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2017 DIGILAW 395 (HP)

Kuldeep Singh v. State of H. P.

2017-04-22

SANDEEP SHARMA

body2017
JUDGMENT : Sandeep Sharma, J. 1. By way of present writ petition, the petitioner has laid challenge to order dated 17.6.2011, passed in Application No. 317 of 2011, by the Labour Court-cum-Industrial Tribunal, Dharamshala, whereby the learned Tribunal on the basis of reply filed by the respondent as well as statement having been made by the learned Deputy District Attorney, dismissed the application filed by the petitioner under Section 33 (c) of the Industrial Disputes Act, as having become in- fructuous. 2. Mr. Rahul Mahajan, Advocate, representing the petitioner while inviting attention of this Court to the aforesaid order vehemently argued that no order, if any, could be passed by the learned Presiding Officer, merely on the basis of reply as well as submissions having been made by the learned Deputy District Attorney, without affording opportunity of being heard/ to rebut the averments/submissions contained in the reply filed by the respondent-State to the application filed under Section 33 (c) under the Industrial Disputes Act. 3. Mr. P.M. Negi, learned Additional Advocate General, while refuting the aforesaid claim of learned counsel for the petitioner strenuously argued that bare perusal of impugned order, nowhere suggests that prayer, if any, was made by the learned counsel for the petitioner at that stage for time to file rejoinder/counter to the reply filed by the respondent. Mr. Negi further contended that on the date of passing of this order, the petitioner along with his counsel was present and as such, it cannot be said that order was passed without hearing the parties. 4. I have heard the learned counsel for the parties and carefully gone through the record. 5. Perusal of pleadings available on record suggests that the petitioner was engaged by respondent No. 2 in the capacity of daily wage beldar, in the year, 1984 and in this capacity, he worked till December, 1987. However, fact remains that on 15.12.21993, his services were terminated by respondent No. 2 and the petitioner being aggrieved with his termination approached the appropriate Government for referring the matter to learned Industrial Tribunal. 6. Learned Industrial Tribunal, on the basis of reference made to it by the appropriate Government, passed award on 29.11.2004, whereby respondents were directed to reinstate the petitioner with all consequential benefits. There is no material available on record suggestive of the fact that the aforesaid award was ever assailed before appropriate Court by the respondents. 6. Learned Industrial Tribunal, on the basis of reference made to it by the appropriate Government, passed award on 29.11.2004, whereby respondents were directed to reinstate the petitioner with all consequential benefits. There is no material available on record suggestive of the fact that the aforesaid award was ever assailed before appropriate Court by the respondents. 7. Since the petitioner was not allowed to join pursuant to the aforesaid award passed by the Industrial Tribunal, the petitioner again approached the appropriate Government i.e. Labour Commissioner, HP for implementation of the award. The appropriate Government referred the matter to the Labour Court-cum-Industrial Tribunal, Dharamshala, which came to be registered as reference No. 61 of 2008. Learned Tribunal vide award dated 23.9.2010, held the petitioner entitled for regularization with effect from 1.4.1998 along with all consequential benefits. 8. Subsequent to passing of aforesaid award, the petitioner herein preferred an application under Section 33-C-(2) (Annexure PD), available at page 20 of the paper book, for implementation of award dated 23.9.2010 before the Hon'ble Tribunal, Dharamshala. However, perusal of the impugned order dated 17.6.2011 passed in application No. 317 of 2011, suggests that learned Tribunal merely on the basis of reply ( i.e. at page 24 of the petition) as well as statement of learned Deputy District Attorney proceeded to dismiss the petition as having rendered in-fructuous. 9. Bare perusal of reply having been filed by the respondent to the application filed under Section 33(C)(2) of the Industrial Disputes Act, suggests that respondents in compliance to award dated 23.9.2010, passed by the learned Presiding Judge, Labour Court-cum-Industrial Tribunal, Dharamshala, appointed the applicant/petitioner herein as work charged brought into regular cadre as Beldar vide office order No. 248 dated 9.6.2011 and letter No. PWD/CB/EA-II/D/W/2010-11:- 3870-78 dated 9.6.2011, w.e.f. 1.4.1998. Respondents further stated vide aforesaid reply that the petitioner joined his duties on 14.6.2011. Respondents by way of aforesaid reply also informed learned Tribunal below that arrear bill of the applicant was passed for Rs. 4,54,125.00/-, only, vide office Bill No. 363 dated 16.6.2011 and payment was made immediately. Though, there is a mention that arrear sheet is annexed as Annexure P-III, but perusal of the reply, nowhere suggests that arrear sheet was ever annexed along with the reply. 10. 4,54,125.00/-, only, vide office Bill No. 363 dated 16.6.2011 and payment was made immediately. Though, there is a mention that arrear sheet is annexed as Annexure P-III, but perusal of the reply, nowhere suggests that arrear sheet was ever annexed along with the reply. 10. After carefully examining the reply having been filed by the respondents to the application filed under Section 33(C) having been preferred by the petitioner, this Court sees substantial force in the argument having been made by the learned counsel for the petitioner that learned Tribunal ought to have granted opportunity to the petitioner to file counter to the reply so that he could point out discrepancy, if any, in the calculations made by the respondents while calculating the arrears on the basis of award dated 23.9.2010 passed in reference No. 61 of 2008. 11. Undisputedly, perusal of impugned order nowhere suggests that prayer, if any, was made by the learned counsel representing the workman before the Tribunal for filing counter to the reply filed by the respondents but it was incumbent upon the Tribunal below while deciding the application under Order 33 (C) to ascertain whether amount/relief being extended to the complainant is strictly in terms of award dated 23.9.2010, passed in reference No. 61 of 2008 whereby admittedly, the petitioner was held entitled to regularization w.e.f. 1.4.1998 with all consequential benefits. Needless to say, if there is/was any dispute qua the calculations inter-se parties, learned Tribunal would have proceeded to frame issue and decide the same on the basis of evidence, if any, led on record by the respective parties. 12. Accordingly, in view of the aforesaid, this Court is of the view that Tribunal below while passing the order if any, on the basis of reply as well as statement made by the learned counsel representing the respondent, should have afforded an opportunity to the petitioner workman to file reply/counter to the same so that the dispute, if any, regarding the calculations made by the respondent pursuant to the award passed by the learned Tribunal would have been settled for all times to come. 13. 13. Consequently, in view of the above, the instant petition is allowed and impugned order dated 17.6.2010, is quashed and set-aside and the matter is remanded back to the learned Industrial Tribunal, Dharamshala, for deciding the same afresh after affording opportunity of being heard to both the parties in accordance with law. The matter be listed before the Tribunal below on 9.5.2017, on which date, parties along with their counsel, shall remain present. Since the matter is hanging fire from the year, 2011, this Court hopes and trust that Tribunal below would decide the proceedings pending before it, expeditiously and preferably within a period of four months from the date of receipt of this judgment. Registry is directed to send forthwith a copy of this judgment to the learned Tribunal for necessary compliance. Pending applications, if any, stands disposed of.