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Himachal Pradesh High Court · body

2020 DIGILAW 734 (HP)

Ravi Dass v. Divisional Forest Officer

2020-10-13

SANDEEP SHARMA

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JUDGMENT Sandeep Sharma, J. - Instant petition filed under Article 226 of the Constitution of India, lays challenge to award dated 14.1.2013 passed by the Presiding Judge, Labour Court-cum-Industrial Tribunal Kangra at Dharamshala ( for short the "Tribunal") in reference No. 235/2010, whereby reference made to the Tribunal below has been decided against the petitioner (hereinafter referred to as the workman). 2. For having bird's eye view, certain undisputed facts as emerge from the record are that the petitioner was initially engaged as daily wager on muster roll basis in the respondent-department on 7.1.2005. He continued to work in this capacity till 30.6.2009. Since the petitioner was being given fictional breaks from time to time, he on 12.4.2008 served demand notice upon the Conservator of Forests, Mandi Circle, copy whereof was also forwarded to the Labour-cum- Conciliation Officer, Mandi. On 17th March, 2009, a settlement under Section 12(3) of the Industrial Disputes Act, 1947 (for short "Act') came to be arrived interse parties. The terms of the settlement are as under:- "(1) The employer/management side has stated in written reply dated 13.05.2005 that Mr. Ravi Dass above worker has worked as beldar on daily wages for 85 and 118 days during 2005 and 2007 respectively. The seniority of all daily wagers is made at division level. The above worker can be been employed as per his seniority with the whole jurisdiction of Joginder Nagar Forest Division, as per availability of work. He will be retrenched as per provisions of Section 25-F and reemployed as per provisions of Section 25-G and 25-H of ibid Act. (2) Mr. Ravi Dass above worker agrees to work anywhere, as per his seniority, within the whole jurisdiction of Jogindernagar Forest Division, as per availability of work and it may be 8kms or more away from his permanent residence. He will report for duties on 16.04.2009 to the Block Forest Officer, Chauntra on 16.4.2009 at 9 AM. (3) Both the parties to the Industrial Disputes agree to above terms of settlement at Sr. No.1 and 2 therefore this Industrial Disputes has been finally disposed." 3. On the basis of aforesaid settlement, workman came to be re-engaged by the respondent on 16.4.2009, whereafter he worked continuously upto 30.6.2009 without any break, but allegedly on 1.7.2009 his services were again terminated by way of verbal orders and as such, he was compelled to raise Industrial Dispute. On the basis of aforesaid settlement, workman came to be re-engaged by the respondent on 16.4.2009, whereafter he worked continuously upto 30.6.2009 without any break, but allegedly on 1.7.2009 his services were again terminated by way of verbal orders and as such, he was compelled to raise Industrial Dispute. Since conciliation interse parties failed, appropriate Government under Section 10(1) of the Act made following reference to the Labour Court-cum-Industrial Tribunal, Dharamshala for adjudication:- "Whether termination of the services of Sh. Ravi Dass S/o Sh. Hoshiyar Singh by the Divisional Forest Officer, Joginder Nagar, District Mandi, Himachal Pradesh w.e.f.01.7.2009 without complying the provisions of Section 25-F, 25-G and 25-H of the Industrial Disputes Act, 1947, as alleged by the workman, is proper and justified? If not, what amount of compensation, back wages and other service benefits the above worker is entitled to from the above employer?" 4. Workman before the learned Tribunal below set up a case that his services were initially engaged as a daily wager on muster roll basis in the respondent in the year, 2005 and in this capacity, he continuously served the department upto 30.6.2009. Workman claimed that during aforesaid period, respondent intentionally gave him fictional breaks so that he could not complete 240 days in a calendar year for the purpose of regularization. Workman also averred before the Tribunal below that in August, 2006 his services were illegally terminated and as such, he was compelled to serve demand notice upon the Conservator of Forests, Mandi, but he was reinstated on 16.4.2009 pursuant to the settlement arrived interse parties on 17.3.2009 under Section 12(3) of the Act. Workman averred that on 1.7.2009, his services have been illegally terminated by the respondent that too without adhering to the provisions contained under the Act. Workman specifically claimed that the respondents have failed to adhere the principle of "last come first go" because after his disengagement, new/fresh hands were engaged by the respondent and at no point of time he was given an opportunity of reemployment. Workman also claimed that termination of him deserves to be quashed and set aside being passed in violation of provisions contained under Sections 25-F, 25-G and 25-H of the Act. 5. Workman also claimed that termination of him deserves to be quashed and set aside being passed in violation of provisions contained under Sections 25-F, 25-G and 25-H of the Act. 5. Respondent by way of written statement refuted the aforesaid claim of the petitioner and claimed before the Tribunal below that though the petitioner was engaged in the month of July, 2005, but he was given work intermittently as per the availability of the work and funds in various seasonal forestry works. Respondent claimed that the workman never completed 240 days of work in any calendar year of his engagement and in the month of August 2006, he himself abandoned the job. Respondent claimed that on 16.4.2009 though workman was re-engaged pursuant to the settlement dated 17.3.2009, but he only worked up to 30.6.2009 and thereafter left the job voluntarily. Respondent also claimed that the workman did not respond to their notices dated 8.7.2009, 29.7.2009 and 18.12.2009 calling upon him to resume his duties. Apart from above, respondent also claimed that no artificial breaks were given to the petitioner, rather his services were engaged intermittently on account of various seasonal forestry works i.e. plantation and nursery etc in Joginder Nagar range. On the cessation of the season/work, respondent had no option but to disengage the services of the petitioner alongwith other similarly situate workmen. Respondent categorically stated before the Tribunal below that workman and other similarly situate workmen used to be reengaged as daily wagers with the start of the fresh season in the next year. Respondent categorically stated in their reply to the claim petition that petitioner, who is gainfully employed is/was not interested to work with them and as such, abandoned the job. 6. In rejoinder to the aforesaid reply filed by the respondent, workman pleaded that the mandays chart produced by the respondent is incorrect. He claimed that he worked on bill voucher basis and has completed more than 240 days in each and every calendar year of his employment. While refuting claim of the respondent that he abandoned the job, workman claimed that no notice was ever received by him and person junior to him has been reappointed on muster roll basis by the respondent in the month of November, 2006. 7. On the basis of the pleadings of the parties, the following issues were framed:- 1. While refuting claim of the respondent that he abandoned the job, workman claimed that no notice was ever received by him and person junior to him has been reappointed on muster roll basis by the respondent in the month of November, 2006. 7. On the basis of the pleadings of the parties, the following issues were framed:- 1. Whether the disengagement of the petitioner with effect from01.7.2009 is violative of the provisions of Sections 25-F, 25-G and 25-H of the I.D. Act as alleged. If so, 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. 8. On the basis of the aforesaid pleadings, learned Tribunal below passed the award dated 14.1.2013 and decided the reference against the workman. In the aforesaid backdrop, workman has approached this Court in the instant proceedings, praying therein to set-aside the impugned award passed by learned Tribunal below. 9. Having heard learned counsel representing the parties and perused the material available on record vis- -vis findings returned by the learned Tribunal below in the impugned award, this Court finds that there is no dispute interse parties that petitioner-workman was initially appointed as daily wager on muster roll basis in the year, 2005, whereafter he continued to work till 30.6.2009. On 17.3.2009, a settlement under Section 12(3) of the Act arrived interse parties, whereby it was decided interse parties that workman can be employed within the whole jurisdiction of Jogindernagar as per availability of work. It also stands recorded in the aforesaid settlement that workman will be retrenched as per provisions of sections 25-F and re-employed as per provision of Section 25-G and 25-H of the Act. During the settlement workman gave an undertaking to work anywhere as per his seniority, within the whole jurisdiction of Jogindernagar Forest Division, as per availability of work. He also undertook before the authority that he would report for duties on 16.4.2009. Pursuant to aforesaid settlement though workman resumed duties on 16.4.2009, but he worked only up to 30.6.2009, whereafter allegedly he abandoned the job. He also undertook before the authority that he would report for duties on 16.4.2009. Pursuant to aforesaid settlement though workman resumed duties on 16.4.2009, but he worked only up to 30.6.2009, whereafter allegedly he abandoned the job. Though, claim of the petitionerworkman is that on 1.7.2009 his services were orally terminated, but respondent by way of convincing evidence has successfully proved on record that on 1.7.2009, workman abandoned the job and thereafter despite having received notice failed to resume the duties. 10. Petitioner Ram Dass while stepping into the witness box as PW-1, tendered in evidence his affidavit Ex. PW1/A and reiterated on oath the contents of the petition/statement of claim, as has been taken note hereinabove. He also placed on record Ex.PW1/B i.e. a copy of demand notice dated 3.7.2009 served upon the respondent by him. In his cross-examination, he fairly admitted that compromise (Ex.R1)had taken place interse him and the respondent in the year, 2009, whereby his services were reengaged by the respondent in the month of April, 2009 and he worked for approximately 2 1/2 months in the year, 2009, but denied that thereafter he left the service willingly. He also denied that Ranger Officer, Jogindernagar had sent him notices dated 8.7.2009, 29.7.2009 and 18.12.2009 calling upon him to resume the work. He also denied that he refused to receive the notices dated 8.7.2009 and 29.7.2009. He also denied in his crossexamination that in the month of December, 2009 Forest Officials visited his residence alongwith the notice and his daughter was informed that the services of the petitioner are required in Chauntra nursery. 11. Respondent with a view to prove that the petitioner himself abandoned the job examined Sh. Kamal Jaswal (RW-1), Range Officer, Joginder Nagar, who deposed that notice dated 18.12.2009 Ex.RW1/A was issued in the name of the petitioner. He deposed that Sh. Anil Kumar, Forest Guard had approached the petitioner alongwith the notice and made report on the notice and returned the same. He stated that notice dated 27.11.2010 was sent to the petitioner under registered cover calling upon him to resume his duties, but such registered letter was received back undelivered with the report that despite repeated attempts, the petitioner is/was not available and his family members informed the postman that the petitioner is out of station. Ex. He stated that notice dated 27.11.2010 was sent to the petitioner under registered cover calling upon him to resume his duties, but such registered letter was received back undelivered with the report that despite repeated attempts, the petitioner is/was not available and his family members informed the postman that the petitioner is out of station. Ex. RW1/B is the copy of notice dated 27.11.2010, Ex.RW1/C is the postal receipt and Ex.RW1/D is the copy of the registered letter/envelope. In cross-examination, aforesaid witness categorically stated that after having received registered notice back, he sent written report to the Divisional Forest Officer, but he did not pass any order for initiation of the disciplinary proceedings against the petitioner. 12. Shri Anil Kumar, Forest Guard (RW-2) proved on record copy of notice dated 18.12.2009 Ex.RW1/A and stated that he visited the house of the petitioner twice with the notice. On 19.12.2009, the mother of the petitioner met him and he told her that petitioner is required to join his duties on 20.12.2009, but petitioner failed to join the duties on 20.12.2009. Thereafter, on 21.12.2009 he again went to the house of the petitioner alongwith one Sh. Joginder Singh and at that time daughter of the petitioner met him and she informed that the petitioner has gone out of station due to some work and as and when he would return she will tell him that he is required to join his duties in Chauntra nursery. Report in this regard was made by him on the notice, which was returned to the Range Forest Officer. The report was also signed by Sh. Joginder Singh as a witness. 13. Sh. Chaman Lal, Forest Guard (RW-3), also deposed that in the year, 2009 while he was posted as a forest guard in upper Chauntra Beat, notices dated 8.7.2009 and 29.7.2009 were issued by him, copies whereof are Ex.RW3/A and Ex.RW3/B, calling upon the petitioner to report for work. He deposed that he had gone to the house of the petitioner personally with the notices in the company of Sh. Love Kumar, but workman refused to receive the notice on the pretext that he was advised by his counsel not to receive the same. 14. Sh. Love Kumar, Forest worker (RW-4) supported the version of RW-3. 15. Sh. He deposed that he had gone to the house of the petitioner personally with the notices in the company of Sh. Love Kumar, but workman refused to receive the notice on the pretext that he was advised by his counsel not to receive the same. 14. Sh. Love Kumar, Forest worker (RW-4) supported the version of RW-3. 15. Sh. P.L. Gupta, Divisional Forest Officer, Joginder Nagar (RW-5) in his affidavit Ex.RW5/A corroborated on oath the contents of the reply filed by him. He also placed on record Ex.RW5/B i.e. the mandays chart relating to Sh. Joginder Singh son of late Sh. Kharku Ram. This witness in his cross-examination admitted that the services of the petitioner were engaged as a daily wager on muster roll basis in the year, 2005, but denied that the services of the petitioner were earlier terminated in the year, 2006. He admitted that the settlement Ex.R1 had taken place. He admitted that no notice was given to the petitioner intimating him that if he fails to report for duty, departmental proceedings will be initiated against him and his services will be terminated. 16. Careful perusal of aforesaid evidence led on record by the respondent clearly suggests that the petitioner after his reengagement on 16.4.2009 pursuant to settlement dated 17.3.2009 himself abandoned the job on 1.7.2009. The respondent has placed/exhibited on record the notices dated 8.7.2009, 29.7.2009 and 18.12.2009, perusal whereof clearly reveal that repeated opportunity was given to the petitioner to resume duty, but despite that petitioner failed to resume the duty. If the statements made by RW-2 to 4 are read in conjunction juxtaposing each other, it stands duly established on record that repeatedly notices were sent to the petitioner, which were either received by him personally or his family members intimating therein his requirement to join duties at Chauntra Nursery Jogindernagar, but since he failed to resume duty it can be safely inferred that he abandoned the job himself. Cross-examination conducted upon these witnesses if perused minutely, it nowhere suggest that opposite party was able to extract something contrary to whatever aforesaid witnesses stated in their examination-in-chief. 17. It can be safely gathered from the statement of RW-1, Sh. Kamal Jaswal that notice dated 18.12.2009 Ex.RW1/A was forwarded to the petitioner under registered cover calling upon him to resume duties, but such registered letter was received back undelivered. 17. It can be safely gathered from the statement of RW-1, Sh. Kamal Jaswal that notice dated 18.12.2009 Ex.RW1/A was forwarded to the petitioner under registered cover calling upon him to resume duties, but such registered letter was received back undelivered. Endorsement by postal authority on registered letter itself suggests that repeated efforts were made to contact the workman but every time it was informed that workman has gone somewhere out. 18. Leaving everything aside, no attempt, if any, has been made by the petitioner to prove that notices, as referred above, were not sent on his address, rather endorsement made by the postal authority on the registered letter, as has been taken note hereinabove, compels this Court to infer/presume that the petitioner was duly served, but despite that he failed to resume duties and as such, learned Tribunal below rightly accepted the version put forth by the respondent that the petitioner himself abandoned the job and as such, there was no requirement, if any, to comply with the provisions contained under sections 25-F, 25-H and 25-G of the Act. 19. Mr. Kulbhushan Khajuria, learned counsel representing the petitioner while making this Court to peruse the pleadings adduced on record made serious attempt to persuade this Court to agree with his contention that since it stands duly admitted that during his employment workman was repeatedly given fictional break with a view to prevent him to complete 240 days in any calendar year so that he cannot claim regularization, tribunal below ought have not concluded that workman did not complete 240 days in a calendar year. However, aforesaid attempt/plea made by learned counsel for the petitioner is of no relevance, especially in the light of the terms of the reference made to the Labour Court-cum-Industrial Tribunal, Dharamshala under Section 10(1) of the Act. Careful perusal of terms of reference as has been taken note hereinabove, nowhere suggests that Tribunal below was required to go into the aforesaid aspect of the matter and as such, no fault can be found with the impugned award passed by the learned Tribunal below. Careful perusal of terms of reference as has been taken note hereinabove, nowhere suggests that Tribunal below was required to go into the aforesaid aspect of the matter and as such, no fault can be found with the impugned award passed by the learned Tribunal below. In this regard, reliance is placed upon the judgment passed by Hon'ble Apex Court in Mukand Ltd. V. Mukand Staff & Officers Assn, (2004) 10 SCC 460 , the Hon'ble Apex Court has held as under:- "22.We shall now analyse the submissions made by the learned senior counsel appearing on either side with reference to the pleadings, documents, records and also with reference to the judgments cited. The Reference is limited to the dispute between the Appellant -Company and the 'workmen' employed by it. 23.We have already referred to the order of Reference dated 17.2.1993 in paragraph supra. The dispute referred to by the order of Reference is only in respect of workmen employed by the appellant -Company. It is, therefore, clear that the Tribunal, being a creature of the Reference, cannot adjudicate matters not within the purview of the dispute actually referred to it by the order of Reference. In the facts and circumstance of the present case, the Tribunal could not have adjudicated the issues of the salaries of the employees who are not workmen under the Act nor could it have covered such employees by its a ward. Even assuming, without admitting, that the Reference covered the non- workmen, the Tribunal, acting within its jurisdiction under the Act, could not have adjudicated the dispute insofar as it related to the 'non -workmen'. 95. The Industrial Tribunal did not have jurisdiction to adjudicate the present dispute inasmuch as it pertains to the conditions of service of non - workmen. The learned single Judge and the Division Bench of the High Court failed to appreciate that parties cannot by their conduct create or confer jurisdiction on an adjudicating authority when no such jurisdiction exists. We have already noticed that the Division Bench has erred in holding that there is community of interest between the workmen and the nonworkmen and holding further that the workmen could raise a dispute regarding the service conditions of non -workmen." 20. It is quite apparent from the aforesaid exposition of law that tribunal below cannot go beyond the terms of reference. It is quite apparent from the aforesaid exposition of law that tribunal below cannot go beyond the terms of reference. Since question of artificial breaks, if any, was not referred to the tribunal, it rightly has not ventured to look into that aspect of the matter. 21. Leaving everything aside, this Court has very limited jurisdiction to re-appreciate findings of fact returned by learned Tribunal below, while exercising writ jurisdiction under Article 226 of the Constitution of India. In this regard, reliance is placed upon the judgment passed by the Hon'ble Apex Court in Bhuvnesh Kumar Dwivedi vs. M/s Hindalco Industries Ltd., (2014) AIRSCW 3157 , wherein it has been held as under:- "16. .........The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior Courts or Tribunals: these are cases where orders are passed by inferior Courts or Tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is no entitled to act as an Appellate Court. This limitation necessarily means that findings of fact reached by the inferior court or Tribunal as result of the appreciation of evidence cannot be reopened for questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the interference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised. 22. It is quite apparent from the aforesaid exposition of law that writ court while examining the correctness and genuineness of the award passed by Tribunal has very limited powers to appreciate the evidence adduced before the Tribunal below, especially the findings of fact recorded by the Tribunal below and same cannot be questioned in writ proceedings and writ court cannot act as an appellate court. As per the aforesaid judgment passed by Hon'ble Apex Court, error of law, which is apparent on the face of record, can be corrected by writ court but not an error of fact, however grave it may appear to be. Hon'ble Apex Court further held in the aforesaid judgment that if findings of fact is based upon no evidence that would be regarded as error of law, which can be corrected by a writ of certiorari. Hon'ble Apex Court further held in the aforesaid judgment that if findings of fact is based upon no evidence that would be regarded as error of law, which can be corrected by a writ of certiorari. Writ of certiorari can be issued, if it is shown that in recording said findings, Tribunal erroneously refused to admit admissible evidence or erroneously admitted inadmissible evidence, which influenced impugned findings. 23. Consequently, in view of the detailed discussion as well as law referred herein above, this Court sees no reason to interfere with the well reasoned award passed by the Tribunal below and as such, same is upheld. The present writ petition is dismissed being devoid of any merits alongwith pending applications, if any.