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2016 DIGILAW 2591 (HP)

State of Himachal Pradesh v. Ashok Kumar

2016-12-06

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. 1. The petitioners, being aggrieved by the award of the Labour Court-cum-Industrial Tribunal, Dharamshala, H.P., passed in Reference No. 367 of 2009, decided on 14.05.2013, maintained this writ petition to set aside and quash the same. 2. Brief facts of the case are that respondent Ashok Kumar had been working on daily wage basis with the Executive Engineer, I&PH Division, Dalhousie from 1995 to October, 2000 and he has worked for 64 days in 1995, 193 days in 1996, 276 days in 1997, 272 days in 1998, 316 days in 1999 and 261 days in 2000 (up to 13.11.2000). It is pleaded in the petition that all surplus workers were disengaged after complying with the provisions of Section 25F of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act") and after following the principle of "Last Come First Go". The respondent has challenged the retrenchment before the learned Labour Court by way of filing claim petition and the learned Labour Court set aside the retrenchment order of the respondent-workman and directed that respondent be re-engaged forthwith granting respondent continuity and seniority in service w.e.f. 13.11.2000, except back wages and further directed that case of the respondent would be considered for regularisation from the date/month of the regularisation of the services of the juniors. 3. The petitioners have prayed for the dismissal of the claim petition and averred that the order has been passed by the Tribunal below without appreciating the facts and law to its true perspective. It is averred that petitioner has complied with the provisions of Section 25(F), (G) & (H) of the Act and the award passed by the Court below is contrary to the law and the same be set-aside. 4. It is averred that respondent/workman had been working on daily wage basis with the Executive Engineer, I&PH Division, Dalhousie w.e.f. October, 1995 to 13.11.2000 and he has worked for 64 days in 1995, 193 days in 1996, 276 days in 1997, 272 days in 1998, 316 days in 1999 and 261 days in 2000 (up to 13.11.2000). It is further averred that due to shortage of funds and work in the Division, the petitioner was facing huge financial constraints and there being a large number of daily waged workers engaged in the Division, it had become impossible to adjust all the workers. It is further averred that due to shortage of funds and work in the Division, the petitioner was facing huge financial constraints and there being a large number of daily waged workers engaged in the Division, it had become impossible to adjust all the workers. It is further averred that due to less budget provision, the availability of work has decreased such as the service of the respondent, along with 363 number of workers were retrenched after complying with the provision of Section 25-F of the Act and by adhering to the principle of "Last Come First Go". It is further averred that the petitioner has duly issued a notice under Section 25-F of the Act to the respondent and similarly situated workmen and had paid the due compensation, preceding retrenchment. It is further averred while disengaging the respondent, the seniority of the Division has been taken into consideration. The seniority is maintainable at Divisional level and the principle of "Last Come First Go" has been strictly followed. 5. In reply, filed by the respondent, it is averred that the petitioners (employer) have challenged the award dated 14.05.2013 rendered by the learned Presiding Judge, Labour Court-cum-Industrial Tribunal, Dharamshala, in Reference Petition No. 367 of 2009, which has attained finality after one month on 14.06.2013. It is further averred that the civil writ petition filed by the petitioner is not maintainable, without explaining the delay in filing of the civil writ petition. The petitioners have chosen to harass the respondent/claimant so that he may not perform his duties and earn his livelihood/remuneration, which action is in violation of various provisions of the Act. 6. It is further averred that the respondent-workman was working on daily wage basis with the Executive Engineer, I&PH Division, Dalhousie, from 1995 to 13.11.2000 and he has worked for 64 days in 1995, 193 days in 1996, 276 days in 1997, 272 days in 1998, 316 days in 1999 and 261 days in 2000 (up to 13.11.2000). It is further averred that he has clearly mentioned in his claim petition, rejoinder with affidavit and also in examination in-chief, that his juniors were engaged by the petitioners after the retrenchment of the respondent. 7. Learned Additional Advocate General has argued that the award of the learned Labour court is without appreciating the facts, which has come on record and is liable to be set-aside. 7. Learned Additional Advocate General has argued that the award of the learned Labour court is without appreciating the facts, which has come on record and is liable to be set-aside. On the other hand, the learned counsel appearing for the respondent has argued that the award passed by the Labour Court, Dharamshala is as per law and no interference is required and the jurisdiction of this Court is wrongly invoked and writ petition deserves dismissal. To appreciate the arguments, this Court has gone through the record of the case carefully and the law as settled by this Hon'ble Court. Admitted fact is that the respondent was engaged by the petitioners and he has worked with them from 1995 to 13.11.2000 and he has worked for 64 days in 1995, 193 days in 1996, 276 days in 1997, 272 days in 1998, 316 days in 1999 and 261 days in 2000 (up to 13.11.2000). 8. It is further case of the respondent that the petitioners have not re-engaged the respondent till date neither he was given opportunity for re-employment whereas his juniors were engaged. However, the petitioners have denied that any junior was engaged. 9. Seniority list relating to Shri Angrej Singh and others reveals that Smt. Sodha Devi was appointed by the State in the year 1999, whereas the services of Smt. Lata Devi engaged in the year 2000. However, a note has been given that both these ladies were appointed on compassionate grounds. The date of death of their husbands, namely, S/Sh. Ashok Kumar and Tarbeej Singh have not come on the file. The Court below has rightly held that the respondent (petitioners herein) has not complied with the provisions of Section 25(H) of the Act. Shri L.S. Thakur (RW-1) in cross-examination has admitted that Smt. Biasa Devi and Shri Hem Raj have been re-engaged. The names of these two workmen figure at serial No. 414 and 435 of the seniority list. Shri Hem Raj and Smt. Biasa Devi were juniors to the respondent. There is nothing on record that before engaging the freshers, opportunity of re-employment was afforded to the respondent. 10. As discussed above, the impugned award does not suffer from any perversity. The learned Additional Advocate General for the petitioners has canvassed before this Court with vigour that the reference is stale. There is nothing on record that before engaging the freshers, opportunity of re-employment was afforded to the respondent. 10. As discussed above, the impugned award does not suffer from any perversity. The learned Additional Advocate General for the petitioners has canvassed before this Court with vigour that the reference is stale. However, the said submission is unacceptable given the fact that the said fact was not agitated by the employer/petitioner before the appropriate Government at the time Government proceeded to make a reference of the dispute to the Labour Court-cum-Industrial Tribunal, Dharamshala, H.P. It has been held in Raghuvir v. G.M. Haryana Roadways Hissar, (2014) 10 SCC 301 that there is no limitation for reference to Labour Court under Section 10 of the Act. It was held that words "At any time" mentioned in Section 10 of the Act clearly define that law of limitation would not be applicable qua proceedings of reference under Section 10 of the Act. Operative part of Section 10 of the Act is quoted in extenso: "Section 10 of Industrial Disputes Act, 1947:- Reference of dispute to Boards, Courts or Tribunals-(1) where the appropriate Government is of the opinion that any industrial dispute exists or is apprehended, it may at any time by order in writing, (a) Refer the dispute to a Board for promoting a settlement thereof, (b) Refer any matter appearing to be connected with or relevant to the dispute to a Court for inquiry." 11. In view of the above stated facts it is held that award of learned Presiding Judge Labour Court-cum-Industrial Tribunal Dharamshala in reference No. 367 of 2009, decided on 14.05.2013, is in accordance with proved facts and is in accordance with law. It is further held that there is no illegality in award passed by learned Presiding Judge Labour Court-cum-Industrial Tribunal, Dharamshala. Therefore, the writ petition is without any basis, requires dismissal and is accordingly dismissed. No order as to costs. All pending applications, if any, also stands disposed of.