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Himachal Pradesh High Court · body

2012 DIGILAW 913 (HP)

Ganesh Dutt v. State of H. P

2012-12-01

DHARAM CHAND CHAUDHARY

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Judgment Dharam Chand Chaudhary, J. In this writ petition award dated 3.12.2008, Annexure P-5 passed by Industrial Tribunal-cum-Labour Court Shimla in Reference No.22 of 2005 is under challenge. 2. As per the particulars qua the employment of the petitioner on daily wage basis tabulated in para-2 of reply to the writ petition, he was engaged as Beldar in the month of July 1986 and continued till 31.1.1989, however, with intermittent breaks. His services were disengaged on and w.e.f. February, 1989. He never competed 240 days in any calendar year ever since his engagement till retrenchment. 3. Aggrieved by his disengagement orally he raised dispute within the meaning of Industrial Disputes Act by way of claim petition, Annexure P-2 in the year 2005. Conciliation failed and as such, dispute was referred to Labour Court. 4. The respondent establishment on entering appearance has contested the claim. In reply, its stand was that there is no violation of Section 25(F) of the Industrial Disputes Act, 1947 (hereinafter referred to as’ ‘the Act’) as the petitioner never completed 240 days in a calendar year. Also that he was disengaged on account of non-availability of work. The principle of last come first go is stated to be not violated. There being no work available for the petitioner, he was disengaged. There was no question of recalling him to join the respondent establishment. 5. The learned Tribunal below framed the following issues and put the parties on trial:- 1. Whether the service of the petitioner has been illegally terminated by the respondent w.e.f. 1.2.1989 without complying the provisions of ID Act, 1947? If so, its effect? ....OPP 2. If issue No.1 is proved in affirmative, to what relief of service benefits the petitioner is entitled to? ...OPP 3. Whether the present petition is not maintainable? ....OPR 4. Whether the present is barred by limitation? ....OPR 5. Relief. 6. In turn the petitioner has himself stepped in the witness box as PW-1 and examined Sh. Mohi Ram, a co-labourer and Sh. Rajesh Kumar, Range Officer, Narag Forest Range. On the other hand, the respondent department has examined Deputy Ranger Sunil Kumar. In view of the evidence produced by the parties, the Tribunal below has concluded that there is no illegality committed by the respondent department while disengaging the petitioner workman from the work w.e.f. 1.2.1989. Mohi Ram, a co-labourer and Sh. Rajesh Kumar, Range Officer, Narag Forest Range. On the other hand, the respondent department has examined Deputy Ranger Sunil Kumar. In view of the evidence produced by the parties, the Tribunal below has concluded that there is no illegality committed by the respondent department while disengaging the petitioner workman from the work w.e.f. 1.2.1989. The question of maintainability of the claim petition and limitation were decided against the respondent establishment while answering issues No.3 & 4. 7. Consequently the claim petition was dismissed vide award which has been impugned in this writ petition on the grounds inter alia that the evidence has not been appreciated in its right perspective. In view of there being evidence available on record that two persons namely, Attar Singh and Satish Kumar were engaged in 1992 whereas the 3rd person Sh. Ganesh Dutt in the year 1994 i.e. after disengagement of the services of the petitioner, the issue that the junior persons were retained has not been properly considered. The findings that PW-3 Rajesh Kumar did not disclose in his statement that the aforesaid three persons were engaged are stated to be erroneous. Statement of PW-2 Mohi Ram is also stated to be erroneously ignored. 8. In reply the stand of the respondent department is that there is no violation of the provisions contained under Sections 25(H) and 25(N) of the Act. It is pointed out that the service of the petitioner has not been terminated by either of respondents but he himself left the work and did not turn up after 31.01.1989. He allegedly never approached either respondents for his re-engagement nor any assurance qua his re-engagement was ever held out to him. S/Sh. Attar Singh and Satish Kumar were engaged on seasonal forestry work during January, 1992, whereas Sh. Ganesh Dutt in the year 1994 as per availability of work. The petitioner allegedly did not turn up and as such, could not be re-engaged. 9. In rejoinder, the petitioner has denied the contentions to the contrary being wrong. 10. On hearing learned counsel on both sides and going through the record, this Court finds that the present is a case where there is no violation of the provisions contained under Section 25(F) of the Industrial Disputes Act. 9. In rejoinder, the petitioner has denied the contentions to the contrary being wrong. 10. On hearing learned counsel on both sides and going through the record, this Court finds that the present is a case where there is no violation of the provisions contained under Section 25(F) of the Industrial Disputes Act. Learned counsel representing the petitioner has fairly conceded that no case for violation of provisions contained under Section 25(F) of the Act is made out. 11. There is, however, considerable force in the further case of the petitioner that the respondent establishment has violated the provisions contained under Section 25(G) of the Act, because in view of own admission of the respondent department in para-10(A) of the reply, S/Sh. Attar Singh and Satish Kumar were engaged as Beldars on daily wage basis in January, 1992 whereas Sh. Ganesh Dutt, in the year 1994. The explanation that the petitioner abandoned the work and did not turn up after 31.1.1989 is neither cogent nor plausible being raised for the first time before this Court because it was no where the case pleaded by respondent department before the Labour Court. Simple case of the respondent department before the Labour Court was that the work was not available and as such the service of the petitioner was disengaged and that no junior to him was engaged or retained. It is seen in reply filed to the writ petition that the respondent department has taken U turn and come forward with altogether new plea that the petitioner workman did not turn up after 31.1.1989. Not only this but fresh hands were engaged in the years 1992 and 1994 i.e. after the disengagement of the petitioner. There may not be violation of Section 25(G) of the Act as nothing suggesting that in February 1989 when he was retrenched persons junior to him were retained has come on record. However, the present is a case of violation of the provisions contained under Section 25(H) of the Act which casts a duty on the establishment to have first given an opportunity to its retrenched workmen had the work been available to them subsequent to their retrenchment. It is those persons who should have been given preference over other persons. This being the pleaded case of the petitioner in para-2 of the claim petition, the respondent department opted not to offer any comments thereto. It is those persons who should have been given preference over other persons. This being the pleaded case of the petitioner in para-2 of the claim petition, the respondent department opted not to offer any comments thereto. On the other hand, as per the admitted case of the respondent department, aforesaid three persons were engaged in the years 1992 and 1994 i.e. after the disengagement of the petitioner. The present is thus a case of clear violation of the provisions contained under Section 25(H) of the Act. The stand now taken that the petitioner did not approach the respondent department for his engagement is nothing else but merely an after thought. Such plea being not raised before the Labour Court seems to have been raised before this Court merely for rejection. The plea of abandonment being also not raised at an appropriate stage is hardly of any help at this stage to the case of the respondent department. Otherwise also the Apex Court in G. T. Lad & Others vs. Chemicals and Fibers India Ltd., AIR 1979 SC 582 has held that the plea of abandonment is not only required to be raised but also proved. 12. In view of what has been stated hereinabove, this Court is of the considered view that the learned Tribunal below has miserably failed to take into consideration the evidence suggesting that three workmen were engaged in the years 1992 and 1994 i.e. after disengagement of the petitioner. In view of there being violation of Section 25(H) of the Act, no doubt, a case is made out for issuance of a direction to the respondent department to re-engage the petitioner, however, from which date and with what consequential benefit is being specified hereinafter. Service of the petitioner was disengaged w.e.f. 1.2.1989. The respondent department has engaged fresh hands on availability of work in the years 1992 and 1994. Section 25(H) of the Act provides that as and when the work is available the department should give preference to its retrenched workmen in preference to other persons. Thus, the respondent department was under an obligation to have afforded an opportunity to the petitioner to resume duty on availability of work and it was not for the petitioner workman to have run after the respondent department for re-employment. Thus, the respondent department was under an obligation to have afforded an opportunity to the petitioner to resume duty on availability of work and it was not for the petitioner workman to have run after the respondent department for re-employment. No doubt after engagement of fresh hands by the respondent department in the years 1992 and 1994, the petitioner remained slept over the issue and issued demand notice under the Act on 30.9.2001 and on the failure of conciliation proceedings and having reference Annexure P-1 made on 16.2.2005 to learned Tribunal below filed claim petition in February, 2005, however, on account of this, he cannot be denied the just and reasonable benefit qua re-engagement with continuity and seniority claimed in this petition particularly when the respondent-department was under legal obligation to have offered employment to him first instead of retaining/engaging persons junior to him. 13. In view of the above, on the availability of work, it was a duty cast upon the respondent department to have informed the petitioner workman by whatever mode to report for duty before going to engage fresh hands, however, no record has been produced to this effect nor any case in this behalf is made out. The petitioner is thus entitled to be re-engaged as Beldar on daily wage basis with continuity from January 1992 when S/Sh. Attar Singh and Satish Kumar were engaged as fresh hands who are still on the establishment of the respondent department. For want of evidence and there being no case made out that the petitioner had not been gainfully employed during the said period he, however, is not entitled to back wages. 14. This petition is accordingly allowed. There shall be a direction to the 2nd respondent to re-engage the petitioner as Beldar with continuity and seniority from January, 1992 within two weeks from the date of production of copy of this judgment by the petitioner before the said respondent. Pending, application, if any, also stands disposed of. No order as to costs.