Himachal Pradesh High Court
Smt. Kishan Dei vs The Executive Engineer on 9 April, 2019
Bench: Surya Kant, Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CWP No. 472 of 2019
Decided on: 9.4.2019
_____________________________________________________________
.
Smt. Kishan Dei ....Petitioner
Versus
The Executive Engineer, HPPWD ...Respondent
_____________________________________________________________
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. Rahul Mahajan, Advocate.
For the respondent: Mr. Ashok Sharma, Advocate General
r with M/s Adarsh Sharma and Nand
Lal Thakur, Additional Advocates
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 16.10.2017 passed by the Labour Court-cum-
Industrial Tribunal, Kangra at Dharamshala (HP) (hereinafter referred to as, "Tribunal") in Reference No. 200/2016, whereby learned Tribunal awarded a lump sum compensation of Rs.95,000/- in favour of the workman in lieu of the back wages, seniority, past service benefits as well as other consequential service benefits.
Whether reporters of the Local papers are allowed to see the judgment? .
::: Downloaded on - 12/04/2019 21:58:00 :::HCHP -2-2. 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 alleged termination of services of Smt. Kishan Devi W/O Shri Uggar Chand, R/O Village Findpar, P.O. Mindhal, Tehsil Pangi, District Chamba, H.P. during September, 2004. by the Executive Engineer, HPPWD, Killar Division, H.P.P.W.D. Killar, Tehsil Pangi, District Chamba, H.P., who had worked as beldar on daily wages and has raised her industrial dispute after more than 7 years vide demand notice dated 06.01.2012, without complying the provisions of the Industrial Disputes Act, 1947 is legal and justified? If not, keeping in view of delay of more than 7 years in raising the industrial dispute, what amount of back wags, seniority, past service benefits and compensation the above ex-worker is entitled to from the above employer/management?"
3. The workman claimed before learned Tribunal that she was engaged by the authorities on daily wage basis on Muster Roll in the year 1995. She continued to work till September, 2004, as such, she had completed 160 days in each calendar year as per the criteria prescribed for tribal area. The workman alleged that her services were unlawfully terminated by the respondent verbally in September, 2004, without issuing one month's notice and retrenchment compensation, as envisaged under Section 25F of the Act. The workman claimed before learned Tribunal that since the respondent violated provisions of Section 25 of the Act, her ::: Downloaded on - 12/04/2019 21:58:00 :::HCHP -3- oral termination deserves to be set aside. While placing on record factum with regard to retention of her juniors at the time of her retrenchment, workman also alleged that the .
principle of 'last come, first go' was also not followed by the respondent. She further claimed that after her termination, respondent engaged many persons, who subsequently worked as daily wage Beldars but at no point in time, opportunity, if any, was ever afforded to her for re-employment, as such, action of the respondent, which is in sheer violation of the provisions contained under Section 25H of the Act, deserves to be quashed and set aside.
4. Per contra, respondent by way of a written reply to the aforesaid claim put forth by the workman, refuted the same on the ground of maintainability as well as delay and laches. Though the respondent admitted the factum with regard to workman's engagement in the respondent-
Department as a Daily Wager in the year 1997, but claimed that she intermittently worked upto September, 2004, whereafter, she herself abandoned the job, as such, there was no obligation on its part to comply with the provisions contained under Section 25 of the Act. Respondent prayed for dismissal of the claim of the workman on the ground of delay and laches and claimed before learned Tribunal that since demand notice was issued after a considerable delay of seven ::: Downloaded on - 12/04/2019 21:58:00 :::HCHP -4- years of the alleged retrenchment, no relief, if any, can be granted to the workman.
5. Learned Tribunal, on the basis of pleadings as well as .
evidence adduced on record by respective parties arrived at a conclusion that the services of the workman were illegally terminated without notice but having taken note of the fact that the workman raised dispute after seven years of her alleged retrenchment, awarded a lump sum compensation of `95,000/- to the workman in lieu of back wages, seniority, past service benefits as well as consequential service benefits.
In the aforesaid background, the workman has approached this court in the instant proceedings praying for her reinstatement with full back wages, seniority and continuity in service.
6. We have heard learned counsel for the parties and gone through the record carefully.
7. After a close scrutiny of the material available on record vis-à-vis reasoning assigned by learned Tribunal, while awarding compensation to the workman in lieu of back wages, seniority and past service benefits, this Court is not inclined to accept the contention raised by Mr. Rahul Mahajan, learned counsel for the workman that since the workman had successfully proved on record that her services were illegally terminated in violation of Section 25F of the Act, learned Tribunal could not deny reinstatement on account of delay in ::: Downloaded on - 12/04/2019 21:58:00 :::HCHP -5- raising the demand notice, especially in view of judgment dated 22.2.2016, rendered by the Writ Court in CWP No. 130 of 2016. Though, a careful perusal of aforesaid judgment .
reveals that this Court had directed the Labour Commissioner to make a reference to the Tribunal despite there being considerable delay of seven years, but while doing so, this Court definitely did not preclude/bar the respondent from raising the question with regard to delay in the proceedings to be held before the Tribunal. In the aforesaid Writ Petition, the workman had laid challenge to the action of the Labour Commissioner in not making reference and this Court having taken note of the explanation rendered on record by the workman, had only directed the Labour Commissioner to make reference to the Labour Court.
8. A careful perusal of the specific reference made under Section 10(1) of the Act, which has been taken note herein above, itself reveals that the question with regard to delay and laches was required to be decided by the Tribunal while considering the claim of the workman. It is not in dispute that at no point in time, dispute, if any, was ever raised by the workman qua specific reference made to the Labour Court by the Appropriate Government, rather, the workman by way of filing claim, made an attempt to justify the delay caused in making the reference, as such, there appears to be no force in the argument of Mr. Rahul Mahajan, learned counsel for the ::: Downloaded on - 12/04/2019 21:58:00 :::HCHP -6- workman that the learned Tribunal could not have gone into the question of delay and laches, while ascertaining the claim of the workman. The Apex Court, in Prabhakar v. Sericulture .
Deptt. (2015) 15 SCC 1, while specifically dealing with the question of delay in raising the dispute by the workman under the Act ibid, has held that since there is no period of limitation prescribed under the Industrial Disputes Act, for raising dispute but if such a dispute is raised after a long period, it is to be seen whether such a dispute still exists. In the aforesaid background, Apex Court has held that notwithstanding the fact that the law of limitation does not apply, it is to be shown by the workman that there is a dispute in praesenti and, for that purpose, he has to demonstrate that even if considerable period has elapsed and there are laches and delays, such delay has not resulted into making such dispute seized to exist.
Apex Court has further held that if because of such a delay, dispute no longer remains alive and is to be treated as 'dead', then it would be non-existent dispute, which cannot be referred. In the aforesaid judgment, Apex Court concluded that the words, "at any time", used in Section 10(1) do not admit of any limitation in making an order of reference and laws of limitation are not applicable to the proceedings under the Act ibid. However, the policy of industrial adjudication is that very stale claims should not be generally encouraged or allowed unless there is a satisfactory explanation for the delay. By way ::: Downloaded on - 12/04/2019 21:58:00 :::HCHP -7- of aforesaid judgment, Apex Court ordered that if a Court finds that the dispute still exists though raised belatedly, it is always permissible for the Court to take the aspect of delay .
into consideration and mould the relief. In such cases, it is open for the Court to either grant reinstatement with back wages or lesser back wages or grant compensation instead of reinstatement. Reliance in this regard is also placed upon following judgments rendered by Apex Court, viz.; Rajasthan State Agriculture Mktg. Board v. Mohan Lal (2013) 14 SCC 543; U.P. SRTC v. Ram Singh (2008) 17 SCC 627; Dharappa v. Bijapur Coop. Milk Producers Societies Union Ltd. (2007) 9 SCC 109; Asstt. Engineer, CAD v. Dhan Kunwar (2006) 5 SCC 481 and Mahavir v. Union of India (2018) 3 SCC 588.
Similar view has been taken by this Court in Girja Nand v.
State of Himachal Pradesh & Others, CWP No. 93 of 2019 decided on 13.3.2019; Smt. Sumfali Devi v. State of Himachal Pradesh and another, CWP No. 2861 of 2018 decided on 2.4.2019 and; The Additional Chief Secretary (PW) & Others v. Shri Ram Gopal, LPA No. 27 of 2019 decided on 3.4.2019. The long and short of the matter is very well expressed by the maxim, vigilantibus non dormientibus jura subveniunt, that is to say, the law assists those that are vigilant with their rights, and not those that sleep thereupon.
9. Though, in the case at hand, impugned Award itself reveals that the respondent failed to prove abandonment of job ::: Downloaded on - 12/04/2019 21:58:00 :::HCHP -8- by the workman but the Man Days chart, Exhibit RW1/B clearly reveals that the workman had worked for 131 days in the year 1997, 132 days in the year 1998, 84 days in the year .
1999, 51 days in the year 2000, 72 days in the year 2001, 113 days in the year 2002, 72 days in the year 2003 and 91 days in the year 2004. Thus, the workman had actually worked for 746 days till the date of her alleged termination. Similarly, the evidence available on record reveals that after the termination of the workman, fresh hands were engaged by the respondent despite the petitioner being available for the job, but, as has been taken note herein above, workman issued demand notice after around seven years of the 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.
10. Learned counsel for the workman relies upon a judgment passed by a Coordinate Bench of this Court in Sh.
Daulat Ram v. The Executive Engineer, HPPWD, CWP No. 1887 of 2017 and other connected matters, decided on 11th ::: Downloaded on - 12/04/2019 21:58:00 :::HCHP -9- December, 2017, whereby it has been held that the reinstatement cannot be denied merely on the ground of delay.
With utmost respect, we find that may be the binding .
judgments of Supreme Court have not been considered in the above mentioned cases by the Coordinate Bench of this Court.
That apart, the judgment is not based upon ratio decidendi of the binding judgments of Supreme Court and is primarily based upon the discretion exercised by the Court. We are thus unable to follow the same, rather, being bound by the dictum of the Supreme Court in the cases referred to supra, we do not find any reason to interfere with the Award passed by learned Tribunal.
11. 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 General that no compensation could have been awarded on account of delay in raising the dispute, deserves outright rejection.
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12. In the light of aforesaid observations, the Award passed by learned Tribunal calls for no interference by this Court, which is accordingly upheld. The writ petition is .
dismissed. All pending miscellaneous applications also stand disposed of.
(Surya Kant) Chief Justice (Sandeep Sharma) Judge April 9, 2019 (Vikrant) ::: Downloaded on - 12/04/2019 21:58:00 :::HCHP