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2018 DIGILAW 1852 (HP)

Nek Chand v. State Of Himachal Pradesh

2018-10-24

AJAY MOHAN GOEL, SURYA KANT

body2018
JUDGMENT Surya Kant, C.J. (Oral) - This order shall dispose of writ petitions No. 2403, 2404 and 2405 of 2018, as all the three writ petitions are at the instance of the workmen, whose references under Section 10 of the Industrial Disputes Act, 1947 (hereinafter referred to as ''1947 Act'' for short), have been answered against them by the learned Industrial Tribunal-cum-Labour Court, Shimla, vide impugned awards dated 20.06.2018. For the sake of convenience, the facts are being extracted from CWP No. 2403 of 2018. 2. Nek Chand-petitioner was engaged as a Beldar on daily wage basis w.e.f. 01.01.2005 and he was asked to work at the Forest Range, Sunni, Forest Division, Shimla. He continued to serve the Forest Department till 29th February, 2016, when his services were alleged to have been orally terminated. The petitioner raised a demand notice alleging violation of Sections 25-F, 25-G and 25-H of the 1947 Act. 3. The respondent-department vide its reply dated 23.05.2016 (Annexure P-2), denied the petitioner''s allegations regarding termination of his services and rather averred as follows:-3. That the contents of this para are wrong hence denied in view of the facts submitted in para''s supra. The services of the applicant have never been terminated. He is presently working on bill basis as per availability of work/funds on the works of seasonal nature. However he has never been engaged on daily wage basis against vacancy. The applicant was called for seasonal fire work (Fire watcher) and presently working in Bhajji Range of this division." 4. The appropriate Government made a reference as to whether termination of services of the petitioner w.e.f. 01.03.2016 by the Divisional Forest Officer, Forest Division Shimla, allegedly without complying with the provisions of the Industrial Disputes Act, 1947, was legal and justified ? If not, what relief including reinstatement, amount of back wages, past services, benefits and compensation was admissible to him? 5. Before the Industrial Tribunal-cum-Labour Court also the respondents took a categorical stand that services of the petitioner have not been terminated and that he worked on muster roll from the year 2005 to 2011, but had not completed 240 days in any of the calendar year, except the year 2006. 5. Before the Industrial Tribunal-cum-Labour Court also the respondents took a categorical stand that services of the petitioner have not been terminated and that he worked on muster roll from the year 2005 to 2011, but had not completed 240 days in any of the calendar year, except the year 2006. Thereafter, the petitioner was engaged on bill basis in terms of the Government instructions and he was working as such without being put to any fictional or artificial breaks and as per availability of work. 6. The questions which thus fell for consideration before the Industrial Tribunal-cum-Labour Court were:- (i) Whether termination of services of the petitioner w.e.f. 01.03.2016 was illegal and unjustified being in violation of the provisions of the 1947 Act; and (ii) if that question was answered in affirmative, what relief the petitioner was entitled to? 7. As regards to the first question, learned Tribunal has held that as per the Chart Annexure RW-1/B, the petitioner has continuously worked from the year 2005 to 2011 and in one of the years, he worked for more than 240 days i.e. he completed 258 days also. It has also been found that the petitioner was subsequently engaged on bill basis and as per the statement of the management witnesses, the petitioner was still working subject to availability of work. The Tribunal, thus, found that services of the petitioner have not been retrenched, hence, there was no violation of Section 25-F of the 1947 Act. 8. As regards Section 25-G of the Act (supra), the finding returned by the Tribunal is that no person junior to the petitioner has been retained in service voluntarily by the Department and also there is no violation of Section 25-H of the Act, for no new person was engaged by the Department at its own, save where there were directions from the Court of Law. 9. The reference was accordingly answered against the petitioner. 10. We have heard learned Counsel for the petitioner as well as learned Additional Advocate General for the respondents and gone through the records. 11. What emerges out from the record is that the petitioner was initially engaged on muster roll as a daily wage employee, but subsequently, from the year 2011 onwards, the pattern of engagement was changed to bill basis in terms of the Government Policy. 11. What emerges out from the record is that the petitioner was initially engaged on muster roll as a daily wage employee, but subsequently, from the year 2011 onwards, the pattern of engagement was changed to bill basis in terms of the Government Policy. Before that, the petitioner had worked for 258 days at least in one year and as such, in the event of any retrenchment, the petitioner would have been presumably entitled to compensation keeping in view the manner in which Section 25-F of the Act has been consistently construed. Nevertheless, no occasion has arisen to pay retrenchment compensation as services of the petitioner have not been factually terminated. In the subsequent years also, he has been consistently engaged, though on bill basis. So long as the services of the petitioner are being availed by the respondents, there appears to be no illegality in the findings returned by learned Tribunal that his claim for compensation would be premature. However, rejection of such claim by learned Tribunal cannot and will not be taken as an implied permission to the Authorities to terminate the services of the petitioner. In other words, so long the work is available, it is obligatory for the Authorities to continue to engage the petitioner(s) and pay him wages accordingly. The award under challenge stands modified and clarified to the extent above. 12. The writ petitions stand disposed of in above terms, so also pending miscellaneous application(s), if any.