Himachal Pradesh High Court
___________________________________________________________ vs State Of Himachal Pradesh & Others on 21 June, 2016
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CWP No. 3634 of 2009 Decided on: 21.06.2016.
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___________________________________________________________ Narain Singh ...Petitioner Versus State of Himachal Pradesh & Others of ....Respondents Coram:
rt The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting? 1 Yes ____________________________________________________________ For the petitioner: Mr. Neel Kamal Sood, Advocate, with Mr. Vasu Sood and Mr. Narender Thakur, Advocates.
For the respondents: Mr. Ramesh Thakur & Mr. Pankaj Negi, Deputy Advocate Generals.
Vivek Singh Thakur, Judge Present petition has been filed praying to quash award dated 8.05.2006 (Annexure P-2) passed by the Labour Court Shimla, in Reference No. 83 of 2000 and to issue 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes ::: Downloaded on - 15/04/2017 20:37:38 :::HCHP 2 direction to respondents to engage petitioner forthwith at the .
same place where he was working prior to his illegal termination with consequential benefits including seniority, back wages and further promotions etc., with further prayer that any other order which is deemed fit and proper may also of be passed in favour of the petitioner.
2. Reference under Industrial Disputes Act, 1947 rt (hereinafter refer to Act) was sent to Labour Court Shimla, for adjudication from the appropriate government at the instance of 10 workmen's including present petitioner. The terms of reference were as under:-
1. "Whether the termination of services of Shri Sadi Ram and 9 other workers (As per list enclosed) by the Executive Engineer, IPH Division, Paonta Sahib, District Sirmaur, H.P. without compliance of Section 25 (F) and 25 (H) of the Industrial Disputes Act, 1947 on completion of 240 days continuous service is legal and justified. If not, to what relief of service benefits and amount of compensation, the aggrieved workmen are entitled ?"::: Downloaded on - 15/04/2017 20:37:38 :::HCHP 3
2. "Whether the above workers have abandoned .
the job on their own, as alleged. If so, to what effect ?"
3. Aforesaid Reference No. 83 of 2000 was decided against petitioners by the Labour Court after of recording evidence and hearing parties.
4. rt Petitioner, one of ten petitioners in Reference No. 83 of 2000, had filed an application under Order 47 Rule 1 of the C.P.C., readwith Section 151 C.P.C.
(Annexure P-3) before Labour Court for review of award dated 8.05.2006 (Annexure P-2) with prayer for condonation of delay in filing the review petition. The said application bearing CMA No. 128 of 2007 has been dismissed by Labour Court vide order dated 28.02.2009 (Annexure P-4). Hence present petition has been filed
5. It has been claimed by petitioner that his services were terminated by respondents without complying the provision of Section 25-F of the Act without serving any notice or paying any compensation, despite the fact that the ::: Downloaded on - 15/04/2017 20:37:38 :::HCHP 4 petitioner had completed 255 days during 12 moths in the .
preceding year 1990. Principle of 'First come Last go' has not been followed. Persons who were engaged with petitioner are still working and respondents have also violated Section 25-H of the Act at the time of making fresh recruitments as of respondents have engaged 72 persons during in the year 1990 to 2009 without informing and engaging petitioner.
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6. Petitioner has placed on record information supplied by respondent department under Right to Information Act as Annexure P-5 and Annexure P-6 to substantiate his claim. It has been argued that the Labour Court has failed to appreciate evidence on record and to decide the award in consonance with settled law.
7. Respondents have filed reply to the petition raising objection that petition is hopelessly time barred and suffers delay and laches as the petition has been filed after lapse of more than 3 years from passing award in the year 2006. It is contended that the petitioner had left work on his own on 20.01.1991. It is denied that service of petitioners were ::: Downloaded on - 15/04/2017 20:37:38 :::HCHP 5 terminated by respondent department. As per reply, .
petitioner, after leaving work on his own, had never approached respondent department and remained silent for 8 to 20 years and this fact itself shows that petitioner had abandoned the work on his own. Since petitioner had left of the work on his own, therefore there was no question of following the principle of 'last come first go'.
rt Therefore persons, engaged after abandoning work by petitioner cannot be said to be junior to petitioner. It is further stated in the reply that as per statement of PW-1 recorded on behalf of petitioner before Labour Court, petitioner had started work in other factory indicating that service of petitioner was not terminated by respondent department rather petitioner was not interested in work. The award passed by Labour Court has been supported with prayer for dismissal of petition.
8. During pendency of petition, it transpired that in reply filed by respondents, there was no response to the contents of sub para (iv) & (v) of para-7 of the writ petition.
Therefore, vide order dated 7.01.2013, respondents were ::: Downloaded on - 15/04/2017 20:37:38 :::HCHP 6 permitted to file reply to left out paras of the writ petition by .
way of supplementary affidavit. Respondents have filed supplementary reply dated 22.02.2013, in which it has been admitted that petitioner had worked 255 days in 1990 but qualifying that petitioner had abandoned the work on his own of after 20.01.1991.
9. Perusal of information supplied by respondent rt department under Right to Information Act, placed on record by the petitioner as Annexure P-5 & Annexure P-6 indicates that there are large number of workman who were engaged after 20.01.1991 and many of them have also been regularized by respondent department.
10. After considering rival contentions of the parties and going through the record it is evident that petitioner workmen was engaged by respondent department in the year 1990 and continued as such till 20.01.1991. The petitioner has completed 255 days in the preceding calendar years 1990. Neither notice was issued nor compensation was paid to petitioner as required under the provision of Act.
::: Downloaded on - 15/04/2017 20:37:38 :::HCHP 711. Respondents-department has claimed that .
petitioner has abandoned work on his own but there is nothing on record to establish this plea by leading cogent and reliable evidence by respondent department. Hon'ble Supreme Court in AIR 1979 Supreme Court Cases 582 of titled as G.T. Lad and others versus Chemicals and Fibers India Ltd., has held that voluntarily abandonment of rt work by a workman is required to be established by way of cogent and reliable evidence by the employer. The said judgment has also been relied upon by this High Court in CWP No. 308 of 2009, titled as Himachal Pradesh State Electricity Board and others versus Ghanshyam and others, decided on 18.06.2010 and CWP No. 1989 of 2010 titled as Himachal Pradesh State Electricity Board and others versus Shri Charan Dass and others, decided on 7th March, 2012. In absence of required cogent and reliable evidence plea of respondent department is not sustainable and inference can be drawn that employer has not complied with the conditions precedent to retrenchment as per Section ::: Downloaded on - 15/04/2017 20:37:38 :::HCHP 8 25-F Clause (a) and (c) of the Industrial Disputes Act which .
are mandatory in law. The petitioner has relied upon ratio laid down by Hon'ble Supreme Court in case (2010) 5 Supreme Court Cases 497, titled as Anoop Sharma versus Executive Engineer, Public Health Division No. 1, Panipat of (Haryana), in which it has been held as under:-
rt 17. This Court has repeatedly held that Section 25-F(a) and (b) of the Act is mandatory and non-compliance therewith renders the retrenchment of an employee nullity - State of Bombay v. Hospital Mazdoor Sabha, Bombay Union of Journalists v. State of Bombay State Bank of India v. N. Sundara Money, Santosh Gupta v. State Bank of Patiala Mohan Lal v.. Bharat Electronics Ltd., L. Robert D'Souza v. Southern Railway, Surendra Kumar Verma v. Central Govt. Industrial Tribunal-cum-Labour Court, Gammon India Ltd. v. Niranjan Das, Gurmail Singh v. State of Punjab Pramod Jha v. State of Bihar.::: Downloaded on - 15/04/2017 20:37:38 :::HCHP 9
18. This Court has used different .
expressions for describing the consequence of terminating a workman's service/employment/ engagement by way of retrenchment without complying with the mandate of Section 25-F of the Act.
of Sometimes it has been termed as ab initio void, sometimes as illegal per se, sometimes rt as nullity and sometimes as non est. Leaving aside the legal semantics, we have no hesitation to hold that termination of service of an employee by way of retrenchment without complying with the requirement of giving one month's notice or pay in lieu thereof and compensation in terms of Section 25-F(a) and (b) has the effect of rendering the action of the employer as nullity and the employee is entitled to continue in employment as if his service was not terminated.
12. Petitioner has also placed on reliance on the ratio laid down by Hon'ble Supreme Court reported in (2015) 4 Supreme Court Cases 544, in case titled as Mackinnon Mackenzie and Company Limited versus Mackinnon ::: Downloaded on - 15/04/2017 20:37:38 :::HCHP 10 Employees Union, in which it has been held that in absence .
of production of cogent evidence regarding issuance of notice in the prescribed manner under the Act prior to retrenchment of workmen it is to be deduced that employer has not complied with the condition precedent to retrenchment as per of Section 25-F, Clause (a) to (c) of the Act which are mandatory in law. rt
13. Rejection of claim of petitioner for want of evidence of engaging juniors in subsequent years is also not sustainable as it is evident from Annexure P-5 and Annexure P-6 supplied by the respondent department under Right to Information Act that respondent department had engaged large number of persons without engaging or inviting to engage petitioner in violation of provisions of Section 25-H and respondents department has failed to follow the principle of 'last come first go'. There is nothing placed on record by respondent to establish that the respondent had ever informed or issued notice to petitioner before engaging fresh persons after 20.01.1991.
::: Downloaded on - 15/04/2017 20:37:38 :::HCHP 1114. Petitioner being a poor workmen may be unable to .
extract information from respondent department because of lack of means, resources or knowledge to do so. However, information received, though after passing of award, under Right to Information Act Annexure P-5 and Annexure P-6 of belied the stand of respondent department that no person junior to petitioner has been engaged in violation of rt provisions of the Act. The respondents being department of State are expected to behave like Model employer and also to be fair in defending cases before Judicial forums/Courts. It was expected from the department to place on record complete information during proceedings before learned Labour Court. It was also expected from the Labour Court to make efforts to have complete information from the respondent department. The respondent have not denied or rebutted information placed on record in Annexure P-5 and P-
6. This information is on the basis of record of respondent-
department and was not in reach of the petitioner. The said information establishes violation of Section 25-H of the Act.
::: Downloaded on - 15/04/2017 20:37:38 :::HCHP 1215. Plea of respondent department regarding delay .
and laches on the part of petitioner is also not sustainable in view of ratio laid down in case (2014) 10 Supreme Court Cases 301, titled as Raghubir Singh versus General Manager Haryana Roadways, Hissar and (2015) 4 of Supreme Court Cases 458 titled as Jasmer Singh versus State of Haryana and another, has held that particularly rt when the respondents have engaged persons after termination of the petitioner during the years subsequent to termination of the petitioner. Plea of delay and laches is also not available to the respondent department because as evident from documents placed on record, the respondents have engaged persons after 20.01.1991 till 2009 and the respondents have not placed on record any evidence to establish that at any point of time petitioner had ever been called, or informed to join the work prior to engaging fresh persons. Each and every such engagement after 20.01.1991 without giving opportunity to petitioner to rejoin the work in the department is in breach of Section 25-H of the Act and ::: Downloaded on - 15/04/2017 20:37:38 :::HCHP 13 gives right to petitioner to assert his claim. As per ratio laid .
down by the Apex Court in Raghubir Singh's case delay cannot be a ground to deny benefit of provisions of act to workmen, however, labour Court can always mould relief on account of delay according to the facts and circumstances of of each case. Therefore, rejection of claim of petitioner on the basis of delay and laches is also not sustainable.
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16. Division Bench as well as Co-ordinate Bench of this Court relying upon judgment in Raghubir's case reported in (2014) 10 SCC 301 have held that limitation period and delay can not be basis for rejecting claim of workman under Industrial Disputes Act and Division Bench of this Court have allowed petition in CWP No. 6687 of 2014 decided on 24.09.2014, CWP No. 9467 of 2014 decided on 30.12.2014 and LPA No. 152 of 2015 decided on 28.09.2015, with direction to labour Commissioner to make reference to Labour Court.
17. Plea of respondent department that petitioner and others were working in other factories during intervening ::: Downloaded on - 15/04/2017 20:37:38 :::HCHP 14 period after their termination is also of no help to respondent .
department because for sustenance everyone has to work somewhere. It is natural for petitioner to work in other factories to survive and sustain their families in absence of re-engagement by respondent department. At the most of petitioner can be denied back wages for that reasons but cannot be deprived from benefit which are available to him as rt per mandatory provision of the Act.
18. In view of the above discussion, the award dated 8.05.2006 (Annexure P-2) passed by learned Labour Court Shimla, is set-aside and the respondent department is directed to re-engage the petitioner forthwith at the same place where he was working prior to his illegal termination, with consequential benefits of counting of service for the purpose of regularization and fixation of wages. Petitioner shall also be entitled for back wages but from date of raising demand except period for which petitioner has served with other employers and for that period petitioner shall be entitled for difference of wage in case rate of wage in ::: Downloaded on - 15/04/2017 20:37:38 :::HCHP 15 respondent-department was higher than other employers .
during that period. Payment of back wages shall be made within 6 months from representation submitted by the petitioner for claim of back wage stating therein that petitioner had not served anywhere else during that period of and giving details of his entire service with other employers with wages received for the period for which difference of rt wages claimed. For making false claim the petitioner, besides criminal liability, shall also be liable for termination.
19. The petition is disposed of. Pending application(s) if any stand disposed of. No order as to cost.
(Vivek Singh Thakur) Judge June 21, 2016 (Subh) ::: Downloaded on - 15/04/2017 20:37:38 :::HCHP