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2015 DIGILAW 1476 (HP)

State of H. P. v. Gagan Singh

2015-10-09

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. 1. The challenge herein is to the award dated 30.12.2011 passed by learned Presiding Judge, Industrial Tribunal-cum-Labour Court, Dharamshala in reference No. 542/2008, directing thereby the petitioner-department, (respondents before the learned Labour Court) to re-engage the respondent-workman as Beldar forthwith with seniority and continuity in service from the date other retrenched workers were re-engaged. As per the undisputed facts, respondent-workman was engaged as Beldar on wage basis in the month of July 1998 by the writ petitioner-respondent No. 2, Executive Engineer, HPPWD Division, Dharampur, District Mandi. He continued as such till 30.9.1999. His services were dispensed with on and w.e.f. 1.10.1999. Before that he had completed 240 days during 12 months preceding his retrenchment. He, therefore, raised the dispute within the meaning of "The Industrial Disputes Act", which was referred to the learned Labour Court. 2. The stand of the petitioners-Department herein before the learned Labour Court was that the respondent-workman has abandoned the job at his own and his services were never dis-engaged. 3. In view of the pleadings of the parties, learned Labour Court has framed following issues:- 1. Whether the termination of services of the petitioner by the respondent is unlawful. If so, what relief the petitioner is entitled to? OPP. 2. Whether the claim petition is not maintainable, as alleged OPR. 3. Whether the petition suffers from the vice of delay and latches? OPR 4. Whether the petitioner is guilty of suppressioveri? 5. Whether the petitioner is estopped from filing the claim petition by his act and conduct? OPR 6. Relief 4. After taking on record the evidence and hearing the parties on both sides, reference was answered in favour of the respondent-workman, as pointed out at the very outset. 5. The challenge to the impugned award is on the grounds, inter alia, that the dispute having been raised after a period over 7 years being stale could not have been entertained and referred to learned Labour Court for adjudication in terms of the law laid down by this Court in CWP No. 9440/2012, titled Babu Ram v. State of H.P., CWP No. 1486/2007, titled Liak Ram v. State and CWP No. 4461/2013, titled Bhagat Ram v. State. Also that, the learned Labour Court has failed to appreciate the plea of the petitioners-Department qua abandonment of job by respondent-workman himself and that his services were never dispensed with. Also that, the learned Labour Court has failed to appreciate the plea of the petitioners-Department qua abandonment of job by respondent-workman himself and that his services were never dispensed with. The findings recorded by the learned. Labour Court are, therefore, stated to be contrary to the factual position. 6. Having gone through the record and also the submissions made by learned Additional Advocate General and learned counsel representing the respondent-workman, it would not be improper to conclude that the learned Labour Court has not committed any illegality or irregularity in answering the reference in favour of the respondent-workman for the reason that the plea of abandonment of work raised by the Department is not at all established on record. Though copies of muster rolls, Ext. RW1/B and Ext. RW1/C have been produced in evidence, however, the same cannot be relied upon to arrive at a conclusion that it is the respondent-workman, who himself has abandoned the work. On the other hand, the respondent-workman vide Mark A to Mark E, the certificates of posting, has made correspondence with petitioner No. 2 herein. Though the copies of such correspondence has not been produced in evidence, however, the certificate of posting leads to the only conclusion that he has made the representation against the retrenchment with a prayer to re-engage him. The first certificate of posting, i.e. Mark A is dated 4.12.1999. Since the services of respondent- workman were dispensed with on and w.e.f. 1.10.1999, therefore, the first representation made on 4.12.1999 amply demonstrates that he has not abandoned the work, however, his services were dispensed with. 7. So far as the stand of the petitioner-Department that the dispute as raised was stale is not sustainable in view of the judgment of the Hon'ble Apex Court in Raghubir Singh vs. General Manager, Haryana Roadways, 2014 AIR SCW 5515, which has also been relied upon by the Division Bench of this Court in CWP No. 6687 of 2014, decided on 24.9.2014. 8. There is no quarrel so as to the petitioners-Department having retained the juniors in service and even re-engaged fresh hands also after the retrenchment of the respondent-workman. The present, therefore, is a case of violation of the principles of "First Come Last Go" as enshrined under Sections 25(g) and 25(h) of the Industrial Disputes Act. 8. There is no quarrel so as to the petitioners-Department having retained the juniors in service and even re-engaged fresh hands also after the retrenchment of the respondent-workman. The present, therefore, is a case of violation of the principles of "First Come Last Go" as enshrined under Sections 25(g) and 25(h) of the Industrial Disputes Act. Therefore, when the juniors have been retained and even fresh hands were also engaged, the learned Labour Court has not committed any illegality or irregularity while directing the petitioner-Department to reengage him as Beldar with continuity in service and seniority from 2005. 9. It is painful to point out that the petitioners-Department instead of re-engaging the respondent a poor workman in the employment has filed this petition after a period over three years from the date of award and dragged in this litigation. The petition, therefore, being without any merit is dismissed. There will be a direction to the petitioner- Department to re-engage the respondent-workman now without any further loss of time i.e. within two weeks from the date of production of this judgment by him before petitioner No. 2. Right of the respondent-workman qua back wages from the date of the award is left open to be agitated before appropriate Forum in accordance with law. The writ petition is accordingly disposed of so also the pending applications, if any.