Himachal Pradesh High Court
State Of Himachal Pradesh And Others vs Sh. Desh Raj on 10 April, 2023
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
CWP No. 2041 of 2016.
.
Date of Decision: April 10, 2023.
State of Himachal Pradesh and others ...Petitioners
Versus
Sh. Desh Raj ..Respondents
Coram
The Hon'ble Mr. Ajay Mohan Goel, Judge.
Whether approved for reporting?1 Yes
For the Petitioners : M/s Tejasvi Sharma, Pushpender Jaswal
and Baldev Negi, Additional Advocate
Generals with Mr. Gautam Sood,
Deputy Advocate General.
For the Respondent : Mrs. Archana Dutt, Advocate.
Ajay Mohan Goel, Judge (Oral)
JUDGEMENT The petitioners-State has assailed the award passed by the Court of learned Labour Court Court-cum-Industrial Tribunal, Kangra at Dharamshala in reference No.74 of 2014, titled as Desh Raj vs. The D.F.O Division, Bilaspur, dated 21.07.2015, in terms whereof, 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 13/04/2023 20:32:38 :::CIS 2the reference made to the Labour Court by the Appropriate Government with regard to termination of the services of the workman was answered by the learned Labour Court, by directing the State to .
re-engage the petitioner with seniority and continuity in service from the date of his illegal termination, except back wages.
2. Brief facts necessary for the adjudication of the present petition are that an industrial dispute was raised by the respondent-
workman (hereinafter referred to as the workman for convenience) with regard to his illegal termination by the respondent-Department in the month of November, 1999, in violation of the provisions of Section 25-F of the Industrial Disputes Act by stating that he was engaged as a daily wage Beldar in the year 1991 at Kalor Forest Division and he remained employed till 1999, when his services were verbally terminated from the month of November, 1999, though he had completed more than 240 days in the preceding 12 months and services of several other workmen junior to him were retained and who were subsequently regularized. On the Industrial Dispute so raised, the following reference was made by the Appropriate Government for adjudication to the learned Labour Court.
"Whether termination of the services of Sh. Desh Raj s/o Sh. Anant Ram, R/O Village & PO kosrian, Tehsil Jhandutta, Distt, Bilaspur, H.P. by the Divisional Forest Officer, Bilaspur Division, H.P. ::: Downloaded on - 13/04/2023 20:32:38 :::CIS 3 during November, 1999 without following the provisions of the Industrial Disputes Act, 1947 is legal and justified? If not, what benefits, including reinstatement, amount of back wages, salary seniority, past service benefits and compensation .
the above worker is entitled to from the above employers?
3. On the basis of the statement of claim filed by the workman as also reply filed thereto by the Department, the following issues were framed by the learned Labour Court.
1.Whether the termination of the services of the petitioner by the respondent in the month of November, 1999 is illegal and unjustified as alleged? OPP
2.Whether the claim petition is not maintainable in the present form? OPR
3.Whether the petition is hit by vice of delay and laches as alleged, if so, its effect? OPR
4. Relief.
4. The issues were decided by the learned Labour Court as under:-
Issue No. 1: Yes.
Issue No. 2: No.
Issue No. 3: No.
Relief: Petition is allowed per operative
part of the Award.
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4
5. Learned Labour Court held that the services of the petitioner were orally terminated on 01.11.1999 and he had worked for more than 248 days in said year itself. Learned Labour Court further .
held that whereas the plea of the department was that the workman himself had abandoned the job as he did not report for duty w.e.f.
01.11.1999, but there was nothing on record from which it could be inferred that there was abandonment of the job by the workman as this fact could not be proved by the department. Learned Labour Court held that the plea of abandonment has to be proved like any other fact since abandonment or absence from duties is a serious misconduct and it was therefore essential for the department to have had issued notice to the workmen to join and in default to have had initiated department proceedings and in the absence of any of these acts having been done by the department, it could not be construed that the workman had abandonment the job. Learned Labour Court also held in para 12 of the award that as it was proved from the record that the department had engaged and retained persons junior to the workman, therefore, there was violation of Section 25(G) of the Industrial Disputes Act. Learned Court also held that as it stood proved that in the year 1999, the workman had worked for more than 240 days and even in the year 1998, he had worked for 248 days, the ::: Downloaded on - 13/04/2023 20:32:38 :::CIS 5 termination of the workman was obviously in violation of the provisions of Section 25(F) of the Industrial Disputes Act. Learned Labour Court also held that as the workman had admitted that he had .
agricultural land and he had also worked labourer during the period of unemployment, therefore, the workman was not entitled for back wages for the period his services stood illegally terminated. On the issue of delay and laches, learned Labour Court held that it appeared that the workman was initially agitating his claim before Labour-cum-
Conciliation Officer, Bilaspur, who was not having correct figures of working days of the workmen which were later rectified pursuant to communication dated 28.09.2011 and thereafter, it was detected that the petitioner had in fact worked for more than 240 days in the year 1999.
6. Learned Labour Court also held that the petitioner was a simple rustic villager who was not conversant with the intricacies of law, therefore, it could not be said that the claim petition was hit by delays and laches. On the basis of these findings, learned Labour Court directed re-engagement of the petitioner forthwith alongwith seniority and continuity in service from the date of his illegal termination, except back wages.
::: Downloaded on - 13/04/2023 20:32:38 :::CIS 67. Feeling aggrieved, the State has filed the present writ petition.
8. Leaned Deputy Advocate General has vehemently argued .
that the award passed by the learned Labour Court is not sustainable in the eyes of law as the learned Labour Court has erred in not appreciating that the work in fact was willfully abandoned by the workman and therefore, he was not entitled for the relief that stood granted by the learned Labour Court. Learned Deputy Advocate General further argued that neither there was any violation of Section 25(G) nor of Section 25(H) of the Industrial Disputes Act and in fact, the industrial dispute, which was raised by the workman, was hit by delays and laches as it was a stale claim, which was raked up by the petitioner in the year 2010 relating to his alleged illegal termination in the year 1999. Learned Deputy Advocate General also argued that learned Labour Court erred in not appreciating that the factum of the work having been voluntarily abandoned by the workman was evident from his conduct as any workman whose services stood illegally terminated would have had raised industrial dispute immediately.
Accordingly, he prayed that the award passed by the learned Labour Court is not sustainable in the eyes of law. Learned Deputy Advocate General also relied upon the judgment of Hon'ble Supreme Court of ::: Downloaded on - 13/04/2023 20:32:38 :::CIS 7 India in Prabhakar vs. Joint Director Sericulture Department and another, AIR 2016 Supreme Court 2984, to substantiate his contention that the claim of the workman was stale claim.
.
9. Learned Counsel for the respondent-workman submitted that there is no merit in the present writ petition and the same was therefore liable to be dismissed. She argued that it stood proved on the basis of record before the learned Labour Court that the services of the workman were indeed terminated in violation of the provisions of Section 25(G) as not only persons junior to the petitioner were retained but they were subsequently regularized also. She further argued that as it stood proved from record that even in the year 1999, the workman had put in more than 240 days as up to 31.10.1999, termination of services of the workman that too verbally was in clear by violation of the provisions of Section 25(F) of the Industrial Disputes Act. She further submitted that learned Labour Court rightly held on the basis of evidence and record that the department was not able to prove that the work was voluntarily abandoned by the workman. She further argued that the claim of the workman was not stale as he had earlier raised his grievance in the year 2006, but the same was rejected by the authority concerned as the department did not portray correct picture before the authority. The department did not disclose to ::: Downloaded on - 13/04/2023 20:32:38 :::CIS 8 the authority that the workman had indeed completed more than 240 days in the year 1999. She further submitted that when again the workman raised the issue in the year 2010 and all facts, figures and .
relevant record were produced before the authority and it stood demonstrated that indeed the petitioner had worked for more than 240 days in the year 1999 then the appropriate Government made the reference to the learned Labour Court. She thus argued that as the award passed by the learned Labour Court is just and fair, therefore, the present petition being devoid of any merit be dismissed.
10. I have heard learned Counsel for the parties and also carefully gone through the award passed by the leaned Labour Court as well as other documents appended therewith.
11. Termination of the services of the petitioner w.e.f. 1st November, 1999, was in fact preceded by the workman having put in more than 240 days in the calendar year 1999. This is a matter of record. In such like circumstance, the services of the petitioner could have been terminated by the department by following the procedure prescribed in Section 25(F) in the Industrial Disputes Act. Admittedly, this procedure was not followed at the time of the termination of services of the petitioner w.e.f. 1st November, 1999. The contention of the learned Deputy Advocate General that there was voluntary ::: Downloaded on - 13/04/2023 20:32:38 :::CIS 9 abandonment of the work by the petitioner is not substantiated from any material on record. In fact, learned Labour Court has correctly held that to demonstrate fact that the work stood abandoned by the .
workman on his own, the onus was upon the department to have had proved these facts. During the course of arguments, learned Deputy Advocate General could not draw the attention of this Court to any Exhibit from which it could be inferred that any notice etc. was issued by the department to the workman, mentioning therein that he had voluntarily abandoned the job w.e.f. 1st November, 1999 and that consequences would ensue. In the absence of there being any such material on record, the only inference that could have been drawn was that the services of the petitioner were indeed terminated by the department and that too, without following the provisions of Section 25(F) of the Industrial Disputes Act.
12. As far as the violation of Section 25(G) of the Act is concerned, learned Labour Court has spelled out the reasoning in Para-12 of the award by giving reference of the workmen who were junior to the present respondent i.e. engaged after the present respondent and whose services in fact stood subsequently regularized. During the hearing of this writ petition, it could not be demonstrated on the basis of record by the petitioners/State that the ::: Downloaded on - 13/04/2023 20:32:38 :::CIS 10 findings so returned by the learned Labour Court were perverse findings and not borne out from the record.
13. As far as the issue of delay and laches is concerned it is .
borne out from the record that after the termination of his services in the month of November, 1999, it is not as if the petitioner raised the industrial dispute for the first time in the year 2010. Record demonstrates that the petitioner raised the industrial dispute in the year 2006 also but the same was rejected by the authority concerned as at the relevant time, the department concerned did not place before the authority the correct facts, in terms whereof, the petitioner had put in more than 240 days in the calendar year preceding his termination.
When this fact came to the notice of the workman that he again agitated the issue and as the stand of the workman was found correct, it is thereafter that the Appropriate Government made the reference to the learned Labour Court. A perusal of the Award passed by learned Labour Court demonstrates that this issue has been addressed and redressed by the learned Labour Court while deciding Issue No. 3, findings returned wherein are substantiated from the record. As far as the judgment relied upon by learned Deputy Advocate General, in the said judgment, i.e. Prabhakar vs. Joint Director Sericulture Department and another (supra), Hon'ble Supreme Court of India has ::: Downloaded on - 13/04/2023 20:32:38 :::CIS 11 laid down the law that notwithstanding the fact that law of limitation does not apply to the industrial disputes, it is to be shown by the workman that there is a dispute in praesenti. Hon'ble Court has held .
that the workman has to demonstrate that even if considerable period has lapsed and there are delays and laches, such delay has not resulted into making the industrial dispute cease to exist and if the workman is able to give satisfactory explanation for these laches and delays and demonstrate that the circumstances disclose that issue is still alive, delay would not come in his way because of the reason that law of limitation has no applicability. Hon'ble Supreme Court further held that if on the other hand because of such delay dispute no longer remains alive and is to be treated as "dead", then it would be non-
existent dispute which cannot be referred to. In this case, as already mentioned hereinabove, the petitioner had initially agitated his cause in the year 2006 which was wrongly rejected by the authority concerned and thereafter he subsequently took up the issue in the year 2010. As the contention and grievance of the petitioner that persons junior to him were not only retained by the department but their services were subsequently regularized is a matter of record and further as the services of the workman were terminated by the department in the year 1999 in violation of the provisions of Sections ::: Downloaded on - 13/04/2023 20:32:38 :::CIS 12 25(F) and 25(G) of the Industrial Disputes Act, therefore, it cannot be said that the industrial dispute had ceased to exist. Thus, it is held that there is no force in the contention made on behalf of the respondent-
.
State that the award passed by learned Labour Court is bad as learned Court below erred in not appreciating that the dispute raised by the workman was barred by delay and laches.
14. In this view of the matter, as this Court does not find any infirmity with the award passed by the learned Labour Court, the present petition being devoid of any merit in the petition. Pending miscellaneous application(s), if any, also stand disposed of accordingly.
(Ajay Mohan Goel),
April 10, 2023 Judge
(narender)
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