jkti=] fgekpy izns'k

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eaxyokj] 24 vxLr] 2021@02 Hkknzin] 1943

fgekpy izns'k ljdkj

LABOUR AND EMPLOYMENT DEPARTMENT

NOTIFICATION

Dated, the 23rdJuly, 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 Officer,

86—jkti=@2021&24&08&2021

¼2825½

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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

561/16

Birbal Singh

E. E. HPPWD, Nurpur & other

10-04-2021

783/16

Dharo Ram

-do-

10-04-2021

818/16

Janak Singh

-do-

10-04-2021

14/17

Joginder Singh

-do-

10-04-2021

334/14

Kumari Sanju

D.F.O. Keylong

16-04-2021

51/20

Vinod Nishad

M.D. M/s Inox Wind, Una, H.P.

17-04-2021

610/15

Vijay Kumar

Chairman/M.O. RKS, Barsar

19-04-2021

611/15

Kamaljeet Singh

-do-

19-04-2021

232/15

Abhey Ram

M.D. Lahoul Potato Growers Manali

23-04-2021

10.

264/15

Rajan Sharama

-do-

23-04-2021

11.

660/16

Kashmir Singh

SE HPPWD, Mandi & Others

29-04-2021

12.

658/16

Munshi Ram

-do-

29-04-2021

13.

671/16

Ishwar Dass

-do-

29-04-2021

14.

661/16

Manohar Lal

-do-

29-04-2021

15.

669/16

Gulab Chand

-do-

29-04-2021

By order,

RAM SUBHAG SINGH, IAS

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

_____________

BEFORE THE NATIONAL LOK ADALAT HELD AT DHARAMSHALA

[Organized by Labour Court-cum-Industrial Tribunal, Dharamshala under Section 19, of Legal

Services Authorities Act, 1987 (Central Act)]

Applicant

: Sh. Birbal Singh s/o Sh. Chiru Ram, r/o Village Thana, P.O.

Gurchal, Tehsil Nurpur, District Kangra, H.P.

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Respondent(s)

: (i) The Executive Engineer, HPPWD, Division, Nurpur,

District Kangra, H.P.

(ii) The Executive Engineer, HPPWD Division, Jawali,

District Kangra, H.P.

Number of proceedings of the

Labour Court-cum-Industrial

Tribunal, Dharamshala

: 561/2016

Present:—

Name of Judicial Officer

Sh. Yogesh Jaswal

Name of Member

Sh. B.S. Pathania

AWARD

The dispute between the parties having been referred for determination to the National Lok

Adalat and the parties having compromised/settled the case/matter, the following award is passed in

terms of the settlement:

In view of the separate statements of Shri Mukul Vaid, advocate for the petitioner recorded

on 30-3-2021 and today before the Bench of National Lok Adalat, which are placed on record, the

present reference/claim petition is hereby withdrawn as compromised. In view of the reference/

petition having been withdrawn, the application under Order 22 Rules 3 & 9 of the Code of Civil

Procedure becomes infructuous and which is accordingly dismissed as being infructuous. The

reference is answered in the aforesaid terms. A copy of this Order/Award be sent to the appropriate

Government for necessary action at its end and the file after due completion be consigned to the

Record Room.

The parties are informed that the Court fee, if any paid by any of them shall be refunded.

Petitioner

: Sh. Mukul Vaid, Adv.

Respondent

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

Judicial Officer

Member

Date: 10-04-2021

___________

BEFORE THE NATIONAL LOK ADALAT HELD AT DHARAMSHALA

[Organized by Labour Court-cum-Industrial Tribunal, Dharamshala under Section 19, of Legal

Services Authorities Act, 1987 (Central Act)]

Applicant

: Sh. Dharo Ram s/o Sh. Bhagat Ram, r/o Village and P.O.

Aundh, Tehsil Nurpur, District Kangra, H.P.

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Respondent(s)

: (i) The Executive Engineer, HPPWD, Division, Nurpur,

Tehsil Nurpur, District Kangra, H.P.

(ii) The Executive Engineer, HPPWD Division, Jawali,

Tehsil Nurpur, District Kangra, H.P.

Number of proceedings of the

Labour Court-cum-Industrial

Tribunal, Dharamshala

: 783/2016

Present:—

Name of Judicial Officer

Sh. Yogesh Jaswal

Name of Member

Sh. B.S. Pathania

AWARD

The dispute between the parties having been referred for determination to the National Lok

Adalat and the parties having compromised/settled the case/matter, the following award is passed in

terms of the settlement:

In view of the separate statements of Shri Mukul Vaid, advocate for the petitioner recorded

on 30-3-2021 and today before the Bench of National Lok Adalat, which are placed on record, the

present reference/claim petition is hereby withdrawn as compromised. In view of the reference/

petition having been withdrawn, the application under Order 22 Rules 3 & 9 of the Code of Civil

Procedure becomes infructuous and which is accordingly dismissed as being infructuous. The

reference is answered in the aforesaid terms. A copy of this Order/Award be sent to the appropriate

Government for necessary action at its end and the file after due completion be consigned to the

Record Room.

The parties are informed that the Court fee, if any paid by any of them shall be refunded.

Petitioner

: Sh. Mukul Vaid, Adv.

Respondent

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

Judicial Officer

Member

Date: 10-04-2021

___________

BEFORE THE NATIONAL LOK ADALAT HELD AT DHARAMSHALA

[Organized by Labour Court-cum-Industrial Tribunal, Dharamshala under Section 19, of Legal

Services Authorities Act, 1987 (Central Act)]

Applicant

: Sh. Janak Singh s/o Sh. Dharam, r/o Vill and P.O. Hatli

Jamuwalan, Tehsil Nurpur, District Kangra, H.P.

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Respondent(s)

: (i)

The Executive Engineer, Nurpur Division, HPPWD,

Nurpur, District Kangra, H.P.

(ii)

The Executive Engineer, Jawali Division, HPPWD,

Jawali, District Kangra, H.P.

Number of proceedings of the

Labour Court-cum-Industrial

Tribunal, Dharamshala

: 818/2016

Present:—

Name of Judicial Officer

: Sh. Yogesh Jaswal

Name of Member

: Sh. B.S. Pathania

AWARD

The dispute between the parties having been referred for determination to the National Lok

Adalat and the parties having compromised/settled the case/matter, the following award is passed in

terms of the settlement:

In view of the separate statements of Shri Mukul Vaid, advocate for the petitioner recorded

on 09-4-2021 and today before the Bench of National Lok Adalat, which are placed on record, the

present reference/claim petition is hereby withdrawn as compromised. The reference is answered in

the aforesaid terms. A copy of this Order/Award be sent to the appropriate Government for

necessary action at its end and the file after due completion be consigned to the Record Room.

The parties are informed that the Court fee, if any, paid by any of them shall be refunded.

Petitioner

: Sh. Mukul Vaid, Adv.

Respondent

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

Judicial Officer

Member

Date: 10-04-2021

____________

BEFORE THE NATIONAL LOK ADALAT HELD AT DHARAMSHALA

[Organized by Labour Court-cum-Industrial Tribunal, Dharamshala under Section 19, of Legal

Services Authorities Act, 1987 (Central Act)]

Applicant

: Sh. Joginder Singh s/o Sh. Hari Singh, r/o Vill. Lunder, P.O.

Khel, Tehsil Nurpur, District Kangra, H.P.

Respondent(s)

: (i) The Executive Engineer, HPPWD, Division, Nurpur,

District Kangra, H.P.

(ii) The Executive Engineer, HPPWD Division, Jawali,

District Kangra, H.P.

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Number of proceedings of the

Labour Court-cum-Industrial

Tribunal, Dharamshala

: 14/2017

Present:—

Name of Judicial Officer

: Sh. Yogesh Jaswal

Name of Member

: Sh. B.S. Pathania

AWARD

The dispute between the parties having been referred for determination to the National Lok

Adalat and the parties having compromised/settled the case/matter, the following award is passed in

terms of the settlement:

In view of the separate statements of Shri Mukul Vaid, advocate for the petitioner recorded

on 01-4-2021 and today before the Bench of National Lok Adalat, which are placed on record, the

present reference/claim petition is hereby withdrawn as compromised. The reference is answered in

the aforesaid terms. A copy of this Order/Award be sent to the appropriate Government for

necessary action at its end and the file after due completion be consigned to the Record Room.

The parties are informed that the Court fee, if any, paid by any of them shall be refunded.

Petitioner

: Sh. Mukul Vaid, Adv.

Respondent

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

Judicial Officer

Member

Date: 10-04-2021

___________

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

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

Ref. No.

: 334/2014

Date of Institution

: 05-11-2014

Date of Decision

: 16-04-2021

Kumari Sanju d/o Sh. Neel Chand, r/o Village Chokhang, P.O. Thirot, Tehsil Udaipur,

District Lahaul & Spiti, H.P.

. .Petitioner.

Versus

The Divisional Forest Officer, Lahaul & Spiti at Keylong, District Lahaul & Spiti, H.P.

. .Respondent.

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

For the Petitioner

: Sh. S.K. Sharma, 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 termination of the services of Kumari Sanju d/o Sh. Neel Chand, r/o Village-

Chokhang, P.O. Thirot, Tehsil Udaipur, Distt. Lahaul & Spiti w.e.f. 01-8-2012 by the

Divisional Forest Officer, Lahaul & Spiti at Keylong, Distt. Lahaul & Spiti, 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 she was appointed

as a daily waged helper by the respondent in the Forest Development Agency, Keylong on

12-7-2006 and had worked as such uptil November, 2009. Thereafter, she was transferred to Forest

Development Agency, Jhalma and had worked there from December, 2009 till November, 2011.

She was again transferred back to DFO office Keylong as DDP Record Keeper and had worked as

such uptil 31-7-2012. Her services had wrongly and illegally been terminated by the respondent

w.e.f. 01-8-2012. She had completed 240 days in the preceding twelve calendar months prior to her

termination. While terminating her services, the provisions of Sections 25-F, 25-G and 25-H of the

Industrial Disputes Act, 1947 (hereinafter referred to as ‘the Act’ for short) have been violated by

the respondent. No one month’s prior notice or pay in lieu thereof had ever been given to her. No

seniority list had been prepared by the respondent prior to the termination of her services. Many

juniors to her have been allowed to continue, whereas the services of the petitioner have been

terminated/retrenched. New/fresh hands have also been engaged in place of the petitioner.

Sufficient work and funds were available in the department and the petitioner had been engaged in

the work of permanent nature. The respondent has not paid wages to the petitioner from December,

2008 uptil July, 2012, amounting to Rs.1,60,483/-. The petitioner had visited the respondent’s

office time and again for her re-engagement, but without success. At the time of her termination she

was getting Rs. 5,022/- per month. She is not gainfully employed after her illegal termination.

Hence, the petition for her 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

asserted that the petitioner was engaged as a causal labourer to facilitate the work of Forest

Development Agency (FDA) and she had worked intermittently w.e.f. December, 2006 uptil

November, 2008. After that she had worked as a casual labourer intermittently in Desert

Development Project (DDP) w.e.f. 21-11-2011 to May, 2012. It was denied that she had been

transferred to Forest Development Agency (FDA), Jahalama and that she had worked there from

December, 2009 uptil November, 2011. She had never worked with the respondent from

December, 2009 to November, 2011. It was also denied that she had worked with the respondent

uptil 31-7-2012. It was specifically denied that the services of the petitioner were illegally

dispensed with by the respondent w.e.f. 1-8-2012. Further, it was denied that she had worked

continuously w.e.f. 12-7-2006 to 31-7-2012 and had completed 240 days in each calendar year. It

was denied that juniors to her had been retained. No fresh workman had been engaged in place of

the petitioner. It was asserted that as neither any junior had been engaged nor retained by the

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respondent, so there was no violation of the provisions of Sections 25-F, 25-G and 25-H of the Act.

The petitioner was not engaged in work of permanent nature. It was asserted that the petitioner had

worked intermittently in Forest Development Agency (FDA) which was a project funded by

“National Afforestation Programme”: A Participatory Approach To Sustainable Development of

Forests” (Central Sponsored Scheme). Since the petitioner had not worked with the respondent for

a period mentioned in para 6 of the claim petition, she is not entitled to any amount as alleged. The

petitioner was not illegally terminated by the respondent. 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 09-12-2015:

Whether termination of the services of the petitioner w.e.f. 1-8-2012 by the respondent

is/was illegal and unjustified as alleged

. .OPP.

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

to?

. .OPP.

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

. .OPR.

Relief.

Thereafter, the parties to the list 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

: Yes

Relief.

: Petition dismissed 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 petitioner, namely, Kumari Sanju 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 certain documents purportedly in support of her claim, which are

exhibited as Ex. PW1/B to Ex. PW1/Z4.

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In the cross-examination, she admitted that there is seasonal work in the forest department.

She also admitted that she had worked from December, 2006 uptil November, 2008 in the Forest

Development Agency. She denied that during this period she had worked intermittently.

Volunteered that, she had worked regularly. She also denied that she had worked intermittently

from November, 2011 to May, 2012 in the Desert Development Project. Self stated that she had

worked in the forest department and was being paid the salary through DDP. Further, she denied

that she was never transferred from FDA to DDP. She also denied that she had never worked after

November, 2011. She feigned ignorance that FDA and DDP were centrally sponsored schemes. She

denied that she had not completed 240 days or more. Further, she denied that no juniors to her

were engaged by the department. After July, 2021, she is working as an agriculturist.

11. Conversely, Shri Jai Ram Thakur, Divisional Forest Officer, Forest Division, Keylong

(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 admitted that as per Ex.RW1/G, the petitioner had worked

from July, 2006 uptil May, 2012 in the forest department. Volunteered that, she had worked in

FDA and DDP programmes. He denied that the department was giving salary to the petitioner. He

admitted that seniority list Ex.RW1/E has been issued by the department. Further, he admitted that

in the years 2007, 2008, 2009, 2011, 2012 and 2015, daily waged workers were engaged. He

admitted that all the workers are still working in the department. He also admitted that the

petitioner was kept at work as a daily wager. Volunteered that, she was kept in the project. He

further admitted that persons junior to the petitioner are still working in the department. He also

admitted that the department is having sufficient funds. Further, he admitted that the Deputy

Commissioner had directed DFO Keylong to engage the petitioner. He feigned ignore+ance that the

BDO office Keylong had refused to engage the petitioner. He specifically denied that the petitioner

had been disengaged by the department on 1-8-2012.

12. Ex. RW1/B is the copy of guidelines of “National Afforestation Programme”: A

Participatory Approach to Sustainable Development of Forests (Central Sponsored Scheme).

13. Ex.RW1/C is the copy of guidelines for Hariyali (2003).

14. Ex.RW1/D is the copy of minutes of meeting of Project Implementing Agencies

(PLA’s) of Lahul Block under Desert Development Programme (DDA) dated 6th June, 2012.

15. Ex.RW1/E is the copy of seniority list of daily wager works in Lahaul Forest Division

as on 16-5-2017.

16. Ex.RW1/F is the copy of letter dated 10-7-2012 regarding relieving of Class-IV daily

wages staff engaged under DDP by Divisional Forest Officer, Keylong.

17. Ex.RW1/G is the copy of mandays chart relating to the petitioner.

18. The first question which arises for consideration, as per the arguments, is whether the

petitioner was an employee of respondent or not. It is by now well settled that the burden of proof

is on the workman to establish the employer-employee relationship. In Workmen of Nilgiri Coop.

Maktg. Soc. Ltd. vs. State of Tamil Nadu, (2004) 3 SCC 514, it has been laid down by the Hon’ble

Supreme Court that it is a well settled principle of law that the person who sets up a plea of

existence of relationship of employer and employee, the burden would be upon him. It was also

observed therein that where a person asserts that he was a workman of the company, and it is

denied by the company, it is for him to prove the fact. It is not for the company to prove that he was

not an employee of the company but of some other person.

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19. In the case on hand, it was asserted by the petitioner that she was a workman of the

respondent, being appointed on daily waged basis. The respondent denied this fact and claimed that

the petitioner had worked as a causal labourer to facilitate the work of Forest Development Agency

and Desert Development Project. Therefore, in view of the aforesaid binding precedent, the onus

lay on the petitioner to prove the employer-employee relationship in between herself and the

respondent. No document has been placed and exhibited on record by the petitioner to show that

she was appointed as a daily waged worker by the respondent. Rather, the respondent has tendered

in evidence mandays chart of the petitioner as Ex.RW1/G. It shows that the petitioner had worked

in the Forest Development Agency Project w.e.f. 12-7-2006 to November, 2008 and in the Desert

Development Project w.e.f. 21-11-2011 to May, 2012. The respondent has also tendered in

evidence copy of seniority list of daily waged workers in Lahaul Forest Division, as it stood on

16.5.2017 as Ex.RW1/E. The name of the petitioner does not figure in this seniority lists anywhere.

No reason has been assigned by the petitioner as to why her name does not figure in the seniority

list of daily paid workers maintained by the respondent. There is no grain of evidence on record to

show that any objection was ever raised by her for her name not being there in the seniority list. No

explanation is also forthcoming from her mouth as to why she did not agitate the matter at the

earliest and had challenged the seniority list. It was vociferously argued by the learned Deputy

District Attorney for the respondent that the seniority list contains the names of all the daily waged

workers working with the respondent. The petitioner clearly admitted while under cross-

examination that from September, 2006 till November, 2008 she had worked in the Forest

Development Agency. Had it been that the petitioner was a daily paid worker of the respondent, she

ought to have been engaged on the muster rolls. The petitioner has not filed any of her muster rolls

with the petition. This only goes to show that she had never been engaged on the muster roll.

Further, the payment records Ex.PW1/D to Ex.PW1/Z1, which have been proved and exhibited on

record by the petitioner herself, also nowhere reflect that the petitioner was a daily paid worker.

She had signed the documents, being the bills, which only indicate that the petitioner had worked in

the projects on bill basis in the years 2006, 2007, 2008, 2011 and 2012. Then, how it lies in the

mouth of the petitioner to say that she was appointed or engaged in the year 2006 as a daily paid

worker. In view of the admission made by the petitioner, as discussed above, and also taking into

account the aforesaid documentary evidence, it can safely be held that the petitioner has failed to

establish on record that she was engaged as a daily paid worker by the respondent.

20. Next, it was claimed by the petitioner that she had worked continuously with the

respondent from the year 2006 uptil July, 2012, without any breaks. No such record has seen the

light of the day. Be it recorded here at the risk of repetition that had the services of the petitioner

been engaged as a daily paid worker by the respondent, her name ought to have figured in the

seniority list maintained by the respondent. But, so is not the case here. Then, if the petitioner was a

daily paid worker muster rolls must have been issued in her name. No muster roll has been filed by

the petitioner, nor she had called for any such record so as to show that she indeed was a daily paid

worker. The bills, as discussed above, on the other hand belie the case of the petitioner that she had

been engaged by the respondent as a daily paid worker. For proving that the petitioner was a

‘workman’ and as such entitled for protection under the Act, it was required to be proved on her

part that as provided under Section 25-B of the Act, she had continuously worked for a period of

240 days in a calendar year. However, the number of minimum requisite days specified for the

tribal area of Lahaul Division in Lahaul & Spiti District is 160 days. Having failed to establish on

record that she had worked as a daily paid worker with the respondent and in the absence of there

being any evidence to the effect that she had continuously worked for a period of 160 days in a

calendar year, her submission in this regard is negated. In case titled as Range Forest Officer vs.

S.T. Hadimani 2002 SCC (L&S) 367, it has been laid down by the Hon’ble Apex Court that the

filing of an affidavit is only his own statement in his favour and it cannot be regarded as sufficient

evidence for any Court or Tribunal to come to a conclusion that a workman had, infact, worked for

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240 days in a year. No proof of receipt of salary or wages for 240 days or order or record of

appointment or engagement for this period was produced by the workman.

21. In view of the ocular and documentary evidence, as discussed above, it can safely be

concluded that the petitioner has not been able to show that she was engaged as a daily paid worker

by the respondent. No muster roll was prepared regarding her work, nor her name figured in the

seniority list of daily paid workers maintained by the respondent. It is an admitted case of the

petitioner that she had not challenged or objected to the seniority list, which did not show her name

as a daily paid worker. Faced with the situation, it was contended for the petitioner that the

respondent (RW1) has categorical admitted the petitioner to have been engaged as a daily waged

worker. This admission as per the learned counsel for the petitioner is best piece of evidence and

the fact admitted need not be proved. This cannot be accepted. The stray admission made by the

respondent will not come to the rescue of the petitioner. It is often said and rightly too that the men

may tell lies, but the documents do not. It is basic law that the documentary evidence as compared

to the oral evidence has to be given weight. At the cost of reiteration, as per the mandays chart the

petitioner is shown to have worked in the projects i.e. Forest Development Agency Project w.e.f.

12th July, 2006 to November, 2008 and Desert Development Project w.e.f. 21st November, 2011 to

May, 2012. The copies of bills indicate that the petitioner had worked in the projects on bill basis.

Therefore, the petitioner is not a daily paid worker. But, having worked on bill basis in the projects,

she is not entitled to any relief as claimed for by her.

22. The petitioner as per her pleadings and oral evidence has claimed arrear of wages w.e.f.

December, 2008 to July, 2012 amounting to Rs.1,60,483/-. 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.

23. Hence, both these issues are answered in the negative and decided against the

petitioner.

Issue No. 3 :

24. Taking into account my findings on issues No. 1 and 2 above, it is held that neither the

petitioner has the cause of action nor the locus standi to sue. The claim petition is not maintainable

in the present form. The same is frivolous and vexatious. The claim petition has been instituted by

the petitioner with a malafide intention to derive undue advantage(s). This issue is answered in the

affirmative and decided in favour of the respondent.

Relief :

25. In the light of what has been discussed hereinabove, while recording the findings on

issues supra, the present claim petition merits dismissal and is accordingly dismissed, with no order

as to costs. The reference is answered in the aforesaid terms. A copy of this Award be sent to the

appropriate Government for publication in the official gazette and the file after due completion be

consigned to the Record Room.

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Announced in the open Court today this 16th day of April, 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.

: 51/2020

Date of Institution

: 02-3-2020

Date of Decision

: 17-04-2021

S/Shri Vinod Nishad, Ashish Kumar, Amit Kumar, Rajeshwar Sharma, Vikram Singh,

Vinod Sharma, Surjit Singh, Viney Singh, Chander Shekhar, Rajesh Kumar, Om Pal and others

workers M/s Inox Wind Limited, Plot No.1, Khasra No. 264 to 267, Industrial Area, Village and

Post Office Basal, Tehsil & District Una, H.P.

. .Petitioners.

Versus

The Managing Director, M/s Inox Wind Limited, Plot No.1, Khasra No. 264 to 267,

Industrial Area, Village and Post Office Basal, Tehsil & District Una, H.P.

. .Respondent.

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

For the Petitioner

: Sh. Vinod Kumar (Petitioner No. 1 in person)

For the Respondent

: Sh. Surinder Sharma, Assistant Manager, (HR)

AWARD

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

adjudication:

“Whether the demand raised by S/Shri Vinod Nishad, Ashish Kumar, Amit Kumar,

Rajeshwar Sharama, Vikram Singh, Vinod Sharma, Surjit Singh, Viney Singh, Chander

Shekhar, Rajesh Kumar, Om Pal and others workers M/s Inox Wind Limited, Plot No.1,

Khasra No.264 to 267, Industrial Area, Village and Post Office Basal, Tehsil & District

Una, H.P. before the Managing Director, M/s Inox Wind Limited, Plot No.1, Khasra

No.264 to 267, Industrial Area, Village and Post Office Basal, Tehsil & District Una, H.P.

vide demand notice dated 08-05-2019 regarding stoppage of annual increment without

following the provisions of the Industrial Disputes Act, 1947, is legal and justified? If yes,

what amount of financial, other service benefits the above workers are entitled to as per

demand notice dated 08-05-2019 (copy enclosed) from the above employer/Management?”

The case is listed for appearance of the petitioners but, however, Shri Vinod Nishad

(petitioner No.1) has made the below given statement in the Court today:—

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^^C;ku fd;k fd eq>s vU; oknhx.k n~okjk vkt C;ku nsus ds fy, vf/kd`r fd;k x;k gSA gekjk

izfroknh ds lkFk le>kSrk gks x;k gSA vr% ge bl dsl dks vkxs u pykuk pkgrs gSaA bls nkf[ky n¶rj

fd;k tkosA**

RO&AC

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 17th day of April, 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.

: 610/2015

Date of Institution

: 19-12-2015

Date of Decision

: 19-4-2021

Shri Vijay Kumar s/o Shri Jagdish Chand, r/o Village Dehra, P.O. Hatwar, Tehsil

Ghumarwin, District Bilaspur, H.P.

. .Petitioner.

Versus

The Chairman-cum-President-cum-Medical Officer, Rogi Kalyan Samiti, Civil Hospital

Barsar, District Hamirpur, H.P.

. .Respondent.

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

For the Petitioner

: 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:

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“Whether termination of the services of Shri Vijay Kumar s/o Shri Jagdish Chand, r/o

Village Dehra, P.O. Hatwar, Tehsil Ghumarwin, District Bilaspur, H.P. w.e.f. 11-08-2013

(as alleged by workman) by the Chairman-cum-President-cum-Medical Officer, Rogi

Kalyan Samiti, Civil Hospital Barsar, District Hamirpur, 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 employers?”

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

engaged on daily waged basis by the respondent w.e.f. 20-6-2012. He had worked under Senior

Medical Officer/Block Medical Officer at Civil Hospital Barsar uptil 10-8-2013. No appointment

letter had been issued nor any terms and conditions were settled. During his service, payment was

being made to him by Rogi Kalyan Samiti. His services were unlawfully terminated by the

respondent w.e.f. 11-8-2013 without prior notice. He had completed 240 days from the date of his

initial engagement till the date of his termination. His services could not have been terminated

without prior notice or payment in lieu thereof, as provided under Section 25-F of the Industrial

Disputes Act, 1947 (hereinafter referred to ‘the Act’ for short). His act and conduct was upto the

mark and to the satisfaction of the respondent. No show cause notice had been issued nor he had

ever been charge-sheeted. At the time of his engagement in Civil Hospital Barsar, he had worked

with class-IV regular workers, namely Shri Bhagwan Dass and Shri Satpal as well as with Shri

Amar Singh a daily wager. The act of the respondent was highly unjustified, arbitrary,

unconstitutional, contrary and against the mandatory provisions of the Act. Hence, the present

petition for re-engagement of the petitioner with all 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

asserted that Rogi Kalyan Samiti is an independent body governed by its guidelines. In the annual

meeting of the governing body of the Rogi Kalyan Samiti, Barsar on 28-4-2012 under the

Chairmanship of Sub Divisional Magistrate (Civil), Barsar, District Hamirpur, it was resolved to

carry out construction work, repair of hospital attached buildings, residences and cleanliness

of hospital premises at local level and the budget was provided under Annual Maintenance Grant,

seed money, untied funds and user charges heads. The Rogi Kalyan Samiti receives funds under

different heads from the Government under NRHM (now NHM) every year and the wages are not

to be paid from such funds. Wages are to be paid only from the user charges. The petitioner had

been engaged on 3-9-2012 and he had worked intermittently with the respondent uptil July, 2013. It

was specifically denied that the petitioner had been engaged on daily waged basis by the

respondent. His services had never been terminated on 11-8-2013 by the respondent, rather he had

worked only uptil 31-7-2013. He had never completed 240 days in the preceding twelve calendar

months and had never fulfilled the criteria of Section 25-B of the Act. There was no need to serve

him a notice under Section 25-F of the Act. Sh. Satpal had never worked with the respondent. The

workers, namely, Shri Bhagwan Dass and Shri Amar Singh (Class-IV) were senior to the petitioner.

The petitioner had not been engaged for regular work. He had been engaged on different dates for

different works and under different heads, as per annual meetings of Rogi Kalyan Samiti held on

28-4-2012 and 31-5-2013. The petitioner is gainfully employed as an agriculturist. 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 18-10-2016:

Whether termination of services of the petitioner by the respondents w.e.f. 11-08-2103

is/was illegal and unjustified as alleged?

. .OPP.

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

to?

. .OPP.

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

Relief.

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

issues so framed.

Oral arguments of the learned counsel/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

: Negative

Issue No. 2

: Negative

Issue No. 3

: Affirmative

Relief.

: Petition dismissed 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 petitioner, namely, Shri Vijay 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/D.

In the cross-examination, he feigned ignorance that Rogi Kalyan Samiti is an independent

unit, having separate guidelines. He denied that he was not engaged by the respondent on

20-6-2012. He also denied that he had not regularly worked uptil 10-8-2013. He further denied that

he was being paid the wages through user charges. He categorically denied that he was engaged on

3.9.2012 and had worked intermittently till July, 2013. Volunteered that, he had worked

continuously from June, 2012 uptil 10-8-2013. He specifically denied that Shri Satpal had never

worked. He further denied that Shri Bhagwan Dass and Shri Amar Singh were senior to him. He

admitted that he earns his livelihood by doing agricultural works.

11. Conversely, Dr. Het Ram Kalia, Block Medical Officer, Civil Hospital, Barsar, District

Hamirpur, H.P. testified as RW1. In his affidavit Ex. RW1/A filed as per Order 18 Rule 4 CPC, he

corroborated on oath the contents of the reply preferred by the respondent.

In the cross-examination, he admitted that the petitioner was engaged as a daily wager by

the respondent on 20-6-2012. Volunteered that, the working details of the petitioner is Ex.RW1/B.

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He admitted that at the time of engagement, no appointment letter had been issued to the petitioner,

nor any terms and conditions had been settled. He further admitted that the petitioner had worked

under the supervision of BMO and other staff of the hospital. He also admitted that the petitioner

had worked in the government hospital. It was also admitted by him that for any recruitment the

approval of the Finance Department is a must. He specifically denied the petitioner had been

removed from work on 11-8-2013 without serving any notice. Self stated that on the completion of

work the services of the petitioner were not required.

12. Ex. RW1/B and Ex.RW1/G are copies of details of works relating to the petitioner.

13. Ex.RW1/C is the copy of letter dated 14thOctober, 2010 regarding financial guidelines

for utilization of Annual Maintenance Grant.

14. Ex.RW1/D is the copy of office order dated 9th September, 2010 issued by National

Rural Health Mission Health and Family Welfare Department, Himachal Pradesh.

15. Ex.RW1/E is the copy of guidelines for the Rogi Kalyan Samiti in Government Health

Institutions of Himachal Pradesh.

16. Ex.RW1/F is the copy of extract of meeting of Governing Body of Rogi Kalyan Samiti

FRU, Barsar dated 28-4-2012.

17. Ex.RW1/H and Ex.RW1/J are the copies of bills relating to Shri Bhagwan Dass.

18. Ex.RW1/K is the copy of office order dated 25th May, 2000 relating to Shri Amar

Singh and two others.

19. The first question which arises for consideration, as per the arguments, is whether the

petitioner was an employee of respondent or not. It is by now well settled that the burden of proof

is on the workman to establish the employer-employee relationship. In Workmen of Nilgiri Coop.

Maktg. Soc. Ltd. vs. State of Tamil Nadu, (2004) 3 SCC 514, it has been laid down by the Hon’ble

Supreme Court that it is a well settled principle of law that the person who sets up a plea of

existence of relationship of employer and employee, the burden would be upon him. It was also

observed therein that where a person asserts that he was a workman of the company, and it is

denied by the company, it is for him to prove the fact. It is not for the company to prove that he was

not an employee of the company but of some other person.

20. In the case on hand, it was asserted by the petitioner that he was a workman of the

respondent, being appointed on daily waged basis. The respondent denied this fact and claimed that

the petitioner had been engaged on different dates to do different available works under different

heads, as per the annual meetings of the Governing Body of Rogi Kalyan Samiti held on 28-4-2012

and 3-5-2013 respectively. Therefore, in view of the aforesaid binding precedent the onus lay on

the petitioner to prove the employer-employee relationship in between himself and the respondent.

No document has been placed and exhibited on record by the petitioner to show that he was

appointed as a daily waged worker by the respondent.

21. Copy of guidelines for the Rogi Kalyan Samiti in Government Health Institutions of

Himachal Pradesh is there on the file as Ex.RW1/E. Chapter-VIII of such guidelines deals with the

staff policy. Under this Chapter recruitment of two types of employees can be made under Rogi

Kalyan Samiti, i.e. Grant-in-Aid funded and RKS own resources funded. The employees recruited

under GIA funds provided by the State Government are to be governed by draft contracts

formulated by the State Government from time to time for each category of employees and specific

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approval is to be accorded by the Government for the recruitment. The mode of selection, terms

and conditions, consolidated salary payable, eligibility criteria and other conditions of services are

also to be decided by the Government by approving the draft contract. As per the guidelines to RKS

own resources (Fresh Recruitment), the decision regarding engagement of fresh contractual

employees has to be taken with care and at the highest level i.e. Governing Body and State

Government. No fresh recruitment can be made by any RKS contrary to the principles and

guidelines set-forth by the State Government for employees under “GIA funded” and “RKS own

resources funded” respectively. There can also be no recruitment on daily wages or on contract

basis by any RKS for the services that stand outsourced. A specific scheme has been set-forth in

Chapter-VIII of the guidelines for the recruitment of the employees to be recruited under GIA

funded as well as by RKS from its own resources. It is nowhere the pleaded case of the petitioner

nor any grain of evidence has been led on record by him to the effect that after going through the

recruitment process, as detailed in Chapter–VIII of the guidelines, he had been recruited either

under GIA funds or RKS own resources and that he had ever entered into any contract agreement

with the respondent/Rogi Kalyan Samiti, Barsar. Rather, it is the own admitted case of the

petitioner that no appointment letter had ever been issued nor any terms and conditions had been

settled. This knocks the very bottom of his case set up in the claim petition, as there could not have

been any recruitment by the Rogi Kalyan Samiti, Barsar contrary to the principles and guidelines

set-forth by the State Government for employees under “GIA funded” and “RKS own resources

funded” respectively. Then, it was itself suggested to the respondent (RW1) by the petitioner that

there cannot be any recruitment except for the prior approval from the Finance Department. He

admitted the suggestion. Admission of this suggestion of the petitioner by the respondent leaves no

doubt in mind that the petitioner admitted that the recruitment could have been there only as per the

guidelines for the Rogi Kalyan Samiti.

22. Much was also argued orally and in the written arguments by the petitioner about the

admission made by the respondent (RW1) in his cross-examination that the petitioner had been

engaged as a daily wager on 20-6-2012. I have perused the so called admission made by the

respondent. To my mind, it appears to be a stray admission made by the respondent and it will be a

sheer travesty of justice if this is made the basis to accept the claim of the petitioner. Placed on

record by the respondent is the copy of annual meeting of the Governing Body of Rogi Kalyan

Samiti FRU, Barsar dated 28-4-2012 as Ex.RW1/F. It shows that the Governing Body in such

meeting had resolved that repair of the hospital, attached building and the residences be got done

and that the hospital premises be also got cleaned. As per the respondent, for the execution of such

works only the respondent had been engaged and the details of his works stand placed on record as

Ex.RW1/B (also Ex.RW1/G). A perusal of this document reveals that the petitioner had only

carried out the works regarding the cutting of bushes surrounding the hospital premises for 08 days,

15 days and 21 days respectively, for doing the paint work at USG and BMO room for 07 days and

for the construction of shelves and digging of pits etc. for about 22 days. This would also negate the

case of the petitioner that he had been engaged by the respondent as a daily wager.

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

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

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

it is assumed for the sake of arguments that the petitioner was a daily waged worker with the

respondent, it was required of him to have established on record that he had worked for 240 days or

more in a year preceding twelve calendar months from the date of his alleged termination.

24. Section 25-B of the Act defines “continuous service”. In terms of Sub Section (2) of

Section 25-B if a workman during a period of twelve calendar months preceding the date with

reference to which calculation is to be made, has actually worked under the employer 240 days

within a period of one year, he will be deemed to be in continuous service. The burden of proof is

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on the petitioner to show that he had worked for 240 days in the preceding twelve calendar months

prior to his alleged retrenchment. The law on this issue is well settled. In R.M. Yellatty vs.

Assistant Executive Engineer, (2006) 1 SCC 106, it has been laid by the Hon’ble Supreme Court

that the burden of proof is on the claimant to show that he had worked for 240 days in a given

year.

25. Applying the principles laid down in the above case by the Hon’ble Supreme Court, it

was required of the petitioner to establish on record that he had worked continuously for a period

240 days in a block of twelve calendar months anterior to the date of his alleged termination, which

as per the reference took place on 11-8-2013. From the details of works with respect to the

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

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

months preceding the date of his retrenchment i.e. 11-8-2013 as envisaged under Section 25-B of

the Act. So is also gathered from the copy of register muster roll (attendance) placed on record by

the petitioner himself as Ex.PW1/D. Therefore, also the provisions of Section 25-F of the Act are

not attracted in this case.

26. It is not the case of the petitioner that at the time of his termination any person junior to

him was retained in service by the respondent. It is also not his case that after his disengagement

new/fresh hands have been engaged by the respondent. Therefore, the provisions of Sections 25-G

and 25-H of the Act are not attracted in this case as well.

27. In all fairness, the learned counsel/Authorized Representative for the petitioner has

placed reliance upon cases titled as M/s Classic Bottle Caps (P) Ltd. vs. Usha Singh & Ors. 2012

LLR 738; Management of Tamil Nadu State Transport Corporation (Madurai Division-1) Ltd.

Madurai vs. Presiding Officer, Labour Court, Madurai & Anr. 2016 LLR 736; Manorama Verma

(Smt) versus State of Bihar and Ors. 1995 SCC (L&S) 193; Pradhan Baijnath Tea Estate Mazdoor

Sangh vs. State of Himachal Pradesh and Ors. 2019 LLR 1239; The Principal, Government I.T.I.,

Kollegal-571440 vs. R. Hema Kumar and Anr. 2016 LLR 360 and Sudarshan Rajpoot vs. U.P.

State Road Transport Corporation 2015 LLR 95. I have carefully gone through the aforesaid case

law cited by the learned counsel/Authorized Representative for the petitioner and I am of the view

that for the reasons mentioned hereinabove, the petitioner cannot derive any advantage from what

has been decided in these cases.

28. Hence, both these issues are answered in the negative and decided against the

petitioner.

Issue No. 3 :

29. Taking into account my findings on issues No. 1 and 2 above, it is held that neither the

petitioner has the cause of action nor the locus standi to sue. The claim petition is not maintainable

in the present form. The same is frivolous and vexatious. The claim petition has been instituted by

the petitioner with a malafide intention to derive undue advantage(s). This issue is answered in the

affirmative and decided in favour of the respondent.

Relief :

30. 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.

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Announced in the open Court today this 19th day of April, 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.

: 611/2015

Date of Institution

: 19-12-2015

Date of Decision

: 19-4-2021

Shri Kamaljeet Singh s/o Shri Sarwan Kumar, r/o V.P.O. Khagal, Tehsil & District

Hamirpur, H.P.

. .Petitioner.

Versus

The Chairman-cum-President-cum-Medical Officer, Rogi Kalyan Samiti, Civil Hospital

Barsar, District Hamirpur, H.P.

. .Respondent.

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

For the Petitioner

: 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 termination of the services of Shri Kamaljeet Singh s/o Sh. Sarwan Kumar, r/o

V.P.O. Khagal, Tehsil & District Hamirpur, H.P. w.e.f. 11-08-2013 (as alleged by

workman) by the Chairman-cum-President-cum-Medical Officer, Rogi Kalyan Samiti, Civil

Hospital Barsar, District Hamirpur, 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 employers?”

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

engaged on daily waged basis by the respondent w.e.f. 20-6-2012. He had worked under Senior

Medical Officer/Block Medical Officer at Civil Hospital Barsar uptil 10-8-2013. No appointment

letter had been issued nor any terms and conditions were settled. During his service, payment was

being made to him by Rogi Kalyan Samiti. His services were unlawfully terminated by the

respondent w.e.f. 11-8-2013 without prior notice. He had completed 240 days from the date of his

initial engagement till the date of his termination. His services could not have been terminated

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without prior notice or payment in lieu thereof, as provided under Section 25-F of the Industrial

Disputes Act, 1947 (hereinafter referred to ‘the Act’ for short). His act and conduct was upto the

mark and to the satisfaction of the respondent. No show cause notice had been issued nor he had

ever been charge-sheeted. At the time of his engagement in Civil Hospital Barsar, he had worked

with Class-IV regular workers, namely Shri Bhagwan Dass and Shri Satpal as well as with Shri