State of Himachal Pradesh vs Khel Singh

Rajiv Sharma, J.—Petitioners-employers (herein after referred to as ''employers'' for brevity sake) have assailed award dated 11.6.2013, rendered by learned Presiding Judge, Industrial Tribunal-cum-Labour Court, Dharamshala (herein after referred to as ''Labour Court'' for brevity sake) in reference No. 150/2012.

Pertinent facts necessary for the adjudication of this petition are that respondent-workman (herein after referred to as ''workman'' for brevity sake) in the month of May 1998 on daily wage basis. He was retrenched in the month of November, 2005. He raised industrial dispute. State Government made following reference to the Labour Court:

Whether giving breaks in the services of Sh. Khel Singh S/O Sh. Moti Chand, Village Ghisal, P.O. Sach, Tehsil Pangi, Distt. Chamba, H.P. from time to time during the years 1999 to 2004 and finally terminating him during year, 2005 by the Executive Engineer, HPPWD Division Killar. Distt. Chamba without complying with the provisions 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 the above employer?

Workman filed claim petition. According to the workman, persons junior to him were retained. Fresh hands were engaged by the employer without considering his case for reengagement. Reply was filed to the claim petition by the employer. According to the employer, workman has abandoned his job. No persons junior to him were retained. He has not completed 240 days.

Learned Labour Court made award on 11.6.2013. Termination of the workman was quashed. The break period was ordered to be accounted for the purpose of continuation in service. Employer was directed to re-engage the workman forthwith. He was held entitled to seniority, continuity in service from November, 2005. However, he was not held entitled to back wages for the back period.

It is in these circumstances the employer has challenged award dated 11.6.2013.

We have gone through the award and the material placed on record carefully.

Mr. Ramesh Thakur, learned Assistant Advocate General has vehemently argued that the workman did not complete 160 days preceding his retrenchment. He then contended that workman abandoned the job. Lastly, he contended that there is no violation of Section 25G of the Industrial Disputes Act, 1947 (herein after referred to as ''Act'' for brevity sake).

It is not disputed that the workman was engaged in May 1998. He has worked intermittently till November 2005. Workman has led his evidence by filing affidavit PW-1/A and supported the averments made in the petition. According to him, he was engaged as Beldar. He denied the suggestion that he has abandoned the job. Mr. M.P. Dhiman, Executive Engineer, HPPWD Division Killar (Pangi) has appeared as RW-1. He admitted that no notice was served upon the workman to resume his duties. He also admitted that muster roll for the month of November to April was not issued as no work is in progress from November to April. He Volunteered that muster rolls were issued to some labourers even during these months. He admitted that S/Sh. Gian Chand and Mehar Chand were employed in the year 2007. No opportunity was afforded to the workman after retrenchment. Employer has placed on record copy of manday''s chart as annexure RW-1/A. In the tribal areas, workmen are required to complete only 160 days. In the instant case, workman as per manday''s chart did not complete 160 days in the year 2005. He has worked only for 60 days. However, fact of the matter is that employer has retained one Smt. Chhin Dei and Prakash Chand while terminating the services of the workman. Thus, there was violation of Section 25G of the Act. It is admitted by RW-1, M.P. Dhiman, Executive Engineer that two workmen namely Gian Chand and Mehar Chand were employed in the year 2007. No opportunity was afforded to the workman for reengagement. Employer has also failed to prove that the workman has abandoned his job. RW-1, M.P. Dhiman has admitted that no notice was issued to the workman to resume his duties. It has also come on record that Shri Sham Lal and Gautam Singh were also appointed in the year 2006-07 i.e. after the termination of the services of the workman.

Action of the employer to retrench the workman while retaining juniors, amounts to violation of Section 25G of the Act. The workman has not been afforded any opportunity of reengagement at the time when four persons junior to the workman i.e. Gian Chand, Mehar Chand, Sham Lal and Gautam Singh were engaged. It amounted to infraction of Section 25H of the Act.

Mr. Ramesh Thakur, learned Assistant Advocate General has also vehemently argued that there was delay in raising industrial dispute. Employer has not assailed the reference made by the State Government in the year 2012. The workman belongs to the lowest strata of the society. He also belongs to a tribal area. Plea of delay can also be sent at the time of announcement of award. Learned Labour Court has correctly appreciated the evidence. There is no illegality or irregularity in the order passed by the learned Labour Court.

In view of the discussion and analysis made hereinabove, the petition is dismissed. Pending applications, if any, are also disposed of.