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Himachal Pradesh High Court · body

2019 DIGILAW 1725 (HP)

DHANVIR SINGH v. STATE OF HIMACHAL PRADESH

2019-11-15

ANOOP CHITKARA, DHARAM CHAND CHAUDHARY

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JUDGMENT : Anoop Chitkara, J. 1. Challenging the Award dated 18.8.2012, passed by the learned Presiding Judge, Industrial Tribunal-cum-Labour Court, Shimla, holding the compliance of Section 25-F of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) and simultaneous holding the violation of Section 25-H of the Act, and thereby granting compensation to the tune of Rs.2,00,000/- (rupees two lacs) instead of reinstatement, back wages, seniority and other service benefits, which order was modified by a learned Single Judge of this Court in terms of Judgment dated 13.7.2016, passed in CWP No. 8705 of 2012, enhancing the amount of compensation to Rs. 5,00,000/- (rupees five lacs), the workman has come up before this Court by way of the present Letters Patent Appeal, seeking reinstatement from the date of termination, with continuity in service and back wages, including other service benefits like gratuity, pension etc. 2. The workman was engaged on daily wages in the Department of Food, Civil Supply & Consumer Affairs, District Sirmour at Nahan, H.P. on 17.6.1983. He challenged two different orders of termination first dated 31.3.1985 and the second dated 13.8.1994. 3. The claim of the workman is that initially he was appointed as a Driver on daily wages and he continuously worked as such till 31st March, 1985 when without assigning any reasons, his services were terminated. 4. Against such termination, the workman filed a Civil Suit for permanent prohibitory injunction and the Civil Court granted interim relief, and under the strength of such interim relief, the workman continued to work in view of the stay of his termination. However, later on the Senior Sub Judge, Nahan dismissed the said Civil Suit. The workman challenged such dismissal by filing a Civil Appeal before the Court of learned District Judge Sirmaur at Nahan, who allowed his claim and set aside the order of termination. The employer challenged the judgment passed in the said appeal by filing a Regular Second Appeal before this Court, which was dismissed. Consequently the workman continued as such till 13.8.1994. 5. The next claim of the workman is that on 13.8.1994 his services were again terminated. The respondents do not dispute the first termination and the adjudication by the Civil Courts. Regarding the second termination, the response of the employer is that they retrenched the services of the workman w.e.f. 20.10.1993. Consequently the workman continued as such till 13.8.1994. 5. The next claim of the workman is that on 13.8.1994 his services were again terminated. The respondents do not dispute the first termination and the adjudication by the Civil Courts. Regarding the second termination, the response of the employer is that they retrenched the services of the workman w.e.f. 20.10.1993. Their further claim is that they retrenched the services of the workman after following the prescribed procedure laid down in Section 25-F of the Act. They further claimed that they had sent to the workman by a registered post demand draft No. 061947 dated 19.10.1993, as one month wages, in lieu of the period of notice, alongwith the amount of compensation, as admissible in terms of the Act. They further claimed that they had delivered the said demand draft to the workman on 20.10.1993 but he refused to take the same and after that it was sent to him through registered A.D. letter No. 7155, dated 21.10.1993. Their further claim is that the workman received such letter but never acknowledged its receipt. 6. After the second retrenchment on 20.10.1993, the workman filed an Execution Petition, but the Court dismissed such Execution Petition for want of jurisdiction. After this the workman approached the Himachal Pradesh Administrative Tribunal by filing O.A. No. 569 of 1994, but the learned Tribunal also dismissed the petition for want of jurisdiction. 7. After that the workman sent a demand notice to the Labour Inspector-cum-Conciliation Officer, Nahan. However, the conciliation proceedings failed. 8. Vide notification issued in October, 2008, the Labour Commissioner, Himachal Pradesh made reference to the Labour Court-cum-Industrial Tribunal, Shimla, to determine the following dispute: "Whether termination of the services of Sh. Dhanvir Singh S/o Sh. Hira Singh, Daily wage Driver by the 1.) The Director, Food, Civil Suplies & Consumer Affairs, Himachal Pradesh Shimla-9. 2.) The Distt. Controller, Food, Civil Supplies & Consumer Affairs, Sirmour at Nahan, w.e.f. 31.3.1985 and 13.8.1994 without complying with the provisions of the Industrial Disputes Act, 1947 is legal and justified? If not, what amount of back wages, seniority, past service benefits and compensation the above worker is entitled to from above employer?" 9. To this notification the workman filed a claim petition and the employer filed response thereto. The employer categorically stated that after the retrenchment from service w.e.f. 20.10.1993, they never engaged the workman. If not, what amount of back wages, seniority, past service benefits and compensation the above worker is entitled to from above employer?" 9. To this notification the workman filed a claim petition and the employer filed response thereto. The employer categorically stated that after the retrenchment from service w.e.f. 20.10.1993, they never engaged the workman. However, due to an interim order passed by the learned Sub Judge, Nahan, in the Execution Petition w.e.f. 22.10.1993, status quo was granted, but the said interim order was vacated on 12.5.1994. After that the workman is not working with the employer. The employer further stated that they had retrenched the workman after following due procedure in the Act. 10. Vide Award dated 18.8.2012, passed in Reference No. 58 of 2008, the learned Presiding Judge, Industrial Tribunalcum-Labour Court, Shimla, although upheld that there was total compliance of Section 25-F of the Act but simultaneously declared that since Sh. Ami Chand and Sh. Jahid Khan, were engaged as Drivers after the engagement of the workman in the year 1983, therefore the principle of first come last go was violated. The Industrial Tribunal declared that the employer had violated the provisions of Section 25-H of the Act by not reemploying the retrenched workman. After holding this, the Presiding Judge observed that since the workman had already attained the age of superannuation i.e. 58 years of age, as such, he was not entitled to re-engagement. The learned Presiding Judge also observed that although the workman was not entitled to back wages and other service benefits but held him entitled to compensation in lieu thereof, and awarded a sum of Rs.2,00,000/- (rupees two lacs) to him. 11. Challenging the dismissal of claim regarding violation of Section 25-F of the Act and disentitlement of back wages by reinstatement, the workman filed a writ petition before this Court which was registered as CWP No. 8705 of 2012. Vide judgment dated 13.07.2016 passed in the said writ petition the learned Single Judge of this Court dismissed the petition but enhanced the amount of compensation from Rs.2,00,000/- (rupees two lacs) to Rs.5,00,000/- (rupees five lacs). The Court also directed that compensation be paid within a period of two months failing which the workman was held entitled to interest @ 12% per annum from the date of passing of the judgment. 12. The Court also directed that compensation be paid within a period of two months failing which the workman was held entitled to interest @ 12% per annum from the date of passing of the judgment. 12. The respondents did not challenge this judgment and appears to be fully satisfied. However, challenging this judgment the workman has come up before this Court seeing reinstatement with full back wages. 13. We have heard Mr. V.D. Khidtta, learned counsel for the appellant and Mr. Vikas Rathore, learned Additional Advocate General for the respondent/State and have waded through the record. 14. The workman did not produce any evidence during the Reference Petition before the Industrial Tribunal-cum-Labour Court, Shimla, which commenced in the year 2008 and adjudication was over in the year 2012, proving that the workman was sitting idle during this period. Mr. V.D. Khidtta, learned Counsel, submits that the burden is on the employer to prove that the workman was working or was drawing remuneration during the period of retrenchment, which were later on held to be violative of Section 25-H of the Act. We do not thing that the burden is entirely on the employer to prove this fact. These facts would definitely be in the knowledge of the workman, and the role of the employer would be only to rebut the same. The workman is absolutely silent that he was gainfully employed during this period. 15. Even otherwise the workman was a skilled workman and the possibility of his working as driver cannot be ruled out. Therefore, the burden was on the workman to prove the fact that he did not work during the period of retrenchment. 16. The learned Single Judge of this Court, from paragraphs 14 to 16 of the impugned judgment, has relied upon the judicial pronouncements of the Hon ble Supreme Court of India in Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D. Ed.) & others, 2013 10 SCC 324 ; Bharat Sanchar Nigam Limited vs. Bhurumal, 2014 7 SCC 177 and Hari Nandan Prasad & another vs. Employer I/R to Management of Food Corporation of India & another, 2014 7 SCC 190 . 17. Mr. V.D. Khidtta, learned counsel for the appellant, placed reliance on one of these judgments which was also relied by the learned Single Judge in case of Deepali Gundu Survase (supra). 18. 17. Mr. V.D. Khidtta, learned counsel for the appellant, placed reliance on one of these judgments which was also relied by the learned Single Judge in case of Deepali Gundu Survase (supra). 18. The learned Single Judge by placing reliance on Bharat Sanchar Nigam Limited (supra) enhanced the compensation from Rs.2,00,000/- (rupees two lacs) to Rs.5,00,000/- (rupees five lacs). 19. The learned Presiding Judge, Industrial Tribunal-cum-Labour Court, Shimla also took into account that during the period of retrenchment the workman did not lead any evidence that he was not gainfully employed. He has discussed this in paragraphs-25 to 27 of the Award, and also placed reliance on Santosh Kumar Seal & others, 2010 LLR 677 and Jagbir Singh vs. Haryana State Agricultural Marketing Board, 2009 15 SCC 327 . 20. We find the judgment passed by the learned Single Judge to be extremely well reasoned, detailed and elaborate. It cannot be faulted on any ground whatsoever. 21. In view of the above there is no merit in the present appeal and the same is accordingly dismissed. No order as to costs.