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Himachal Pradesh High Court · body

2016 DIGILAW 1405 (HP)

Kirpa Ram v. Managing Director

2016-07-15

SANDEEP SHARMA

body2016
JUDGMENT : Sandeep Sharma, J. 1. By way of present writ petition filed under Article 226 of the Constitution of India, petitioner has laid challenge to the award dated 3.11.2008, passed by learned Presiding Judge, Industrial Tribunal-Cum-Labour Court, Shimla, whereby claim of the petitioner has been dismissed. 2. Briefly stated facts, as emerged from the record are that petitioner was initially engaged as Chowkidar on daily wages basis with the respondents-Department in the year, 1987 and as such, he continued to work with the respondents-Department till December, 1993, when his services were orally terminated by the respondents. As per petitioner, he had completed 240 days in each calendar year and no notice whatsoever, under Section 25-F of the Industrial Disputes Act (for short ‘Act’) was issued to him at the time of his illegal retrenchment by the respondent-Department. Petitioner also alleged that persons juniors to him were retained by the respondents at the time of his retrenchment in violation of the principles of “last come first go” and thus the respondents have acted in violation of provisions of Sections 25-B, 25-F and 25-G of Act and as such, prayed that his termination deserves to be quashed and set-aside by holding him entitled for reinstatement with consequential benefits. 3. Petitioner being aggrieved with his termination approached the Labour and Conciliation Officer, Shimla who started conciliation proceedings between the petitioner and the respondent, however, no conciliation whatsoever, took place between the parties. In view of failure of the conciliation proceedings, Labour Commissioner, Himachal Pradesh made reference to the learned Labour Court vide letter dated 25th August, 2002 for adjudication of dispute under Section 12(4) of Industrial Disputes Act. The Labour Commissioner while referring the matter to the Labour Court made following reference to the learned Industrial Tribunal-cum-Labour Court for adjudication:- “Whether the termination of Shri Kirpa Ram son of Sh. Bhajanu, by the Divisional Manager, H.P. State Forest Corporation Forest Division Chopal, District Shimla, after 31.12.1993 without complying with Sections 25-F, 25-N of the Industrial Disputes Act, 1947 was proper and justified? If not the to what seniority service benefits Sh. Kirpa Ram is entitled to? 4. Petitioner by way of claim petition filed before the Labour Court, Shimla claimed that he was engaged on daily wages basis in August, 1987 with the Divisional Manager, Forest Working Division Chopal, (presently at Nerwa). If not the to what seniority service benefits Sh. Kirpa Ram is entitled to? 4. Petitioner by way of claim petition filed before the Labour Court, Shimla claimed that he was engaged on daily wages basis in August, 1987 with the Divisional Manager, Forest Working Division Chopal, (presently at Nerwa). He further claimed that he worked at Rewashati, working place Kundrali continuously till 31st December, 1993, on which date, his services were terminated by the respondent Forest Corporation orally by stating that his services were no more required due to non availability of work. He also stated that at the time of his retrenchment, junior persons were allowed to continue working in the same Division and they have been given all kind of benefits in terms of the policy framed by the State of Himachal Pradesh. He also indicated names of Liaq Ram and Mohi Pal in the claim petition to substantiate his plea that persons juniors to him were retained by the respondents at the time of his oral retrenchment. He also contended that since he had completed 240 days in each calendar year during his services between August, 1987 to December, 1993, respondents were under obligation to issue him notice under Sections 25-B, 25-F, 25-G and 25-H of the Act at the time of his retrenchment and as such, action of the respondent department in terminating his services orally deserves to be quashed and set-aside being in violation of the provisions of the Act as referred hereinabove. 5. Petitioner also contended in the claim petition that action of the employers in orally terminating the services of the petitioner and retaining junior persons clearly violates the principles of “Last Come First Go” and as such, same deserves to be rectified in accordance with law. The petitioner categorically stated in the claim petition that since respondents employers acted in violation of provisions of sections 25-B, 25-F, 25-G and 25-H of the Industrial Disputes Act, 1947 while orally terminating his services, he deserves to be reinstated in service with all consequential benefits. It also averred in the petition that despite several requests made by him seeking reemployment, no steps whatsoever, were taken by the respondent-department to reinstate the petitioner, whereas persons juniors to him were retained in the services and as such, he was compelled to raise the Industrial Disputes before Labour Court. It also averred in the petition that despite several requests made by him seeking reemployment, no steps whatsoever, were taken by the respondent-department to reinstate the petitioner, whereas persons juniors to him were retained in the services and as such, he was compelled to raise the Industrial Disputes before Labour Court. It is also claimed in the petition that the respondents at the time of terminating his services orally also failed to pay salary in lieu of notice as required under Section 25-F. Similarly, no retrenchment compensation was also paid to him at the time of terminating his services by the respondents. It is also contended on behalf of the petitioner that at the time of termination his services, he was informed since there is no work available with the departments, he cannot be allowed to continue, whereas after retrenchment, respondent recruited fresh hands and he at no point of time offer was made to the petitioner for the employment with respondent department. 6. Records further reveals that the respondent by way of filing reply resisted the claim put forth on behalf of the petitioner. Respondents by way of detailed reply stated that petitioner was initially engaged in Forest Working Division, Chopal on daily wages basis in August, 1987 and after creation of new Division at Nerwa, his services were engaged in forest working division, Nerwa, where he remained upto 13.3.1993. However, respondent categorically stated that his services were never terminated orally rather he abandoned the job of his own on 24.11.1993. It is also submitted in the reply that since there was no work available with the respondent department and staff was surplus and decision was taken to retrench the services of surplus staff. Accordingly, on 25.11.1993 some surplus daily wagers including petitioner from Forest Working Division, Nerwa were retrenched due to heavy reduction of work load and in this process notice under Section 25-F of the Industrial Disputes Act was also served upon the petitioner, who was also retrenched alongwith other persons. As per respondent, due and admissible retrenchment compensation of one month was also paid to the petitioner amounting to Rs. 3102/- vide cheque No. 266905, dated 25.2.1993. The allegation with regard to retention of juniors in Forest Working Division, Nerwa, alleged by the petitioner was also refuted by the respondents. As per respondent, due and admissible retrenchment compensation of one month was also paid to the petitioner amounting to Rs. 3102/- vide cheque No. 266905, dated 25.2.1993. The allegation with regard to retention of juniors in Forest Working Division, Nerwa, alleged by the petitioner was also refuted by the respondents. Respondents also stated that notice under section 25-F of the Industrial Dispute Act was issued to the petitioner at the time of retrenchment him from his services. Hence, contention put forth on behalf of the petitioner that he was orally terminated is contrary to the record and cannot be accepted. The respondents also stated that while issuing the order of retrenchment of daily surplus wager, principles of “First Come And Last Go” was strictly adheard and no juniors whatsoever, were retained by the department. It is also contended on behalf of the respondents that the seniority of daily wagers were being maintained properly and as such, prayed for the dismissal of the claim petition. 7. Learned Labour Court on the basis of pleadings available on record framed the following issues:- 1. Whether the retrenchment of petitioner by respondent No. 2 w.e.f.31.12.1993 is violative of Section 25-F, 25-N, 25-G and 25-H of the Industrial Disputes Act, 1947? OPP. 2. Whether the petitioner left the job on his own and if so, its effect? OPR 3. Relief: 8. The learned Labour Court vide order dated 3.11.2008 dismissed the claim petition and answered the reference in negative. 9. Being aggrieved and dissatisfied with the passing of the award dated 3.11.2008, present petitioner approached this Court by way of present petition and in the aforesaid background prayed therein for quashing of the award as referred hereinabove. 10. Mr. Neel Kamal Sood, learned counsel representing the petitioner vehemently argued that the impugned award dated 3.11.2008, passed by learned Labour Court is not sustainable as the same is not based upon correct appreciation of the evidence adduced on record by the petitioner. He forcibly contended that bare perusal of the award suggest that the learned Labour Court while rejecting the claim of the petitioner has not appreciated the evidence available on record in its right perspective and has simply relied upon the stand of the respondent, which was not supported by any documentary evidence and as such, award passed by learned Labour Court deserve to be quashed and set aside. It is also contended on behalf of the petitioner that the petitioner in his claim had specifically mentioned the names of two persons i.e. Laiq Ram son of Sh. Kanshi Ram and Mohi Ram, who being juniors of the petitioner were working in the forest Division, Nerwa at the time of his retrenchment but learned Labour Court below did not deem it necessary to examine the matter from that angle. Mr. Sood, learned counsel vehemently argued that once factum of junior was brought to the notice of the Labour Court, it was incumbent upon the learned tribunal to summon the persons named in the petition so that correctness and genuineness of the assertion made in the claim petition could be ascertained. During arguments, having been made by him, he made this Court to travel through the documents annexed with the writ petition as well as reply filed by the respondents to demonstrate that plea taken by the petitioner with regard to retentions of juniors at the time of his oral retrenchment was not appreciated at all by the tribunal, rather the same was brushed aside solely on the basis of averments contained in the reply filed by the respondents-department. 11. Mr. Sood, strenuously argued that no documents whatsoever, was placed on record by the respondents- Department to substantiate that there was sufficient compliance of Sections 25-F, 25-G and 25-N of Industrial Dispute Act, 1947 and as such, learned Industrial Tribunal has fallen in grave error while accepting the contention put forth on behalf of the respondents and rejecting the claim of the petitioner. Mr. Sood, also invited the attention of the Court to the grounds taken in the present petition, specifically ground-D, wherein petitioner on the basis of information procured by him under RTI Act, has placed on record the details of 16 daily wagers of the same working Division, Chopal, to demonstrate that persons junior of petitioner were retained by the respondents at the time of his retrenchment in the year, 1993. Mr. Mr. Sood, also stated that perusal of detail furnished in clause (d) of grounds taken in the petition, clearly suggest that persons junior to him, who were retained at the time of his retrenchment are still working in the Forest Division, Chopal, and as such, great injustice has been caused to the petitioner, who was admittedly appointed prior to the persons junior retained in the services by the respondents department. Lastly, Mr. Sood forcibly argued that order/judgment of learned Labour Court is merely based on the averments contained in the reply filed by the respondents, which was admittedly not supported by any documentary evidence, whereas learned Tribunal while dismissing the claim of the petitioner has ignored the legitimate claim and plea of the petitioner and as such, award dated 3.11.2008 deserve to be quashed and set-aside. 12. Mr. Rupinder Singh Thakur, Additional Advocate General, supported the impugned award dated 3.11.2008, passed by learned Labour Court, Shimla. Mr. Thakur, forcibly contended that bare perusal of the award suggest that no interference, whatsoever, of this Court is warranted in the present case and the impugned award passed by learned Tribunal, which is based upon correct appreciation of evidence available on record deserves to be upheld. Mr. Thakur, while supporting the award passed by learned Tribunal vehemently argued that it stands duly proved on record that after 13.3.1999 petitioner left the job of his own will and remained out of service upto 24.11.1993 and in view of this it cannot be accepted that the petitioner remained in the service with the respondent Department continuously w.e.f. August, 1997 till 24.11.1993. Mr. Thakur also stated that on 25.11.1993 services of the petitioner were retrenched along with other surplus daily wagers from the Forest Working Division, Nerwa and all the codal formalities required under the Industrial Dispute Act were duly complied with at the time of retrenchment of the petitioner. He also stated that due and admissible retrenchment compensation amounting to Rs. 3102/- was duly paid to the petitioner vide cheque No. 286905, dated 25.11.1993 and as such, it cannot be said that at the time of retrenchment of the services of the petitioner, provisions contained in the Industrial Disputes Act were not complied with. He also stated that due and admissible retrenchment compensation amounting to Rs. 3102/- was duly paid to the petitioner vide cheque No. 286905, dated 25.11.1993 and as such, it cannot be said that at the time of retrenchment of the services of the petitioner, provisions contained in the Industrial Disputes Act were not complied with. He also stated that no persons junior from petitioner were retained at the time of his retrenchment, rather entire surplus staff including the petitioner was retrenched on 25.11.1993 because there was no work available in its Forest Working Division, Nerwa. Lastly, Mr. Thakur, contended that the averments contained in para (d) of the grounds of the petition cannot be looked into at this stage by this Court because admittedly this information was never available to the learned labor Court at the time of passing award and as such, it cannot be said that the plea raised on behalf of the petitioner with regard to retrenchment of the juniors was ignored by the learned tribunal at the time of rejecting the claim of the petitioner. 13. I have heard the learned counsel for the parties and have gone through the record carefully. 14. Careful perusal of the facts discussed hereinabove, clearly suggest that the petitioner was appointed as Chowkidar in August, 1987 in Rewashati Block and he continued to work as such, till 1993 when his services were allegedly terminated by the respondent. Respondents in their reply have admitted that the petitioner was engaged in Forest Working Division on daily wages basis in August, 1987, where he continuously worked till March, 1993. However, bare perusal of the reply filed by the respondents clearly suggest that respondents department has taken contradictory stands in the reply. At one hand, it has been stated that the petitioner continued to work as daily wager basis in the Forest Department from August, 1987 up to 13.3.1993 and thereafter he left the job at his own volition on 24.11.1993 and in same breath it has been stated that on 25.11.1993 his services were retrenched alongwith other surplus daily wagers from Forest Working Division, Nerwa. It is not understood that how the services of person, who himself had abandoned the job on 13th March, 1993 could be later-on retrenched by the respondent-Department on 25.11.1993 alongwith other surplus daily wager. 15. It is not understood that how the services of person, who himself had abandoned the job on 13th March, 1993 could be later-on retrenched by the respondent-Department on 25.11.1993 alongwith other surplus daily wager. 15. Factum with regard to completion of 240 days in each calendar year from 1987 to 1993 has also not disputed by the respondents, rather stand has been taken that at the time of retrenchment of services of the petitioner on 25.11.1993, he was issued notice under section 25-F of the Act and in this regard respondents examined one Sh. Rajesh Acharya, Divisional Manager, Forest Working Division, Chopal, who stated that the petitioner was engaged as daily wager Chowkidar in July, 1987, where he remained till March, 1989 and thereafter he was transferred to Nerwa. He also stated that the petitioner abandoned the job on 13.3.1999 and remained absent till 25.11.1993. He also stated that on 25.11.1993 the petitioner was retrenched alongwith other surplus staff of the corporation as the work of the corporation was reduced and in this regard he placed on record notice issued under Section 25-F to the petitioner at the time of his retrenchment i.e. Ex.RA. Similarly with a view to prove that due and admissible retrenchment compensation in terms of Section 25-N was paid to the petitioner, he also placed on record Ex.RB. Aforesaid Sh. Rajesh Acharya, also stated that there was no work available at present in the Forest Working Division, Nerwa and no person as named by the petitioner were retained in the Division at the time of retrenchment of the petitoner. After perusing Ex.RA and Ex.RB, it stands clearly established on record that at the time of retrenchment on 25.11.1993, petitioner was issued notice under section 25-F and he was also paid compensation in terms of Section 25-F and as such plea of the petitioner that the provisions of section 25-F and 25-N were not complied with at the time of his retrenchment deserves to be rejected out rightly. As far as retention of juniors at the time retrenchment on 25.11.1993 is concerned, this Court while perusing the documents available on record was unable to lay its hand to any document led on record by the petitioner suggestive of the fact that the persons junior to him were retained by the respondent-department at the time of his retrenchment and as such, no fault whatsoever, can be found with the impugned award, passed by learned Industrial Tribunal. Since, no positive evidence, whatsoever, with regard to violation of Section 25-F was led on record by the petitioner, there is no occasion whatsoever, for learned Tribunal to disbelieve the version put forth on behalf of the petitioner where they categorically stated that at the time retrenchment of his services, no persons junior to petitioner were retained. 16. Though, perusal of clause (d) of the grounds taken in the writ petition suggest that at the time of retrenchment of the petitioner in the year, 1993 persons junior to him were retained by the respondents in the same forest working Division but admittedly this information which was procured by the petitioner under RTI Act at later point of time was never made available to the learned Industrial Tribunal at the time of making award and as such, it cannot be held that the learned Industrial Tribunal failed to appreciate the contention put forth on behalf of the petitioner with regard to the retention of the junior persons. 17. But perusal of the details, given in the clause (d) of the grounds taken in the petition clearly suggest that persons junior to the petitioner were retained by the respondent department at the time of his retrenchment. Respondents by way of reply to the present writ petition has admitted that the daily wagers, who were working with the Forest Working Division, Nerwa indicated by the petitioner were reengaged and regularized on notional basis by the respondents corporation. However, respondents have stated that the daily wagers, who were working with the Forest Working Division, Nerwa approached the Learned Labour Court and Hon’ble High Court after their retrenchment and after passing of the judgment dated 20.9.2004 in CWP No. 596/1998, they were reengaged and regularized on notional basis by the respondents corporation strictly in terms of the order passed by the Court. Respondents have also stated that since petitioner himself abandoned the job and did not approach the Labour Court along with other daily wagers, no benefits whatsoever, can be granted to him at this stage. It would be profitable to reproduce specific reply filed by the respondents to the averments contained in clause (d) and (e) of the grounds taken in the petition:- “D. That in reply to this sub-para it is submitted that it is true that petitioner had obtained information under RTI Act. It is pertinent to mention here that the daily wagers who were working with the Forest Working Division, Nerwa (later-on which was merged into the forest working division Chopal due to reduction of work in FWD Nerwa) tabulated by the petitioner approached the learned Labour Court and then the Hon’ble High Court against their retrenchment and it was upon the outcome of decision in CWP No. 596/98 and 9 other similar nature cases the services of these daily wagers were reengaged and regularized on notional basis by the respondent’s corporation. It is further submitted here that as the petitioner has himself abandoned the job as such he did not approach the learned Labour Court along with other retrenched daily wagers. E. That in reply to this sub-para it is submitted that petitioner was engaged as daily wager chowkidar in July, 1987 and after creation of new division at Nerwa, the services of the petitioner was engaged in forest working division Nerwa. In the year, 2003, Nerwa working division was merged in Chopal Division due to heavy reduction of work load. The persons tabulated in this sub-para were engaged in FWD, Chopal whereas the petitioner was engaged in FWD, Nerwa. However, one Sh. Baijnath shown at last was engaged in Nerwa Division during 1984 instead 1989. The seniority lists of daily wagers at working divisions are being maintained separately. Hence, the contention as raised by the petitioner that juniors as shown in this sub-para are retained by the respondent’s is baseless.” 18. Careful perusal of the averments contained in the aforesaid para of the reply filed by the respondents clearly suggest that the persons junior to the petitioner were retained by the Forest Working Division, Nerwa, rather their services were regularized on notional basis by the respondents-Corporation strictly in terms of the judgment passed by the Hon’ble High Court in CWP No. 596/1998. Though, respondents have stated that the petitioner himself abandoned the job and he did not approach the Labour Court alongwith retained daily wagers, this plea may not be available to the respondents solely for the reasons respondents have taken contradictory stand by stating that the petitioner had abandoned the job of his own will on 13.3.1993 but in the same breath it has been stated that his services were retrenched on 25.11.1993 alongwith other surplus daily wagers, meaning thereby that the petitioner was continuously in service till 25.11.1993. Hence, contention put forth on behalf of the respondents cannot be accepted at all. But despite above fact remains that the petitioner was unable to place on record any record worth the name suggestive of the fact that persons junior to him were retained by the respondent corporation at the time of his retrenchment before the learned industrial tribunal. In the given facts and circumstances learned tribunal was right in holding that there was no violation of Section 25-G of the Industrial Tribunal Act and as such, after perusing the award in its entirety, this Court does not see any illegality and infirmity in the impugned award passed by the learned Labour Court. 19. However, after noticing the averments contained in ground (d) of the writ petition as well as reply filed by the respondents, this court solely with a view to ascertain the genuineness and correctness of the averments contained in the writ petition called for the records of CWP No. 596/1998. Careful perusal of the judgment dated , 20.9.2004, passed by this Court in above referred CWP, suggest that similar situate person, whose service were also retrenched by the respondent approached Labour Court and thereafter Hon’ble High Court and ultimately direction was issued to the respondents to re-engage them. 20. It also emerge from the reply of the respondents that in terms of the judgment passed by this Court in CWP No. 596 of 1998, workmen/ persons referred above were taken back in service and regularized with the passage of time by the respondent corporation on notional basis. It is also a fact that at that time the petitioner did not approach the Labour Court alongwith those persons but that cannot be a ground for the respondents to deny the rightful claim of the petitioner. 21. It is also a fact that at that time the petitioner did not approach the Labour Court alongwith those persons but that cannot be a ground for the respondents to deny the rightful claim of the petitioner. 21. Consequently, in view of the aforesaid discussion, this Court while upholding the award passed by learned tribunal deems it fit to direct the respondents to consider the case of the petitioner in the light of the judgments passed by Hon’ble High Court in CWP No. 596 of 1998 within a period of two months from the passing of the judgment and grant him due and admission relief as has been granted to the similar situate person vide judgment dated 20.9.2004 in CWP No. 596 of 1998. Accordingly, the present petition is disposed of. Pending applications, if any, stand disposed of. No order as to cost.