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2018 DIGILAW 222 (HP)

Ghanshyam v. State Of Himachal Pradesh

2018-02-27

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J —This petition under Article 226 of the Constitution of India is directed against the award passed by the learned Industrial Tribunal-cum-Labour Court (for short the ''Tribunal'') on 12.10.2012. Facts, in brief, may be noticed. 2. The following reference was sent by the appropriate Government for adjudication to the learned Tribunal:- "Whether termination of the services of Shri Ghanshayam s/o Shri Deulu Ram by the Divisional Forest Officer, Working Plan Division Karsog at Sundernagar, District Mandi, H.P. during April, 2006, whereas his junior Shri Tek Chand was kept in services without complying with the provisions of Industrial Disputes Act, 1947 is legal and justified? If not, what amount of back wages, seniority, past service benefits and compensation the above exworker is entitled to from the above employer?" 3. The workman (petitioner herein) filed a claim petition stating therein that he had been engaged as daily waged Beldar in January, 2001 and he continued as such till February, 2006 and thereafter his services were illegally retrenched by the respondents while retaining junior person and, therefore, the retrenchment was illegal, arbitrary, discriminatory, unconstitutional and against the settled position of law as well as provisions contained in Sections 25-G, 25-F and 25-H of the Industrial Disputes Act, 1947 (for short the ''Act'') and as such the same was liable to be quashed and set aside. 4. The respondents contested the petition by filing reply wherein preliminary objections regarding maintainability, delay and latches and estoppel etc. were raised. On merits, it was claimed that the petitioner even though engaged w.e.f. January, 2001 to February, 2006 was intermittently engaged as casual labourer, that too, against a temporary establishment of Karsog Working Plan Division at Sundernagar and after its completion the permanent staff posted with Working Plan Division was posted in another establishment of Forest Department and since the services of the petitioner were no longer required, therefore, his services were dispensed with. 5. On the pleadings of the parties, the learned Tribunal framed the following issues:- "1. Whether the disengagement of the petitioner w.e.f. January, 2006 is violative of the provisions of Sections 25-F, 25-G and 25-H of the Industrial Disputes Act as alleged. If so to what relief the petitioner is entitled to? OPP 2. Whether the reference is not maintainable as alleged. If so, to what effect?OPR. 3. Whether the disengagement of the petitioner w.e.f. January, 2006 is violative of the provisions of Sections 25-F, 25-G and 25-H of the Industrial Disputes Act as alleged. If so to what relief the petitioner is entitled to? OPP 2. Whether the reference is not maintainable as alleged. If so, to what effect?OPR. 3. Whether the reference is hit by the vice of delay and laches as alleged. If so, to what effect?OPR. 4. Relief. 6. On the basis of the pleadings and evidence so led, the learned Tribunal dismissed the claim petition, constraining the petitioner to file the instant writ petition. 7. It is vehemently argued by Shri Inder Sharma, learned counsel for the petitioner that the findings recorded by the learned Tribunal are perverse inasmuch as the learned Tribunal has completely overlooked the fact that the respondents themselves had categorically admitted that while dispensing with the services of the petitioner, the services of one junior Shri Tek Chand (Respondent No. 3) have not only been continued but his services stand regularised. 8. On the other hand, Shri Vinod Thakur, learned Additional Advocate General has supported the award and contends that since the petitioner had not completed 240 days in a calendar year, therefore, he was not entitled to the protection as available under the Act. I have heard learned counsel for the parties and have gone through the records of the case. 9. At the outset, it may be observed that while adjudicating upon the case of present kind, this Court is duty bound to keep in mind that Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the Preamble of the Constitution and the provisions contained in para-IV therein in general and Articles 38, 39(a to e) , 43 and 43(a) in particular which mandate that the State should secure a social order for the promotion of the welfare of the people, ensure equality between men and women, equitable distribution of material resources of the community to subserve the common good and also ensure that the workers get their dues. 10. 10. Undoubtedly, the Labour Court or the Industrial Tribunal, as the case may be, are ordinarily considered to be final Courts of facts but if finding is perverse or the same is not based on legal evidence, the High Court exercising its power under Articles 226 and 227 of the Constitution can go into the question of fact decided by the Labour Court or Tribunal. Obviously, before doing so, certain reasons will have to be spelt out as to why it intends to reconsider the finding of facts. 11. Adverting to the award passed by the learned Tribunal, it would be noticed that the claim of the petitioner has been rejected simply on the ground that there was no order of retrenchment passed in April, 2006, as the petitioner had worked only up to February, 2006, therefore, there was no question of services being terminated w.e.f. April, 2006. This would be clearly evident from para -16 of the award, which reads thus:- "It is the admitted case of the parties that the services of the petitioner were engaged as a daily paid beldar in the month of September, 2001. In the statement of claim/demand and the rejoinder, the petitioner has pleaded that he worked only up-to the month of January, 2006. The respondent in his reply has maintained that during the period of his employment, the petitioner worked intermittently from the month of January, 2001 to February, 2006. The mandays charts Exts. PW1/B and RW1/B placed on the record by the parties clarify that the petitioner worked for only 31 days in the year 2003 upto the month of February, 2006. Since the petitioner served the respondent/ department only upto the month of January/February, 2006, the question of the termination of his services in the month of April, 2006 (as per the reference) does not arise. As no retrenchment order was passed by the respondent in the month of April, 2006, it cannot be said that the services of the petitioner have been wrongly and illegally terminated by the respondent in the said month." 12. The learned Tribunal has not at all considered and gone into the question regarding the engagement of respondent No. 3 (Shri Tek Chand) , who admittedly was a junior to the petitioner. The learned Tribunal has not at all considered and gone into the question regarding the engagement of respondent No. 3 (Shri Tek Chand) , who admittedly was a junior to the petitioner. The learned Tribunal, in fact, has not at all applied its judicial mind to the pleadings as also to the evidence that has come on record. 13. The petitioner while appearing as PW-1 in support of his claim has specifically stated that Respondent No. 3 (Shri Tek Chand) is junior to him and is still working in the Office of Chief Conservator of Forest, Mandi and the respondents while examining Shri V.K. Aggarwal, Divisional Forest Officer, Karsog, did not dispute this rather he feigned ignorance regarding this fact. 14. That apart, the petitioner placed on record letter Ex.PW1/D written by the PIO-cum-DFO (Hqrs.) to the petitioner which disclosed that respondent No. 3 was initially engaged as a daily waged labourer in the office of Divisional Forest Officer, Working Plan Division, Karsog, Sundernagar, w.e.f. 18.11.2002 and was still working in the office of Chief Conservator of Forest, Working Plan Division, Karsog under the same project. But this letter was conveniently discarded and kept out of the realm of consideration by the learned Tribunal. 15. Obviously, therefore, in such circumstances the termination of the services of the petitioner is contrary to the well established principle of "last come first go" and therefore, in violation of the provisions of Section 25-G of the Act. 16. At this stage, Shri Vinod Thakur, learned Addl. Advocate General would contend that protection under the Act are not available to the petitioner as he has not completed 240 days in calendar year. 17. This contention of the respondents is not tenable in view of the authoritative pronouncement of the Hon''ble Supreme Court in Harjinder Singh vs. Punjab State Warehousing Corporation , (2010) 3 SCC 192 , wherein it was held that for attracting the applicability of Section 25-G of the Act, workman is not required to prove that he had worked for a period of 240 days during twelve calendar months preceding the termination of his service and it is sufficient for him to plead and prove that while effecting retrenchment employer violated the rule of "last come first go" without any tangible reason. 18. 18. In view of the aforesaid exposition of law, this Court has no hesitation to conclude that the termination of the petitioner was in gross violation of law and is, therefore, not sustainable and is accordingly set aside. 19. Having said so, the respondents are directed to re-engage the petitioner preferably at the same place. In the peculiar facts and circumstances of the case, the petitioner shall not be held entitled to any consequential benefits, save and except, the benefit of seniority. It is further made clear that, in case, after computation of seniority, the petitioner is found entitled to regularisation of his services as per the instructions issued by the Government from time to time, then needless to say that he shall not be driven to un-necessary litigation and his services shall be regularised in accordance with law. 20. The petition is disposed of in the aforesaid terms, leaving the parties to bear their own costs.