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2018 DIGILAW 2107 (HP)

State of H. P. v. Narain Singh

2018-11-29

AJAY MOHAN GOEL, SURYA KANT

body2018
JUDGMENT : Surya Kant, J. 1. The prayer in this application moved under Section 5 of the Limitation Act is to condone delay of 265 days in filing the accompanying intra Court appeal. Though reply to the application has not been filed but we have heard learned Counsel for the parties. In the self explanatory application, the appellants have explained that various procedural channels were acquired by them to resort for filing the appeal and at this stage, some time was taken by the Authorities, due to which, the delay has occurred. The Assistant Engineer, IPH Sub Division, Kaffota, was entrusted the responsibility to file the appeal but due to some responsibility during the Assembly Session, the timely action could not be taken, due to which, this delay has been caused. 2. It appears that the reasons for not filing the appeal within the time are bona fide. The application is accordingly allowed and delay of 265 days in filing accompanying appeal is condoned. LPA No. 54 of 2018. 3. This Letter Patent Appeal assails order dated 21st June, 2016, whereby, learned Single Judge has set aside the award dated 08.05.2006 passed by learned Labour Court, Shimla, in Reference No. 83 of 2000, and ordered reinstatement of the respondent-workman with consequential benefits of counting of service for the purpose of regularization and fixation of wages. The respondent-workman has also been held entitled to back wages from the date of raising the demand except for the period when he served with other employers, though difference of wages for the said period was required to be paid. 4. The facts are like this. The respondent-workman was engaged by the appellant-department in the year 1990 and he continued to serve till 20th January, 1991. The respondent admittedly completed 255 days in the preceding calendar year of 1990. It was also the admitted case before learned Single Judge that no retrenchment compensation was paid to the respondent-workman while terminating his services. Rather, the plea taken by the appellants was that the respondent had abandoned the employment at his own. The aforesaid plea has been discarded by the learned Single Judge on the premise that voluntary abandonment of work by a workman is required to be established by cogent and reliable evidence by the employer and no such evidence has been led in the instant case by the appellants. The aforesaid plea has been discarded by the learned Single Judge on the premise that voluntary abandonment of work by a workman is required to be established by cogent and reliable evidence by the employer and no such evidence has been led in the instant case by the appellants. Similarly, learned Single Judge has found that juniors to the respondent were engaged in the subsequent years and such information had been placed on record by the workman after securing the same under the Right to Information Act. The fact that a large number of persons junior to the workman were engaged, resulting in violation of Section 25-H of the Industrial Disputes Act, 1947, as according to the learned Single Judge, the principle of 'last come first go' was violated, has also been proved. It has also been found as a matter of fact that no notice or information was ever sent to the respondent-workman to resume the work before engaging fresh persons after January, 1991. 5. Learned Single Judge, thus, having held that there is violation of Sections 25-F, 25-G and 25-H of the Industrial Disputes Act and relying upon certain decisions of this Court as well as Hon'ble Supreme Court, came to the conclusion that the action of the employer in retrenching the respondent, was totally illegal. The plea of voluntary abandonment, as noticed earlier, has been discarded firstly for want of any cogent evidence from the employer side and secondly for the reason that the workman has been agitating the matter against his retrenchment. 6. Taking into consideration the cumulative effect of the findings returned by the learned Single Judge, as briefly noticed above, we do not find any error in the impugned judgment to the extent of order of reinstatement of the respondent-workman. 7. Faced with this, learned Additional Advocate General urged that the respondent was a daily paid labourer and it cannot be believed that he remained idle all these years. He argued that mere filing of affidavit by the workman to the effect that most of the time he remained out of employment ought not to have been believed by the learned Single Judge as a gospel truth. We find merit in this submission. It is a matter of common knowledge that a manual labourer would, so as to earn his livelihood, is expected to work at one place or the other. We find merit in this submission. It is a matter of common knowledge that a manual labourer would, so as to earn his livelihood, is expected to work at one place or the other. In such a situation, there was no legal necessity to award back wages to the respondent. It may also be mentioned here that in compliance to the decision of learned Single Judge, the respondent has been already reinstated though subject to final outcome of the present intra Court appeal. 8. For the reasons aforestated, the instant appeal is allowed in part. Order dated 21st June, 2016 of the learned Single Judge is modified to the extent that respondent-workman shall be taken to have been reinstated in service from the date of termination of his services on notional basis but with continuity of service for the purpose of regularization of service and/or pay fixation. He shall however be not entitled to any back wages till the order of his reinstatement. 9. The appeal stands disposed of in above terms, so also pending miscellaneous applications, if any. COPC No. 173 of 2017 10. In view of the fact that the main appeal has been decided on merit vide separate order of even date, the instant contempt proceedings have been rendered infructuous and the same are dropped accordingly. Notice discharged.