Himachal Pradesh High Court
Shri Udham Singh vs Himachal Pradesh State Electricity ... on 15 November, 2016
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWPs No. 9241 & 9789 of 2013 Reserved on: 08.11.2016 Decided on: 15.11.2016 .
_______________________________________________________ CWP No. 9241 of 2013:
Shri Udham Singh.
.....Petitioner.
Versus Himachal Pradesh State Electricity Board Limited and others.
of ......Respondents.
CWP No. 9789 of 2013:
The Executive Engineer (E) Division HPSEB Rajgarh & another.
rt .....Petitioners.
Versus
Shri Udham Singh.
......Respondent.
________________________________________________________ Coram The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.1
Whether approved for reporting? Yes.
CWP No. 9241 of 2013:
For the petitioner: Mr. V.D. Khidta, Advocate.
For the respondents: Mr. Ashok Thakur, Advocate, vice Ms. Sharmila Patial, Advocate, with Mr. Satyen Vaidya, Sr. Advocate.
CWP No. 9789 of 2013:
For the petitioners: Mr. Ashok Thakur, Advocate, vice Ms. Sharmila Patial, Advocate, with Mr. Satyen Vaidya, Sr. Advocate.1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.::: Downloaded on - 15/04/2017 21:33:11 :::HCHP 2
For the respondent: Mr. V.D. Khidta, Advocate.
Chander Bhusan Barowalia, Judge.
.
The present petition (CWP No. 9241 of 2013) is maintained by the petitioner/workman (hereinafter referred to as 'the workman') laying challenge to the award of the learned of Industrial Tribunal-cum-Labour Court, Shimla, dated 17.09.2013, passed in Reference No. 4 of 2008, whereby he was not granted full rt back-wages and seniority w.e.f. 07.07.2009 to 22.08.2012. On the other hand, the petitioners (in CWP No. 9789 of 2013), being employer (Himachal Pradesh State Electricity Board) of the workman (hereinafter referred to as the respondents), have also assailed the same award by way of another writ petition, on the ground that the same may be quashed in entirety and the claim of the workman is required to be disallowed.
2. Briefly stating, the facts giving rise to both the petitions are that as per the workman, he was engaged by the respondents/employer as Beldar on and w.e.f. 21.08.1994 and he worked as such in the office of Junior Engineer, HPSEB, Section Chandal, Division Rajgarh, District Sirmour, till 15.06.1996, when ::: Downloaded on - 15/04/2017 21:33:11 :::HCHP 3 verbally the respondents illegally terminated his services. As per the workman, he had completed 240 days in a calendar year. The respondents did not comply the obligatory provisions of the .
Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act') and no reason was assigned for the termination of the workman.
The workman time and again visited the office of the respondents in of a hope that he will be re-engaged, but despite written requests no action was taken. The respondents assured him that he will be re-
rt engaged and he waited till September, 2003, and ultimately he issued a demand notice before the Labour-cum-Conciliation Officer, Solan. The respondents remained obstinate during the conciliation proceedings and lastly the reference was made to the learned Tribunal below. As per the workman, the respondents had engaged new persons in contravention of Section 25-H of the Act and the provisions of Sections 25-N, 25-F, 25-G and 25-H of the Act have also been contravened. The workman has further averred that no notice had been issued to him nor any compensation was paid. The workman prayed for setting aside his oral termination order dated 15.06.1996 with simultaneous prayer for his reinstatement in service on and w.e.f. 15.06.1996 with all consequential benefits, including ::: Downloaded on - 15/04/2017 21:33:11 :::HCHP 4 back wages, seniority etc.
3. In reply to the reference petition, the respondents have taken preliminary objections, viz., maintainability, estoppel, delay .
and laches. It is contended by the respondents that the workman was engaged as Beldar on daily wage basis on and w.e.f. 16.11.1993 by SDO (E) HPSEB, Rajgarh, and he had worked upto 15.03.1994.
of As per the respondents, since the workman was not regular in his duties, he did not complete 240 days in any calendar year, so no rt notice was required to be served upon him in view of the Standing Orders, Clause 14(2) A under the Act. The respondents had further averred that the workman had left the job on his own without informing the respondents and he was casual in attending his duties, therefore, there had been no violation of Sections 25-G and 25-H of the Act.
4. The learned Tribunal below has framed the following issues for determination:
"1. Whether the services of the petitioner have been illegally terminated by the respondents without complying with the provisions of the Industrial Disputes Act, 1947. If so, its effect? OPP
2. If issue No. 1 is proved in affirmative, to what relief the petitioner is entitled to?::: Downloaded on - 15/04/2017 21:33:11 :::HCHP 5
OPP
3. Whether the petitioner has no locus standi and the application is not maintainable? OPR .
4. Relief."
After deciding issue No. 1 in favour of the workman and issue No. 3 against the respondents, the reference was allowed and the of workman was ordered to be reinstated with seniority and continuity w.e.f. 15.03.1994 till passing of the award, except from 07.07.2009 rt to 22.08.2012, however, without back-wages.
5. I have heard the learned counsel for the parties and have gone through the record carefully.
6. As per the workman (petitioner) he was engaged as beldar on and w.e.f. 21.08.1994 and was terminated on 15.06.1996.
However, as per reply of the respondents, the workman was engaged as beldar by SDO (E), HPSEB, Rajgarh on 16.11.1993 and he worked upto 15.03.1994. The workman left the job on his own without informing the respondents. Thus, manifestly the workman had worked upto 15.03.1994 and not 15.06.1996 when he was allegedly terminated.
7. The workman while deposing as PW-1 has stated that ::: Downloaded on - 15/04/2017 21:33:11 :::HCHP 6 he was engaged as beldar by the Junior Engineer, HPSEB, Section Chandal and he worked upto 15.06.1996 when he was disengaged/terminated without any notice and compensation. As .
per the workman, he had been engaged by the Junior Engineer, as beldar. Meaning thereby, the contention of the workman that he was engaged on 21.08.1994 is false. PW-2 (Shri Adhoya Kumar) has of deposed that the workman worked under his control during the year 1993-94. Nothing is emanating from the record that the workman rt had been engaged on 21.08.1994. Conversely, the stand of the respondents is fortified by a document pertaining to the detail of the working days qua the workman, which demonstrates that as per Muster Roll No. 876 he had been engaged on 16.11.1993.
8. RW-1 (Shri Shashi Kant) deposed that the workman had been engaged as beldar on 16.11.1993, and he worked for three days in that year. Thus from the close scrutiny of the testimonies of PW-1 and RW-1, it is crystal clear that the workman had been engaged, as beldar, on 16.11.1993 and not on 21.08.1994.
9. It can easily be construed from the analysis of the record that the petitioner had worked as beldar on and w.e.f.
16.11.1993 to 15.03.1994. As the workman did not complete 240 ::: Downloaded on - 15/04/2017 21:33:11 :::HCHP 7 days in a calendar year preceding his disengagement, the provisions of Section 25-F are not at all applicable to the present case. The workman had further contended that after his disengagement new .
persons, who were junior to him, were engaged/retained by the respondents in utter violation of the provisions of Sections 25-G and 25-H of the Act. However, it is imperative to take into consideration of the fact that whether the workman left the job on his own or his services were terminated by the respondents. As per the workman, rt his services were terminated and he wrote letter, Ex. PW-1/A to Ex.
PW-1/C, requesting the respondents to re-engage him. On examination of these letters, it stands testified that letters, Ex. PW-
1/A, Ex.PW-1/B and Ex. PW-1/C are dated 14.04.1997, 26.06.1997 and 25.07.2000, respectively. RW-1 (Shri Sashi Kant) in fact, admitted that after termination of the workman, workman wrote letters, Ex. PW-1/A to Ex. PW-1/C, to the respondents. Therefore, patently the workman had been requesting the respondents, orally and through letters, to re-engage him. Thus, given the fact that the workman had been making repeated requests to the respondents for his re-engagement, it cannot be said the workman had left the job on his own.
::: Downloaded on - 15/04/2017 21:33:11 :::HCHP 810. The evidence in the present case suggests that after termination of the workman, he ran from pillar to post for his re-
engagement that is by way of writing letters and making oral .
requests to the respondents. Thus, the workman made himself available for re-engagement. Manifestly, the respondents engaged new workers, who are junior to the workman. As the workman time of and again requested the respondents for his re-engagement and his juniors were engaged, there is clear cut violation of Section 25-H of rt the Act. Therefore, the most probable ratiocination which emerges is that after termination of the workman, persons junior to him were engaged by the respondents, which action of the respondents is not only erroneous, but in violation of Sections 25-G and 25-H of the Act.
11. It has also come on record that the workman did not pursue his case between 07.07.2009 to 05.04.2013 and the same remained dismissed in default during this period. As the respondents had violated the provisions of Sections 25-G and 25-H of the Act and it is the workman who did not pursue his case w.e.f.
07.07.2009 to 22.08.2012 and only on 22.08.2012 the workman, for the first time, moved an application for restoration of his reference ::: Downloaded on - 15/04/2017 21:33:11 :::HCHP 9 after 07.07.2009, this Court finds no illegality in the order passed by the learned Tribunal below in not granting back wages for the period and break in service. As the workman did not care to get his case .
restored as well as he also did not prove before the Court by leading cogent and reliable evidence that he was not doing anything during all these years and it is otherwise also not acceptable that a person of will remain sleeping in his house for such a substantial time.
12. In Uptron India Ltd. Vs. Shammi Bhan and rt another, (1998) 6 Supreme Court Cases 538, the Hon'ble Apex Court has held that the employer cannot terminate the services of the workman until and unless principles of natural justice have been followed and the workman has been provided reasonable opportunity to explain himself before terminating his services on the basis of abandonment of job.
13. In view of what has been discussed hereinabove, I find no infirmity in the award passed by the learned Tribunal below. The award passed by the learned Tribunal below is just, reasoned and after properly appreciating the facts to their right perspective and the law has been applied correctly. The petitions being devoid of merit, deserve dismissal and are accordingly dismissed. However, in ::: Downloaded on - 15/04/2017 21:33:11 :::HCHP 10 view of peculiar facts and circumstances of the cases, the parties are directed to bear their own costs.
14. Pending application(s), if any, shall also stand(s) .
disposed of.
(Chander Bhusan Barowalia) Judge 15th November, 2016 of (virender) rt ::: Downloaded on - 15/04/2017 21:33:11 :::HCHP