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Himachal Pradesh High Court · body

2004 DIGILAW 216 (HP)

DM. HPSFC, PARWANOO v. GIAN CHAND

2004-09-09

A.K.GOEL

body2004
JUDGMENT Arun Kumar Goel, J. (Oral): Both these writ petitions have been filed against the award dated 28.6.2000, passed by Presiding Officer, HP. Labour Court, Shimla in Reference No. 12 of 1997. As such, these have been taken up together for disposal. 2. Facts as they emerge from the record of these cases are, that Gian Chand joined as daily wager with respondent No. 1 on 21.3.1989, petitioner No. 2 Suresh Justa joined as daily wager on 21.4.1989 and petitioner No. 3 Dile Ram joined as a dally wager on 17.8.1988. On and with effect from 30.6.1990 services of the petitioners Gian Chand and Suresh Justa were dispensed with. Whereas services of petitioner No. 3 Dile Ram were terminated on 5.8.19.90. In the aforesaid background these three petitioners started making representations for their reinstatement, between 1990 to 1995. Their claim is that they were assured by respondent No. 1 about their reinstatement. But without any result. 3. In this background, they approached the Labour Officer with their demands. Conciliation was tried unsuccessfully. Therefore, he submitted failure report. This resulted in making reference by the State Government to the Labour Court. Reference was to the effect whether the services of three petitioners who were working with the respondent Corporation, were validly terminated or not. 4. After having framed issues and then recorded evidence of the parties, Labour Court answered the reference in the following terms: 9. Keeping in view the aforesaid findings and discussions, I hold that the petitioners are entitled to reinstatement with seniority in their respective jobs. However, they are not entitled to the back wages as the petitioners have to led any evidence that they were not gainfully employed during this period. The petition is also belated, so in view of these circumstances also, the petitioners are not entitled to the benefit of back wages. The reference is answered accordingly in affirmative. Let a copy of this award be sent to the appropriate government for the publication on the HP. Rajpatra in accordance with law." 5. One writ had been filed by the workmen (CWP No. 990 of 2000), challenging the award to the extent that back wages had not been allowed. And CWP No. 484 of 2000 had been filed by the Divisional Manager, HP. State Forest Corporation Ltd. against finding of the Labour Court holding that three workmen were entitled to reinstatement with seniority. 6. And CWP No. 484 of 2000 had been filed by the Divisional Manager, HP. State Forest Corporation Ltd. against finding of the Labour Court holding that three workmen were entitled to reinstatement with seniority. 6. When a reference is made to the impugned award as well as to the pleadings of the parties as filed before the Labour Court, it is evident that the petitioners on the one hand were claiming that their services have been wrongly dispensed with without following the due process of law, and also that many persons junior to them were retained by the Forest Corporation. Even if what was being claimed by the Corporation was correct still on the doctrine of last come first go, persons who joined after the petitioners had to go and not the petitioners. 7. Whereas stand of the Corporation in their reply before the Labour Court was, that all the three petitioners had left the job of their own during the year 1989-1990 and did not turn up till the filing of the application before the Labour Inspector i.e. on 21.3.1995. As such their claim was barred and was liable to be rejected. Nature of work in the Corporation in such, that persons were employed immediately on engagement of the three petitioners as daily waged Chowkidar at Parwanoo depot on casual basis was admitted. Since all three of them had left the job of their own, therefore, there was no violation of Section 25N(1-C). Claim being time barred was set up an another plea. 8. After having examined the record of the case, including evidence produced by the parties to which reference was made at the time of hearing of these petitions, I find that no exception can be taken to the award of the Labour Court. I am further satisfied that plea set up by the Corporation regarding petitioners having voluntarily abandoned the work is not tenable. If this was the true, correct and factual position nothing prevented the Corporation to have produced something from its contemporaneous official record to show as to how the matter was dealt with by the officials of the Corporation when on and effect from 30.6.1990 when all three of them did not turn up. 9. Himachal Pradesh State Forest Corporation being industry within the meaning of Industrial Disputes Act and petitioners being workmen employed in the said industry is not disputed. 9. Himachal Pradesh State Forest Corporation being industry within the meaning of Industrial Disputes Act and petitioners being workmen employed in the said industry is not disputed. Only controversy invoked in these cases is whether the services were dispensed with by the Corporation or whether the three workmen had abandoned the work. As already noted, there is no evidence of abandonment. In this view of the matter, stand of Gian Chand and others that their services were illegally dispensed with was correctly accepted by the Labour Court and I see no reason to take a contrary view. 10. Faced with this situation, Shri Neel Kamal Sood on behalf of the Corporation submitted that the claim of the petitioners was stale, as such could not be referred to the Labour Court. Suffice to say in this behalf, that mere delay by itself is no ground not to go into the question of illegal termination, as in the present case. For taking this view reliance is being placed on the decisions of Western India Match Co. Ltd. v. Workers Union, 1970 SCC 225, Sapan Kumar Pandit v. UP. State Electricity Board and others, 2001(6) SCC 222, Gurmari Singh v. Principal, Govt. College of Education and others, 2000(9) SCC 496 and Ajaib Singh v. Sirhind Coop. Marketing-cum-Processing Service Society Ltd., 1999(6) SCC 82 : 1999(2) Cur.L.J. (Services) SC 132. 11. Thus reliance placed by Mr. Neel Kamal in The Nedungadi Bank Ltd. v. K.P. Madhavankutty and others, AIR 2000 SC 839 does not in my considered view advance the case of his client. In this behalf the three Judge Bench judgment of the Supreme Court in case Western India Match Co. Ltd. v. Workers Union (supra), is a complete answer to the submission of Mr. Neel Kamal Sood. 12. On the other hand Mr. K.D. Sood submitted, that refusal to allow back wages by the Labour court needs to be set aside with the direction to the employer, i.e. HP. State Forest Corporation to pay those to his client from the date of their illegal termination/retrenchment. With a view to controvert this submission of Mr. Neel Kamal Sood, reliance was placed on behalf of the Forest Corporation on a judgment of this Court in CWP No. 95 of 2000, titled Divisional Manager, HPSFC Division v. Mohinder Kumar, decided on 26.8.2004. State Forest Corporation to pay those to his client from the date of their illegal termination/retrenchment. With a view to controvert this submission of Mr. Neel Kamal Sood, reliance was placed on behalf of the Forest Corporation on a judgment of this Court in CWP No. 95 of 2000, titled Divisional Manager, HPSFC Division v. Mohinder Kumar, decided on 26.8.2004. I have gone through this judgment, learned Judge after referring to the above referred decisions upheld the contention of the Forest Corporation not to allow back wages despite 20% having been allowed by the Labour Court. For the reasons set out in this judgment with which I am in respectful agreement, plea of Mr. K.D. Sood for the grant of back wages to his client is hereby rejected. 13. As per order dated 7.11.2000 passed in CWP No. 985 of 2000 in CWP No. 482 of 2000, this Court had ordered the re-engagement of Gian Chand and others. It was not disputed at the time of hearing that they continue to work with the Corporation. 14. No other point is urged. 15. In view of the aforesaid discussion, there is no merit in both these petitions which are accordingly dismissed. All interim orders passed in these cases from time to time shall stand vacated forthwith. Costs on the parties.