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Himachal Pradesh High Court · body

2014 DIGILAW 277 (HP)

State of Himachal Pradesh v. Naresh Kumar

2014-03-26

DHARAM CHAND CHAUDHARY, RAJIV SHARMA

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Judgment Rajiv Sharma, J. This petition is instituted against the Award dated 1.8.2012 rendered by learned Presiding Judge, Labour court-cum-Industrial Tribunal, Dharamshala in Ref. No. 4/2010. 2. Key facts necessary for adjudication of the petition are that the respondent (hereinafter referred to as the “workman” for the sake of convenience) was engaged by the petitioners (hereinafter referred to as the “employer” for the sake of convenience) in the month of November 1994 as Beldar on daily wage basis in HPPWD, Division Chamba. He filed an O.A. (D) No.235/2003 before learned erstwhile H.P. Administrative Tribunal seeking direction to the employer not to give fictional breaks to him. The original application was decided by learned erstwhile Administrative Tribunal on 26.2.2004., whereby directions were issued to the employer not to give fictional breaks to the workman and not to terminate services of the workman, save and except in accordance with law. 3. The employer issued a termination notice to the workman on 29.11.2004. Thereafter, the workman raised the industrial dispute. The State Government made the following reference to the learned Industrial Tribunal:- “Whether termination of the services of Shri Naresh Kumar, s/o Shri Biddo by the Executive Engineer, H.P.P.W.D. Division (B&R) Chamba, District Chamba, H.P., w.e.f. January 2005 and retaining the junior workmen, as alleged by worker, is proper and justified? If not, what amount of back wages, seniority, past service benefits and compensation the aggrieved workman is entitled to?” 4. Thereafter, the workman filed a claim petition, to which reply was filed by the employer. Learned Industrial Tribunal allowed reference partly vide Award dated 1.8.2012. Hence, this petition. 5. Mr. Anoop Rattan, learned Additional Advocate General, has vehemently argued that the workman has abandoned the job. He then argued that the industrial dispute raised by the workman was stale and no person junior to the workman was retained while issuing termination notice dated 29.11.2004. 6. The workman was engaged as Beldar on daily wage basis in the month of November 1994. He filed an O.A. (D) No. 235/2003 before learned erstwhile Administrative Tribunal, which was decided on 26.2.2004. Specific directions were issued to the employer not to give fictional breaks to the workman and not to terminate services of the workman, save and except in accordance with law. Notice of termination was issued to the workman on 29.11.2004. He filed an O.A. (D) No. 235/2003 before learned erstwhile Administrative Tribunal, which was decided on 26.2.2004. Specific directions were issued to the employer not to give fictional breaks to the workman and not to terminate services of the workman, save and except in accordance with law. Notice of termination was issued to the workman on 29.11.2004. The workman appeared as PW1 and led his evidence by way of filing an affidavit, Ext.PW1/A. The workman has not completed 240 days preceding his retrenchment. It has been admitted by RW1 D.S. Pathania, Executive Engineer, HPPWD, Division Chamba, in cross-examination, that Sanjay Kumar, Ganesh Kumar etc. were juniors to the workman. Even in the reply filed to the claim petition, it is admitted by the employer that the workmen, whose names were mentioned in the petition, had worked in continuity. The applicability of Section 25(g) of the Industrial Disputes Act is not dependant on whether the workman has completed 240 days in a calendar year. The workman has established that the persons, juniors to him, have been retained while issuing termination notice dated 29.11.2004. There is violation of Section 25(g) of the Industrial Disputes Act. The plea of abandonment has rightly been rejected by the learned Industrial Tribunal. The workman was always ready and willing to work as Beldar. In fact, he had been working since November 1994 and it is apparent from the mandays’ chart Annexure R-5 that he has not been permitted to complete 240 days to deprive him to seek regularization. He worked for 214 days in 1995, 215 days in 1996, 182 days in 1997, 137.5 days in 1998, 183 days in 1999, 174 days in 2000, 203 days in 2001, 191.5 days in 2002 and 185 days in 2004. Since the workman was not permitted to complete 240 days in a calendar year by giving him fictional breaks, he was constrained to approach the erstwhile Administrative Tribunal by way of O.A. No.(D) 235/2003. The erstwhile Administrative Tribunal issued specific directions to the employer not to give fictional breaks to the workman and not to terminate services of the workman, save and except in accordance with law. 7. It is apparent that the employer in a very mala fide manner terminated the services of the petitioner vide notice dated 29.11.2004 after filing of the petition by the workman before the erstwhile H.P. Administrative Tribunal. 8. 7. It is apparent that the employer in a very mala fide manner terminated the services of the petitioner vide notice dated 29.11.2004 after filing of the petition by the workman before the erstwhile H.P. Administrative Tribunal. 8. Now as far as ground of delay raised by the employer is concerned, suffice it to say, reference No.4/2010 was made by the State Government to the Labour Court-cum-Industrial Tribunal. The employer has not challenged the reference No.4/2010 before the competent forum. 9. Accordingly, in view of the discussion and analysis made hereinabove, there is no merit in the writ petition and the same is dismissed. Pending application(s), if any, also stands disposed of. No order as to costs.