Himachal Pradesh High Court
Narain Singh vs State Of Himachal Pradesh And Others on 29 November, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CWP No. 2865 of 2011
Decided on : November 29, 2016
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Narain Singh ................Petitioner
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Versus
State of Himachal Pradesh and others ..........Respondents
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Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge
Whether approved for reporting? Yes.
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of
For the petitioner : Ms. Taman Rana and Ms. Kiran Bala, vice
Counsel.
For the respondents : rt Mr. Ramesh Thakur, Deputy Advocate General.
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Sandeep Sharma, Judge:
By way of present petition under Article 226 of the Constitution of India, petitioner has prayed for following main reliefs:
"(a) to issue a writ of certiorari or direction in nature thereof, quashing, quashing the impugned award dated 01/10/2010 being Annexure P-4 of the writ petition, as unconstitutional and illegal and contrary to the law;
(b) to issue a writ of mandamus, appropriate writ, order or direction in nature thereof, directing the respondent to re-engage the petitioner with full back wages wef illegal termination of services alongwith interest on the arrears @ 18% pa;
(c) to issue an appropriate writ, order or direction in nature thereof to give full justice to the petitioners in the circumstances of the case and may pass such further writ, order or orders as this Hon'ble Court may deem fit, proper, just and expedient in the circumstances of the case;"
2. Briefly stated the facts of the case are that petitioner was initially engaged as daily wager with effect from 3.10.1998 at Rohnat. He ::: Downloaded on - 15/04/2017 21:38:23 :::HCHP 2 further claimed that he worked for 240 days in each calendar year, prior to his alleged termination. One Shri Bir Singh filed an Original Application before the Hon'ble Tribunal i.e. OA No. 2604/1999 wherein .
petitioner was impleaded as respondent No.5. Since Bir Singh in his Original Application claimed that the present petitioner, who was junior to him, has been retained, department, in order to defeat the claim of the applicant Bir Singh, also disengaged his services being junior without of complying with the mandatory provisions of law. Petitioner being aggrieved, filed an OA No. 2968/2000 titled Narain Singh vs. State of Himachal Pradesh rt and others before the Himachal Pradesh Administrative Tribunal. The learned Tribunal vide order dated 30.11.2000, held his disengagement to be void ab initio and directed to re-engage the petitioner in the same capacity at the same place or in the vicinity where the work was available, with the direction that his services may not be disengaged save and except in accordance with law. Pursuant to aforesaid direction issued by the Tribunal, Department re-engaged the petitioner. Petitioner further claimed that the respondents solely with a view to harass him, repeatedly called him to join duties but at no point of time, he was allowed to mark his attendance so as to deprive him from claiming regularization in future. Petitioner also claimed that the department had been giving fictional breaks in service and ultimately in August, 2006, his services were disengaged without resorting to statutory provisions of Industrial Disputes Act, despite the fact that he had ::: Downloaded on - 15/04/2017 21:38:23 :::HCHP 3 completed 240 days in a calendar year. Petitioner claimed that since his services were disengaged in violation of provisions of Sections 25F, 25G and 25H of Industrial Disputes Act, he deserves to be reinstated with all .
consequential benefits. Petitioner raised industrial dispute before appropriate Government, which in turn made following reference to the learned Industrial Tribunal-cum-Labour Court, for adjudication:
"Whether the termination of services of Shri Narain Singh S/o Shri Singhe Ram workman by the Divisional Forest of Officer, Forest Division, Renukaji, District Sirmour, HP w.e.f. 1.8.2006 without complying the provisions o the Industrial Disputes Act, 1947 is proper and justified? If not, what relief of back wages, seniority, pas service benefits and rt amount of compensation, the above aggrieved workman is entitled to?"
3. Respondent-State, by way of filing reply, contested the aforesaid claim of the petitioner-workman (hereinafter, 'workman') by stating that during October, 1998, petitioner was engaged as a seasonal/casual worker and one Bir Singh filed OA No. 2604/1999. But the respondents specifically denied that the services of the petitioner were disengaged with a view to defeat the claim of Bir Singh, who had filed aforesaid Original Application. Department further refuted the claim of the petitioner that he had completed 240 days in each calendar year except 1999. Rather, respondents claimed that pursuant to the direction passed by the Himachal Pradesh Administrative Tribunal, in OA No. 2968/2000, filed by the petitioner, he was re-engaged but he himself left the job and as such there was no occasion for them to resort to the provisions of Industrial Disputes Act before disengaging the petitioner.
::: Downloaded on - 15/04/2017 21:38:23 :::HCHP 4Learned Industrial Tribunal, on the basis of material on record, came to the conclusion that the petitioner has miserably failed to prove that after his re-engagement upon order of Himachal Pradesh Administrative .
Tribunal, his services were again disengaged/ terminated in the month of August, 2006. Learned Tribunal below further came to the conclusion that it is abundantly clear from the Man Day's chart that in the year 1998, petitioner worked for 89 days, in 1999 for 256 days and in 2000 for 191 of days and for 3 days in 2001 (July), as such respondents were not required to comply with the provisions of Section 25 of the Act. Learned Tribunal rt below also came to the conclusion that the Department has been able to prove on record that the workman himself left the job and as such there was no such requirement of resorting to the provisions of Section 25 of the Act, as claimed by the petitioner. Petitioner being aggrieved and dissatisfied with the aforesaid findings recorded by the Learned Tribunal below vide Award date 1.10.2010, preferred the present petition, praying therein for the main reliefs as have been reproduced herein above.
4. It is ample clear from the Award passed by the learned Tribunal below that dispute prior to 30.10.2001 raised by the petitioner qua his disengagement of his services was adjudicated by the Himachal Pradesh Administrative Tribunal by holding the disengagement to be void ab initio in OA No. 2968/2000, filed by the petitioner and as such Industrial Tribunal-cum-Labour Court was only required to adjudicate whether termination of services of petitioner by Divisional Forest Officer, ::: Downloaded on - 15/04/2017 21:38:23 :::HCHP 5 Renukaji, with effect from 1.8.2006 without complying Section 25 of the Industrial Disputes Act, is legal or not. Petitioner before the learned Tribunal below claimed that his services were disengaged by the .
respondent in August, 2006 without complying the provisions of the Act ibid and as such his disengagement deserves to be quashed and set aside.
Petitioner claimed before Industrial Tribunal-cum-Labour Court that pursuant to order passed by Himachal Pradesh Administrative Tribunal in of OA No. 2968/2000, he was called for duty but his attendance was not marked.
5. rt Respondents, by way of written statement, refuted the aforesaid claim of the petitioner and claimed that consequent to order passed by Himachal Pradesh Administrative Tribunal on 30.11.2000, services of petitioner were re-engaged but he himself abandoned the job.
6. It emerges from the impugned award that no documentary evidence worth the name was placed on record by the petitioner in support of his claim that his services were disengaged in contravention of the provisions of the Act ibid and that in the preceding calendar months i.e. before the date of termination, he had completed 240 days. Perusal of impugned award suggests that the petitioner tendered affidavit Ext. PA and copy of order passed by Himachal Pradesh Administrative Tribunal Ext. PB, wherein admittedly he did not file any Man Days chart to demonstrate that he had worked till August, 2006, when his services were terminated by the respondents without resorting to the provisions of the ::: Downloaded on - 15/04/2017 21:38:23 :::HCHP 6 Act. Learned Tribunal below also observed that no steps were taken by the petitioner to get relevant record summoned from the Department, with a view to substantiate that he had worked till August, 2006 and that in .
every calendar year, he had completed 240 days. It is settled law that burden of proof lies on the workman to show that he has worked continuously for 240 days in the preceding year and in this regard, workman is/was under obligation to adduce positive documentary of evidence apart from examining himself to prove the factum of his being in service. In this regard, reliance is placed upon Relip Nagarpalika Vs. rt Babuji Gabhaji Thalore and others reported in 2009 (120) FLR 1007.
7. Respondents have examined RW-1 Vijay Pal, who has categorically stated that petitioner had never completed 240 days in any calendar year and in support of their claim, they produced Man Days chart Ext. RA. Perusal of Man Days chart suggests that the petitioner has worked for 89 days in 1998, 256 days in 1999 and 151 days in 2000 and 3 days in July 2001. It further suggests that prior to the illegal, termination of petitioner, as claimed by him, he has worked for 3 days that too in July 2001. Since the Himachal Pradesh Administrative Tribunal had ordered for re-engagement of petitioner vide order dated 30.11.2000, this Court sees no force in the contention put forth by the petitioner that though he was re-engaged but was not allowed to mark his presence in the attendance register. Learned Tribunal below rightly concluded that had the petitioner been attending his duties, and his attendance was not ::: Downloaded on - 15/04/2017 21:38:23 :::HCHP 7 marked, he could have complained to the higher officers or could file contempt petition before the Himachal Pradesh Administrative Tribunal for non-compliance of order dated 30.11.2000. Similarly, it can not be .
believed that the petitioner kept on working till 2006 from 2001 without there being any payment of wages to him. Perusal of Ext. RA, Man Days chart clearly suggests that the petitioner has not actually worked after 2001 and he only worked for 3 days in July 2001.
of
8. In view of above, this Court sees no illegality in the findings recorded by the learned Tribunal below that since petitioner failed to rt prove on record that he had completed 240 days in a calendar year preceding the date of termination, there was no requirement for the Department to resort to the provisions of Industrial Disputes Act before disengaging the petitioner.
9. As far as plea of abandonment having been taken by respondent is concerned, same needs to be examined. Undisputedly, as emerges from impugned award, while refuting claim of the petitioner, specific stand of the department before learned Tribunal below was that the petitioner was re-engaged pursuant to order dated 30.11.2000 passed by Himachal Pradesh Administrative Tribunal in OA No. 2968/2000, filed by the petitioner. Respondents further claimed that pursuant to his re-
engagement, petitioner only worked for 3 days in July 2001 and thereafter he, himself, abandoned the job and as such there was no requirement for the Department to issue notice under Section 25F of the Industrial ::: Downloaded on - 15/04/2017 21:38:23 :::HCHP 8 Disputes Act. This Court, while deciding issue with regard to non-
compliance of provisions of Industrial Disputes Act, especially in view of plea taken by the petitioner that he had complete 240 days in preceding .
calendar year, examined entire evidence led on record by both the parties, perusal whereof nowhere suggests that any evidence was led on record by the respondent-State in support of their claim of abandonment of job by the petitioner. Though this Court, after perusing evidence of available on record, is satisfied and convinced that the workman had only worked for 3 days in 2001 after his re-engagement pursuant to order rt passed by Himachal Pradesh Administrative Tribunal, but there is nothing on record suggestive of the fact that before allegedly terminating services of the workman on account of his having abandoned the job, respondents at any point of time, issued notice specifically calling upon the workman to explain why his services may not be dispensed with since he has failed to join his duties. Respondents categorically, in their reply before learned Tribunal below stated that the petitioner himself abandoned the job and as such there was no requirement of issuance of notice in terms of Industrial Disputes Act before terminating his services but as has been discussed above, this Court was unable to lay hand on any document suggestive of the fact that respondent issued communication/notice, if any, asking/advising the workman to join duty, failing which he would be inviting termination.
::: Downloaded on - 15/04/2017 21:38:23 :::HCHP 9It is settled law that plea of abandonment taken by employer may not be sufficient to prove abandonment, rather it is necessary for the employer to place on record that specific notice was issued to the workman before .
alleged abandonment asking the workman to join duty within a stipulated period. In this regard, reliance is placed upon the judgment passed by Bombay High Court in case titled Ocean Creations Vs. Manohar Gangaram Kamble 2013 SCC Online Bom 1537:2014)140 FLR 725. It of is profitable to reproduce paras No.8,9 and 10 of the judgment herein:-
"8. The legal position is also settled that 'abandonment or rt relinquishment of service' is always a question of intention and normally such intention cannot be attributed to an employee without adequate evidence in that behalf. This is a question of fact which is to be determined in the light of surrounding circumstances of each case. It is well settled that even in case of abandonment of service, unless the service conditions make special provisions to the contrary, employer has to give notice to the workman calling upon him to resume duties and where he fails to resume duties, to hold an enquiry before terminating services on such ground.
9. In somewhat similar circumstances a Division Bench of this court comprising P.B.Sawant, J.(as he then was) and V.V.Vaze, J. in the case of Gaurishanker Vishwakarma v. Engle Spring Industries Pvt. Lted. Observed thus:
".....it is now well settled that even in the case of the abandonment of service, the employer has to give a notice to the workman calling upon him to resume his duty and also to hold an enquiry before terminating his service on that ground. In the present case the employer has done neither. It was for the employer to prove that the workman had abandoned the service..... It is therefore difficult to believe that the workman who had worked continuously for six to seven years, would abandon his service for no rhyme or reason. It has also to be remembered that it was the workman ::: Downloaded on - 15/04/2017 21:38:23 :::HCHP 10 who had approached the Government Labour Officer with a specific grievance that he was not allowed to join his duty. It was also his grievance that although he had approached the company for work from time to time, and the company's partner Anand had kept on promising him that he would be taken in service, he .
was not given work and hence he was forced to approach the Government Labour Officer. In the circumstances, it is difficult to believe that he would refuse the offer of work when it was given to him before the Labour Officer...."
10. Again a learned Single Judge of this court R.M.Lodha, J( as he then was) in the case of Mahamadsha Ganishah Patel of v. Mastanbaug Consumers' Co-op. Wholesale & Retail Stores Ltd. Observed thus:-
"....The legal position is almost settled that even in rt the case of abandonment of service, the employer has to give notice to the employee calling upon him to resume his duty. If the employee does not turn up despite such notice, the employer should hold inquiry on that ground and then passs appropriate order of termination. At the time when employment is scarce, ordinarily abandonment of service by employee cannot be presumed. Moreover, abandonment of service is always a matter of intention and such intention in the absence of supportable evidence cannot be attributed to the employee. It goes without saying that whether the employee has abandoned the service or not is always a question of fact which has to be adjudicated on the basis of evidence and attending circumstances. In the present case employer has miserably failed to discharge the burden by leading evidence that employee abandoned service. The Labour Court has considered this aspect, and, in my view rightly reached the conclusion that the employer has failed to establish any abandonment of service and it was a clear case of termination. The termination being illegal, the Labour Court did not commit any error in holding the act of employer as unfair labour practice under Item-I, Schedule IV of the MRTU & PULP Act....."
10. Apex Court in D.K. Yadav vs J.M.A. Industries Ltd reported in 1993 (3) SCC 259, has held that it is fundamental rule that no ::: Downloaded on - 15/04/2017 21:38:23 :::HCHP 11 decision must be taken, which will affect right of any person without first being informed of the case and giving him/her opportunity of putting forward his/her case. An order involving civil consequences must be .
made consistently with the rules of natural justice. The Apex Court has held as under:
"9. It is a fundamental rule of law that no decision must be taken which will affect the right of any person without first being informed of the case and be given him/ her an of opportunity of putting forward his/her case. An order involving civil consequences must be made consistently with the rules of natural justice. In Mohinder Singh Gill & Anr. v. The Chief Election Commissioner & Ors. [1978] 2 SCR 272 rt at 308F the Constitution Bench held that 'civil consequence' covers infraction of not merely property or personal right but of civil liberties, material deprivations and non- pecuniary damages. In its comprehensive connotion every thing that affects a citizen in his civil life inflicts a civil consequence. Black's Law Dictionary, 4th Edition, page 1487 defined civil rights are such as belong to every citizen of the state or country they include rights capable of being enforced or redressed in a civil action. In State of Orissa v. Dr. (Miss) Binapani Dei & Ors., this court held that even an administrative order which involves civil consequences must be made consistently with the rules of natural justice. The person concerned must be informed of the case, the evidence in support thereof supplied and must be given a fair opportunity to meet the case before an adverse decision is taken. Since no such opportunity was given it was held that superannuation was in violation of principles of natural justice.
10. In State of West Bengal v. Anwar Ali Sarkar [1952] SCR 289, per majority, a seven Judge bench held that the rule of procedure laid down by law comes as much within the purview of Art. 14 of the Constitution as any rule of substantive law. In Maneka Gandhi v. Union of India,. [1978] 2 SCR 62 1, another bench of seven judges held that the substantive and procedural laws and action taken under them will have to pass the test under Art, 14. The test of reason and justice cannot be abstract. They cannot be ::: Downloaded on - 15/04/2017 21:38:23 :::HCHP 12 divorced from the needs of the nation. The tests have to be pragmatic otherwise they would cease to he reasonable. The procedure prescribed must be just, fair and reasonable even though there is no specific provision in a statute or rules made thereunder for showing cause against action proposed to be taken against an individual, which affects the right of .
that individual. The duty to give reasonable opportunity to be heard will be implied from the nature of the function to be performed by the authority which has the power to take punitive or damaging action. Even executive authorities which take administrative action involving any deprivation of or restriction on inherent fundamental rights of citizens, must take care to see that justice is not only done but manifestly appears to be done. They have a duty to proceed of in a way which is free from even the appearance of arbitrariness, unreasonableness or unfairness. They have to act in a manner which is patently impartial and meets the requirements of natural justice."
rt
11. Apex Court has further concluded that the management had power under Clause 13 of the Certified Standing Order to terminate the services of the appellant but principles of natural justice must be read into with the Standing Order, otherwise it would become arbitrary, unjust, unfair and violative of Article 14 of the Constitution of India. The Apex Court has held as under:
"15. In this case admittedly no opportunity was given to the appellant and no enquiry was held. The appellant's plea put forth at the earliest was that despite his reporting to duty on December 3, 1980 and on all subsequent days and readiness to join duty he was prevented to report to duty, nor he be permitted to sign the attendance register. The Tribunal did not record any conclusive finding in this behalf. It concluded that the management had power under Cl. 13 of the certified Standing Orders to terminate with the service of the appellant. Therefore, we hold that the principles of natural justice must be read into the standing order No. 13 (2) (iv). Otherwise it would become arbitrary. unjust and ::: Downloaded on - 15/04/2017 21:38:23 :::HCHP 13 unfair violating Arts. 14. When so read the impugned action is violative of the principles of natural justice.
16. This conclusion leads us to the question as to what relief the appellant is entitled to. The management did not conduct any domestic enquiry nor given the appellant any .
opportunity to put forth his case. Equally the appellant is to blame himself for the impugned action. Under those circumstances 50 per cent of the back wages would meet the ends of justice. The appeal is accordingly allowed. The award of the Labour Court is set aside and the letter dated December 12, 1980 of the management is quashed. There shall be a direction to the respondent to reinstate the appellant forthwith and pay him back wages within a period of of three months from the date of the receipt of this order. The appeal is allowed accord- ingly. The parties would bear their own costs."
12. rt In the instant case, as has been mentioned above, no evidence, be it ocular or documentary, has been led on record by the respondents in support of their claim that petitioner himself abandoned job, whereas petitioner in his claim petition specifically alleged that after his re-engagement in the year 2001, he was not allowed to mark his attendance. In the judgment referred to herein above, it has been repeatedly held that abandonment of service is a matter of intention and such intention in the absence of supportive evidence, can not be attributed to the employee. Whether the employee has abandoned service, is a question of fact which needs to be adjudicated on the basis of evidence.
In the present case, respondents have failed to discharge the burden by leading evidence that employee abandoned service and as such respondents failed to establish abandonment of service and it is clear cut case of termination.
::: Downloaded on - 15/04/2017 21:38:23 :::HCHP 1413. In the instant case, it may be noticed that petitioner was initially engaged by the respondents as daily wager in 1998 i.e. 3.10.1998. He kept on working as daily wager till his disengagement. On .
30.11.2000, Himachal Pradesh Administrative Tribunal passed interim order in OA No. 2968/2000 directing the respondents to re-engage the workman in the same capacity and same place and vide order dated 30.10.2001, disposed of Original Application by affirming interim order of and by holding termination of workman void ab initio, learned Administrative Tribunal vide aforesaid order, also directed to count rt period served by him in view of interim order for the purpose of seniority, meaning thereby petitioner was held entitled to seniority with effect from initial engagement i.e. 3.10.1998. Since respondents never assailed order dated 30.10.2001 passed by Himachal Pradesh Administrative Tribunal, it attained finality, meaning thereby that petitioner rightly claimed benefit of re-instatement alongwith all consequential benefits by way of claim before the Industrial Tribunal-cum-Labour Court.
14. Consequently, in view of aforesaid discussion, this Court sees force in the contention put forth on behalf of the workman that he never abandoned job after his reinstatement pursuant to order passed by Himachal Pradesh Administrative Tribunal and impugned award passed by the Industrial Tribunal-cum-Labour Court deserves to be quashed and set aside.
::: Downloaded on - 15/04/2017 21:38:23 :::HCHP 1515. Accordingly, in view of detailed discussion as well as law discussed herein above, impugned award dated 1.10.2010 passed by learned Presiding Judge, Industrial Tribunal-cum-Labour Court, Shimla .
in Reference No. 39 of 2009 is set aside. Respondents are directed to reinstate the workman from the date of termination, with seniority and continuity in service, but without back wages.
16. Pending applications are disposed of.
of (Sandeep Sharma) Judge November 29, 2016 rt (vikrant) ::: Downloaded on - 15/04/2017 21:38:23 :::HCHP