been done by the petitioner for reasons best known to him. This only shows that the

aforesaid assertion of the petitioner in his letter (Ex.PJ) was false and baseless. As per the text and

tenor of the letters/notices (Ex.RC to Ex.RF), the petitioner had been asked time and again to

produce his medical record. At the cost of reiteration, the petitioner had not responded to any

of those letters/notices. This shows that the plea of the petitioner that due to his illness he could not

report back on duty is not tenable.

18. Accordingly, the petitioner is proved to be absent from attending the duties of his own.

No record has been placed on the file by the petitioner showing that his services were terminated by

the respondent of his own. Rather, the documents available on record show that the petitioner

himself had absented from duties and thereafter had not reported for duty till date before the

respondent. It is evident from the testimony of the petitioner that he is reluctant to join the duties

and work with the respondent, as now he is in government service, working on contract basis. Had

the petitioner responded to the explanation letter (Ex.D-2) and the letters/notices (Ex.RC to Ex.RF)

and had tried to report back on duty, and had the respondent not allowed him to resume his duties,

there would have been some merit in the case of the petitioner. But, as discussed above, the

evidence on record proves that the petitioner himself had not reported back on duty. The petitioner

had not tried to summon the Medical Officer or to call for the record of the hospital concerned to

establish on record that he had remained ill for the period alleged by him in his pleadings. The self

serving testimony of the petitioner regarding his illness cannot be taken as a gospel truth,

particularly when no family member or any person, who ought to have attended upon him during

the period of his illness, has been examined on record. Therefore, it cannot be said that the services

of the petitioner had been terminated by the respondent. It has to be held that the petitioner himself

had absented from duty of his own accord and no fault can be found with the respondent.

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19. After going through the entire evidence on record, both ocular and documentary, it is

my humble opinion that it cannot be said that the services of the petitioner were illegally terminated

by the respondent. Rather, it is evident that the petitioner himself had absented from duty and

thereafter had not reported back after the date of absence i.e. 9-2-2009.

20. The petitioner as per his pleadings and oral evidence has claimed arrears of basic pay

of pharmacist w.e.f. 14-2-2003 uptil 30-5-2013 along-with interest amounting to Rs. 2,00,000/- as

well as last salary and an extra salary from the respondent. However, Section 10 (4) of the Act

mandates that the Labour Court/Industrial Tribunal shall confine its adjudication to the points of

dispute referred to it by the appropriate Government and the matters incidental thereto. The

Hon’ble Supreme Court in case titled as Globe Ground India Employees Union vs. Lufthansa

German Airlines and Anr., 2019 (161) FLR 927 has held that the Industrial Court has to confine its

adjudication to the point of reference and matters incidental thereto only. No reference has been

received from the appropriate Government regarding the alleged arrears. Therefore, the said

controversy, if any, between the parties cannot be looked into by this Court being beyond the terms

of the reference.

21. This issue is decided against the petitioner and in favour of the respondent.

Issue No. 2 :

22. Not pressed.

Issue No. 3 :

23. No evidence of estoppel has been led by the respondent. Hence, this issue is decided

against the respondent and in favour of the petitioner.

Issue No. 4 :

24. Taking into account my findings on issue No. 1 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 respondent and against the petitioner.

Relief :

25. As a sequel to my findings on the various issues above, the present claim petition being

meritless, not maintainable and malafide, fails. It is, therefore, 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. File after due completion be consigned to the

Record Room.

Announced in the open Court today this 26thday of March, 2021.

Sd/-

(YOGESH JASWAL),

Presiding Judge,

Labour Court-cum-Industrial

Tribunal, Kangra at Dharamshala, H.P.

(Camp At Mandi).

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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.

: 592/2015

Date of Institution

: 19-12-2015

Date of Decision

: 31-03-2021

Shri Bharat Kumar s/o Shri Rattan Chand, r/o Village Sumna, P.O. Bassi, Tehsil Chachyot,

District Mandi, H.P.

. .Petitioner.

Versus

The Divisional Forest Officer, Nachan Forest Division at Gohar, District Mandi, H.P.

. .Respondent.

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

For the Petitioner

: Sh. D.S. Katoch, Adv.

For the Respondent

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

AWARD

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

adjudication:

“Whether time to time termination of the services of Shri Bharat Kumar s/o Shri Rattan

Chand, r/o Village Sumna, P.O. Bassi, Tehsil Chachyot, District Mandi, H.P. during year,

2010 to March, 2014 by the Divisional Forest Officer, Nachan Forest Division, at Gohar,

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?”

The case of the petitioner as set out in the statement of claim is that his services were

engaged by the respondent on daily waged basis in Forest Division, Nachan at Gohar, District

Mandi, H.P. in the year 2010 and that he had worked uptil August, 2013 in Charyand Block and

Nachan Range. Fictional/artificial breaks were given to him by the respondent/department despite

availability of work and funds. His name was not mentioned in the seniority list. His services were

finally terminated in the month of February, 2014 despite the fact that he (petitioner) had worked

for 243 days in the year 2010, 269 days in the year 2011, 329 days in the year 2012, 156 days in the

year 2013 and 29 days in the year 2014 respectively. Several requests were made by the petitioner

to reinstate him, but the respondent had appointed one Smt. Kaushalya Devi in his place. He issued

demand notice. State Government after the receipt of the failure report from the Conciliation

Officer, made the above mentioned reference to this Court. Hence, the petitioner prays for his re-

engagement along-with other consequential benefits.

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

regarding lack of maintainability. The contents of the petition were denied on merits. It was

specifically denied that the services of the petitioner were illegally dispensed with by the

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department in the year 2013. No fictional/artificial breaks had ever been given to the petitioner. He

was engaged as a daily waged mazdoor in the month of April, 2010 and had worked intermittently

uptil June, 2013. Thereafter, he (petitioner) had left the work of his own sweet will. The petitioner

had never worked with the department in the year 2011. It was denied that the petitioner had

worked for 243 days in the year 2010, 269 days in 2011, 329 days in 2012, 156 days in 2013 and 29

days in 2014 respectively. The petitioner had been engaged for seasonal work w.e.f. April, 2010

and he had worked intermittently uptil June, 2013. The question of his final termination in the year

2014 does not arise. As he had not completed 240 days in any calendar year, there was no violation

of Section 25-F of the Industrial Disputes Act, 1947 (hereinafter referred to as ‘the Act’ for short).

No junior to the petitioner has been retained by the respondent and that there was no violation of

the provisions of Sections 25-G and 25-H of the Act. The petitioner is gainfully employed, being an

agriculturist. 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 30-5-2018:

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

year, 2010 to March, 2014 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 petition is not maintainable in the present form as alleged?

. .OPR.

Relief.

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

issues so framed.

Arguments of the learned 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

: Negative

Issue No. 2

: Negative

Issue No. 3

: Affirmative

Relief.

: Petition is dismissed per operative part of the Award.

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.

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10. The petitioner, namely, Shri Bharat Kumar 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/B1 to Ex. PW1/B11.

In the cross-examination, he denied that he had worked intermittently uptil June, 2013 and

thereafter had left the job of his own sweet will. He also denied that he had not worked with the

department in the year 2011. Further, he denied that neither any fictional breaks were given to him

nor the department had engaged or retained any junior to him. He specifically denied that he had

not been terminated in April, 2014. He also denied that he had not worked for 240 days in any

calendar year. It was also denied by him that he had been engaged for seasonal work in April, 2010.

He denied that as seasonal work is done in the forest department, there is no work for the labour

throughout the year. He owns 1- 1½ bighas of land, which he cultivates. He clearly denied that

Kaushalya Devi had not been engaged in his place. He further denied that the budget is allocated to

the department as per the seasonal work and rates.

11. Conversely, Shri T.R. Dhiman, Divisional Forest Officer, Nachan Forest Division at

Gohar (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

respondent.

In the cross-examination, he denied that the petitioner was engaged as a daily waged beldar

in the Haliano Beat of Forest Division, Nachan in the year 2010 and that he had worked in

Charyand Block and Nachan Range uptil the year 2013. He also denied that despite work artificial

breaks were given to the petitioner by the department and that in his place new workers had been

kept. Further, he denied that the petitioner had worked in the department till February, 2014 and

that thereafter his services had been dispensed with. He denied that the petitioner had illegally been

terminated.

12. Ex. RW1/B is the copy of the mandays chart relating to the petitioner.

13. It is the admitted case of the parties that the services of the petitioner were engaged in

the year 2010. Though, the respondent (RW1) in his examination-in-chief stated that the petitioner

was employed as a seasonal worker but, however, he has not placed and exhibited on record any

document evidencing that the services of the petitioner were engaged as a casual/seasonal worker

for carrying out the seasonal forestry works only to his (petitioner’s) knowledge.

14. 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?