Himachal Pradesh High Court
Krishan Chand vs State Of H.P. & Anr on 4 August, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CWP No. 2365 of 2013.
Reserved on: 21.7.2015.
Decided on: 04.8.2015.
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Krishan Chand ......Petitioner.
Versus
State of H.P. & anr. .......Respondents.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
Whether approved for reporting? 1 Yes.
For the petitioner: Mr. Vijay Chaudhary, Advocate.
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For the respondents: Mr. Ramesh Thakur, Asstt. AG for respondent-State.
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Justice Rajiv Sharma, J.
Thisrt petition is instituted against the award dated 11.12.2012, rendered by the learned Presiding Officer, Labour Court-
cum-Industrial Tribunal, Dharamshala, in Reference No. 54 of 2008.
2. "Key facts" necessary for the adjudication of this petition are that the petitioner was engaged as Beldar on 17.5.1996. He was retrenched on 30.6.2006. He raised the industrial dispute. The Labour Commissioner referred the matter to the Labour Court-cum-Industrial Tribunal, Dharamshala, bearing Reference No. 54 of 2008. The petitioner filed claim petition before the learned Labour Court-cum-
Industrial Tribunal, Dharamshala. The reply was filed to the same by the respondents. The issues were framed by the Labour Court-cum-
Industrial Tribunal, Dharamshala, on 26.12.2008. The Labour Court-
cum-Industrial Tribunal, Dharamshala, rejected the reference on 11.12.2012. Hence, this petition.
1Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 18:41:14 :::HCHP 22. The petitioner has appeared as PW-1. He has led his evidence by filing affidavit Ext. PW-1/A. According to the averments .
made in the affidavit, he was engaged on 17.5.1996. He worked uninterruptedly, without any break up to 30.6.2006. He was qualified to be regularized as Beldar after completion of 10 years of service. He has made reference to the notification dated 9.6.2006. There was violation of Section 25 N and 25 G of the Industrial Disputes Act, 1947 of (hereinafter referred to as the Act). In his cross-examination, he denied that he was paid one month's wages amounting to Rs. 13,650/-. He rt denied the suggestion that he refused to accept the notice. He also denied that the copy of the same was sent to him through Chaman Lal, Beldar, which he has refused to accept. He also denied that the Department sent a draft to him and he refused to accept the same.
3. PW-2 H.R.Rahi, has deposed that earlier the work was available in Government Seed Store and work was still available.
Volunteered that now the same was being done by contract labour. He also admitted that after 2006, except Khub Ram and Krishan Chand, no fresh hands were reengaged.
4. Sh. A.R.Sharma, Dy. Director Agriculture, Mandi, has appeared as RW-1. He has led evidence by filing affidavit RW-1/A. Para 2 of the affidavit reads as under:
"2. That the applicant was engaged in violation of the Govt. Policy at Seed Grading Unit, Bhangrotu as such the services of the petitioner was dispensed with on dated 30.6.2006 in pursuant to the Govt. order."::: Downloaded on - 15/04/2017 18:41:14 :::HCHP 3
5. He was cross-examined. He has proved man days chart Ext. RW-1/B, retrenchment order Ext. RW-1/C, endorsement made by .
the postal authorities Ext. RW-1/D, acknowledgement RW-1/E, notice dated 4.10.2006 Ext. RW-1/G and envelope Ext. RW-1/H. He has admitted that the petitioner has worked for 240 days in each calendar year except for 1996 and 2006. He has also admitted that the Seed Grading Unit at Bhangrotu was still functional.
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6. RW-2 Chaman Lal deposed that he has taken the cheques to Khub Ram and Krishan Chand. They have refused to accept the rt same. He proved his report Ext. RW-1/A.
7. The man days chart of the petitioner is Ext. RW-1/B. It is evident from the man days chart that the petitioner was engaged in the month of May, 1996. He has worked uninterruptedly till 30.6.2006.
8. Mr. Vijay Chaudhary, Advocate, for the petitioner has drawn the attention of the Court to communication Ext. PW-1/B dated 9.6.2006. It is evident from Ext. PW-1/B that daily waged/contingent paid workers who had completed 8 years continuous service (with a minimum of 240 days in a calendar year except where specified otherwise for the tribal areas) as on 31.3.2004, were to be considered for regularization. The terms and conditions for regularization of daily waged/contingent paid workers were to be governed as per Annexure-A.
9. The Court has perused the man days chart. It is evident from man days chart that the petitioner had completed 264 days in the year 1997, 359 days in the year 1998, 362 days in the year 1999, 365 ::: Downloaded on - 15/04/2017 18:41:14 :::HCHP 4 days in the year 2000, 365 days in the year 2001, 365 days in the year 2002 and 334 days in the year 2003. The petitioner had worked for .
227 days in the year 1996 and thereafter he had continuously completed more than 240 days in the year 2004 and 2005. He has worked for 171 days in the year 2006. The respondents, instead of terminating his services vide Ext. RW-1/C should have regularized the petitioner taking into consideration the un-interrupted service rendered of by him for almost 8 years. There was shortage of only 13 days in computing 240 days in the year 1996. This period should have been rt condoned to enable the petitioner to be regularized after completion of 8 years w.e.f. 31.3.2004 as per Ext. PW-1/B. The respondents, instead of regularizing the petitioner have retrenched him vide Ext. RW-1/C. The reason assigned for retrenchment of the petitioner is that the work was not available in the Seed Grading Unit, Bhangrotu/SMF Bhangrotu. It is necessary as per Section 25 F of the Act to give one month's notice in writing indicating the reasons for retrenchment. The reason for retrenchment is not that the work was not available in the Seed Grading Unit Bhangrotu but as per the evidence led by RW-1 Sh.
A.R.Sharma, the petitioner has been retrenched since he was engaged in violation of the Government Policy at Seed Grading Unit Bhangrotu.
Thus, the petitioner has not been retrenched for the non-availability of the work but has been retrenched that he was engaged initially on 17.5.1996, in violation of the Government Policy.
::: Downloaded on - 15/04/2017 18:41:14 :::HCHP 510. Their lordships of the Hon'ble Supreme Court in the case of Ajaypal Singh vrs. Haryana Warehousing Corporation, reported in .
(2015) 6 SCC 321, have held that the services of the appellant was not terminated on the ground that his initial appointment was in violation of Articles 14 & 16 of the Constitution of India and no such reasons were shown in the order of retrenchment nor was such plea raised while reference was made by the appropriate Government for of adjudication of the dispute between the employee and the employer.
The High Court could not deny the benefit for which the appellant was rt entitled on the ground that his initial appointment was made in violation of Articles 14 and 16 of the Constitution of India. Their lordships have further held that Industrial Disputes Act, 1947 is a beneficial legislation enacted with an object for settlement of industrial disputes and for certain other purposes as mentioned therein. It prohibits unfair labour practice on the part of the employer in engaging employees as casual or temporary employees for a long period without giving them the status and privileges of permanent employees. Their lordships have held as follows:
"[5] The Industrial Disputes Act, 1947 is a beneficial legislation enacted with an object for settlement of industrial disputes and for a certain other purpose. Section 2(ka) of the said Act defines industrial establishment or undertaking.
[18] We have noticed that Industrial Disputes Act is made for settlement of industrial disputes and for certain other purposes as mentioned therein. It prohibits unfair labour ::: Downloaded on - 15/04/2017 18:41:14 :::HCHP 6 practice on the part of the employer in engaging employees as casual or temporary employees for a long period without giving them the status and privileges of permanent .
employees.
[24] In the present case, the services of Appellant was not terminated on the ground that his initial appointment was made in violation of Articles 14 and 16 of the Constitution of India. No such reasons was shown in the order of retrenchment nor was such plea raised while reference was of made by appropriate Government for adjudication of the dispute between the employee and the employer. In absence of such ground, we are of the opinion that it was rt not open for the High Court to deny the benefit for which the Appellant was entitled on the ground that his initial appointment was made in violation of Articles 14 and 16 of the Constitution of India."
11. In the instant case also, it is not mentioned in the retrenchment order that the services of the petitioner were terminated on the ground that his initial appointment was in violation of Articles 14 & 16 of the Constitution of India or was not in accordance with the policy decision. Even, such plea was not raised when the reference was made by the Labour Commissioner to the Labour Court-cum-Industrial Tribunal. This plea was also not open to the respondent-State after a period of 10 years.
12. Mr. Ramesh Thakur, learned Asstt. Advocate General for the State has vehemently argued that the petitioner was paid one month's wages in lieu of notice along with the compensation under the provisions of Section 25 F of the Act, but he has refused to accept the ::: Downloaded on - 15/04/2017 18:41:14 :::HCHP 7 same. He has relied upon the statement of RW-1 Chaman Lal that the amount was sent to the petitioner but he has refused to accept the .
same. He also argued that in the endorsement draft was also sent to the petitioner but he refused to accept the same. It is evident from RW-
1/H that the petitioner was not found at home. Thus, he has not refused to accept the draft, as argued by Mr. Ramesh Thakur, learned Asstt. Advocate General.
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13. The reason assigned for retrenchment of the petitioner as per Ext. RW-1/C, as noticed hereinabove, is that the work was not rt available in Seed Grading Unit at Bhangrotu. But, the fact of the matter is that the petitioner has been retrenched since his initial engagement was in violation of some decision of the State Government, as per the statement of RW-1 Sh. A.R.Sharma, quoted hereinabove.
The copy of the decision has not been placed on record by RW-1. The action of the respondents of terminating the services of the petitioner instead of regularizing him when there was only shortfall of 13 days in completion of 240 days in the year 1996, amounts to unfair labour practices.
14. PW-2 H.R.Rahi has testified that the work was available in the Seed Store but the work was being extracted by engaging contract labour. Thus, the petitioner was to be regularized instead of terminating his services vide Ext. RW-1/C. In view of this Ext. RW-1/C is void ab initio.
::: Downloaded on - 15/04/2017 18:41:14 :::HCHP 815. Accordingly, the Writ Petition is allowed. Ext. RW-1/C is declared void ab initio. The petitioner would be deemed to be in .
continuous service. The respondents are directed to regularize the petitioner w.e.f. 31.3.2004, as per Ext. PW-1/B dated 9.6.2006, by condoning shortage of 13 days in the year 1996, with all the consequential benefits. Pending application(s), if any, shall stand disposed of.
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August 04, 2015, ( Rajiv Sharma ),
(karan) Judge.
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