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2016 DIGILAW 1850 (HP)

State of Himachal Pradesh v. Padma Youdan

2016-09-01

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present petition is maintained by the petitioner/State laying challenge to the award of learned Labour Court-Cum-Industrial Tribunal, Kangra at Dharamshala, camp at Kaza, Lahaul Spiti, H.P., passed in Reference No. 129 of 2013, decided on 22.09.2014, whereby the claim petition of the respondent herein, Smt. Padma Youdan, who is petitioner before the learned Tribunal, was allowed. 2. Briefly stating facts giving rise to the present petition are that respondent, Smt. Padma Youdan, maintained the claim petition before the learned Labour Court contending that she was engaged on muster roll/daily wage basis in the in the month of May, 1988 by respondent No. 2 and with fictional breaks she worked with the said respondent upto 31.10.2009. She could not complete 160 days in a calendar year and ultimately on 01.11.2009, her services were terminated by way of verbal orders. Thereafter, when the dispute was raised and the conciliation took place before the Conciliation Officer, the matter was referred by the State Government to the learned Labour Court. However, as the reference was not proper, the same was withdrawn and again fresh demand notice was issued by the petitioner on 07.05.2012 and reference was again made. As per the claimant, her services were terminated again in 2010 and she was not allowed to complete 160 days in a calendar year, as she was given fictional breaks, thereby the respondents have violated the mandate of Section 25-B of the Industrial Disputes Act, 1947 (hereinafter referred to as ‘the Act’). It is further alleged by the claimant that respondent/department has also violated the principle of ‘last come first go’, as juniors to the claimant have been retained without giving them any breaks and the same is in utter violence of Sections 25-G and 25-H of the Act. The respondent has terminated the services of claimant for the reason of fictional breaks. It is further alleged that the claimant has continuously worked w.e.f. May, 1998 to 2007 and thus completed ten years. Therefore, as per the Mool Raj Upadhaya’s case the claimant has right to be regularized as work charge beldar from 01.01.2008 when her juniors were regularized. It is further alleged that the breaks given to the claimant amounts to unfair labour practice under Section 2(ra) of the Act, so the claimant also prays for setting aside the fictional breaks given to her. 3. It is further alleged that the breaks given to the claimant amounts to unfair labour practice under Section 2(ra) of the Act, so the claimant also prays for setting aside the fictional breaks given to her. 3. The respondent, by way of filing reply to the reference petition, took preliminary objections qua delay and cause of action. As per the respondent before the learned Labour Court, the claimant is still in service and she has not been disengaged. On merits it is submitted that claimant was engaged in May, 1998, on daily wage basis. As per the respondents, the claimant was engaged in tribal area of Spiti Sub Division, which is snow bound for six months. Due to this, the respondent/department could not provide any work to the petitioner during the whole year. Furthermore, the claimant was habitual absentee from duty at her own will, therefore, she could not complete 160 days in a calendar year. The respondent has denied that any fictional breaks were given to the claimant and her juniors have been regularized. Lastly, the respondent prayed for rejection of the claim of the claimant. 4. The learned Tribunal below has framed the following issues for determination: “1. Whether time to time termination of the services of the petitioner/giving breaks in service to the petitioner by the respondent during the year 2000 to 2010 is/was illegal and unjustified as alleged? OPP 2. Whether the final termination of services of the petitioner by the respondent in the year 2011 is/was illegal and unjustified as alleged? OPP 3. Whether the petitioner has a cause of action? OPR 4. Whether the claim petitioner is not maintainable in the present form? OPR 5. Whether the petition is hit by the vice of delay and laches as alleged. If so, its effect? OPR 6. Whether the claim petition is premature and has become infructuous as alleged. If so, its effect? OPR 7. Whether the petitioner has not come to the Court with clean hands as alleged. If so, its effect? OPR 8. Relief.” After deciding Issue No. 1 in favour of the petitioner herein (claimant before the learned Labour Court below), Issue No. 2 against the petitioner and held that no fictional breaks were granted. If so, its effect? OPR 7. Whether the petitioner has not come to the Court with clean hands as alleged. If so, its effect? OPR 8. Relief.” After deciding Issue No. 1 in favour of the petitioner herein (claimant before the learned Labour Court below), Issue No. 2 against the petitioner and held that no fictional breaks were granted. Issues No. 3 to 7 were decided against the respondent/State, and the reference was answered by holding that the claimant is in continuous service of the respondent with all consequential benefits, except back-wages and she was to be considered for regularization from the time her juniors were regularized, as per the Policy framed by the State Government. 5. No reply to the writ petition was filed by the respondent. 6. I have heard the learned counsel for the parties and have gone through the record carefully. 7. PW-1 (petitioner) by filing her affidavit, Ext. PW-1/A, in her examination-in-chief, has re-asserted the facts averred in the claim petition. She has also filed letter, Ext. PW-1/B, whereby the Government took a decision that the daily wagers should be given full work for full months and their fictional breaks are not considered by the Courts and they are deemed to be in continuous employment on daily wage basis. PW-1 in her cross-examination, has denied that she used to remain absent occasionally and due to this, she could not complete 160 days in a year. 8. On the other hand, petitioner/State examined Shri Sanjeev Kumar Sharma, Executive Engineer, I&PH Division, Kaza, who also filed his affidavit, Ext. RW-1/A, wherein the contents of the reply filed before the learned Labour Court were re-asserted. This witness, in his cross-examination, has admitted that no appointment letter to the respondent herein, as daily wagers, was issued, as no practice was prevalent during that time. He has admitted that the respondent (claimant) was not given any work from November to May. This witness has also admitted mandays chart, Ext. PX. This witness has also brought on record the seniority list of work charged Class IV Beldars, which is Ext. RW-1/G. He has further testified that employees at serial No. 57 to 60 were employed after the year 1998 and they have been regularized. This witness has further deposed that no notice was issued to the respondent when she did not come for work. 9. RW-1/G. He has further testified that employees at serial No. 57 to 60 were employed after the year 1998 and they have been regularized. This witness has further deposed that no notice was issued to the respondent when she did not come for work. 9. Learned Additional Advocate General, for the petitioner has argued that the award passed by the learned Labour Court is not justified and the same may be set aside. On the other hand, learned counsel for the respondent has relied upon the judgment rendered by this Hon’ble High Court In CWP No. 1681 of 2015, titled as State of Himachal Pradesh Vs. Smt. Chhering Butith, decided on 15.06.2016, text whereof is reproduced hereinbelow in extenso: “Mr. R.M. Bisht, learned Additional Advocate General is right to the extent that directions issued by the Labour Court-cum-Industrial Tribunal, Kangra at Dharamshala, H.P., Camp at Kaza, Lahaul & Spiti, in terms of award dated 22.09.2014, in Reference No.131/2013, titled as Smt. Chhering Butith Versus The Executive Engineer, with regard to regularization of the workman employee, more so, in the light of lack of any reference thereof, are unwarranted. As such, the same are directed to be deleted. 2. Insofar as, other submissions with regard to non maintainability of the petition on account of delay and laches is concerned, the matter is no longer res integra and in view of law laid down by the Apex Court in Jasmer Singh Versus State of Haryana and another (2015) 4 SCC 458 and Raghubir Singh Versus General Manager, Haryana Roadways, Hissar, (2014) 10 SCC 301 , the Tribunal rightly based on the evidence led by the parties, held the petition to be maintainable and to have been filed within reasonable period. Noticeably, reference came to be issued immediately upon the alleged illegal termination of the employee. 3. From the record, it cannot be inferred that the employee willfully/voluntarily abandoned the job which she was performing as a daily wage labourer. The issues, so framed by the Tribunal rightly stand answered in favour of the workman. Noticeably, juniors were retained and the employee had completed more than 160 days of service in the respective calendar year i.e. preceding 12 months prior to the date of the alleged termination. 4. Petitioner’s reinstatement thus cannot be said to be illegal. 5. The issues, so framed by the Tribunal rightly stand answered in favour of the workman. Noticeably, juniors were retained and the employee had completed more than 160 days of service in the respective calendar year i.e. preceding 12 months prior to the date of the alleged termination. 4. Petitioner’s reinstatement thus cannot be said to be illegal. 5. However, insofar as, question of regularization is concerned, needless to add, parties shall be governed by the Policies framed from time to time. The directions in the impugned award to such extent are modified accordingly.” 10. In view of what has been discussed hereinabove and applying the law, as cited by the learned counsel for the respondent/claimant, I find no illegality or perversity in the award passed by the learned Labour Court-cum-Industrial Tribunal, Kangra at Dharamshala, camp at Kaza, H.P. Consequently, the petition is devoid of merits and deserves dismissal and is accordingly dismissed. 11. In view of the above, the writ petition, as also pending application(s), if any, shall stands disposed of.