Himachal Pradesh High Court
State Of H.P. Through Secretary (Iph) To ... vs Raj Kumar Son Of Shri Jaisi Ram on 24 June, 2015
Author: P.S. Rana
Bench: P.S. Rana
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CWP No. 4541 of 2014
.
Order Reserved on 5th June 2015
Date of Order 24th June 2015
________________________________________________________
State of H.P. through Secretary (IPH) to Govt. of H.P. and another
....Petitioners
Versus
Raj Kumar son of Shri Jaisi Ram ....Respondent
________________________________________________________
Coram
The Hon'ble Mr. Justice P.S. Rana, J.
Whether approved for reporting?1 Yes.
______________________________________________________________ For the Petitioners: Mr. M.L.Chauhan, Additional Advocate General.
For the Respondent: Mr. Naresh Kaul, Advocate. _____________________________________________________________ P.S. Rana, Judge Order Present civil writ petition is filed under Article 226 of the Constitution of India against the award of learned Labour Court-cum-Industrial Tribunal passed in reference No. 456 of 2009 decided on dated 7.9.2013.
2. Brief facts of the case as pleaded are that respondent Raj Kumar was working on daily wages basis as Beldar in the office of Executive Engineer I&PH Division 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 18:26:16 :::HCHP 2Dalhousie w.e.f. July 1995 and worked for 70 days in 1995, 172 days in 1996, 162 days in 1997, 200 days in 1998, 155 days in .
1999 and 115 days in 2000. It is pleaded that all surplus workers were disengaged after complying the provisions of 25 (F) of H.P. Industrial Dispute Act. It is pleaded that concept last come first go was strictly complied with. It is further pleaded that respondent has challenged the retrenchment before learned Labour Court by way of filing claim petition and learned Labour Court set aside the retrenchment order of respondent and directed that respondent would be re-engaged forthwith and would be entitled to continuity and seniority for the service w.e.f.
21.8.2000 except back wages. It is pleaded that learned Presiding Judge Labour Court-cum-Industrial Tribunal Dharamshala further directed that case of the respondent would be considered for regularization of their service as per policy framed by Government of Himachal Pradesh from time to time. It is further pleaded that learned Presiding Judge Labour Court-
cum-Industrial Tribunal Dharamshala further directed that if service of any person junior to the respondent already stood regularized then respondent shall be entitled for regularization from the date/month of regularization of service of his junior.
::: Downloaded on - 15/04/2017 18:26:16 :::HCHP 33. Per contra reply filed by the respondent pleaded therein that respondent namely Raj Kumar was engaged as daily .
wages Beldar in the year 1987 and worked till 2000 and also worked for 240 days in certain years. It is pleaded that there was artificial break in service. It is pleaded that after dated 26.11.2000 fresh Beldars were employed by the petitioners. It is pleaded that learned Presiding Judge Labour Court-cum-Industrial Tribunal Dharamshala has passed the award strictly in accordance with law and proved facts and prayer for dismissal of writ petition sought.
4. Court heard learned Additional Advocate General appearing on behalf of the petitioners and learned Advocate appearing on behalf of the respondent and Court also perused the entire record carefully.
5. Submission of learned Additional Advocate General appearing for the petitioners that respondent had not completed 240 days of continuity in service in preceding 12 months and on this ground civil writ petition be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. As per Section 25(G) of Industrial Disputes Act 1948 procedure for retrenchment has been defined and as per Section 25(H) of the Industrial Disputes Act 1947 procedure for re-employment of ::: Downloaded on - 15/04/2017 18:26:16 :::HCHP 4 retrenchment workmen has been defined. As per Section 25(G) of Industrial Disputes Act 1947 the employer shall ordinarily .
retrench the workman who was the last person to be employed in that category unless for the reasons to be recorded the employer retrenches any other workman. As per Section 25(H) of Industrial Disputes Act 1947 where any workman was retrenched and the employer proposes to employee any person the employer would give an opportunity to retrenched workers for re-employment who offers themselves for re-employment and preference would be given to retrenched workmen. In present case the facts proved that petitioners did not comply the provisions of Sections 25(G) and 25(H) of Industrial Dispute Act 1947. It is held that for compliance of provisions of Sections 25(G) and 25(H) of Industrial Disputes Act 1947 condition of continuity of service of 240 days is not mandatory. It is held that as per provisions of Section 25(G) and 25(H) of Industrial Disputes Act 1947 only the concept of last come first go would apply.
6. Another submission of learned Additional Advocate General that retrenchment of respondent was made strictly as per provisions of Sections 25(G) of Industrial Disputes Act 1947 and provision of 25(H) was also complied and on this ground ::: Downloaded on - 15/04/2017 18:26:16 :::HCHP 5 petition be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. Although it is proved on record .
that retrenchment of respondent was strictly as per provision of Section 25(G) of Industrial Dispute Act 1947 but it is proved on record that petitioners did not comply the provisions of Section 25(H) of Industrial Disputes Act 1947 in case of re-employment of retrenched workmen. In present case it is proved on record that as per seniority list name of respondent falls at Sr. No. 399 and it is proved on record that petitioners had re-employed Biasa Devi and Hem Raj who fall at Sr. No. 414 and 435. No offer of reemployment was sent to the respondent who was at Sr. No. 399 in seniority list before the re-employment of Biasa Devi and Hem Raj.
7. Another submission of learned Additional Advocate General appearing on behalf of the petitioners that learned Labour Court has illegally granted the seniority to respondent is rejected being devoid of any force for the reasons hereinafter mentioned. It is proved on record that service of person junior to the respondent has already been regularized. It is held that respondent will be legally entitled for regularization from the date and month of regularization of service of the juniors. Even as per Article 14 of Constitution of India junior persons cannot be ::: Downloaded on - 15/04/2017 18:26:16 :::HCHP 6 given seniority if senior person is meritorious and qualified all conditions for regularization. In present case there is no evidence .
on record that respondent Raj Kumar is not meritorious person and there is no evidence on record that any disciplinary proceedings were initiated against Raj Kumar and there is no evidence on record that Raj Kumar was punished by disciplinary authority in accordance with law.
8. Another submission of learned Additional Advocate General appearing on behalf of the petitioners that seniority has been granted to the respondent without working in the department which is contrary to law and on this ground petition be allowed is also rejected being devoid of any force for the reasons hereinafter mentioned. Court has carefully perused the award passed by learned Labour Court. Learned Labour Court has not given any monetary benefits to the respondent. Seniority has been granted by learned Labour Court except back wages. It was held in case reported in AIR 1999 SC 3471 titled Ajit Singh and others vs. State of Punjab and others (Constitutional Bench) that promotion and seniority is granted to employee under Article 16(1) of Constitution of India subject to ACR. There is no positive evidence of adverse entries in ACRs of respondent.
::: Downloaded on - 15/04/2017 18:26:16 :::HCHP 79. Another submission of learned Additional Advocate General appearing on behalf of the petitioners that claim petition .
was barred and respondent was retrenched w.e.f. 21.8.2000 and he filed OA No. 457 of 2000 before H.P. Administrative Tribunal against termination which was disposed of on dated 21.3.2002 and thereafter he raised the industrial dispute in the year 2007 after five years and on this ground petition be allowed is rejected being devoid of any force for the reasons hereinafter mentioned.
Petitioner did not place on record certified copy of OA No. 457 of 2000 for perusal. It is proved on record that reference No. 456 of 2009 was sent to learned Presiding Judge Labour Court-cum-
Industrial Tribunal Dharamshala and same was instituted on dated 14.9.2009. It is held that as per Section 10 of Industrial Dispute Act 1947 the reference can be sent to learned Labour Court-cum-Industrial Tribunal "at any point of time" by the appropriate Government. There is no limitation for sending the reference to learned Labour Court as per Section 10 of Industrial Disputes Act 1947. It was held in case reported in AIR 1987 SC 1353 titled Collector Land Acquisition Anantnag and another vs. Mst.
Katji and others that (1) Ordinarily a litigant does not stand to benefit by lodging matter late. (2) Refusing to condone delay can result meritorious matter thrown out at the very threshold and ::: Downloaded on - 15/04/2017 18:26:16 :::HCHP 8 cause of justice defeated. It was held that if delay is condoned then highest that would happen would that case would be .
decided on merits after hearing the parties. (3) It was held that every day's delay must be explained does not mean that a pedantic approach should be made. It was further held that doctrine must be applied in a rational common sense. (4) It was held that when substantial justice and technical considerations are pitted against each other then cause of substantial justice deserves to be preferred. (5) It was held that there is no presumption that delay is occasioned deliberately or on account of culpable negligence or on account of mala fides. It was held that litigant does not stand to benefit by resorting to delay and in fact he runs a serious risk. (6) It was held that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. It was held in case reported in (2015)4 SCC 458 titled Jasmer Singh vs. State of Haryana and others that provisions of Article 137 of Limitation Act 1963 would not be applicable to Industrial Disputes Act 1947 and it was held that relief would not be denied to workman merely on ground of delay. It was held that no reference to Labour Court should be questioned on the ground of delay. It was further held that even ::: Downloaded on - 15/04/2017 18:26:16 :::HCHP 9 in case where delay was condoned by Labour Court then Labour Court could mould the relief by declining the back wages to .
workman till he raised the demand regarding his illegal retrenchment, dismissal or termination. It was held in case reported in (2014)10 SCC 301 titled Raghuvir vs. G.M. Haryana Roadways Hissar that there is no limitation for reference to Labour Court under Section 10 of Industrial Disputes Act 1947. It was held that words "At any time" mentioned in Section 10 of Industrial Disputes Act 1947 clearly define that law of limitation would not be applicable qua proceedings of reference under Section 10 of Industrial Disputes Act 1947. Operative part of Section 10 of Industrial Disputes Act 1947 is quoted in toto.
Section 10 of Industrial Disputes Act 1947:-Reference of dispute to Boards, Courts or Tribunals-(1) Where the appropriate Government is of the opinion that any industrial dispute exists or is apprehended, it may at any time by order in writing. (a) Refer the dispute to a Board for promoting a settlement thereof. (b) Refer any matter appearing to be connected with or relevant to the dispute to a Court for inquiry.
10. In view of above stated facts it is held that award of learned Presiding Judge Labour Court-cum-Industrial Tribunal Dharamshala in reference No. 456 of 2009 decided on 7.9.2013 ::: Downloaded on - 15/04/2017 18:26:16 :::HCHP 10 is in accordance with proved facts and is in accordance with law.
It is further held that there is no illegality in award passed by .
learned Presiding Judge Labour Court-cum-Industrial Tribunal Dharamshala. Award passed by Presiding Judge Labour Court-
cum-Industrial Tribunal Dharamshala (H.P.) dated 07-09-2013 titled Raj Kumar vs. Executive Engineer I&PH Division Dalhousie District Chamba (H.P.) is affirmed. Civil writ petition is dismissed.
No order as to costs. All pending miscellaneous application(s) if any also stands disposed of.
June 24,2015 (P.S. Rana)
ms. Judge
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