State Of Himachal Pradesh And Another vs Deep Kumar

Ajay Moha Goel, J

By way of this Letters Patent Appeal, State has challenged the judgment passed by learned Single Judge in CWP No. 4566 of 2013, titled as State of Himachal Pradesh and others vs. Deep Kumar, decided on 20.08.2021, in terms whereof,  learned  Single  Judge  while  dismissing  the  writ petition filed by the appellants herein, upheld the award passed by learned Labour Court, wherein the reference made by the Appropriate Government whether the termination of the services of Sh. Deep Kumar i.e. the respondent herein, w.e.f. 01.07.1999 and retaining junior workmen, was proper and justified, was answered by the learned Labour Court in favour of the workman and direction was issued to the appellants to re-engage the workman, who was also held entitled to seniority and continuity in service from the date of his illegal termination i.e. 01.07.1999, except back wages.

Brief facts necessary for the adjudication of the present appeal are that the respondent herein raised an industrial dispute which resulted in the following reference being made by the Appropriate Government to the learned Labour Court for adjudication:

“Whether termination of services of Sh. Deep Kumar s/o Shri Babu Ram by the Executive Engineer, IPH Division Dalhousie, Distt. Chamba, H.P. w.e.f. 01.07.1999 and retaining the junior workmen, as alleged by the worker, is proper and justified? If not, what amount of back wages, seniority, past service benefits and compensation the aggrieved workman is entitled to?”

The claim of the workman was that he was engaged as a daily paid Beldar in IPH Division, Dalhousie, in August, 1996. He served as such up to 1st December, 1998, when his services were discontinued. He filed an original application before State Administrative Tribunal, i.e. OA(D) No. 298 of 1999 against the fictional breaks being given in service by the respondents as well as against his illegal disengagement but this OA was withdrawn as an undertaking was given by the department before the Tribunal that the claimant had resumed his duties in the Department and that his services will not be terminated except in accordance with law. However, as the services of the claimant were again terminated on 01.07.1999, he again approached the State Administrative Tribunal against his illegal disengagement by way of OA(D) No. 334 of 2000. This OA was closed by the erstwhile Tribunal for want of jurisdiction. Thereafter, the claimant raised an industrial dispute. As per the claimant, his services were disengaged by the Department by violating the mandatory provisions of the Industrial Disputes Act as persons junior to him were still on the rolls of the Department when his services were disengaged. Accordingly, the claimant prayed for his re-engagement with all consequential benefits.

The claim was resisted by the Department inter alia on the ground that there was no violation of any provision of the Industrial Disputes Act and that no workman junior to the claimant was retained. The claimant had abandoned the job. The workman with whom the claimant was seeking parity Smt. Lata Devi, was engaged under employment assistance to the relative of Government servant/Daily Waged employees who died while in service, on account of death of her husband. The claim was also opposed by the Department on the ground of delay and laches.

In terms of the award passed by learned Labour Court, the reference was answered by the learned Labour Court by holding that the Department had indeed violated the provisions of Section 25-H of the Industrial Disputes Act. While returning these findings, learned Labour Court inter alia held that the statement of respondent, who entered the witness box as RW-1, read with Ext. RW1/G, which was a copy of letter dt. 18.09.2000, written by the Chief Engineer, Irrigation and Public Health Department, Dharamshala, proved that Smt. Lata Devi was appointed as a daily wager on compassionate grounds after the death of her husband and this engagement was after the termination of the services of the claimant. Learned Labour Court also held that the plea of abandonment of job was liable to be proved like any other fact by the employer and simply because the workman failed to report for duty, it cannot be presumed that he abandoned the job. Learned Labour Court also held that as per the statement of the respondent, no notice was given to the claimant, calling upon him to resume his duties on the ground that he had allegedly abandoned the same. With regard to the contention of the employer qua delay and laches, learned Labour Court by placing reliance upon the judgment of Hon’ble Supreme Court of India in Ajaib Singh vs. Sirhind Co-operative Marketing- cum-Processing Society Limited and Another, (1999) 6 SCC 82 and a judgment of this Court in Laiq Ram versus State of H.P. & Others, 2012(2) Him. L.R. (FB) 580, held that it could not be said that the claim was hit by the vice of delay and laches and otherwise also, the plea of delay in raising the industrial dispute could be taken into account by the Court while granting relief to the workman. Learned Labour Court also took into account the admission of the claimant that he had earned his livelihood by doing agricultural work during the period of his retrenchment. The reference was accordingly answered by the learned Labour Court by setting aside the retrenchment of the claimant and by directing the re-engagement of the claimant forthwith by holding him to be entitled to seniority and continuity in service from the date of his illegal disengagement, i.e. 01.07.1999, except back wages.

Feeling aggrieved, the Department approached this Court by way of Civil Writ Petition No. 4566 of 2023.

In terms of the judgment dt. 20.08.2021, learned Single Judge dismissed the writ petition filed by the appellants by upholding the award passed by learned Labour Court. Learned Single Judge rejected the contention of the appellants that the claim was time barred by inter alia holding that there was no limitation prescribed to raise an industrial dispute, and in the background of the Appropriate Government having made a reference to the learned Labour Court, the Court was enjoined to render a decision on the reference. Learned Single Judge also held that the contention of the State that no junior to the workman was retained was rightly rejected by the learned Labour Court as cogent evidence to the contrary stood adduced by the workman before the learned Labour Court; and as far as the plea of abandonment of job by the workman was concerned, the same also could not be validated as no notice etc. was served by the Department upon the claimant, asking him to re-join duties so as to conclude that the claimant had willfully abandoned the job.

Learned Advocate General has argued that the judgment passed by learned Single Judge was not sustainable in law as learned Single Judge erred in not appreciating that the claim raised by the workman was hit by delay and laches and was a stale claim. He argued that learned Single Judge erred in not appreciating that as the engagement of Smt. Lata Devi was on compassionate basis, therefore, the same did not attract the provisions of Section 25-H of the Industrial Disputes Act. He further argued that even the plea of abandonment of job raised by the State was decided by learned Single Judge in a slipshod manner and learned Judge erred in not appreciating that it was a clear case of abandonment of job by the claimant. Accordingly, he prayed that the appeal be allowed by setting aside the judgment passed by learned Single Judge as well as the award passed by learned Labour Court.

Learned Counsel for the respondent argued that there was no infirmity either in the award passed by learned Labour Court or the judgment passed by learned Single Judge as the findings returned by learned Labour Court as affirmed by learned Single Judge were clearly borne out from the record of the case whereas the grounds raised both before the learned Single Judge as well as in the present appeal by the appellants were not substantiated by them by leading any cogent evidence before the learned Labour Court. Accordingly, he submitted that the present appeal being devoid of any merit is liable to be dismissed.

We have heard learned Advocate General for the State as well as learned Counsel for the respondent and also gone through the judgment passed by learned Single Judge as also the award passed by learned Labour Court and the relevant record.

The grievance of the respondent/claimant qua which the industrial dispute was raised by him was relating to his illegal disengagement w.e.f. 01.07.1999. It was his specific stand that he had earlier filed an original application i.e. OA(D) No. 334 of 2000 against his illegal disengagement which was disposed of by the learned Administrative Tribunal for want of jurisdiction. In the response filed to the claim by the Department, this has not been disputed. If the original application was filed by the claimant assailing his illegal disengagement w.e.f. 01.07.1999 in the year 2000, the same obviously would have been disposed of by the Administrative Tribunal either in the year 2000 or thereafter. As far as the plea of delay and laches is concerned, the same was not substantiated by the appellants by making specific averments and leading evidence. As it was the plea of the appellants that the claim was hit by delay and laches, onus was obviously upon them to prove it. Having failed to discharge this onus by leading cogent evidence before the learned Labour Court to prove this fact, the appellants cannot be permitted to say that the findings returned by learned Labour Court, as upheld by learned Single Judge, that the claim was not hit by delay and laches are perverse findings. Nothing prevented the appellants from challenging the reference which was made by the Appropriate Government to the learned Labour Court on the grounds of delay and laches. They chose not to do so and thus acquiesced for the answer of the reference by the learned Labour Court on merit. Not only this, even before learned Labour Court, they failed to lead any evidence worth its name to prove that the claim was hit by delay and laches. In this view of the matter, learned Single Judge was right in holding that the claim was not hit by delay and laches by placing reliance upon the judgments referred to in his judgment.

At this stage, we would like to refer to the judgment of Hon’ble Supreme Court of India in case titled as Kuldeep Singh Versus General Manager, Instrument Design Development and Facilities Centre and Another, (2010) 14 Supreme Court Cases 176. In this judgment, Hon’ble Supreme Court, after referring to its earlier adjudications on the issue, has reiterated the law that there is no prescribed time-limit for the appropriate Government to exercise its powers under Section 10 of the Act and it is more so in view of the language used, namely, if any industrial dispute exists or is apprehended, the appropriate Government “at any stage” may refer the dispute to a board or Court for enquiry. The Hon’ble Supreme Court further held that the reference sought for by the workman cannot be said to be delayed or suffering from laches when law does not prescribe any period of limitation for raising a dispute under Section 10 of the Act; and the real test for making a reference is “whether at the time of the reference dispute exists or not”, and when it is made, it is presumed that the State Government is satisfied with the ingredients of the provision, hence the Labour Court cannot go behind the reference. Hon’ble Supreme Court further held that it is not open to the Government to go into the merit of the dispute concerned and once it is found that an industrial dispute exists then it is incumbent on the part of the Government to make reference, and it cannot itself decide the merit of the dispute and it is for the appropriate Court or forum to decide the same. Hon’ble Supreme Court further held that normally the Government cannot decline to make reference for laches committed by the workman and if adequate reasons are shown, the Government is bound to refer the dispute to the appropriate Court or forum for adjudication and even though, there is no limitation prescribed for reference of dispute to the Labour Court, it is only reasonable that the disputes should be referred as soon as possible after they have arisen and after conciliation proceedings have failed. If sufficient materials are not put forth for the enormous delay, it would certainly be fatal.

Thus it is evident that in terms of the law laid down by Hon’ble Supreme Court, normally the Government cannot decline to make reference for laches committed by the workman. We have already observed hereinabove that when the reference was made by the Government in the present case, the same was not challenged by the appellants. Herein disengagement of the claimant w.e.f. 01.07.1999 was initially challenged by the claimant by way of OA(D) No. 334 of 2000 before the Administrative Tribunal and after the Tribunal closed the proceedings for want of jurisdiction, the claimant obviously raised the industrial dispute which later on culminated into making of the reference by the appropriate government to the learned Labour Court, and thus, it is not the case, as has been argued on behalf of the State, that the disengagement of the claimant in the year 1999 was agitated by him for the first time in the year 2009. Therefore, both the learned Single Judge as well as learned Labour Court, have rightly held that the claim was not hit by delay and laches.

Now coming to the argument of learned Advocate General that learned Single Judge erred in not appreciating that the findings returned by learned Labour Court on the issue of abandonment of job by the claimant were perverse, we find that it is a matter of record that no evidence was led by the appellants to prove this fact that the claimant had abandoned the job. In fact, the act of the claimant of assailing his disengagement w.e.f. 01.07.1999 by way of OA No. 334 of 2000 before the Administrative Tribunal, filing of which original application has been admitted by the appellants, belies the plea of the appellants that the claimant had abandoned his job. We are of the considered view that had the claimant abandoned his job, then he would not have had approached the erstwhile Administrative Tribunal against his disengagement nor he would have had raised the industrial dispute. Therefore, the findings returned on this issue by the learned Single Judge are correct findings.

The last contention of learned Advocate General that there was no violation of the provisions of Section 25-H of the Industrial Disputes Act also sans merit, as has been rightly held by learned Single Judge.

Section 25-H of the Industrial Disputes Act provides as under:-

25H. Re-employment of retrenched workmen.--- Where any workmen are retrenched, and the employer proposes to take into his employ any persons, he shall, in such manner as may be prescribed, give an opportunity [to the retrenched workmen who are citizens of India to offer themselves for re- employment and such retrenched workman] who offer themselves for re- employment shall have preference over other persons.

It is a matter of record, as has been held by learned Labour Court and upheld by learned Single Judge, that after the disengagement of the claimant by the appellants w.e.f. 01.07.1999, they had engaged Smt. Lata Devi, in terms of letter dt. 18.09.2000, though on compassionate basis. We are of the considered view that in the light of the statutory language of Section 25-H, it is incumbent upon the employer, where it proposes to take into his employment any person after retrenchment of the workman, to give an opportunity to the retrenched workmen to offer themselves for re-employment, which admittedly was not given in the present case. This Court is not questioning the engagement of Smt. Lata Devi, but as it is a matter of record that her engagement was after the disengagement of the claimant, therefore, there is indeed violation of Section 25-H of the Industrial Disputes Act and the findings returned by learned Single Judge in this regard, while upholding the findings of learned Labour Court, also suffer from no infirmity.

In view of above discussion, as this Court does not find any merit in the present appeal, the same is accordingly dismissed.

Pending miscellaneous application(s), if any, also stand disposed of accordingly.