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Himachal Pradesh High Court · body

2015 DIGILAW 1229 (HP)

Karam Singh v. State Of H. P

2015-09-02

P.S.RANA

body2015
ORDER : P.S. Rana, J. Present petition is filed under Article 226 of the Constitution of India against order/award passed by learned Presiding Judge Labour 1. Court-cum-Industrial Tribunal Dharamshala (H.P.) dated 18.05.2012tilted Karam Singh v. Executive Engineer H.P.P.W.D. Division Salooni-District Chamba (H.P.). BRIEF FACTS OF THE CASE 2. It is pleaded that in the month of June 1994 petitioner was engaged as daily wager in HPPWD Department Chamba Division Chamba (H.P.). It is further pleaded that in the year 2003 petitioner filed O.A.(D) No. 233/2003 before the State Administrative Tribunal titled Narinder Kumar & Ors. v. State of H.P. & Ors. which was decided on dated 26.02.2004 by the State Administrative Tribunal with the directions to non-petitioners not to give fictional breaks to the petitioner if the work and funds would be available. Learned State Administrative Tribunal further directed non-petitioners not to terminate the services of the petitioner except in accordance with law. It is further pleaded that services of the petitioner were dis-engaged on dated 29.11.2004. It is further pleaded that thereafter reference was sent to Presiding Judge Labour Court-cum-Industrial Tribunal Dharamshala (H.P.) and learned Presiding Judge Labour Court-cum-Industrial Tribunal Dharamshala dismissed the reference petition of the petitioner on dated 18.05.2012. Prayer for acceptance of civil writ petition sought. 3. Per contra response filed on behalf of non-petitioners No. 1 to 5 pleaded therein that petitioner was engaged in the month of June 1994 on daily waged basis as Beldar and petitioner continued to work up to December 2004. It is pleaded that petitioner did not complete 240 days in a calendar year. It is further pleaded that reference was sent to learned Presiding Judge Labour Court-cum-Industrial Tribunal Dharamshala (H.P.) and learned Presiding Judge Labour Court-cum-Industrial Tribunal Dharamshala (H.P.) dismissed the reference petition. Prayer for dismissal of civil writ petition sought. 4. Court heard learned Advocate appearing on behalf of the petitioner and learned Additional Advocate General appearing on behalf of the non-petitioners. Court also perused the entire records carefully. 5. Submission of learned Advocate appearing on behalf of the petitioner that reference was sent by appropriate Government under Section 12 (5) of Industrial Disputes Act 1947 to learned Presiding Judge Labour Court-cum-Industrial Tribunal Dharamshala (H.P.) wherein wrong date of termination of services of petitioner was mentioned in the reference order and on this ground petition be accepted is accepted for the reasons hereinafter mentioned. It is proved on record as per certificate Annexure R-1 placed on record issued by Assistant Engineer Chamba Sub Division No. 1 H.P.P.W.D. Chamba that petitioner had worked in the month of December 2004 also. Document Annexure R-1 is issued by Assistant Engineer Chamba Sub Division No. 1 H.P.P.W.D. Chamba while discharging his official duties and is relevant factor under Section 35 of Indian Evidence Act. Annexure R-1 issued by Assistant Engineer Chamba Sub Division No. 1 H.P.P.W.D. Chamba is not rebutted by any oral or documentary evidence placed on record. It is held that appropriate Government was under legal obligation to send the reference under Section 12 (5) of Industrial Disputes Act 1947 to learned Presiding Judge Labour Court-cum-Industrial Tribunal Dharamshala (H.P.) as per Annexure R-1 issued by Assistant Engineer Chamba Sub Division No. 1 H.P.P.W.D. Chamba relating to date of termination of service of petitioner. It is well settled law that a party cannot be penalised for the fault of any other public servant. 6. Learned Presiding Judge Labour Court-cum-Industrial Tribunal Dharamshala (H.P.) had dismissed the reference petition of petitioner simply on the ground that learned Presiding Judge Labour Court-cum-Industrial Tribunal Dharamshala (H.P.) cannot travel beyond the terms of reference. Learned Presiding Judge Labour Court-cum-Industrial Tribunal Dharamshala (H.P.) has held that reference for adjudication was sent as follows: (1) Whether termination of the services of Sh. Karam Singh s/o Sh. Raju w.e.f. November 2004 by Executive Engineer H.P.P.W.D.(B&R) Division Chamba Distt. Chamba (H.P.) and continuing the services of junior workman as alleged by workman is proper and justified? If not what relief of service benefits including reinstatement and compensation the above workman is entitled to?. 7. Learned Presiding Judge Labour Court-cum-Industrial Tribunal Dharamshala (H.P.) has held that petitioner had served in the month of December 2004 as well. As such it cannot be said that services of the petitioner were terminated w.e.f. November 2004. Learned Presiding Judge Labour Court-cum-Industrial Tribunal Dharamshala (H.P.) further held that Labour Court cannot travel beyond the terms of reference and learned Presiding Judge Labour Court-cum-Industrial Tribunal Dharamshala (H.P.) has held that petitioner is not entitled to any relief simply on the ground that wrong date of termination of service of petitioner was mentioned in reference. Learned Presiding Judge Labour Court-cum-Industrial Tribunal Dharamshala (H.P.) further held that facts of the case are not discussed because the same would be flogging a dead horse. Learned Presiding Judge Labour Court-cum-Industrial Tribunal Dharamshala (H.P.) further held that facts of the case are not discussed because the same would be flogging a dead horse. Court is of the opinion that petitioner was penalised for the fault of other public servant who had mentioned wrong date of termination of petitioner in reference sent to Presiding Judge Labour Court-cum-Industrial Tribunal Dharamshala (H.P.). Court is of the opinion that it is expedient in the ends of justice to set-aside the wrong reference sent by the appropriate Government relating to date of termination of petitioner. Court is of the opinion that it is expedient in the ends of justice to set-aside the order/award passed by learned Presiding Judge Labour Court-cum-Industrial Tribunal Dharamshala (H.P.) dated 18.05.2012 in the ends of justice on the concept of justice, equity and good conscience. 8. In view of the above stated facts civil writ petition is accepted. Order of learned Presiding Judge Labour Court-cum-Industrial Tribunal Dharamshala (H.P.) dated 18.05.2012 is set-aside and it is further ordered that learned Labour Commissioner Himachal Pradesh will send a fresh reference to the learned Presiding Judge Labour Court-cum-Industrial Tribunal Dharamshala (H.P.) within one month from the date of order such as "Whether termination of the services of Sh. Karam Singh s/o Sh. Raju in the month of December 2004 by Executive Engineer H.P.P.W.D.(B&R) Division Chamba Distt. Chamba (H.P.) and continuing the services of junior workmen as alleged by workman is proper and justified? If not what relief of service benefits including reinstatement and compensation the above workman is entitled to?" It is further ordered that thereafter learned Presiding Judge Labour Court-cum-Industrial Tribunal Dharamshala (H.P.) will dispose of the present case on merits within two months after the receipt of reference from appropriate Government. No order as to costs. CWP No. 5857/2012-F is disposed of. Pending application(s) if any also disposed of.