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2015 DIGILAW 499 (HP)

State of Himachal Pradesh v. Raman Kumar

2015-05-08

RAJIV SHARMA

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JUDGMENT : Rajiv Sharma, J. 1. This petition is instituted against the award dated 20.5.2013 rendered by the Presiding Judge, Labour Court-cum-Industrial Tribunal, Dharamshala in Reference No. 402/2009. "Key facts" necessary for the adjudication of this petition are that the respondent (hereinafter referred to as the "workman) was engaged on daily wage basis in the month of December, 1994. He was retrenched on 19.11.2000. He raised industrial dispute. The matter was referred to the Labour Court-cum-Industrial. Tribunal vide Reference No. 402/2009. Workman filed claim petition. According to him, he was retrenched without following the mandatory provisions of Industrial Disputes Act, 1947. Reply was filed by the employer. Issues were framed by the Labour Court-cum-Aw-Industrial of Tribunal on 2.6.2012. The reference was partly allowed in favour of the workman and his retrenchment was set aside and the respondents were directed to reinstate the petitioner vide award 20.5.2013 with continuity and seniority in service but without back wages with further direction to the respondents to regularize the workman. Hence, the present petition. 2. Mr. Parmod Thakur, learned Additional Advocate General, has vehemently argued that the workman has raised the industrial dispute belatedly. He then contended that the seniority could not be granted to the workman from the date of initial date of retrenchment, i.e. 19.11.2000. 3. Mr. Naresh Kaul, learned counsel for the workman, has supported the award dated 20.5.2013. 4. I have heard the learned counsel for the parties and have gone through the records carefully. 5. Workman has appeared as PW-1. He has led his evidence by way of affidavit Ex. PW-1/A. RW-1 L.S. Thakur has led his evidence by filing affidavit Ex. RW-1/A on behalf of employer. Seniority list of the category of workman is Ex. RW-1/D. Workman's name is at Sr. notice to Court the workman. Hem Raj and Smt. Biasa Devi were at Sr. No. 91 and 112 of the seniority list Ex. RW-No. 33 of the Seniority list. Two workmen, namely, Hem Raj and Smt. Biasa Devi as per seniority list Ex. RW-1/D have been re-engaged without issuing any engagement workmen junior to the workman at the time of his retrenchment on 19.11.2000, namely, Sodha Devi and 1/D, respectively. The employer has also retained Lata Devi. Sodha Devi was engaged on 19.11.1999 and Lata Devi was engaged on 1.5.2000. RW-1/D have been re-engaged without issuing any engagement workmen junior to the workman at the time of his retrenchment on 19.11.2000, namely, Sodha Devi and 1/D, respectively. The employer has also retained Lata Devi. Sodha Devi was engaged on 19.11.1999 and Lata Devi was engaged on 1.5.2000. Thus, the principles of "last come first go" have not been followed by the employer at the time of retrenchment of the workman on 19.11.2000. The workman has not been given any opportunity by issuing him re-engagement notice as provided under section 25-H of the Industrial Disputes Act, 1947. The employer has never challenged the reference made to the Labour Court-cum-Industrial Tribunal. Thus, the employer is estopped from challenging the reference made to the Labour Court-cum-Industrial Tribunal by way of this petition. Moreover, the question of delay and laches can be seen at the time of molding the relief. 6. Since the retrenchment of the petitioner was in violation of provisions of Industrial Disputes Act, 1947, learned Labour Court-Industrial Tribunal has rightly ordered his reinstatement without any back wages. There is neither any illegality nor any perversity in the award passed by the Labour Court whereby the workman has been held entitled to the continuity and seniority in service from the date of his illegal termination, i.e. 19.11.2000 with a further direction to consider the case of the workman for regularization as per the policies framed by the Government of Himachal Pradesh from time to time from the date persons junior to him have been regularized. 7. Their lordships' of the Hon'ble Supreme Court in the case of Raghubir Singh Vs. General Manager,Haryana Roadways, (2014) AIRSCW 5515 have held that the State Government can make the reference at any time. Their Lordships have held as under: "13. In the case on hand, no doubt of there is a delay in raising the dispute by the appellant; the Labour Court nevertheless has the power to mould the relief accordingly. At the time of adjudication, if the dispute referred to the Labour Court is not adjudicated by it, it does not mean that the dispute ceases to exist. The appropriate government in exercise of its statutory power under Section 10(1)(c) of the Act can refer the industrial dispute, between the parties, at any time, to either the jurisdictional Labour Court/Industrial Tribunal as interpreted by this Court in the Avon Services case referred to supra. The appropriate government in exercise of its statutory power under Section 10(1)(c) of the Act can refer the industrial dispute, between the parties, at any time, to either the jurisdictional Labour Court/Industrial Tribunal as interpreted by this Court in the Avon Services case referred to supra. Therefore, the State Government has rightly exercised its power under Section 10(1)(c) of the Act and referred the points of dispute to the Labour Court as the same are in accordance with the law laid down by this Court in Avon Services and Sapan Kumar Pandit cases referred to supra. 14. Further, the workman cannot be denied to seek relief only on the ground of delay in raising the dispute as held in the case of S.M. Nilajkar and Others Vs. Telecom, District Manager, Karnataka, AIR 2003 SC 3553 it was held by this Court as follows: "77. It was submitted on behalf of the respondent that on account of delay in raising the dispute by the appellants the High Court was justified in denying relief to the appellants. We cannot agree......In Ratan Chandra Sammanta and others Vs. Union of India and others, AIR 1993 SC 2276 , it was held that a casual labourer retrenched by the employer deprives himself of remedy available in law by delay itself, lapse of time results in losing the remedy and the right as well. The delay would certainly be fatal if it has resulted in material evidence relevant to adjudication being lost and rendered not available. However, we do not think that the delay in the case at hand has been so culpable as to disentitle the appellants for any relief....." (Emphasis laid by the Court) 14.1. In view of the legal principles laid down by this Court in the above judgment, the reference of the industrial dispute made in the case on hand by the State Government to the Labour Court to adjudicate the existing industrial dispute of reasonable time, between the parties was made within a considering the circumstances in which the workman was placed, firstly, as there was a criminal case pending against him and secondly, the respondent had assured the workman that he would be reinstated after his acquittal from the criminal case. Moreover, it is reasonable to adjudicate the industrial dispute in spite of the delay in raising and referring the matter, since there is no mention of any loss or unavailability of material evidence due to the delay. Thus, we do not consider the delay in raising the industrial dispute and referring the same to the Labour Court for adjudication as gravely erroneous and it does not debar the workman from claiming rightful relief from his employer. 42. It is an undisputed fact that the dispute was raised by the workman after he was acquitted in the criminal case which was initiated at the instance of the respondent. Raising the industrial dispute belatedly and getting the same referred from the State Government to the Labour Court is for justifiable reason and the same is supported by law laid down by this Court in Calcutta Dock Labour Board (supra). Even assuming for the sake of the argument that there was a certain delay and latches on the part of the workman in raising the industrial dispute and getting the same referenced for adjudication, the Labour Court is statutorily duty bound to answer the points of dispute referred to it by adjudicating the same on merits of the case and it ought to have moulded the relief appropriately in favour of the workman. That has not been done at all by the Labour Court. Both the learned single Judge as well as the Division Bench of the High Court in its Civil Writ Petition and the Letters Patent Appeal have failed to consider this important aspect of the matter. Therefore, we are of the view that the order of termination passed by the respondent, the award passed by the Labour Court and the judgment and order of the High Court are liable to be set aside. When we arrive at the aforesaid conclusion, the next aspect is whether the workman is entitled for reinstatement, back wages and consequential benefits. We are of the view that the workman must be reinstated. When we arrive at the aforesaid conclusion, the next aspect is whether the workman is entitled for reinstatement, back wages and consequential benefits. We are of the view that the workman must be reinstated. However, due to delay in raising the industrial dispute, and getting it referred to the Labour Court from the State Government, the workman will be entitled in law for back wages and other consequential benefits from the date of raising the industrial dispute i.e. from 02.03.2005 till reinstatement with all consequential benefits." Accordingly, in view of analysis and discussion made hereinabove, there is no merit in the present petition and the same is dismissed. Pending applications, if any, also stands disposed of. No costs.