Himachal Pradesh High Court
Smt. Sumfali Devi vs State Of Himachal Pradesh And Another on 2 April, 2019
Bench: Surya Kant, Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CWP No. 2861 of 2018
Decided on: 2.4.2019
_____________________________________________________________
.
Smt. Sumfali Devi ....Petitioner
Versus
State of Himachal Pradesh and another ...Respondents
_____________________________________________________________
Coram
Hon'ble Mr. Justice Surya Kant, Chief Justice
Hon'ble Mr. Justice Sandeep Sharma, Judge
Whether approved for reporting1? Yes.
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For the petitioner Mr. Devender K. Sharma, Advocate.
For the respondents: Mr. Ashok Sharma, Advocate General
r with M/s Ranjan Sharma, Adarsh
Sharma, Ritta Goswami, Ashwani
Sharma and Nand Lal Thakur,
Additional Advocate Generals and Ms.
Divya Sood, Deputy Advocate
General.
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Sandeep Sharma, J. (Oral)
By way of instant Writ Petition filed under Article 226 of the Constitution of India, petitioner-workman (hereinafter referred to as, "workman") has laid challenge to Award dated 29.3.2017 passed by the Labour Court-cum-
Industrial Tribunal, Kangra at Dharamshala, Himachal Pradesh (hereinafter referred to as, "Tribunal") in Reference No. 536/2015, whereby learned Tribunal awarded a lump sum compensation of Rs.50,000/- in favour of the workman in lieu Whether reporters of the Local papers are allowed to see the judgment? .
::: Downloaded on - 04/04/2019 21:58:31 :::HCHP -2-of the back wages, seniority, past service benefits as well as other consequential benefits.
2. Precisely the facts as emerge from the record are that .
the appropriate Government made following reference under Section 10(1) of the Industrial Disputes Act, 1947 (hereinafter referred to as, 'Act') to the Tribunal:
"Whether the industrial dispute raised by the worker Smt. Sumfali Devi, W/O Shri Sukh Ram, R/O Village Konsal, P.O. Pehad, Tehsil Sarkaghat, District Mandi, H.P. before the Executive Engineer, H.P.P.W.D. Division Dharampur, District Mandi, H.P. vide demand notice dated 02.02.2013 regarding her alleged illegal termination of services during year, 2000 suffers from delay and latches? If not, Whether termination of services of Smt. Sumfali Devi W/O Shri Sukh Ram, R/O Village Konsal, P.O. Pehad, Tehsil Sarkaghat, District Mandi, H.P. by the Executive Engineer, H.P.P.W.D. Division Dharampur, District Mandi, H.P. during year, 2000 without complying the provisions of the Industrial Disputes Act, 1947, is legal and justified? If not, what amount of back wages, seniority, past service benefits and compensation the above aggrieved workman is entitled to from the above employer?"
3. The workman, in her statement of claim before learned Tribunal below, claimed that she was engaged by the respondent on Daily Wage basis on Muster Roll as Beldar with effect from November, 1998, as such, she continued to work upto the year 1999 and she had completed 240 days. The workman further alleged that her services were unlawfully terminated by the respondents verbally in the year 1999 ::: Downloaded on - 04/04/2019 21:58:31 :::HCHP -3- without issuing one month's notice and retrenchment compensation as envisaged under Section 25-F of Act. The workman stated before the Tribunal that since the .
respondents had violated provisions of Section 25 of the Act, her oral termination deserves to be set aside. Apart from above, workman also alleged that the principle of, "Last Come, First Go" was also not followed by the respondents at the time of her oral retrenchment as some juniors were retained in service, while terminating her services. Workman further claimed that after her termination, respondents engaged many persons, who worked as Daily Wage Beldars but, at no point in time, opportunity, if any, ever came to be afforded to the workman for reemployment, as such, action of the respondents is in sheer violation of the provisions of Section 25-H of the Act.
4. Respondents, by way of a detailed reply, refuted the aforesaid claim of the workman on the ground of maintainability as well as delay and laches. While admitting the factum with regard to engagement of the workman as a Daily Wager in January, 1999, respondents claimed that the workman intermittently worked upto September, 1999, whereafter, she herself abandoned the job without completing 240 days. Respondents further claimed that since the petitioner left the job of her own sweet will, there was no occasion for them to comply with the provisions contained ::: Downloaded on - 04/04/2019 21:58:31 :::HCHP -4- under Section 25 of the Act. Respondents sought dismissal of the claim of the workman on the ground of delay and laches and claimed before the Tribunal that since the demand notice .
was issued by the workman after a period of fourteen years of the alleged retrenchment, no relief, if any, can be granted to the workman.
5. Learned Tribunal below, on the basis of evidence led on record by the respective parties, be it ocular or documentary, though held that the services of the workman were illegally terminated without notice but awarded a lump sum compensation of Rs.50,000/- to the workman in lieu of back wages, seniority, past service benefits and other consequential service benefits. In the aforesaid background, workman has approached this Court in the instant proceedings, seeking direction to the respondents to reinstate her with full back wages, seniority and continuity in service, after setting aside the impugned Award passed by the Tribunal.
6. Having heard learned counsel for the parties and perused the material available on record vis-à-vis the reasoning assigned by learned Tribunal while awarding compensation in lieu of back wages, seniority and past service benefits, this Court is not persuaded to agree with the contention of Mr. Devender K. Sharma, learned counsel for the workman that since the delay in raising demand notice by the ::: Downloaded on - 04/04/2019 21:58:31 :::HCHP -5- workman had been condoned by the Writ Curt in CWP No. 3603 of 2015, decided on 1.9.2015, the Tribunal could not have denied reinstatement to the workman on the ground of .
delay in raising the dispute.
7. True it is that vide aforesaid judgment dated 1.9.2015, this Court had directed the Labour Commissioner to make reference to the Tribunal, but definitely, while doing so, this Court never barred/ precluded the respondents from raising the question with regard to delay, in the proceedings to be held before the Tribunal. No doubt, aforesaid judgment passed by the Writ Court never came to be assailed by the respondents, but by way of aforesaid judgment dated 1.9.2015, directions came to be issued to the Labour Commissioner to make reference to the Tribunal for adjudication of dispute, wherein admittedly, respondents could not be precluded from raising plea of delay.
8. Though, in the case at hand, impugned Award itself reveals that the respondents were unable to prove abandonment of job, if any, on the part of the workman, but Man Days Chart, Exhibit RW-1/B, clearly reveals that the workman had worked for 29 days in January, 1999, 22 days in February, 1999, 27 days in March, 1999, 26 days in April, 1999, 31 days in May, 1999, 26 days in June, 1999, 27 days in July, 1999, 24 days in August, 1999 and 30 days in September, 1999, meaning thereby that she had worked only ::: Downloaded on - 04/04/2019 21:58:31 :::HCHP -6- for 242 days in total prior to the alleged termination. Similarly, evidence available on record suggests that after the termination of the workman, fresh hands were engaged by the .
respondents despite the petitioner being available for the job.
As has been taken note herein above, workman issued demand notice after around fourteen years of alleged retrenchment, by which time, much water had flown under the bridge, as such, learned Tribunal, while keeping in view all relevant factors including the mode and manner of appointment, nature of appointment, length of service, grounds on which termination is set aside and delay in raising the dispute, proceeded to award compensation in lieu of back wages, seniority and past service benefits. Thus, this court sees no reason to interfere with the aforesaid findings, which otherwise appear to be reasonable and justified in the facts and circumstances of the case.
9. The question with regard to competence of the Labour Court to award compensation in such like cases is no more res integra. The Apex Court in Workmen Rastriya Colliery Mazdoor Sangh v. Bharat Coking Coal Ltd., (2016) 9 SCC 431 and Rashtriya Colliery Mazdoor Sangh v. Employers, (2017) 1 SCC 264, has dealt with the issue at hand and has proceeded to award compensation to the tune of `4.00 Lakh to each of the workmen in the latter case, as such, argument advanced by Mr. Adarsh Sharma, learned Additional Advocate ::: Downloaded on - 04/04/2019 21:58:31 :::HCHP -7- General that no compensation could have been awarded on account of delay in raising the dispute, deserves outright rejection. However, taking note of the fact that the workman .
successfully proved on record that his termination was in sheer violation of the provisions of Sections 25-F, 25-G and 25-H of the Act, this Court finds that the compensation of `50,000/- awarded by the Tribunal in favour of the workman is on lower side, which needs to be enhanced.
10. In the light of aforesaid observations, the writ petition at hand is allowed to the extent that the amount of compensation awarded by the Tribunal is enhanced from `50,000/- to `80,000/-. Rest of the Award is upheld. The writ petition stands disposed of in the aforesaid terms, alongwith all pending miscellaneous applications.
(Surya Kant) Chief Justice (Sandeep Sharma) Judge April 2, 2019 (Vikrant) ::: Downloaded on - 04/04/2019 21:58:31 :::HCHP