Himachal Pradesh High Court
Secretary Hppwd Hp vs State Of Hp & on 21 April, 2022
Bench: Sabina, Satyen Vaidya
-1-
Reportable/unrepeatable
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE 21st DAY OF APRIL, 2022
.
BEFORE
HON'BLE MS. JUSTICE SABINA
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
CIVIL WRIT PETITION No. 2402 OF 2022
Between:-
1.
SECRETARY HPPWD HP
THE STATE OF HP, THROUGH
SECRETARIAT, SHIMLA, H.P.
2. THE ENGINEER-IN-CHIEF,
HPPWD SHIMLA-2, HP
3. THE SUPERINTENDING ENGINEER,
8TH CIRCLE HP PWD, HAMIRPUR.
4. THE EXECUTIVE ENGINEER
DHARAMPUR DIVN. HP PWD,
DHARAMPUR, DISTRICT MANDI
H.P.
....PETITIONERS
(BY SH. ASHWNI SHARMA, ADDITIONAL ADVOCATE
GENERAL)
AND
SH. HAMID KHAN, S/O BALIA KHAN,
R/O VILLAGE BHADYAR, P.O. BRANG,
TEHSIL SARKAGHAT, DISTT. MANDI,
H.P.
....RESPONDENT
(NEMO).
------------------------------------------------------------------------------
::: Downloaded on - 23/04/2022 20:06:10 :::CIS
-2-
This petition coming on for orders this day, Hon'ble
Mr. Justice Satyen Vaidya passed the following:
.
ORDER
Heard.
2. By way of instant petition, petitioner-State has assailed the award dated 27.6.2018, passed by learned Presiding Judge, Labour Court-cum-Industrial Tribunal, Kangra at Dharmshala, H.P. (for short, the Tribunal), in Reference No. 52 of 2015.
3. It is contended on behalf of the petitioners (for short, 'employer' that the respondent (for short, 'workman') had approached the Appropriate Government by way of demand notice after about eight years of his termination, therefore, learned Tribunal was not justified in passing impugned award, favouring the respondent. The impugned award has also been assailed on the ground that respondent had himself left the job and there was no violation of provisions of 25G and 25H of the Industrial Disputes Act, 1947. As per petitioners, the respondent at the most could be held entitled to lump-sum compensation.
4. The workman worked as labourer with Executive Engineer, Dharampur Division, HP PWD, Dharampur on daily ::: Downloaded on - 23/04/2022 20:06:10 :::CIS -3- wage basis w.e.f. April 1999 to January, 2001. As per workman, his services were terminated by the employer, .
whereas the stand of the employer was that respondent had left the job on his own. Respondent issued demand notice on 28.1.2009, on the basis of which, the Appropriate Government made a reference to the Labour Court-cum-Industrial Tribunal in following terms:-
"Whether the industrial dispute raised by the worker Shri Hamid Khan s/o Shri Balia Khan, r/o Village Bhadyar, P.O. Brang, Tehsil Sarkaghat, District Mandi, H.P. before the Executive Engineer, H.P.P.W.D. (B&R) Division, Dharampur, District Mandi, H.P. vide demand notice dated 28.1.2009 regarding his alleged illegal termination of service w.e.f. 01.02.2001 suffer from vice of delay and latches? If not, Whether termination of the services of Shri Hamid Khan s/o Shri Balia Khan, r/o Village Bhadyar, P.O. Brang, Tehsil Sarkaghat, District Mandi, H.P. by the Executive Engineer, H.P.P.W.D. (B&R) Division, Dharampur, District Mandi, H.P. w.e.f. 01.02.2001 without complying the provisions of the Industrial Disputes Act, 1947, as alleged by the worker is legal and justified? If not, what amount of back wages, ::: Downloaded on - 23/04/2022 20:06:10 :::CIS -4- seniority, past service benefits and compensation the above aggrieved workman is entitled to from the above employer?
.
5. The workman submitted a statement of claim before the Tribunal, alleging inter-alia that employer had failed to maintain seniority list as per law and as a consequence thereof, juniors to workman were retained in service, whereas the services of petitioner were terminated w.e.f. 1.2.2001. The principle of 'first come last go' was violated.
r It was further alleged that many other workmen of same Division were illegally retrenched between the years 1999 to 2005. However, some of such retrenched workmen raised industrial disputes. The Tribunal passed awards in favour of such workmen by directing their reinstatements with seniority and back wages. The employer did not challenge the reinstatement of such workmen.
However, a limited challenge was made to the relief of back wages, awarded in their favour. This Court modified the awards passed by the Tribunal to the extent that instead of 50% back wages, lump-sum compensation of Rs. 50,000/-, was allowed.
In consequence thereof, 43 workmen were allowed to join by the employer by reinstating them.
6. The employer contested the claim of respondent on the ground that the claim suffered from delay and latches. As ::: Downloaded on - 23/04/2022 20:06:10 :::CIS -5- per employer, the respondent had worked till June, 2001 and had left the job thereafter on his own. The factum of .
reinstatement of 43 workmen was admitted on the basis of the awards, passed by the Tribunal.
7. The learned Tribunal, after taking into consideration the rival cases of the parties, framed following issues:-
i) Whether the industrial dispute raised by petitioner vie demand notice dated 28.1.2009 qua his termination of service during 01.2.2001 by respondent suffers from the vice of delay and latches as alleged? If so, its effect? OPP
ii) Whether termination of services of the petitioner by the respondent w.e.f. 01.2.2001 is/was improper and unjustified as alleged?
OPP.
iii) If issue No.2 is proved in affirmative, to what service benefits the petitioner is entitled to?
OPP
iv) Whether the claim petition is not
maintainable in the present form? OPR.
8. Parties were allowed to lead evidence.
9. On appreciation of material on record learned Tribunal held that the termination of workman was in violation of Section 25-G of the Industrial Disputes Act,1947 and further that the workmen junior to the respondent herein, who had been retrenched, were later reinstated in pursuance to the awards passed by learned Tribunal. It was also held that the delay ::: Downloaded on - 23/04/2022 20:06:10 :::CIS -6- in raising the industrial dispute at the end of respondent was justified. The factum of reinstatement of 43 other similar .
situated workmen was also taken into consideration and thus, learned Tribunal concluded that on the principle of equity with similarly situated workmen, respondent was also entitled to relief. The learned Tribunal accordingly proceeded to grant the relief to the respondent in following terms:-
"As sequel to my findings on foregoing issues, r the reference/claim petition is allowed partly. Accordingly, the respondent is hereby directed to re-engage the petitioner forthwith who shall be entitled to seniority and continuity in service from the date of his illegal termination except back wages. However, petitioner shall be considered for regularization by respondent at the time when his juniors have been regularized as per policy governing daily wagers as framed by State Govt. and operative from time to time. In the peculiar circumstances of the case, the parties are left to bear their own costs."
10. After having given our due consideration to the entire material on record, we are not inclined to interfere with the impugned award, passed by the Tribunal, as the same cannot be said to be perverse to the records.
::: Downloaded on - 23/04/2022 20:06:10 :::CIS -7-11. As regards the factum of delay in raising the dispute, the findings recorded by the learned Tribunal, in our .
considered view, are justified. The factor that weighed with learned Tribunal was that similarly situated workmen had already been reengaged by the employer, on the basis of the awards, passed by the Tribunal in their favour and as such respondent herein could not have been discriminated. The technicalities cannot be allowed to defeat otherwise rightful claim, especially, when it would amount to discrimination inter-
se similarly situated persons.
12. Mr. Ashwani Sharma, learned Additional Advocate General has placed reliance on a judgment passed by a Coordinate Bench of this Court in a bunch of matters with CWP No. 1912 of 2016, titled as Bego Devi vs. State of HP & others being lead case, decided on 26.10.2016, in support of his contention.
13. In the facts of the case of Bego Devi (supra), the Appropriate Government had refused to refer the matter and such orders of the Appropriate Government was challenged before this Court. In the instant case, the learned Tribunal has passed the award in answer to the matter referred to it.
::: Downloaded on - 23/04/2022 20:06:10 :::CIS -8-14. The Industrial Disputes Act, 1947, does not prescribe for limitation for raising an industrial dispute.
.
However, the principle of reasonableness requires the dispute to be raised within a reasonable time for grant of appropriate relief and the reasonable time has to be adjudged relatively on the basis of facts and circumstances of each individual cases.
In the facts of instant case, since similarly situated workmen were granted the relief of reinstatement, after adjudication of their claims by learned Tribunal, the issuance of demand notice by respondent in the year 2009, cannot be justifiably objected to by the employer, especially when not less than 43 similarly situated workmen had been reinstated, as noticed above.
15. Noticeably, the learned Tribunal has denied the claim of back wages to the respondent. The reinstatement of respondent has been ordered with seniority and continuity in service. We do not find such relief to be unjustified or unreasonable. Once the learned Tribunal had come to the conclusion that the retrenchment of respondent was bad in law, his reinstatement will also entail the consequential benefits in the peculiar facts of the case.
16. In light of above discussion, we do not find any material warranting interference of this Court with the ::: Downloaded on - 23/04/2022 20:06:10 :::CIS -9- impugned award, passed by the learned Tribunal, in exercise of jurisdiction under Article 226 of the Constitution of India.
.
Petition is accordingly dismissed.
17. Pending application(s), if any, also stand disposed of.
(Sabina)
Judge
21st April, 2022
(kck)
r to (Satyen Vaidya)
Judge
::: Downloaded on - 23/04/2022 20:06:10 :::CIS