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Himachal Pradesh High Court · body

2018 DIGILAW 1500 (HP)

Ram Gopal v. State Of Himachal Pradesh

2018-08-10

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J. - Since both these petitions have been preferred against the same award passed by the learned Industrial Tribunal-cum-Labour Court (for short ''Labour Court'') on 22.03.2016, these are taken up together for consideration and are being disposed of by a common judgment. 2. The dispute interse the parties is one pertaining to the workman and the employer and, therefore, the parties shall be referred to as such. 3. The workman was engaged on daily waged basis as ''Beldar'' by the employer in the year 1990-91 and continued working with 240 days continuous service in each year up to 30.03.1996. According to the workman, he was retrenched from service, whereas, employer claimed that he abandoned the job. In the year 2010, the workman submitted a demand charter and thereafter in the year 2011, the Labour Officer-cumConciliation Officer sent the dispute to the Labour Commissioner, Shimla, who after careful examination of the claim, vide his letter dated 30.06.2011, observed that raising the dispute of his termination on 05.08.2010 i.e. after 14 years has now faded away and there is no justification of making reference to the learned Labour Court as per the provisions of Section 12(5) of the Industrial Disputes Act, 1947 (for short ''the Act''). 4. This action of the Commissioner was assailed by the workman by filing CWP No. 238 of 2012 before this Court and the same was allowed vide judgment dated 13.05.2015 and the Labour Commissioner was directed to make a reference to the learned Labour Court and it was further held that the question of limitation would be taken into consideration by the learned Labour Court while moulding the relief. Pursuant to such reference, the workman filed his claim petition to which the employer filed reply and the learned Labour Court vide its award dated 22.03.2016 ordered the workman to be reinstated in service along with seniority and continuity with effect from the date when he raised the demand notice, however, the workman was not held entitled to back wages. 5. The workman has assailed the award primarily on the ground that he should have been awarded back wages by filing CWP No.2662 of 2016, whereas, on the other hand, the employer has filed CWP No.3129 of 2016 assailing the award insofar as it grants seniority and continuity in service in favour of the workman. 5. The workman has assailed the award primarily on the ground that he should have been awarded back wages by filing CWP No.2662 of 2016, whereas, on the other hand, the employer has filed CWP No.3129 of 2016 assailing the award insofar as it grants seniority and continuity in service in favour of the workman. I have heard the learned counsel for the parties and have also gone through the records of the case. 6. As observed above, the workman has taken exception to the award insofar as it denies back wages to the workman, whereas, the State has preferred the petition insofar as it grants the seniority and continuity in service in favour of the workman. However, I find no merit in these petitions. 7. Undisputedly, the workman has not approached with a requisite promptitude and there has been a considerable delay on his part in approaching the appropriate authority or the Court. However, the workman is armed with an order passed by this Court in CWP No. 238/2012, whereby the Labour Commissioner, Himachal Pradesh was directed to make a reference to the learned Labour Court within four weeks from 13.05.2015 and thereafter the learned Labour Court was directed to decide the reference within six months. Therefore, no exception can be taken by the employer to the entertainment of the reference petition on the ground that it was highly belated. However, as regards the delay in approaching the learned Labour Court, even this Court had directed the learned Labour Court to consider the question of limitation while moulding the relief. It is for this precise reason that the learned Labour Court while allowing the claim petition has only held him entitled to be reinstated in service with seniority and continuity in service from the date when he raised the demand notice, but has declined him back wages. 8. Otherwise, normally where the dismissal, removal or termination of service is affected by the employer and the same is held bad, then the workman/employee has to be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer/employee relationship, the latter''s source of income gets dried up. Not only the concerned employee, but his entire family suffers grave adversities. They are deprived of their source of sustenance. Therefore, normally, when the reinstatement of such an employee which is preceded by a finding of competent judicial/quasi judicial body/Court that the action taken by the employer is ultra vires, the relevant statutory provisions or the principles of natural justice, entitle the employee/workman to claim full back wages. But, in case there is delay on the part of the employee/workman in approaching the competent authority/Court etc., then the same would essentially be required to be taken into consideration by the learned Labour Court. Thereafter, the relief for which otherwise the workman would have been entitled, accordingly, has to be moulded. Thus, no exception can be taken to the award passed by the learned Labour Court by the workman as admittedly this was what precisely has been directed by this Court in earlier adjudication in CWP No. 238 of 2012. 9. Now, adverting to the contention of the employer that the learned Labour Court could not have ordered seniority and continuity in service on account of colossal delay on the part of the workman in approaching the competent authority. I really do not find any merit in this contention for the simple reason that it was on the basis of the directions passed by this Court in CWP No. 238 of 2012 that the delay on the part of the petitioner in approaching the competent authority had been condoned and thereafter the Labour Commissioner had been directed to make a reference to the learned Labour Court within four weeks from 13.05.2015. It was clearly provided that the question of limitation shall be considered while moulding the relief. As already observed, the termination of the workman was held to be illegal and, therefore, necessary consequences thereof would have been to reinstate the workman. 10. Accordingly, I find no merit in both these petitions and the same are dismissed, leaving the parties to bear their own costs. All pending applications also stand disposed of. As already observed, the termination of the workman was held to be illegal and, therefore, necessary consequences thereof would have been to reinstate the workman. 10. Accordingly, I find no merit in both these petitions and the same are dismissed, leaving the parties to bear their own costs. All pending applications also stand disposed of. Registry is directed to place a copy of this judgment on the file of connected matter.