Sh. Sumeet Kumar vs Municipal Council, Nurpur

Ajay Mohan Goel, J

By way of this petition, the petitioner has, inter alia prayed for the following reliefs:-

“a) That the entire record pertaining to the instant case may kindly be summoned and subjected to scrutiny by this Hon’ble Court.

b) That the present petition may very kindly be allowed with costs and this Hon’ble Court be pleased to issue a writ in the nature of certiorari, quashing the order dated 19.09.2012 (Annexure P-4) and restore the statement of claim (Ref. No.130/2007).”

Brief facts necessary for the adjudication of this petition are that the petitioner, who was engaged as a workman by the respondent-Council, raised an industrial dispute feeling aggrieved by his termination and the appropriate Government made a Reference to learned Labour Court, which reads as under:-

“Whether the termination of services of Shri Sumeet Kumar S/o Shri Prem Chand workman by the Executive Officer, Nagar Parishad, Nurpur, District Kangra, Н.Р. w.e.f. 11/2003 without complying the provisions of the Industrial Disputes Act, 1947 is proper and justified? If not, what relief of service benefits and amount of compensation the above aggrieved workman is entitled to?"

Thereafter, learned Labour Court vide Award dated 21.12.2010, titled as Shri Sumeet Kumar Versus The Executive Officer, Nagar Panchayat, Nurpur, decided Reference No.130 of 2007, as under:-

“6 The deposition of the petitioner and the documentary evidence on record categorically goes to prove that the petitioner had come to be engaged by the respondents in June, 2001 in pursuance to letter dated 22.6.2001 issued by the Deputy Commissioner Kangra vide Ex. PWI/B. The petitioner continued working as such uninterruptedly till November, 2003. The petitioner has discharged his initial onus by deposing that he had completed 240 days in the 12 months preceding the date of his termination. There is nothing on record to show to the contrary. Neither the respondents have put in appearance before this Court and nor any record were produced before the Labour-cum-Conciliation Officer as is apparent from Ex. PW2/A. The respondents have failed to discharge their onus, by disputing that the petitioner had not completed 240 days, as claimed by him. It is thus to be presumed that the petitioner after having been engaged in the year 2001 had completed uninterruptedly and continuously till his termination on November, 2003. He had completed more than 240 days and as such he was to be disengaged in compliance to the provisions of Section 25-F of the Industrial Disputes Act. There is nothing on record to remotely suggest that the respondents had resorted to the aforesaid provisions. It is thus held that the termination of the petitioner was bad in the eyes of law, being in violation of the provisions of Section 25-F of the Act. Consequently the termination of the petitioner is set aside. He is ordered to be re-engaged forthwith in the same place and post the petitioner was working at the time of his termination. Since the petitioner has failed to discharge the onus of proving that he has not gainfully employed during the forced idleness no back wages shall be payable to the petitioner. He shall however be entitled to seniority and continuity from the date of his illegal termination. The reference is answered accordingly. A copy of this award be sent to the appropriate Govt. for publication in the official gazette and the file after completion consigned to the record room.”

This Award was challenged by the Municipal Council, Nurpur, by way of CWP No.5342 of 2011, titled as Municipal Council, Nurpur, through Executive Officer, Nurpur, Kangra (HP) Versus Shri Sumeet Kumar, before this Court and in terms of order dated 12.01.2012 (Annexure P-3), Hon’ble Coordinate Bench of this Court was pleased to allow the writ petition by returning the following findings:-

Having considered the matter in its entirety, I am of the view that impugned award dated 21.12.2010 needs to be set aside on this short ground alone, though lot can be said on merits also. Since respondent has not entered appearance before this Court, this Court is not dealing with contentions raised on merits.

In view of the aforesaid discussions, the impugned award dated 21.12.2010 is set aside. The matter is remanded back to the Tribunal for adjudication afresh. Original reference petition No. 130 of 2007 is restored. After issuing fresh notice to the parties Reference shall be adjudicated by the Tribunal expeditiously.

Registry is directed to send copy of this order alongwith the entire record immediately. Petitioner undertakes to appear before the Tribunal on 28.2.2012.”

Thereafter, the matter was remanded back to learned Labour Court. The Reference was answered by learned Labour Court post remand vide impugned order dated 19.09.2012 (Annexure P-4), which reads as under:-

“After 11.30 A.M. the care has been called out repeatedly at intervals before and after the lunch. It is already 2.50 P.M. In the morning, the petitioner appeared in person in the Court and sought time for leading the evidence on the pretext that his Id. csl has not reached the Court from Nurpur. Now, he (petitioner) is absent despite knowledge. Even his Id esl. has not tumed up so for. Per judgement dated January 12, 2012 passed by the Hon'ble High Court of Himachal Pradesh in CWP No. 5342 of 2011-F titled as Municipal Council Nurpur-vs-Sh. Suneet Kumar, this Court/Tribunal was directed to decide the reference/claim petition expeditiously. No PW is present despite the prant of the last opportunity in this old case pertaining to the year 2007. The perusal of the file discloses that already sufficient time has been granted to the petitioner to lead the evidence which he has failed to do. As already mentioned, last opportunity was afforded for today In these circumstances. I am not inclined to grant the petitioner more time to lead the evidence. His evidence is accordingly, closed by the order of the Court.

2 Since the petitioner has failed to adduce any evidence in support of his clains, I have no hesitation to say that he is not entitled to any relief. The claim petition preferred by him is dismissed for want of evidence/proof. The termination of the services of the petitioner by the respondent w.e.f. the month of November, 2003 (as per the reference) is legal and justified. Parties to bear their own costs.”

Feeling aggrieved, the petitioner has filed this petition.

On the previous date of hearing, when the case was taken up for consideration, learned counsel for the petitioner had urged that sufficient opportunity was not granted to the petitioner to lead evidence and the impugned order was passed in a hot haste manner. In order to ascertain this fact, record of learned Labour Court was requisitioned. The original record received by the Court stands perused. A perusal of the record demonstrates that after the matter was remanded back by this Court, the same again taken up for consideration by learned Labour Court firstly on 28.02.2012. After the framing of the issues on 07.07.2012, the case was ordered to be listed on 18.08.2012 for recording of the evidence of the petitioner. Record further demonstrates that on 18.08.2012, learned Presiding Judge was on leave and the matter was listed for effective hearing as directed by learned Presiding Judge, on 25.08.2012 at Dharamshala. There is nothing on record to demonstrate that on 18.08.2012, any witness was present on behalf of the petitioner. Thereafter, on 25.08.2012, the following order was passed:-

“Time prayed for the evidence of the petitioner as no witness is present. Granted being not opposed. Thus, now put up on 19-09-2012 for the evidence of the petitioner at own risk at Dharamshala. Last opportunity since the case is old one.”

When the matter was listed on 19.09.2012, initially the following order was passed by learned Presiding Judge:-

“The case called at 10:40 A.M. The petitioner has appeared in the Court and prays for the grant of time to had the evidence on the ground that his list has not reached. The Court as yet from Nurpur. Be awaited and called after 11:30 A.M.”

When the matter was later on taken up by the learned Labour Court after 11:30 A.M., the impugned order was passed by learned Presiding Judge.

Having heard learned counsel for the parties and having perused the impugned order as well as record of the case, this Court does not finds any infirmity in the impugned order.

It is a matter of record that despite reasonable opportunities having been granted, no evidence was led by the petitioner either on 18.08.2012 or thereafter. Even on 19.09.2012, when the impugned order was passed by learned Labour Court, it is not the case put forth by the petitioner that his witnesses were present, but for the want of his counsel he was handicapped to examine them.

The fact of the matter is that on the said date also no witness was there to depose on behalf of the petitioner. Besides this, though the petitioner earlier appeared in person before learned Presiding Judge, but after the matter was passed over on the request of the petitioner and the same was thereafter taken up for consideration later on, even the petitioner chose not to appear before learned Court. The contention of learned counsel for the petitioner that the petitioner being a rustic village was not aware about the intricacies of the procedure cannot be accepted on its face value, for the reason that the same petitioner had earlier appeared before learned Labour Court on the said date in the morning hours and it was on his request that the matter was passed over by learned Labour Court.

In these circumstances, when despite reasonable opportunities having been granted, no evidence was led by the petitioner and further as the petitioner was not able to substantiate his claim on merit by leading cogent evidence, this Court does not finds any infirmity in the order under challenge.

Otherwise also, the impugned order was passed on 19.09.2012 and no purpose is going to be served by setting the clock back by almost thirteen years more so when the impugned order was a result of the acts of omission and commission of the petitioner himself.

In the light of above observations, as this Court does not finds any merit in the present petition, the same is dismissed. Pending miscellaneous application(s), if any also stand disposed of accordingly.