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Himachal Pradesh High Court · body

2016 DIGILAW 1545 (HP)

Attar Singh v. Executive Engineer

2016-07-29

SANDEEP SHARMA

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JUDGMENT : Sandeep Sharma, J. - By way of present petition, filed under Article 226 of the Constitution of India, petitioner has challenged the award dated 09.07.2010 passed by the learned Industrial Tribunal-cum-Labour Court, Shimla in Reference No. 14 of 2008, whereby claim of the petitioner has been rejected and reference has been answered in negative. 2. Briefly stated the facts emerged from the pleadings available on record suggests that petitioner was appointed as a Blacksmith on daily wages in the year, 1978 and he continued as such till 31.08.1988 when his services were allegedly terminated without complying with the provisions of Section 25-F of the Industrial Disputes Act, 1947. 3. Petitioner being aggrieved with alleged illegal termination approached H.P. Administrative Tribunal, Shimla by way of Original Application No. 2087 of 1998, which was dismissed as withdrawn on 21.10.2004 for want of jurisdiction. Thereafter, petitioner for redressal of his grievance raised an industrial dispute. It also emerges from record that conciliation proceedings initiated for settlement of dispute did not yield any result and as such Government referred the dispute to the Industrial Tribunal-cum-Labour Court, which was registered as Reference No. 14 of 2008 and State Government referred the following reference of term to the Industrial Tribunal-cum-Labour Court, Shimla:- "Whether the termination of the services of Shri. Attar Singh, son of Shri. Palak Ram , HP as alleged, by the Executive Engineer, H.P.P.W.D (B&R), Division Rajgarh, District Sirmaur, HP w.e.f. 31.09.1991 as alleged by workman without complying the provisions of Industrial Disputes Act, 1947 is proper and justified? If not, what relief of service benefits and amount of compensation, the aggrieved workman is entitled to?" 4. Pursuant to the aforesaid reference to the learned Industrial Tribunal, the petitioner filed a claim petition before the learned Industrial Tribunal-cum-Labour Court, Shimla, averring therein that he joined services of the respondent department as a Blacksmith in the year, 1978 and as such continued working till he was illegally removed from employment on 29.09.1991 without any cogent and convincing reasons. The petitioner specifically claimed that his services were continuous for the purpose of Section 25-B by Industrial Disputes Act, 1947 as he remained in employment for more than 240 days every year till the termination and thus he was entitled to certain protection under the labour law enactment as well as service law. The petitioner specifically claimed that his services were continuous for the purpose of Section 25-B by Industrial Disputes Act, 1947 as he remained in employment for more than 240 days every year till the termination and thus he was entitled to certain protection under the labour law enactment as well as service law. The petitioner further claimed that since he was illegally terminated on 29.09.1991 from the services without there being compliance of the provisions of Industrial Dispute Act, his termination deserves to be quashed and set aside and he needs to be re-instated with all consequential benefits. The petitioner specifically stated that at the time of retrenchment, neither notice under Section 25-F nor retrenchment compensation under Section 25-N was paid to him by the respondent as such his termination being illegal and in violation of provision of Industrial Disputes Act deserves to be quashed and set aside. 5. Petitioner also claimed that at the time of his retrenchment, persons junior to him were retained by the respondent, as such there is a violation of Section 25-G of Industrial Disputes Act, 1947. It is also contended on behalf of the petitioner that there is a violation of Section 25-H because many new hands were offered employment without giving any preference to the petitioner for re-engagement. In the aforesaid background, petitioner prayed for quashing of his termination with directions to the respondent to re-instate the petitioner with all consequential benefits. 6. Respondent, by way of a detailed reply, refuted the claim put-forth on behalf of the petitioner. Respondent though admitted that petitioner was engaged on daily wage in the year, 1978 but specifically denied that his services were terminated by them, rather the respondent took a specific stand that petitioner himself abandoned the job on 31.08.1988. 7. Careful perusal of the reply filed by respondent before Industrial Tribunal-cum-Labour Court suggests that petitioner was engaged as daily wager Beldar in the year, 1978 and he worked for only 167 days in that year. It also emerges from the reply filed by the respondent that applicant had not completed 240 days in any of calendar year between 1978 to 1983. Similarly, in the year, 1984, the applicant worked as Blacksmith and worked as such for 266 days. The petitioner worked for 281 days in the year 1985 and 74 days in the year, 1986. It also emerges from the reply filed by the respondent that applicant had not completed 240 days in any of calendar year between 1978 to 1983. Similarly, in the year, 1984, the applicant worked as Blacksmith and worked as such for 266 days. The petitioner worked for 281 days in the year 1985 and 74 days in the year, 1986. Whereas, he only worked for 310 days in the year, 1987 and 199 days in the year, 1988. The respondent specifically claimed in the reply that petitioner never completed 240 days in the preceding 12 months before he abandoned the job on his sweet will. 8. The respondent department specifically stated that at no point of time, services of the petitioner were terminated by them but he himself abandoned the job in the year, 1988 and as such there was no occasion for them, if any, to resort to the provisions of Industrial Disputes Act at the time of alleged termination of his services. The respondent has specifically stated that since petitioner had not completed 240 days in preceding 12 months when he abandoned the job on his sweet will, they rightly not issued any notice under Section 25 of the Industrial Disputes Act, 1947. The respondent also raised issue with regard to delay and latches by stating that petitioner has himself discontinued his services in the year, 1988 on his own will and thereafter, no steps whatsoever, were taken by him claiming re-instatement. It is only after 11 years, he has approached Industrial Tribunal-cum-Labour Court for redressal of his grievance and as such claim put-forth on behalf of the petitioner deserves to be rejected solely on the ground of delay and latches. Respondent also claimed that no explanation has been led on record explaining therein reasons for delay in raising dispute. Respondent also refuted the claim putforth on behalf of petitioner that he was entitled to issuance of notice and compensation in the event of his termination, by stating that petitioner himself abandoned the job, as such they had no occasion whatsoever, to resort to the provisions of the Industrial Disputes Act. 9. Respondent also refuted the claim putforth on behalf of petitioner that he was entitled to issuance of notice and compensation in the event of his termination, by stating that petitioner himself abandoned the job, as such they had no occasion whatsoever, to resort to the provisions of the Industrial Disputes Act. 9. In the aforesaid background, learned Industrial Tribunal-cum-Labour Court on the basis of evidence adduced on record came to the conclusion that petitioner has failed to prove that his services were terminated on 29.09.1991 in contravention of provisions of the Act as such reference made to it was answered in negative vide award dated 9.7.2010. 10. Being aggrieved and dis-satisfied with the aforesaid impugned award passed by the learned Industrial Tribunal-cum-Labour Court, the present petitioner by way of instant petition sought quashment of the award with the directions to the respondent to re-instate him with all consequential benefits. 11. I have heard Shri. M.L. Sharma, Advocate, representing the petitioner. Mr. Sharma vehemently argued that the impugned award passed by learned Industrial Tribunal-cum-Labour Court is not sustainable in the eyes of law as the same is not based on the correct appreciation of the evidence adduced on record by the petitioner. Mr. Sharma, vehemently argued that while passing the impugned award, the learned Industrial Tribunal-cum-Labour Court has taken ultra technical view of the matter and has miserably failed to appreciate that petitioner being an illiterate person could not be expected to give exact date of termination of his service and as such minor mistakes could not be made basis for defeat of justice that too in case of poor one like petitioner. He, while concluding the arguments, strenuously argued that even, if it presumed that the services of the petitioner were terminated on 31.8.1988 and not on 31.9.1991, it does not lead to inference that petitioner had abandoned the job. Mr. Sharma forcibly contended that if for the sake of arguments, it is presumed that petitioner had abandoned job, in that eventuality respondent were under obligation to issue written communication to the petitioner to assume duty. As such in the absence of any letter, it could be easily inferred that services of the petitioner were terminated by the respondent without resorting to the provision of Industrial Disputes Act. 12. Shri. Rupinder Singh Thakur, Addl. As such in the absence of any letter, it could be easily inferred that services of the petitioner were terminated by the respondent without resorting to the provision of Industrial Disputes Act. 12. Shri. Rupinder Singh Thakur, Addl. Advocate General, duly assisted by Shri. Rajat Chauhan, Law Officer, supported the impugned award passed by the learned Industrial Tribunal-cum-Labour Court. He contended that the bare perusal of the impugned award passed by learned Industrial Tribunal-cum-Labour Court suggests that same is based upon the correct appreciation of the evidence on record. During arguments having been made by Mr. Thakur, he made this Court to travel through the statement given by Petitioner PW-1 before the learned Industrial Tribunal-cum-Labour Court to demonstrate that he himself stated before the Tribunal that he was engaged as Blacksmith on January, 1978 and continued as such upto 31.8.1988, meaning thereby, he was never on the roll of the department on 30.9.1991 as claimed by him. Mr. Thakur strenuously argued that once it stands proved on record that petitioner had abandoned job in the year, 1988 on his own will, there was no requirement, whatsoever for the respondent department to resort to the provision of Industrial Disputes Act, 1947, as such impugned award passed by learned Industrial Tribunal-cum-Labour Court deserves to be upheld as the same is based upon the correct appreciation of the evidence adduced on record as well as rule in vogue. 13. I have heard the learned Counsel for the parties and have carefully gone through the record. 14. The conjoint reading of the pleadings available on record clearly suggests that the petitioner was appointed as Blacksmith on daily wage in the year, 1978 and as such he continued to work till 31.8.1988, when his services were allegedly terminated without complying with the provisions of Section 25 of the Industrial Disputes Act, 1947. Respondent by way of reply has also admitted that the petitioner was engaged as Blacksmith in the year, 1978 and he continued to work till 31.8.1988 and as such there is no dispute with regard to rendering of service by the petitioner from the year, 1978 to 31.8.1988. Respondent by way of reply has also admitted that the petitioner was engaged as Blacksmith in the year, 1978 and he continued to work till 31.8.1988 and as such there is no dispute with regard to rendering of service by the petitioner from the year, 1978 to 31.8.1988. However, Man Days Chart made available on record by the respondent in the shape of Annexure R-1 before learned Industrial Tribunal-cum-Labour Court clearly suggest that in none of years between 1978 to 1988 except the years, 1984, 1985, 1986 and 1987, petitioner completed 240 days in a calendar year. As far as year, 1988 is concerned, bare perusal of Annexure R-1 suggests that petitioner only completed 199 days in the year, 1988 prior to 31.8.1988 when his services were discontinued. 15. At this stage, this Court had an occasion to refer to the Statement of PW-1 made before learned Industrial Tribunal-cum-Labour Court, perusal whereof suggest that he himself stated before the Tribunal that he was engaged as Blacksmith on January, 1978 and continued up to 31.8.1988 meaning thereby, he was never on the roll of the respondent department after 31.8.1988 and as such with no stretch of imagination, the version put-forth on behalf of the petitioner can be accepted that his services were terminated on 29.9.1991. 16. It is a settled law, that to have a benefit of provisions contained in Industrial Disputes Act, particularly, Section 25-F, incumbent needs to prove that at the time of his illegal retrenchment, he had completed 240 day in preceding 12 months. Since, as per the petitioner, he was terminated on 31.9.1991 by the respondent, it was incumbent upon him to prove that before his alleged termination on 31.9.1991, he had actually completed 240 days in each preceding 12 months but no evidence has been led on record by the petitioner suggestive of the fact that he was in service continuously for 240 days prior to his illegal retrenchment on 31.9.1991. Whereas, respondent by way of leading cogent and convincing evidence in the shape of Annexure R-1, which was further proved by RW-1 S. R. Bhardwaj, while recording his statement before the Industrial Tribunal-cum-Labour Court, has been able to prove that petitioner had worked only upto 31.8.1988 and as such learned Tribunal rightly concluded that there was no requirement of issuance of any notice under Section 25 of the Act at the time of alleged termination of the service on 31.9.1991. As per Annexure R1 duly proved by RW1, S.R. Bhardwaj, petitioner only worked with respondent department till 31.8.1988 when he himself abandoned the job. This Court sees no illegality and infirmity in the action of respondent in not issuing notice under Section 25 of the Industrial Disputes Act at the time of alleged termination of the petitioner on 31.9.1991. Since, petitioner had specifically set up a case that his services were illegally terminated on 31.9.1999 without issuance of notice as required under Industrial Disputes Act, it was incumbent upon him to prove on record that he worked continuously for 240 days prior to his termination on 31.9.1991, but as clearly emerges from the Annexure RA, petitioner never worked beyond 31.8.1988. 17. In view of the above, this Court sees no illegality and infirmity in the impugned award passed by learned Industrial Tribunal-cum-Labour Court wherein, it has been concluded that petitioner has failed to prove that his services were terminated w.e.f. 29.9.1991 in contravention of the provisions of the Act. Now, adverting to the contention put-forth on behalf of Shri. M.L. Sharma, counsel representing the petitioner, wherein he stated that even it is presumed that services of petitioner were terminated on 31.8.1988 and not on 31.9.1991, petitioner was required to be given benefit under Industrial Disputes Act since he had completed more than 240 days prior to his alleged abandonment of job on 31.8.1988. 18. This Court after perusal of Man Days Chart made available on record is unable to accept the aforesaid contention put-forth on behalf of the petitioner because Man Days Chart available on record suggest that in the year, 1988 prior to alleged abandonment i.e. 31.8.1988, the petitioner had only put in 199 days in a calendar year and as such there was no occasion whatsoever to issue notice under Section 25 of Industrial Disputes Act. As far as another contention put-forth on behalf of the petitioner that in the event of abandonment of job by the petitioner on 31.8.1988, respondent ought to have issued notice to him with the directions to resume duty and in the absence of same, learned Tribunal should have drawn adverse inference. 19. This Court sees no force in the aforesaid contention put-forth on behalf of petitioner simply for the reasons that there was no requirement under law for respondent to issue letter, if any, to the petitioner, who abandoned the job on 31.8.1988, asking him to resume duty. It is undisputed fact that petitioner was engaged as a daily waged worker and he was being paid on daily wages, there was no requirement, if any, to issue letter to the petitioner advising him to resume the job. 20. Consequently, in view of the aforesaid discussions, this Court sees no illegality and infirmity in the impugned award passed by learned Industrial Tribunal-cum-Labour Court and the same is accordingly upheld. Accordingly, the present petition is dismissed being devoid of any merit. 21. Pending applications, if any, stands disposed of.