The State Of H.P. & Anr vs Ramesh Kumar on 16 March, 2023

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Himachal Pradesh High Court

The State Of H.P. & Anr vs Ramesh Kumar on 16 March, 2023

Bench: Jyotsna Rewal Dua

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 9172 of 2013 Decided on: 16.03.2023 .

    The State of H.P. & Anr.                   ...Petitioners.





                             Versus
    Ramesh Kumar                              ....Respondent.

..........................................................................................

Coram The Hon'ble Ms. Jyotsna Rewal Dua, Judge.

    Whether approved for reporting?1                   Yes.

    For the petitioners :            Ms. Seema Sharma, Deputy Advocate




                                     General.

    For respondent :     r           Mr. Prashant Sharma, Advocate.

    Jyotsna Rewal Dua , J

State has taken exception to the award passed on 27.06.2012 by the learned Labour Court-cum-Industrial Tribunal Dharamshala H.P., whereby retrenchment of the respondent-

workman was set aside. State was directed to re-engage the respondent forthwith. He was also held entitled to the seniority and continuity in service from the date of his illegal termination i.e. 1.11.2006 except back wages. The award also directed the State to regularize the services of the respondent as per policies framed by the Government of Himachal Pradesh from time to time.

2. Facts 2(i) The appropriate Government sent following reference on 12.07.2010 to the learned Labour Court for adjudication:-

Whether reporters of the local papers may be allowed to see the judgment?

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"Whether retrenchment of the services of Sh. Ramesh Kumar S/o Sh. Sahab Singh, by the Executive Engineer, HPPWD Division (B&R) Pangi at Killar, Distt. Chamba, (H.P.) w.e.f. 01.11.2006 and .

without complying with the provisions of the Industrial Disputes Act, 1947 and retaining junior workmen, as alleged by workman is proper and justified? If not, what amount of back wages, seniority, past service benefits and compensation the aggrieved workman is entitled to?"

2(ii) The respondent in his claim petition pleaded that he was appointed as a Beldar w.e.f. April 2004 at HPPWD Division Pangi at Killar, District Chamba, H.P. He had been working continuously as such. His services were orally terminated by the petitioner on 1.11.2006. He made several requests to the State-petitioner for his re-engagement but despite availability of work and funds, the petitioner paid no heed to his requests. Respondent in his claim petition further made a grievance that several persons, who were his juniors had been continuing on their job on daily wages in the same division, but his employer (present petitioner) in breach of Section 25F, 25G and 25H of the Industrial Disputes Act (hereinafter referred to as the Act) refused to re-engage him. Respondent further averred that he had completed 160 days of continuous daily wage services in the preceding 12 calendar months in the tribal area of Pangi division. The break, if any, in his service is owing to the inclement weather conditions of the tribal division. Respondent prayed for relief of his re-engagement with continuity of his service, ::: Downloaded on - 18/03/2023 20:32:31 :::CIS 3 back wages and consequential benefits. Prayer was also made for regularization of his services.

2(iii) The employer (petitioner) in its reply took up the stand that the respondent was engaged as daily waged Beldar during the year 2005. He worked for 78 days in the year 2005 and 92 days in the year 2006. Thereafter he left the job of his own and resultantly lost his seniority. The gist of the stand taken by the petitioner before the learned Labour Court was that the services of the respondent had not been terminated but he had abandoned the service at his own will. It was further pleaded that no junior persons to the respondent had been engaged by the petitioner.

2(iv) The claimant appeared in the witness box as PW-1. He reiterated his case as projected in the claim petition. He denied having abandoned the job in September 2006. The petitioner examined the then Executive Engineer, as RW-1. This witness produced the mandays chart of the respondent (Ex.RW1/A).

According to this witness, the claimant had left the job on his own in September 2006 and never returned thereafter. The witness, however, admitted the suggestion given to him during the cross-

examination that no notice was ever served upon the claimant after he had allegedly left the job. He also admitted to be correct that claimant had never been given any opportunity thereafter by the petitioner for coming to work.

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2(v) On considering the respective stand of the parties, learned Labour Court passed the award on 27.06.2012. Reference .

was answered in the following terms:-

"As a sequel to my findings on the various issues, the instant reference/claim petition succeeds in part and the same is partly allowed. The retrenchment of the petitioner is set aside and quashed. The respondent is directed to re-engage the petitioner forthwith. He shall be entitled to the seniority and continuity in service from the date of his illegal termination i.e. 01.11.2006 except back wages. The respondent is also directed to regularize the services of the petitioner as per the policies framed by the Government of Himachal Pradesh from time to time. Parties to bear their own costs."

3. Contentions 3(i) Learned Deputy Advocate General's contention in the instant petition is that reference was not correctly answered by the learned Labour Court. Facts were not properly comprehended. It was a case of abandonment of the job by the claimant, hence, there could not have been any occasion for violation of provisions of Sections 25G and 25H of the Act. The respondent-claimant had not completed 160 days of continuous service in a block of 12 preceding calendar months, therefore, provisions of Section 25F of the Act were also not violated. It was also contended for the petitioner that the claim of the respondent suffered from delay & laches and warranted dismissal.

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3(ii) Learned counsel for the respondent-claimant supported the impugned award. Learned counsel emphasized that Sh. Sham .

Lal and Sh. Dev Raj were two workmen appointed by the petitioner-

State in the years 2006 and 2007 respectively. They were juniors to him. Their services had been retained, whereas, respondent was not permitted to work after 01.11.2006. Hence, learned Labour Court did not commit any error in law in holding that that the petitioner-State had violated the principle of 'last come first go' in breach of Section 25G of the Act. It was further contented that in breach of Section 25H of the Act, no opportunity of re-employment was ever given to the respondent even though one Dev Raj was engaged in the year 2007.

4. I have heard learned counsel for the parties, gone through the record and also taken into consideration the judgments cited by them at bar.

5. Observations 5(i) In my considered view, the impugned award does not call for any interference. Insofar as the argument of respondent's claim being barred by delay & laches is concerned, suffice to note that the case of the respondent-claimant is that he was not allowed to work w.e.f. 1.11.2006, whereas petitioner's stand is that respondent voluntarily left the service in the month of October 2006.

Be that as it may. Notice can be taken of the fact that the respondent-claimant might have requested his employer for his re-

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engagement after October 2006 and thereafter might have approached Conciliation Officer. Sometime must have been spent on .

these proceedings. The appropriate Government had sent the reference for adjudication to the learned Labour Court on 12.07.2010. Taking a holistic view of the facts of the case, it cannot be said that respondent-claimant had not been pursuing his grievance diligently. It is even otherwise well settled law that in the facts and circumstances of a case, the delay, if any, in raising the industrial dispute by a workman can be taken into account while granting him relief. In this regard a Full Bench of this Court in CWP No.2190/2020 & connected matters (Jai Singh Vs. State of H.P. & Ors.) decided on 30.03.2022, held as under:-

" xiv) That even in a case where reference has been made to the Industrial Court after prolonged delay, such Court would be entitled to mould the relief by declining whole or part of the back wages."

When the respondent-claimant had alleged having been retrenched w.e.f. 1.11.2006, when the petitioner-employer also admits the claimant being on its rolls in the month of October 2006 and the reference having been received from the appropriate Government by the learned labour Court on 12.07.2010, in my considered view, the impugned award has rightly held that the claim cannot be said to be hit by delay and laches. In any event, claimant has been denied back wages. Point is answered accordingly.

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5(ii) The muster-roll of respondent-claimant was produced by the petitioner as Ext.RW1/A. As per this muster-roll the .

respondent had worked for 78 days in the year 2005 and 92 days in the year 2006. Admittedly, respondent-claimant did not complete 160 days of working in the tribal area in a block of 12 calendar months preceding from the date of his termination. Thus, it was rightly observed in the award that provisions of Section 25F of the Act were not breached.

5(iii) The plea of abandonment of the job by the respondent-

claimant had been putforth by the petitioner. It was for the employer-

petitioner to prove this plea. Petitioner's witness had appeared in the witness box as RW-1. He admitted that no notice had been served upon the respondent-claimant calling upon him to resume his duty.

Admittedly no disciplinary proceedings of any nature were ever initiated against the respondent-claimant with regard to his alleged willful absence from duty. Plea of abandonment taken by the petitioner was required to be proved but had not been established on record. In 2019 (2) SCC 628 (Manju Saxena Vs. Union of india & Ors.), the Hon'ble Apex Court relied upon its earlier judgment in AIR 1964 SC 1272 (Buckingham & Carnatic Co. Ltd. Vs Venkatiah), wherein it was held that abandonment of service can be inferred from the existing facts and circumstances. Abandonment or relinquishment of service is always a question of intention and ::: Downloaded on - 18/03/2023 20:32:31 :::CIS 8 normally such an intention cannot be attributed to an employee without adequate evidence in that behalf. In the facts of the instant .

case on the face of evidence on record, no presumption can be drawn that the respondent-claimant had voluntarily abandoned the job.

5(iv) The seniority list Ext.RW1/B produced by RW1 is categoric that Sh. Sham Lal appointed in the year 2006 & junior to the respondent-claimant had been retained by the petitioner. Another worker Sh. Dev Raj appointed in the year 2007 and junior to the respondent had also been retained. Clearly there was violation of principle of 'last come first go'. The petitioner, thus, had breached the provision of Section 25G of the Act. The record does not show that at the time of appointment of Sh. Dev Raj any opportunity of re-

employment was ever offered to the respondent-claimant. Such a recourse was contrary to Section 25H of the Act. It would be apt to quote following paragraph from (2006) 13 SCC 28 (Bhogpur Cooperative Sugar Mills Ltd. Vs Harmesh Kumar), wherein distinction between Sections 25F, 25G & 25H of the Act viz-a-viz number of completed continuous days of service was described:-

"We are not oblivious of the distinction in regard to the legality of the order of termination in a case where Section 25-F of the Act applies on the one hand, and a situation where Section 25-G thereof applies on the other. Whereas in a case where Section 25-F of the Act applies the workman is ::: Downloaded on - 18/03/2023 20:32:31 :::CIS 9 bound to prove that he had been in continuous service of 240 days during twelve months preceding the order of termination, in a case where he invokes the provisions .

of Sections 25-G and 25-H thereof he may not have to establish the said fact."

It is settled law that for attracting the applicability of Section 25-G of the Act, the workman is not required to prove that he had worked for a period of 240 days during 12 calendar months preceding the termination of his service. It is sufficient for him to plead and prove that while effecting retrenchment, the employer violated the rule of last come and first go without any tangible reason. In this regard reference can be made to (2010) 2 SCC 192 titled Harjinder Singh Vs. Punjab State Warehousing Corporation, decided on 05.01.2010. Relevant paragraph thereof reads as under:-

"16.It is true that in the writ petition filed by it, the corporation did plead that the dispute raised by the appellant was not an industrial dispute because he had not worked continuously for a period of 240 days, the learned Single Judge rightly refused to entertain the same because no such argument was advanced before him and also because that plea is falsified by the averments contained in para 2 of the reply filed on behalf of the corporation to the statement of claim wherein it was admitted that the appellant was engaged as work charge Motor Mate for construction work on 5.3.1986 and he worked in that capacity and also as Work Munshi from 3.10.1986 and, as mentioned above, even after expiry of the period of three months' specified in order dated 5.2.1987, the ::: Downloaded on - 18/03/2023 20:32:31 :::CIS 10 appellant continued to work till 5.7.1988 when first notice of retrenchment was issued by the Managing Director of the corporation. Therefore, it was not open for the corporation to .

contend that the appellant had not completed 240 days service. Moreover, it is settled law that for attracting the applicability of Section 25-G of the Act, the workman is not required to prove that he had worked for a period of 240 days during twelve calendar months preceding the termination of his service and it is sufficient for him to plead and prove that while effecting retrenchment, the employer violated the rule of `last come first go' without any tangible reason."

The petitioner has failed to point out any error in the impugned order passed by learned Labour Court. For the foregoing reasons, no interference is called for in the impugned award passed by the learned Labour Court on 27.06.2012. Accordingly, the instant petition is dismissed. Pending miscellaneous application, if any, also stand dispose of.

Jyotsna Rewal Dua Judge 16th March, 2023 (rohit) ::: Downloaded on - 18/03/2023 20:32:31 :::CIS

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