Himachal Pradesh High Court
Chaman Lal vs Himachal Pradesh State Electricity ... on 11 March, 2020
Bench: Dharam Chand Chaudhary, Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
LPA No.318 of 2012 Reserved on 9.1.2020 Date of decision : 11th March, 2020 Chaman Lal ... Appellant vs Himachal Pradesh State Electricity Board Ltd. and others.
...Respondents Coram:
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
The Hon'ble Mr. Justice Anoop Chitkara, Judge. Whether approved for reporting?1 No. For the Appellant : Mr. C.N. Singh, Advocate. For the Respondents : Mr. T.S. Chauhan, Advocate, for Respondents No.1 and 2.
Mr. Ramakant Sharma, Senior Advocate with Ms. Devyani Sharma, Advocate for Respondent No.3.
Justice Anoop Chitkara, Judge.
Challenging the judgment dated 28.5.2012, passed by a Single Judge of this Court, in CWP No.1954/2008, whereby the award passed by the Industrial Tribunal -cum- Labour Court, Shimla in Reference No.10 of 1996, denying his claim, was upheld, the 1 Whether reporters of Local Papers may be allowed to see the judgment?::: Downloaded on - 11/03/2020 20:28:44 :::HCHP
...2...
workman has come up before this Court, by filing the present .
Letters Patent Appeal (after now called as LPA).
2. The workman filed a claim petition against Himachal Pradesh State Electricity Board (after now called as 'the HPSEB') and Nathpa Jhakri Power Corporation (after now called as 'the NJPC'), claiming that he was engaged by the HPSEB as Beldar on 12.6.1989. He further contended in this claim petition that the HPSEB told him that he was being transferred to the NJPC. His contention is that after the transfer, the NJPC did not assign him any work. The workman further contended that the non-allocation of work means retrenchment without following the procedure of Industrial Tribunal Act and, as such, he is entitled to reinstatement with all consequential benefits.
3. The HPSEB filed written statement, in which they stated that 1049 workers, who were working on daily wages in different fields with the NHPC, were transferred by the HPSEB to the NJPC itself. The HPSEB specifically told that in the said list of 1049 workmen, the name of the petitioner does not figure because he was not working at that relevant time in any Office of the Project ::: Downloaded on - 11/03/2020 20:28:44 :::HCHP ...3...
and, as such, the question to termination of his services never .
arose. The HPSEB examined Shri Man Mohan Verma as RW-1 and Shri Net Ram Sharma as RW-2, both of them re-iterated the stand taken by the HPSEB in its written statement. RW-2 Net Ram Sharma, in his cross-examination stated that the record pertaining to October, 1990 was not available in the Head Office. He further clarified that the record of the employee must be in the same Sub Division where the employees were sent. He further stated that they had prepared a list of all the workmen who were working at the same time in the Field Offices. He also clarified that the record of the workers who were retrenched or had abandoned the job prior to the NJPC remained in the concerned Sub Divisions of the HPSEB.
4. Learned Presiding Judge, H.P. Labour Court, Shimla, vide award dated 27.8.2001, held that the termination of the services of the petitioner was in violation of Section 25-F of the Industrial Disputes Act and while giving such reasoning, she mentioned that although the workman did not produce any Casual Cards and employment letter, but she relied upon Ex.P-A and stated that the Identity Certificate was attested by the then Assistant ::: Downloaded on - 11/03/2020 20:28:44 :::HCHP ...4...
Engineer of the HPSEB. She further stated that the workman had .
stated on oath that he was working with the HPSEB and simply because no record of this period is available with the respondents, it cannot be held that the workman never worked. Consequently, the Labour Court answered the reference in affirmative and held that the workman was entitled to reinstatement in service w.e.f.
October 1990 and confined the back wages @ 20% of his last drawn wages. However, he was entitled to continuity in service with full back seniority.
5. Having aggrieved, the NJPC challenged the said award by filing a writ petition in this Court, which was registered as CWP No.1304/2001. Vide order dated 29.6.2005, a Single Bench of this Court, while observing that even according to the complainant, his services were terminated on 31.10.1990 and the NJPC came into picture in 1991. Apparently, the workman could not have worked even for a single day of statutory 240 days in a calendar year preceding to his termination. Thus, primarily holding that the claim of the petitioner was that he was transferred to the NJPC on 31.10.1990, whereas the NJPC came into picture only in 1991, this ::: Downloaded on - 11/03/2020 20:28:44 :::HCHP ...5...
Court allowed the writ petition and remanded the .
matter to the Industrial Tribunal, directing it to decide the matter in the light of the observations.
6. After remand, the workman filed written submissions before the Industrial Tribunal. He claimed that he had worked as a Beldar w.e.f. 12.6.1989 to 31.10.1990, when he was dis-engaged the said work.
r to with the assurance that since the work was being transferred to the NJPC, as such, he would be assigned duties after the transfer of The workman further contended that in August, 1991, the HPSEB prepared a list of 1049 workers who were working with the HPSEB at that relevant point of time. The workman further contended that he had testified before the Industrial Court as PW-1 and stated on oath that he was employed by the HPSEB on 12.6.1989 and his services were terminated in October, 1990 without any notice or retrenchment. He placed reliance upon the Identity Certificate (Ex.P-A), affirming his engagement with the respondent- HPSEB.
7. Vide award dated 30.6.2008, the Presiding Judge-cum-
Industrial Tribunal, Shimla dismissed the claim petition, holding that ::: Downloaded on - 11/03/2020 20:28:44 :::HCHP ...6...
the petitioner did not produce a single document to show that he .
was working with the HPSEB. The Industrial Court, in Paragraph-
14 of his order, referred to Ex.P-A, finally holding that the petitioner could not establish his claim of having worked for more than 240 days in a calender year, and dismissed the claim petition.
8. Having aggrieved, the petitioner filed a writ petition in this Court, seeking quashing of the impugned award passed by the Industrial Court. The petitioner placed on record vide Annexure P-11, copy of the order dated 29.12.2001, and also placed on record photocopy of the Demand Draft issued by the Additional Superintending Engineer, HPSEB in favour of the petitioner vide letter dated 29.12.2001. The said Draft was for a sum of Rs.1440/-
as wages for the year 1990-1991.
9. The HPSEB filed response to this writ petition and contended that one Hydro Electric Project, which was spread from village Nathpa in Kinnaur District, with a Power House in Jhakri in Shimla District, was initially conceived by the HPSEB, who also did the work of investigation for purpose of commissioning of the same.
For the said purpose, the HPSEB established various Offices for ::: Downloaded on - 11/03/2020 20:28:44 :::HCHP ...7...
smooth functioning of the works relating to the NJPC and made .
recruitment of staff in various categories.
10. Vide an agreement entered into between the Government of India and Government of Himachal Pradesh, dated 24.5.1998, the execution of the work was placed in a joint venture and the NJPC was incorporated under the Companies Act.
11. In the year 1990, a Board of Directors of the NJPC (now SJVN) took over all the assets and liabilities alongwith staff from the HPSEB relating to the said Project. This arrangement came into force w.e.f. 1.8.1991, vide order dated 31.7.1991, and the HPSEB also annexed the said order as (Annexure RA-1).
12. In Paragraph-7 of the response, the HPSEB contended that even as per the claim of the petitioner, he worked till October 1990, whereas the assets were transferred w.e.f. 1.8.1991, on which date, the petitioner was not on the roll of the NJPC.
13. In Paragraph-8 of the response, the HPSEB stated as follows:-
"That since the assets and liabilities vested in the Nathpa Jhakri Power corporation on and w.e.f. 1/8/1991 on which date the petitioner was not on the rolls of ::: Downloaded on - 11/03/2020 20:28:44 :::HCHP ...8...
Nathpa Jhakri Constructions Division No.7, therefore, his name might have not figured amongst the individual .
transferred to the Nathpa Jhakri Power Corporation. It is, however, the respectful submission of the deponent herein that since the petitioner allegedly has been working in Nathpa Jhakri Construction Division No.7, a office relating to and working for Nathpa Jhakri Power Project, the works, assets, record and liabilities of which stood vested in Nathpa Jhakri Power Corporation w.e.f. 1/8/1991, therefore, the records of the case is available with the HPSEB Ltd."
14. The HPSEB further contended that they are trying to trace the record and in Paragraph-10 of the response, stated as follows:-
"That the Respondents No.2 & 3 vide letter bearing No.CC/P&A/2011-10323 dated 8/11/2011 issued under the seal and signature of Shallinder Singh, Sr. Manager (P&A) informed the Respondent No.1-HPSEB Ltd. that efforts are being made to trace the record and that since the record related to Division N7/Kiar Khud and is almost 20 years old, therefore, a few days additional time would be required. A copy of the letter dated 8/11/2011 is placed on record as Annexure-RA-1/3 for kind perusal."::: Downloaded on - 11/03/2020 20:28:44 :::HCHP
...9...
15. In Paragraph-13, the HPSEB specifically mentioned .
that the responsibility to arrange the record was with the SJVN as the same stood transferred to there vide agreement dated 31.7.1991.
16. During the course of hearing, a Single Bench of this Court, on 23.8.2011, passed the following order:-
"The dispute in this case is whether the petitioner had at any time worked with the H.P. State Electricity Board or not. As per the statement of the petitioner recorded before the learned Labour Court he was engaged as Water Gauge Reader on 12.6.1989 and posted at Division No.7, Shimla. Thereafter, he was posted at Kiar Khud. According to him he served there till October 1990.
I have gone through the record of the Labour Court and I find that the Board has not produced any record on the ground that the said record is available with the Nathpa Jhakri Power Corporation.
The Board is directed to produce the entire record relating to the engagement of daily waged employees on the establishment of the Board in Division No.7, Shimla from June 1989 till October 1990 including the record relating to the area known as Kiar Khud. If ::: Downloaded on - 11/03/2020 20:28:44 :::HCHP ...10...
necessary, the Board can get this record back from the Satluj Jal Vidyut Nigam, if the record is with that .
Corporation.
List on 22nd November, 2011."
17. The subsequent orders dated 27.3.2012 and 20.4.2012, reveal that the record was never produced before the Court.
However, vide order dated 9.5.2012, a Single Bench of this Court reserved its judgment in the writ petition. But, neither the order sheets nor the judgment reveal that the said record was ever produced or shown to the Court.
18. Vide judgment dated 28.5.2012, learned Single Judge of this Court, dismissed the writ petition, while giving detailed reasons as mentioned in Paragraph-15, which reads as under:-
"In this case, unfortunately, the workman has not produced even one document, except his self serving statement that he was engaged by the H.P.S.E.B. In case he has filed one document, it would have become easier for the Board and NJPC to trace out the record. It has come in the statement of RW-2, Shri Het Ram that the name of the workman was not included in the list of workers, who were employed by the Board and whose services were transferred to NJPC. The ::: Downloaded on - 11/03/2020 20:28:44 :::HCHP ...11...
document, i.e., Ex-PA pertains to the Department of Fisheries and not to respondent-Board and NJPC.
.
There is no illegality or perversity in the award dated 30.06.2008, passed by the learned Industrial Tribunal-
cum-Labour Court, Shimla in Ref. No.10 of 1996."
19. Being aggrieved against the dismissal of the writ petition, the appellant came up before this Court while filing the present LPA. r
20. The Division Bench of Court, vide order dated 11.12.2019, observed as follows:-
"Learned standing counsel has placed on record the written instructions, however, not relevant for the purpose of the present controversy. While hearing this matter further, we had to go through the writ record. As a matter of fact, the respondent-Board, vide order dated 23.8.2011, passed in the writ petition, was directed to produce the entire record relating to engagement of the daily waged employees on the establishment of the Board in Division No.7, Shimla from June, 1989 till October, 1990, including the record relating to Kiar Khud area, with further observation that if necessary, the respondent-Board may get the ::: Downloaded on - 11/03/2020 20:28:44 :::HCHP ...12...
record back from Satluj Jal Vidyut Nigam, if the record was transferred there.
.
The order dated 23.8.2011 reads as follows:-
"The dispute in this case is whether the petitioner had at any time worked with the H.P. State Electricity Board or not. As per the statement of the petitioner recorded before the learned Labour Court he was engaged as Water Gauge Reader on 12.6.1989 and posted at Division No.7, rShimla. Thereafter, he was posted at Kiar Khud. According to him he served there till October, 1990.
I have gone through the record of the Labour Court and I find that the Board has not produced any record on the ground that the said record is available with the Nathpa Jhakri Power Corporation.
The Board is directed to produce the entire record relating to the engagement of daily waged employees on the establishment of the Board in Division No.7, Shimla from June 1989 till October 1990 including the record relating to the area known as Kiar Khud. If necessary, the Board can get this record back from ::: Downloaded on - 11/03/2020 20:28:44 :::HCHP ...13...
the Satluj Jal Vidyut Nigam, if the record is with that Corporation.
.
List on 22nd November, 2011."
It is seen that the record in terms of the said order was never produced on 22.11.2011 and on 30.12.2011, time was sought for that purpose and granted. When the record was not produced on the next date, i.e. 21.3.2012, the Executive Director of respondent-Board was directed to produce the same personally on 27.3.2012, the next date fixed in the matter. On 27.3.2012, though Executive Director of the respondent-Board was personally present, however, expressed his inability to produce the record, on the pretext that the same was with the Satluj Jal Vidyut Nigam. Accordingly, the Director (Personnel), Satluj Jal Vidyut Nigam, was directed to give complete access to record to Executive Director of the respondent-Board, who thereafter was directed to remain present in person alongwith record on the next date i.e. 9.5.2012. The matter, when listed on 9.5.2012, was heard and reserved for pronouncement of judgment. What happened to the record which was in the process of being produced in this Court in terms of order dated 23.8.2011, nothing has come on ::: Downloaded on - 11/03/2020 20:28:44 :::HCHP ...14...
record nor in the judgment. The benefit of non production of the record vide impugned judgment, .
has been given to the respondent-Board, though in the given facts and circumstances and also in compliance to the award (Annexure P-7) passed previously, the respondent-Board had released 20% of the back wages, therefore, in view of the provisions contained under Section 114(g) of the Evidence Act, the benefit of doubt should have been given to the petitioner-workman. We would like to hear this matter further in view of the above observations. For that purpose, list on 9.1.2020."
21. On 9.1.2020, when this matter was again listed, neither the HPSEB nor the SJVN produced the record. The most significant aspect of this case is that learned Single Judge, while deciding CWP No.1954/2008, vide judgment dated 28.5.2012, did not give any findings about the directions issued by another Single Judge of this Court, vide order dated 23.8.2011(supra). Once this Court had specifically directed the Board to produce the entire record relating to the engagement of the workman and even authorized the HPSEB to get this record back from the SJVN, if the record was with them, still without looking into the record, learned ::: Downloaded on - 11/03/2020 20:28:44 :::HCHP ...15...
Single Judge, decided the writ petition, holding that the workman .
had not produced even one document proving that he was engaged by the HPSEB. Learned Single Judge further observed in Paragraph-15 of the judgment that Ex.PA pertains to Fisheries Department and not to the respondent-Board and NJPC.
22. The most significant aspect of this matter is that even the workman himself claims that he worked in the HPSEB w.e.f.
12.6.1989 till 31.10.1990 where after his services were transferred to the NJPC. As per the HPSEB, 1049 employees were transferred to the NJPC and the name of the petitioner does not find mention in the said list. If the HPSEB could transfer 1049 employees, then there was no reason to deny such benefit only to the petitioner.
Neither in the claim petition nor in the civil writ petition and in LPA, the petitioner has alleged any malafides against the Department or its employees. Therefore, whether in fact, he was employee of the HPSEB and had worked for more than 240 days in a calendar year and his services were terminated without following the procedure stipulated under the Industrial Disputes Act and in violation of ::: Downloaded on - 11/03/2020 20:28:44 :::HCHP ...16...
Section 25-F of the Act, his employment in the HPSEB, is to be .
established.
23. The workman did not preserve the documents and the respondents, without assigning any reasons, did not produce it before the Courts. Therefore, this Court is left with no option, but to remand the matter back to learned Single Judge, who shall proceed afresh in the matter, in the light of the order passed by this Court on 23.8.2011 in CWP No.1954/2008. Ordered accordingly.
In view of the aforesaid observations, the present appeal is disposed of, so also, the application(s), if any.
(Dharam Chand Chaudhary), Judge (Anoop Chitkara), Judge 11th March, 2020 (KS) ::: Downloaded on - 11/03/2020 20:28:44 :::HCHP