Government of Himachal Pradesh Department of Labour and Employment NOTIFICATION. No: Shram (A) 6-2/2016 (Awards) Shimla Dated

Transcription

1 Government of Himachal Pradesh Department of Labour and Employment NOTIFICATION No: Shram (A) 6-2/2016 (Awards) Shimla Dated In exercise of the powers vested under section 17 (1) of the Industrial Disputes Act,1947, the Governor Himachal Pradesh is pleased to order the publication of awards of the following cases announced by the Presiding Officer, Labour Court Shimla on the website of the Department of Labour & Employment Government of Himachal Pradesh:- Sr.No: Case No: Title of the Case Date of Award 1. 25/2013 Sh. Hem Raj V/s The Geep Battries (I) Ltd. Juddi Kalan, District Solan H.P. 2-A 2. 27/2013 Sh. Sudesh Kumar V/s -do- 2-A 3. 19/2014 Ms. Uma Devi V/s The Executive Engineer, IPH Division 10 Pooh, District Kinnaur, H.P /2013 Ms. Sanam Devi V/S -do /2013 Ms. Rakesh Kumari V/S -do /2013 Norjang Yum V/S -do /2009 Sh. Munish Kumar V/S M/S Himachal Futuristic 10 Communication Ltd. Chambaghat, Solan & Anr /2009 Sh. Manjeet Singh V/s -do /2014 Sh.Balbir Singh V/S The Exectutive Engineer, HPPWD, Kumarsain, District Shimla, H.P. & Ors. 2-A /2012 Sh.Vinod Kumar V/S M/S Numeric Power System Ltd. 2-A Parwanoo District Solan H.P /2014 Workers Union V/S M/S Mahale Filter System Ltd /2014 Sh. Lal Ji V/s Bhojia Dental College & Hospital, Baddi 2-A District Solan, H.P /2014 Sh. Sarwan Kumar V/s -do- 2-A /2015 Sh. Ravinder Kumar V/s M/S Tapan Multiventure Shoghi, Shimla. 10 By Order, Pr. Secretary ( Lab. & Emp.) to the Government of Himachal Pradesh.

2 Endst. No: Shram (A) 6-2/2016 (Awards) Shimla dated Copy forwarded to :- 1. The Controller (Printing & Stationary), H.P., Shimla-5 for publication in the Rajpatra, H.P. 2. The Labour Commissioner, H.P. Shimla The Presiding Judge, H.P. Industrial Tribunal cum-labour Court, Shimla w.r.t. his letter No./LC/IT/Pub/ dated for information. (Dinesh Kumar Sharma ) Deputy Secretary (Lab. & Emp.) to the Government of Himachal Pradesh Phone No

3 IN THE COURT OF SUSHIL KUKREJA, PRESIDING JUDGE, INDUSTRIAL TRIBUNAL-CUM- LABOUR COURT, SHIMLA, (H.P) CAMP AT NALAGARH. Hem Raj C/o Shri A.K Sharma, R/o Sai Road, Baddi, HP. Vs. App. No. 25 of Instituted on Decided on Petitioner. The Geep Battries (1) Ltd., Plot no. 66 and 67 HPSIDC, Juddi Kalan, District Solan, HP. Respondent. Petition under section 2-A of the Industrial Disputes Act, For petitioner : Shri A.K Sharma, AR. For respondent : Shri Rajeev Sharma, Advocate. ORDER/AWARD In nutshell the case of the petitioner is that he was employed as an operator on by the respondent and was drawing last wages of ` 11,800/- per month. It is further stated that the petitioner had completed more than 240 days continuously before this termination and that his services were terminated on without complying with the provisions of section 25-F of the Industrial Disputes Act, 1947 (hereinafter referred to as Act) as neither any notice was served upon him nor he was paid compensation. It is also stated that the petitioner had served a demand notice dated to the respondent and copy of which was sent to the respondent but the conciliation officer sent his failure report on Against this back-drop a prayer has been made for his reinstatement along-with all consequential service benefits including back-wages. 2. By filing reply, the respondent had contested the claim of the petitioner wherein preliminary objections had been taken qua maintainability, that the petitioner has not come to this Court with clean hands and the petitioner is gainfully employed. On merits, it has been admitted that the petitioner joined the respondent as an operator w.e.f but it is denied that the petitioner was drawing ` 11,800/- per month at the time of his abandoning the job. It is admitted that the petitioner had completed 240 days in one year. It is submitted that when a senior officer of the

4 company visited the factory, he found that three persons including the petitioner were sitting idle during duty hours and thereafter a show cause notice was issued to the petitioner but he instead of filing the reply to show cause notice, abandoned the job. The services of the petitioner had never been terminated by the respondent, who himself had abandoned his job. The respondent prayed for the dismissal of the claim petition. 3. Rejoinder not filed. Pleadings of the parties gave rise to the following issues which were struck on Whether the termination of the petitioner w.e.f is illegal and unjustified as alleged? OPP 2. If issue no.1 is proved in affirmative to what service benefits the petitioner is entitled to? OPP.. 3. Whether this petition is not maintainable as alleged? OPR.. 4. Relief. 4. Besides having heard the learned counsel for the parties, I have also gone through the record of the case carefully. 5. For the reasons to be recorded hereinafter while discussing issues for determination, my findings on the aforesaid issues are as under. Issue no.1 Issue no.2 Issue no.3 Relief. Yes. Entitled for reinstatement in service with seniority and continuity but without back-wages. No. Petition allowed per operative part of order/award. Reasons for findings. Issues no The AR for the petitioner contended that the services of the petitioner had been terminated by the respondent illegally without serving him any notice as required under section 25-F of the Act especially when he had completed more than 240 days in each calendar year. He further contended that before terminating his services no enquiry had been conducted against him.

5 7. On the other hand, Ld. counsel for the respondent contended that the services of the petitioner had never been terminated by the respondent, who himself had abandoned his job without any intimation to the respondent. 8. The petitioner stepped into the witness box as PW-1 and tendered in evidence his affidavit Ex. PA, wherein he reiterated almost all the averments as stated in the petition. In crossexamination, he admitted that he has not annexed any document with his petition which could go to show that he had worked with the respondent and that he was being paid ` 11800/- as salary per month. He admitted that a show cause notice was issued to him and further volunteered that reply to show cause notice was given to the respondent. He denied that he had left the job at his own without any intimation to the respondent company. He further denied that he is gainfully employed. 9. On the contrary, the respondent examined one Shri Masood Ali Baig, as RW- 1, who has stated that the petitioner was working in their factory and during the visit of M.D of the company, it was found that the petitioner and two other workers were sitting idle and gossiping with each other and the work was stopped and for this reason on the directions of M.D, a show cause notice was issued to them by the HR Department but the petitioner had not filed any reply to the show cause notice and became absent from his place of work and abandoned the job. In cross-examination, he admitted that as per the standing orders of the company, the charges leveled against the petitioner fall under the misconduct and no enquiry was conducted against him because he failed to file any reply to show cause notice and also failed to turn up after the issuance of the show cause notice. 10. RW-2 Shri Virender Kumar Ojha, Manager HR has stated that the petitioner along-with Sudesh Kumar and Ram Rattan were sitting idle and gossiping during duty hours and they were apprehended by the senior officer i.e M.D of the Company upon which a show cause notice was issued to the petitioner and other two workers but they had not filed any reply and thereafter the petitioner stopped reporting for duties. The management had not terminated the services of the petitioner, who himself had abandoned his job. In cross-examination, he denied that abandonment amounts to misconduct as per the model standing orders and that the services of the petitioner were terminated by the management illegally.

6 11. I have closely scrutinized the entire evidence, on record, and from the closer scrutiny thereof it has become clear that the petitioner was appointed as an operator on by the respondent and he worked as such till The only plea taken by the respondent is to this effect that the services of the petitioner had never been terminated but he himself had abandoned his job without any intimation However, respondent has failed to prove on record by leading cogent and satisfactory evidence to show that the petitioner had abandoned the job on his own. By mere alleging that the petitioner had abandoned the job on his own is not sufficient to prove the stand of the respondent especially when there is nothing on record which could show that the respondent has ever sent any letter or notice to the petitioner to resume his duties. In State of HP & Others Vs. Bhatag Ram & Another reported in Latest HLJ 2007 (HP) 903, our own Hon ble High Court after relying upon the decision of the Hon ble Supreme Court in G.T Lad and others V. Chemicals and Fibers India Ltd., AIR 1979 SC 582 has held that the finding of abandonment is a fact and the same has to be substantiated by leading evidence. In the present case also, as stated above, the respondent has failed to prove the plea of abandonment by leading cogent and satisfactory evidence on record as such it cannot be said that the petitioner has abandoned the job on his own. 12. Now, it has to be seen as to whether the termination of the services of the petitioner is illegal and unjustified. Admittedly, a show cause notice has been issued to the petitioner but no enquiry was conducted against him in any manner. It is settled legal proposition that a workman, against whom misconduct is alleged, cannot be dismissed or discharged unless a proper domestic enquiry is held against him in respect of the alleged misconduct. Even, if there is proved misconduct against the workman, he cannot be dis-charged or dismissed from service unless he has been afforded reasonable opportunity of being heard before initiating any action against him by the employer/respondent. It has been admitted by the respondent in the reply that the petitioner had completed 240 days in one year. Since, the petitioner had completed 240 days in twelve calendar months preceding his termination, a reasonable opportunity of being heard should have been afforded to him and proper enquiry should have been held before terminating his services. In D. K Yadav Vs. M/s J.M A Industries Ltd. as reported in Supreme Court Service Law Judgments -221, the Hon ble Apex Court has held as under:

7 Reasonable opportunity be given to the employee concerned to put forth his case and proper enquiry be held before terminating his service. In a recent judgment of our Hon ble High Court in ILR-XLV (VI) 938 titled as Gurcharan Singh Deceased through his LR s Vs. State of HP and ors. the Hon ble High Court has held that termination could not have been ordered without conducting any enquiry as the workman had completed 240 days and was therefore entitled to the enquiry. The relevant portion of the aforesaid judgment reads as under: 8. The moot question is whether termination can be ordered without conducting any inquiry? The answer is in the negative for the following reasons: While going through the impugned award and the writ petition, one comes to an inescapable conclusion that the termination of deceased Gurcharan Singh was made without following the mandate of law In the instant case, deceased Gurcharan Singh had completed 240 days in a calendar year, as discussed and held by the Labour Court, after scanning the evidence, the inquiry was required, not to speak of only issuance of the notice. In the instant case, admittedly, the petitioner had worked with the respondent w.e.f to continuously meaning thereby the petitioner had completed 240 working days in twelve calendar months preceding his termination. However, the petitioner was never asked to answer any charges as no chargesheet was issued to him and no enquiry was held before terminating his services, on the basis of the alleged misconduct. Hence, the termination of the services of the petitioner without conducting any enquiry and without affording reasonable opportunity of being heard to the petitioner is in utter violation of the principles of natural justice. Therefore, before terminating the services of the petitioner, it was incumbent upon the respondent to have complied with the provisions of section 25-F of the Act which lay down certain conditions precedent to the retrenchment of a workman (workmen) and requires the employer to comply with those conditions as per clauses (a) to (c) which are mandatory in nature. In 2010 (5) SCC 497 titled as Anoop Sharma Vs. Executive Engineer, Public Health division no.1, Panipat (Haryana), the Hon ble Supreme Court has held that the termination

8 of the services of an employee by way of retrenchment without complying with the provisions of section 25-F of the Act is a nullity. The relevant extract of aforesaid judgment is reproduced as under: 16. An analysis of the above reproduced provisions shows that no workman employed in any industry who has been in continuous service for not less than one year under an employer can be retrenched by that employer until the conditions enumerated in Clauses (a) and (b) of Section 25-F of the Act are satisfied. In terms of Clause (a), the employer is required to give to the workman one month s notice in writing indicating the reasons for retrenchment or pay him wages in lieu of the notice. Clause (b) casts a duty upon the employer to pay to the workman at the time of retrenchment, compensation equivalent to fifteen days average pay for every completed year of continuous service or any part thereof in excess of six months. 17. This Court has repeatedly held that Section 25-F(a) and (b) of the Act is mandatory and non-compliance thereof renders the retrenchment of an employee nullity Therefore, in view of my aforesaid discussion, as it is clear that the petitioner had worked for more than 240 days in twelve calendar months preceding his termination, the respondent was under the legal obligation to comply with the provisions of the section 25-F of the Industrial Disputes Act before terminating his services. But, no such compliance was made by the respondent, hence, there is violation of section 25-F of the Act, on the part of respondent. As a result, the termination of petitioner w.e.f is not sustainable in the eyes of law and is hereby set aside. 14. Thus, having regard to entire evidence on record and in view of above cited rulings and my foregoing observations, I have no hesitation in holding that the termination of the services of the petitioner w.e.f , by the respondent without complying with the provisions of the Act, is illegal and unjustified. Accordingly, this issue is decided in favour of the petitioner and against the respondent. Issue no Since, I have held under issue no.1 above that the termination of services of the petitioner by the respondent without following the provisions of the Act is improper, illegal and unjustified, hence, the petitioner is held entitled to reinstatement in service with seniority and continuity.

9 16. Now, the question which arises for consideration, before this Court is as to whether the petitioner is entitled to full back wages as contended by the learned counsel for the petitioner. In (2009) 1 SCC 20, Kanpur Electricity Supply Company Limited Vs. Shamim Mirza, the Hon ble Supreme Court has held that once the order of termination of services of an employee is set-aside, ordinarily, the relief of reinstatement is available to him. However, the entitlement of an employee to get reinstated does not necessarily result in payment of full or partial back-wages, which is independent of reinstatement. It has further been held by the Hon ble Supreme Court in 2010 (1) SLJ S.C 70, M/s Ritu Marbals Vs. Prabhakant Shukla that full back wages cannot be granted mechanically, upon an order of termination be declared illegal. It is further held that reinstatement must not be accompanied by payment of full back wages even for the period when the workman remained out of service and contributed little or nothing to the Industry. 17. Moreover, the petitioner was under an obligation to prove by leading cogent evidence that he was not gainfully employed after the termination of his services. The initial burden is on the workman/employee to show that he was not gainfully employed as held by the Hon ble Apex Court in (2005) 2 Supreme Court Cases 363 titled as Kendriya Vidyalaya Sangathan and another Vs. S.C Sharma that : 16..When, the question of determining the entitlement of a person to back-wages is concerned, the employee has to show that he was not gainfully employed. The initial burden is on him. After and if he places materials in that regard, the employer can bring on record materials to rebut the claim In the present case, the petitioner has failed to discharge his burden by placing any material on record except for his bald statement that he was not gainfully employed after his termination/disengagement. Therefore, in view of the entire evidence, on record, coupled with the rulings (supra), I have no hesitation in holding that the petitioner is not entitled to any back-wages. Accordingly, issue no.2 is partly decided in favour of the petitioner and against the respondent. Issue No In support of this issue, the learned counsel for the respondent contended that since the petitioner has filed the present application directly before this Court, for this reason, in the

10 absence of reference, the same is not maintainable. However, when regard is given to the entire record, it is an admitted fact that after the termination of the services petitioner, he raised an industrial dispute which fact is also clear from the reply filed by the respondent wherein the respondent has admitted that a demand notice was served upon them. Since, the petitioner has served a demand notice dated , it cannot be said that the present petition is not maintainable. Accordingly, this issue is decided in favour of the petitioner and against the respondent. Relief. As a sequel to my above discussion and findings on issues no.1 to 3, the claim of the petitioner succeeds and is hereby partly allowed and the petitioner is ordered to be reinstated in service forthwith with seniority and continuity. However, the petitioner is not entitled to back wages. Let a copy of this order/award be sent to the appropriate government for publication in official gazette. File, after completion, be consigned to records. (Praveen) Announced in the open Court today on this 24 th Day of June, (Sushil Kukreja) Presiding Judge, Industrial Tribunal-cum- Labour Court, Shimla Camp at Nalagarh.

11 IN THE COURT OF SUSHIL KUKREJA, PRESIDING JUDGE, INDUSTRIAL TRIBUNAL-CUM- LABOUR COURT, SHIMLA, (H.P) CAMP AT NALAGARH. App. No. 27 of Instituted on Decided on Sudesh Kumar C/o Shri A.K Sharma, R/o Sai Road, Baddi, HP. Vs. Petitioner. The Geep Battries (1) Ltd., Plot no. 66 and 67 HPSIDC, Juddi Kalan, District Solan, HP. Respondent. Petition under section 2-A of the Industrial Disputes Act, For petitioner : Shri A.K Sharma, AR. For respondent : Shri Rajeev Sharma, Advocate. ORDER/AWARD In nutshell the case of the petitioner is that he was employed as an operator on by the respondent and was drawing last wages of ` 8000/- per month. It is further stated that the petitioner had completed more than 240 days continuously before this termination and that his services were terminated on without complying with the provisions of section 25-F of the Industrial Disputes Act, 1947 (hereinafter referred to as Act) as neither any notice was served upon him nor he was paid compensation. It is also stated that the petitioner had served a demand notice dated to the respondent and copy of which was sent to the respondent but the conciliation officer sent his failure report on Against this back-drop a prayer has been made for his reinstatement along-with all consequential service benefits including back-wages. 2. By filing reply, the respondent had contested the claim of the petitioner wherein preliminary objections had been taken qua maintainability, that the petitioner has not come to this Court with clean hands and the petitioner is gainfully employed. On merits, it has been admitted that the petitioner joined the respondent as an operator w.e.f but it is denied that the petitioner was drawing ` 8000/- per month at the time of his abandoning the job. It is admitted that the petitioner had completed 240 days in one year. It is submitted that when a senior officer of the company visited the factory, he found that three persons including the petitioner were sitting idle

12 during duty hours and thereafter a show cause notice was issued to the petitioner but he instead of filing the reply to show cause notice, abandoned the job. The services of the petitioner had never been terminated by the respondent, who himself had abandoned his job. The respondent prayed for the dismissal of the claim petition. 3. Rejoinder not filed. Pleadings of the parties gave rise to the following issues which were struck on Whether the termination of the petitioner w.e.f is illegal and unjustified as alleged? OPP 2. If issue no.1 is proved in affirmative to what service benefits the petitioner is entitled to? OPP.. 3. Whether this petition is not maintainable as alleged? OPR.. 4. Relief. 4. Besides having heard the learned counsel for the parties, I have also gone through the record of the case carefully. 5. For the reasons to be recorded hereinafter while discussing issues for determination, my findings on the aforesaid issues are as under. Issue no.1 Issue no.2 Issue no.3 Relief. Yes. Entitled for reinstatement in service with seniority and continuity but without back-wages. No. Petition allowed per operative part of order/award. Reasons for findings. Issues no The AR for the petitioner contended that the services of the petitioner had been terminated by the respondent illegally without serving him any notice as required under section 25-F of the Act especially when he had completed more than 240 days in each calendar year. He further contended that before terminating his services no enquiry had been conducted against him.

13 7. On the other hand, Ld. counsel for the respondent contended that the services of the petitioner had never been terminated by the respondent, who himself had abandoned his job without any intimation to the respondent. 8. The petitioner stepped into the witness box as PW-1 and tendered in evidence his affidavit Ex. PA, wherein he reiterated almost all the averments as stated in the petition. In crossexamination, he admitted that he has not annexed any document with his petition which could go to show that he had worked with the respondent and that he was being paid ` 8000/- as salary per month. He admitted that a show cause notice was issued to him and further volunteered that reply to show cause notice was given to the respondent. He denied that he had left the job at his own without any intimation to the respondent company. He further denied that he is gainfully employed. 9. On the contrary, the respondent examined one Shri Masood Ali Baig, as RW- 1, who has stated that the petitioner was working in their factory and during the visit of M.D of the company, it was found that the petitioner and two other workers were sitting idle and gossiping with each other and the work was stopped and for this reason on the directions of M.D, a show cause notice was issued to them by the HR Department but the petitioner had not filed any reply to the show cause notice and became absent from his place of work and abandoned the job. In cross-examination, he admitted that as per the standing orders of the company, the charges leveled against the petitioner fall under the misconduct and no enquiry was conducted against him because he failed to file any reply to show cause notice and also failed to turn up after the issuance of the show cause notice. 10. RW-2 Shri Virender Kumar Ojha, Manager HR has stated that the petitioner along-with Sudesh Kumar and Ram Rattan were sitting idle and gossiping during duty hours and they were apprehended by the senior officer i.e M.D of the Company upon which a show cause notice was issued to the petitioner and other two workers but they had not filed any reply and thereafter the petitioner stopped reporting for duties. The management had not terminated the services of the petitioner, who himself had abandoned his job. In cross-examination, he denied that abandonment amounts to misconduct as per the model standing orders and that the services of the petitioner were terminated by the management illegally.

14 11. I have closely scrutinized the entire evidence, on record, and from the closer scrutiny thereof it has become clear that the petitioner was appointed as an operator on by the respondent and he worked as such till The only plea taken by the respondent is to this effect that the services of the petitioner had never been terminated but he himself had abandoned his job without any intimation However, respondent has failed to prove on record by leading cogent and satisfactory evidence to show that the petitioner had abandoned the job on his own. By mere alleging that the petitioner had abandoned the job on his own is not sufficient to prove the stand of the respondent especially when there is nothing on record which could show that the respondent has ever sent any letter or notice to the petitioner to resume his duties. In State of HP & Others Vs. Bhatag Ram & Another reported in Latest HLJ 2007 (HP) 903, our own Hon ble High Court after relying upon the decision of the Hon ble Supreme Court in G.T Lad and others V. Chemicals and Fibers India Ltd., AIR 1979 SC 582 has held that the finding of abandonment is a fact and the same has to be substantiated by leading evidence. In the present case also, as stated above, the respondent has failed to prove the plea of abandonment by leading cogent and satisfactory evidence on record as such it cannot be said that the petitioner has abandoned the job on his own. 12. Now, it has to be seen as to whether the termination of the services of the petitioner is illegal and unjustified. Admittedly, a show cause notice has been issued to the petitioner but no enquiry was conducted against him in any manner. It is settled legal proposition that a workman, against whom misconduct is alleged, cannot be dismissed or discharged unless a proper domestic enquiry is held against him in respect of the alleged misconduct. Even, if there is proved misconduct against the workman, he cannot be dis-charged or dismissed from service unless he has been afforded reasonable opportunity of being heard before initiating any action against him by the employer/respondent. It has been admitted by the respondent in the reply that the petitioner had completed 240 days in one year. Since, the petitioner had completed 240 days in twelve calendar months preceding his termination, a reasonable opportunity of being heard should have been afforded to him and proper enquiry should have been held before terminating his services. In D. K Yadav Vs. M/s J.M A Industries Ltd. as reported in Supreme Court Service Law Judgments -221, the Hon ble Apex Court has held as under:

15 Reasonable opportunity be given to the employee concerned to put forth his case and proper enquiry be held before terminating his service. In a recent judgment of our Hon ble High Court in ILR-XLV (VI) 938 titled as Gurcharan Singh Deceased through his LR s Vs. State of HP and ors. the Hon ble High Court has held that termination could not have been ordered without conducting any enquiry as the workman had completed 240 days and was therefore entitled to the enquiry. The relevant portion of the aforesaid judgment reads as under: 8. The moot question is whether termination can be ordered without conducting any inquiry? The answer is in the negative for the following reasons: While going through the impugned award and the writ petition, one comes to an inescapable conclusion that the termination of deceased Gurcharan Singh was made without following the mandate of law In the instant case, deceased Gurcharan Singh had completed 240 days in a calendar year, as discussed and held by the Labour Court, after scanning the evidence, the inquiry was required, not to speak of only issuance of the notice. In the instant case, admittedly, the petitioner had worked with the respondent w.e.f to continuously meaning thereby the petitioner had completed 240 working days in twelve calendar months preceding his termination. However, the petitioner was never asked to answer any charges as no chargesheet was issued to him and no enquiry was held before terminating his services, on the basis of the alleged misconduct. Hence, the termination of the services of the petitioner without conducting any enquiry and without affording reasonable opportunity of being heard to the petitioner is in utter violation of the principles of natural justice. Therefore, before terminating the services of the petitioner, it was incumbent upon the respondent to have complied with the provisions of section 25-F of the Act which lay down certain conditions precedent to the retrenchment of a workman (workmen) and requires the employer to comply with those conditions as per clauses (a) to (c) which are mandatory in nature. In 2010 (5) SCC 497 titled as Anoop Sharma Vs. Executive Engineer, Public Health division no.1, Panipat (Haryana), the Hon ble Supreme Court has held that the termination

16 of the services of an employee by way of retrenchment without complying with the provisions of section 25-F of the Act is a nullity. The relevant extract of aforesaid judgment is reproduced as under: 16. An analysis of the above reproduced provisions shows that no workman employed in any industry who has been in continuous service for not less than one year under an employer can be retrenched by that employer until the conditions enumerated in Clauses (a) and (b) of Section 25-F of the Act are satisfied. In terms of Clause (a), the employer is required to give to the workman one month s notice in writing indicating the reasons for retrenchment or pay him wages in lieu of the notice. Clause (b) casts a duty upon the employer to pay to the workman at the time of retrenchment, compensation equivalent to fifteen days average pay for every completed year of continuous service or any part thereof in excess of six months. 17. This Court has repeatedly held that Section 25-F(a) and (b) of the Act is mandatory and non-compliance thereof renders the retrenchment of an employee nullity Therefore, in view of my aforesaid discussion, as it is clear that the petitioner had worked for more than 240 days in twelve calendar months preceding his termination, the respondent was under the legal obligation to comply with the provisions of the section 25-F of the Industrial Disputes Act before terminating his services. But, no such compliance was made by the respondent, hence, there is violation of section 25-F of the Act, on the part of respondent. As a result, the termination of petitioner w.e.f is not sustainable in the eyes of law and is hereby set aside. 14. Thus, having regard to entire evidence on record and in view of above cited rulings and my foregoing observations, I have no hesitation in holding that the termination of the services of the petitioner w.e.f , by the respondent without complying with the provisions of the Act, is illegal and unjustified. Accordingly, this issue is decided in favour of the petitioner and against the respondent. Issue no Since, I have held under issue no.1 above that the termination of services of the petitioner by the respondent without following the provisions of the Act is improper, illegal and unjustified, hence, the petitioner is held entitled to reinstatement in service with seniority and continuity.

17 16. Now, the question which arises for consideration, before this Court is as to whether the petitioner is entitled to full back wages as contended by the learned counsel for the petitioner. In (2009) 1 SCC 20, Kanpur Electricity Supply Company Limited Vs. Shamim Mirza, the Hon ble Supreme Court has held that once the order of termination of services of an employee is set-aside, ordinarily, the relief of reinstatement is available to him. However, the entitlement of an employee to get reinstated does not necessarily result in payment of full or partial back-wages, which is independent of reinstatement. It has further been held by the Hon ble Supreme Court in 2010 (1) SLJ S.C 70, M/s Ritu Marbals Vs. Prabhakant Shukla that full back wages cannot be granted mechanically, upon an order of termination be declared illegal. It is further held that reinstatement must not be accompanied by payment of full back wages even for the period when the workman remained out of service and contributed little or nothing to the Industry. 17. Moreover, the petitioner was under an obligation to prove by leading cogent evidence that he was not gainfully employed after the termination of his services. The initial burden is on the workman/employee to show that he was not gainfully employed as held by the Hon ble Apex Court in (2005) 2 Supreme Court Cases 363 titled as Kendriya Vidyalaya Sangathan and another Vs. S.C Sharma that: 16..When, the question of determining the entitlement of a person to back-wages is concerned, the employee has to show that he was not gainfully employed. The initial burden is on him. After and if he places materials in that regard, the employer can bring on record materials to rebut the claim In the present case, the petitioner has failed to discharge his burden by placing any material on record except for his bald statement that he was not gainfully employed after his termination/disengagement. Therefore, in view of the entire evidence, on record, coupled with the rulings (supra), I have no hesitation in holding that the petitioner is not entitled to any back-wages. Accordingly, issue no.2 is partly decided in favour of the petitioner and against the respondent. Issue No In support of this issue, the learned counsel for the respondent contended that since the petitioner has filed the present application directly before this Court, for this reason, in the

18 absence of reference, the same is not maintainable. However, when regard is given to the entire record, it is an admitted fact that after the termination of the services petitioner, he raised an industrial dispute which fact is also clear from the reply filed by the respondent wherein the respondent has admitted that a demand notice was served upon them. Since, the petitioner has served a demand notice dated , it cannot be said that the present petition is not maintainable. Accordingly, this issue is decided in favour of the petitioner and against the respondent. Relief. As a sequel to my above discussion and findings on issues no.1 to 3, the claim of the petitioner succeeds and is hereby partly allowed and the petitioner is ordered to be reinstated in service forthwith with seniority and continuity. However, the petitioner is not entitled to back wages. Let a copy of this order/award be sent to the appropriate government for publication in official gazette. File, after completion, be consigned to records. (Praveen) Announced in the open Court today on this 24 th Day of June, (Sushil Kukreja) Presiding Judge, Industrial Tribunal-cum- Labour Court, Shimla Camp at Nalagarh.

19 IN THE COURT OF SUSHIL KUKREJA, PRESIDING JUDGE, INDUSTRIAL TRIBUNAL-CUM- LABOUR COURT, SHIMLA, (H.P). Ref. 19 of Instituted on Decided on Uma Devi W/o Shri Gur Dass R/o VPO Jangi, Tehsil Moorang, District Kinnaur, HP. Vs. Executive Engineer, IPH Division Pooh, District Kinnaur, HP. Petitioner. Respondent. Reference under Section 10 of the Industrial Disputes Act, For petitioner : Shri Niranjan Verma, Advocate. For respondent : Shri H.N Kashyap, ADA. adjudication: AWARD The following reference has been sent by the appropriate government for Whether termination of the services of Smt. Uma Devi W/o Shri Gur Dass R/o Village & P.O Jangi, Tehsil Moorang, District Kinnaur, HP from time to time by the Executive Engineer, I&PH Division Pooh, District Kinnaur HP w.e.f to 2010 without complying with the provisions of Industrial Disputes Act, 1947 is legal and justified? If not, what amount of back-wages, seniority, past service benefits and compensation the above worker is entitled to from the above employer? 2. Briefly, the case of the petitioner is that w.e.f , she had been employed as beldar on daily wages basis by the respondent division which was subsequently bifurcated and a new division was constituted at Pooh and the services of the petitioner were transferred to the new division and as such presently the petitioner is working under respondent division. It is further stated that the petitioner had completed 180 working days (as required in a Tribal area) in a calendar year for so many years but the respondent had given breaks in her service with malafide intention. It is also stated that juniors/contemporary workmen to the petitioner namely Manohar Lal, Yumpal Singh and Ram Bhagat were allowed to continue in their service without any

20 breaks and even their services have also been regularized whereas the services of the petitioner had not been regularized by the respondent and as such the action of the respondent is arbitrary, illegal and contrary to the provisions of the Industrial Disputes Act, 1947 (hereinafter referred as to Act). Against his back-drop a prayer has been made that the respondent be directed to regularize the services of the petitioner along-with seniority and continuity including back-wages. 3. By filing reply, the respondent had contested the claim of the petitioner wherein preliminary objections had been taken qua maintainability and that being the heavy snow bound area, there was no working season for labourer during the months of October to March/April. On merits, it has been asserted that the petitioner had been engaged on daily wage/seasonal basis in September, 1988 under respondent division at Reckongpeo and on bifurcation of division to Pooh, the muster rolls/vouchers were also transferred to IPH Division Pooh and as such the petitioner was engaged on seasonal basis on Flow Irrigation Scheme, Jangi, Phase-1 by respondent department. It is denied that the petitioner had completed 180 days in each calendar year. It is asserted that the work in Akpa sub- division is a seasonal one and labourers were deployed for one season to another as the Akpa sub division is a tribal and snow bound area, hence, due to snow there is no working season during the months of October to March/April and depends up to the conditions of weather and as such the workers are being engaged against development work founded during working season. It is denied that the services of the petitioner were terminated from time to time. It is asserted that the services of S/Shri Manohar Lal, Yumpal Singh and Ram Bhagat, who are juniors/contemporary workmen to the petitioner have been regularized as they have completed 180 working days in each calendar year without any break and since the petitioner had not completed 180 working days in each calendar year, her services were not regularized. The respondent prayed for the dismissal of the petition. 4. Rejoinder not filed. Pleadings of the parties gave rise to the following issues which were struck on Whether the termination of the services of the petitioner from time to time w.e.f to 2010 is illegal and unjustified as alleged? OPP 2. If issue no.1 is proved in affirmative to what service benefits, the petitioner is entitled to? OPP..

21 3. Whether the present reference is not maintainable as alleged in preliminary objection? OPR 4. Relief. 5. Besides having heard the learned counsels for the parties, I have also gone through the record of the case carefully. 6. For the reasons to be recorded hereinafter while discussing issues for determination, my findings on the aforesaid issues are as under. Issue no.1 Issue no.2 Issue no.3 Relief. Yes. Entitled to seniority and continuity. No. Reference answered in favour of the petitioner and against the respondent per operative part of award. Reasons for findings. Issues no To prove her case, the petitioner stepped into the witness box as PW-1 to depose that w.e.f. 1 st April, 1986, she was appointed as beldar on daily wages in IPH Division Reckongpeo but the above said division was bifurcated and new division was created and her service record was transferred to IPH division Pooh and she was employed with the respondent on daily wages since her appointment. She had completed 180 days in each calendar year and the work with the respondent department was continuous in nature. Some of her juniors namely Manohar Lal, Bhoom Pal Singh, Ram Bhagat and Bhumi Dev were regularized by the department and as such the action of the respondent is arbitrary, illegal and against the provisions of I.D Act. In cross-examination, she admitted that District Kinnaur is snow bound area for 3-4 months and during the period of snow, there is no work and that the department used to distribute the work among the workers on uniform basis so that everyone gets the opportunity to work. She denied that she had completed 180 days in eight years only but admitted that she used to be engaged on muster roll basis only. She denied that she used to leave the job at her own and that Manohar Lal, Bhoom Pal Singh, Ram Bhagat and Bhumi Dev were

22 not juniors to her. She admitted that the department used to call the workers whenever there is availability of work. 8. On the other hand, the respondent examined one Shri Dawa Singh, Assistant Engineer as RW-1, who tendered in evidence affidavit Ex. RW-1/A wherein he supported almost all the averments as stated in reply. He also tendered in evidence authority letter Ex. RW-1/B and mandays chart of petitioner Ex. RW-1/C. In cross-examination, he admitted that Mohan Lal and Bhum Pal Singh were juniors to the petitioner and that breaks were given to the petitioner and she was not allowed to complete 180 days in a year. 9. I have considered the contentions of the learned counsel for petitioner as well as learned ADA for respondent and also scrutinized the record of the case minutely. 10. After the closer scrutiny of the record, it has become clear that the petitioner was initially engaged in the year 1988 and it is also the admitted case of the respondent that she is being engaged regularly in every working season. It is not in dispute that the mandatory working days of 240 days in a calendar year have been reduced to 180 days in Tribal/Snow bound area by the State Government. As per mandays chart Ex. RW-1/C, the petitioner had completed 226 days in the year 1994, 217 days in the year, 1995, 205 days in the year, 1996, 227 days in 1997, 265 days in 1998, 236 days in the year, 1999, 271 days in 2000 and 199 days in The aforesaid year wise mandays chart of the petitioner also shows that she had worked for 175 days in the year, 2002, 179 days in 2003, days in 2004, 165 days in 2005, days in 2006, 175 days in 2007, 151 days in 2008, 152 days in 2009, 54 days in 2010, 159 days in 2011, 108 days in 2012 and 149 days in The case of the petitioner is that the respondent had given breaks in her service with malafide intention despite the fact that work with the respondent department was continuous in nature. Though, the case of the respondent is that since the work being allotted to the workers including the petitioner was on coterminus basis, therefore, the workers automatically stood terminated/dis-engaged keeping in view the principles of co-terminus basis. However, in cross-examination, RW-1 admitted that the breaks were given to the petitioner and she was not allowed to complete 180 days in a year. Therefore, from the cross-examination of RW-1 it has become clear that intentional breaks were given to the petitioner so that she could not complete 180 days in a calendar year which action of the respondent by not allowing

23 the petitioner to complete 180 days w.e.f to 2010 without complying with the provisions of the Act was not bonafide and was only adopted to defeat the provisions of section 25-F of the Act and the same amounts to unfair labour practice. Hence, I have no hesitation in holding that such termination/dis-engagement of the petitioner from time to time w.e.f to 2010 in contravention of the provisions of the Act is illegal and unjustified. 11. The learned counsel for the petitioner further contended that though the petitioner was not allowed to complete 180 days in every calendar year w.e.f to 2010 whereas at the same time her juniors namely Manohar Lal, Yum Pal Singh and Ram Bhagat have been allowed to continue in their service without any breaks and even their services have been regularized. It has been admitted by the respondent in the reply that juniors to the petitioner S/Shri Manohar Lal, Yum Pal Singh and Ram Bhagat have been regularized by the department as they have completed 180 days in every calendar year and fulfilled the criteria for regularization. 12. Therefore, from the perusal of record, it has become clear that the petitioner was not allowed to complete 180 days in every calendar year whereas at the same time her juniors were allowed to complete 180 days in every calendar which is against the provisions of section 25-G of the Act. Hence, it can safely be held that time to time termination of the services of the petitioner by the respondent w.e.f to 2010 without complying with the provisions of the Act is illegal and unjustified. Accordingly, this issue is answered in favour of the petitioner and against the respondent. Issue no Since, I have held under issue no.1 above that time to time termination of the services of the petitioner by the respondent w.e.f to 2010 without complying with the provisions of the Act is illegal and unjustified, hence, the petitioner is held entitled for the seniority and continuity without considering the period of breaks which were given to her intentionally from time to time w.e.f to It is made clear that the entitlement, if any, for regularization of the petitioner shall be considered and processed in accordance with the policy of State Government. 14. Now, the question which arises for consideration, before this Court is as to whether the petitioner is entitled to full back wages as contended by the learned counsel for the

24 petitioner. In (2009) 1 SCC 20, Kanpur Electricity Supply Company Limited Vs. Shamim Mirza, the Hon ble Supreme Court has held that once the order of termination of services of an employee is set-aside, ordinarily, the relief of reinstatement is available to him. However, the entitlement of an employee to get reinstated does not necessarily result in payment of full or partial back-wages, which is independent of reinstatement. It has further been held by the Hon ble Supreme Court in 2010 (1) SLJ S.C 70, M/s Ritu Marbals Vs. Prabhakant Shukla that full back wages cannot be granted mechanically, upon an order of termination be declared illegal. It is further held that reinstatement must not be accompanied by payment of full back wages even for the period when the workman remained out of service and contributed little or nothing to the Industry. 15. Therefore, in view of the entire evidence, on record, coupled with the rulings (supra), I have no hesitation in holding that the petitioner is not entitled to any back-wages. Accordingly, issue no.2 is partly decided in favour of the petitioner and against the respondent. Issue No In support of this issue, no evidence has been led by the respondent in order to show that as to how this reference is not maintainable especially when the same has been made by the appropriate government to this Court for adjudication. Hence, in view of no evidence on record, it cannot be said that the present reference is not maintainable. Accordingly, this issue is decided in favour of the petitioner and against the respondent. Relief. As a sequel to my above discussion and findings on issues no.1 to 3, the claim of the petitioner succeeds and is hereby partly allowed and the petitioner is held entitled for the seniority and continuity without considering the period of breaks which were given to her intentionally from time to time w.e.f to It is made clear that the entitlement, if any, for regularization of the petitioner shall be considered and processed by the respondent in accordance with the policy of State Government. However, the petitioner is not entitled to any back wages and as such the reference is ordered to be answered in favour of the petitioner and against the respondent. Let a copy of this award be sent to the appropriate government for publication in official gazette. File, after completion, be consigned to records. (Praveen) Announced in the open Court today on this 29 th Day of June, (Sushil Kukreja) Presiding Judge, Industrial Tribunal-cum- Labour Court, Shimla.