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2015 DIGILAW 1266 (HP)

State of Himachal Pradesh v. Surinder Singh

2015-09-09

P.S.RANA

body2015
ORDER P.S.Rana. 1. Present civil writ petition is filed under Article 226 of Constitution of India against the award passed by Presiding Judge Labour Court-cum-Industrial Tribunal Dharamshala District Kangra HP in reference No. 374/2009 titled Surinder Singh Vs. Executive Engineer I&PH Division Dalhousie District Chamba HP. BRIEF FACTS OF THE CASE: 2. Sh Surinder Singh non petitioner was working on daily wages basis in Executive Engineer I&PH Division Dalhousie District Chamba HP w.e.f. June 1994 to 19.11.2000. Non-petitioner Surinder Singh had worked for 330 days in 1995, 366 days in 1996, 365 days in 1997, 359 days in 1998, 363 days in 1999 and 241 days in 2000. Dueto shortage of funds and work in the Division and due to huge financial crisis services of 363 workmen were terminated along with non petitioner Surinder Singh. Notice under Section 25F of Industrial Disputes Act 1947 was issued to Surinder Singh and other similarly situated workmen and compensation of retrenchment was paid to the tune of Rs.4590/- (Four thousand five hundred ninety). 3. Thereafter reference No. 374 of 2009 was sent to Presiding Judge Labour Court-cum-Industrial Tribunal Dharamshala District kangra HP who passed the award. Presiding Judge Labour Court-cum-Industrial Tribunal Dharamshala District Kangra HP directed Executive Engineer I&PH Division Dalhousie District Chamba HP to re-engage the service of Surinder Singh forthwith. Presiding Judge Labour Court-cum-Industrial Tribunal Dharamshala District Kangra HP further held that Surinder Singh would be entitled to the continuity and seniority in service from the date of his illegal termination i.e. 19.11.2000 except back wages. Presiding Judge Labour Court-cum-Industrial Tribunal Dharamshala District Kangra HP further directed Executive Engineer IPH Division Dalhousie District Chamba HP to consider the case of Surinder Singh for regularization of his service as per policies framed by government of Himachal Pradesh from time to time. Presiding Judge Labour Court-cum-Industrial Tribunal Dharmshala District Kangra HP further directed that if the services of any person junior to Surinder Singh have been regularized then Surinder Singh would be entitled to the regularization from the date/month of the regularization of the services of his juniors. 4. Feeling aggrieved against the award passed by Presiding Judge Labour Court-cum-Industrial Tribunal Dharmshala State of HP filed present civil writ petition. 5. Court heard learned Additional Advocate General appearing on behalf of the petitioners and learned counsel appearing on behalf of non-petitioner and also perused entire record carefully. 6. 4. Feeling aggrieved against the award passed by Presiding Judge Labour Court-cum-Industrial Tribunal Dharmshala State of HP filed present civil writ petition. 5. Court heard learned Additional Advocate General appearing on behalf of the petitioners and learned counsel appearing on behalf of non-petitioner and also perused entire record carefully. 6. Following points arise for determination in present civil writ petition:. 1. Whether civil writ petition is liable to be accepted as mentioned in memorandum of grounds of civil writ petition. 2. Final Order. Reasons for findings. Point No.1. 7. Submission of learned Additional Advocate General appearing on behalf of petitioners that Labour Court did not keep into consideration ruling given by Hon’ble Apex Court of India reported in 1994 Supp (2) SCC 316 titled Mool Raj Upadhyaya Vs. State of HP and others and on this ground civil writ petition be accepted is rejected being devoid of any force for the reasons hereinafter mentioned. Court has carefully perused the ruling given by Hon’ble Apex Court of India cited supra. Hon’ble Apex Court of India did not hold in case cited supra that junior employee would be placed senior to senior employee in public appointments retrenched under section 25G of Industrial Disputes Act 1947. In the present case it is proved on record that service of Surinder Singh non-petitioner was retrenched and petitioners were under legal obligation to strictly comply provision of Sections 25G and 25H of the Industrial Disputes Act 1947. Section 25G of the Industrial Disputes Act 1947 deals with procedure for retrenchment and section 25H deals with re-employment of retrenched workmen. In the present case Sh L.S.Thakur Executive Engineer IPH Division Dalhousie District Chamba HP had appeared in witness box in person and had stated in positive manner that services of Smt. Biasa Devi and Sh Hem Raj were reengaged. Smt. Biasa Devi and Sh Hem Raj were juniors to Surinder Singh. Section 25H of Industrial Disputes Act 1947 is quoted in toto. “25H Re-employment of retrenched workmen— Where any workmen are retrenched and the employer proposes to take into his employ any persons he shall in such manner as may be prescribed give an opportunity to the retrenched workmen who are citizens of India to offer themselves for re-employment and such retrenched workmen who offer themselves for re-employment shall have preference over other persons”. In the present case it is not proved on record that offer was given to Surinder Singh for re-employment as provided under Section 25H of Industrial Disputes Act 1947. It is held that word ‘shall’ used in Section 25H is mandatory in nature and not directory in nature. Facts of the present case and facts of the case reported in 1994 Supp (2) SCC 316 titled Mool Raj Upadhyaya Vs. State of HP and others are different. In the present case matter in dispute is relating to re-employment of retrenched employee but in Mool Raj Upadhyaya case supra the matter was relating to employee employed on daily wages in Irrigation and Public Health department and matter was not relating to retrenched employee. The matter in Mool Raj Upadhyaya case supra was on the concept of equal pay for equal work and for regularization of their services but in the present case the case of non-petitioner Surinder Singh will be governed under Section 25H of Industrial Disputes Act 1947. As per Annexure P-V placed on record issued by Executive Engineer it is proved that Sh Surinder Singh had worked more than 240 days continuously in the years 1995, 1996, 1997, 1998, 1999 and 2000. Annexure P-V placed on record is issued by public servant in discharging of official duty and is relevant fact under Section 35 of Indian Evidence Act 1872. 8. Submission of learned Additional Advocate General appearing on behalf of petitioners that claim petition of Surinder Singh was time barred and on this ground civil writ petition be accepted is also rejected being devoid of any force for the reasons hereinafter mentioned. It is proved on record that reference was sent to Labour Court by Labour Commissioner in the present case under Section 12(5) of the Industrial Disputes Act 1947 and thereafter Labour Court had passed the award in favour of Surinder Singh. It was held in case reported in 2015 (4) SCC 458 titled Jasmer Singh Vs. State of Haryana and others that provisions of Article 137 of Limitation Act 1963 would not be applicable to Industrial Disputes Act 1947. It was held that relief would not be denied to workman merely on the ground of delay. Also see 2014 (10) SCC 301 titled Raghuvir Vs. G.M. Haryana Roadways Hissar. State of Haryana and others that provisions of Article 137 of Limitation Act 1963 would not be applicable to Industrial Disputes Act 1947. It was held that relief would not be denied to workman merely on the ground of delay. Also see 2014 (10) SCC 301 titled Raghuvir Vs. G.M. Haryana Roadways Hissar. It was held in case reported in AIR 1987 SC 1353 titled Collector Land Acquisition Anantnag and another Vs. Mst. Katji and others that (1) Ordinarily a litigant does not stand to benefit by lodging matter late. (2) Refusing to condone delay can result meritorious matter thrown out at the very threshold and cause of justice defeated. It was held that if delay is condoned then highest that would happen would that case would be decided on merits after hearing the parties. (3) It was held that every day’s delay must be explained does not mean that a pedantic approach should be made. It was further held that doctrine must be applied in a rational common sense. (4) It was held that when substantial justice and technical considerations are pitted against each other then cause of substantial justice deserves to be preferred. (5) It was held that there is no presumption that delay is occasioned deliberately or on account of culpable negligence or on account of mala fides. It was held that litigant does not stand to benefit by resorting to delay and in fact he runs a serious risk. (6) It was held that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and isexpected to do so. Point No.1 is decided against petitioners. Final Order Point No.2. 9. In view of above stated facts and case law cited supra civil writ petition filed under Article 226 of the Constitution of India is dismissed. Award announced by Presiding Judge Labour Court-cum-Industrial Tribunal Dharamshala District Kangra HP on 20.5.2013 is affirmed. Civil writ petition is disposed of. No order as to costs. Pending application(s) if any also stands disposed of.