State of H.P. and Others vs Ram Chand

Surjit Singh, J.—Petitioners have assailed the award, dated 31st December, 2008, of the Presiding Judge, Labour Court-cum-Industrial Tribunal, whereby answering the reference made to him, at the instance of respondent Ram Chand, it has been held that retrenchment of the respondent in July, 1994, by the present petitioners, was illegal, inasmuch as provision of Section 25F of the Industrial Disputes Act had not been complied with and a direction has been given to the petitioners to re-engage the respondent, within ninety days of the date of the award.

2.Facts relevant for the disposal of the petition may be stated. On 1st October, 1987, respondent was appointed as a daily-waged Junior Draftsman, by respondent No. 4. It appears that he was sought to be retrenched somewhere in May or June, 1990 and apprehending his retrenchment, he alongwith some other workers filed an Original Application before the then State Administrative Tribunal, which was registered as OA No. 631 of 1990. An interim order was passed in that Original Application, on 9th July, 1990, directing that the services of the respondent shall not be terminated and he shall be re-employed forthwith, with back wages. The order is Annexure P-1. It gives the impression that perhaps the respondent had been retrenched, when this order was passed. That Original Application was finally dismissed on merits, on 26th May, 1994, with the finding that the applicants were engaged, initially under US Aid Scheme and the said Scheme having been completed, the applicants were no longer appointees against any post of the Project, which had come to an end. It was also held that the respondent was not entitled to serve in the said Project.

It appears that but for the interim order, dated 9th July, 1990, Annexure P-1, of the State Administrative Tribunal, services of the respondent would have come to an end, on account of the completion of the Project. He was re-engaged, pursuant to the aforesaid interim order dated 9th July, 1990 and when the Original Application was finally dismissed vide order dated 26th May, 1994, Annexure P-7, his services were discontinued in July, 1994.

Respondent felt aggrieved by the order of July, 1994, discontinuing his engagement, and filed another Original Application, being OA No. 310 of 2003, which was rejected, for want of jurisdiction, vide order dated 3rd July, 2004, Annexure P-8. Thereafter, respondent approached the concerned authorities of the Government, for making a reference to the Labour Court-cum-Industrial Tribunal and a reference to the following effect was made:

Whether the termination of services of Shri Ram Chand S/o Shri Nek Ram workman by the Director of Agriculture, H.P. Shimla-5 (2) The Deputy Director of Agriculture, Mandi, District Mandi, H.P. (3) The Assistant Soil Survey Officer, Sunder Nagar, District Mandi, H.P. w.e.f. July, 1994 without complying the provisions of the Industrial Disputes Act, 1947 where as new persons have been appointed during the year, 2001 by the above employer as alleged by the workman is proper and justified? If not, what relief of service benefits and amount of compensation the above aggrieved workman is entitled to?"

After the reference was made, respondent filed claim petition. Reply thereto was filed by the petitioners. Labour Court-cum-Industrial Tribunal framed various issues, on the pleading of the parties and concluded that when the services of the respondent were discontinued in July, 1994, provision of Section 25F had not been complied with, inasmuch as neither any notice had been given nor any compensation, according to Clause (b) of Section 25F, had been paid to him and with this finding direction was given to the petitioners to re-engage the respondent.

It is stated by the petitioners that the award of the Tribunal is contrary to the admitted facts, inasmuch as discontinuation of the services of the respondent, in the month of July, 1994, was on account of the dismissal of his Original Application, which he filed in the year 1990 and the vacation of stay order dated 9th July, 1990.

Respondent has filed reply. His contention is that after his termination in July, 1994, several persons, who are named in the reply, had been engaged and he, having been retrenched earlier, had the preferential right to be re-engaged and, thus, there was violation of Section 25H of the Industrial Disputes Act. Of course, it is also stated that provision of Section 25F had not been complied with, as held by the Labour Court-cum-Industrial Tribunal, vide its award dated 31st December, 2008, Annexure P-11.

I have heard the learned Counsel for the parties and gone through the record.

Facts of the case, as narrated hereinabove, clearly demonstrate that the respondent was engaged, in connection with a Project. There is a finding to this effect, rendered by the then Himachal Pradesh State Administrative Tribunal, vide order dated 26th May, 1994, copy Annexure P-7. This order was passed in respondent''s own Original Application. He did not challenge this order, either by filing a petition, under Articles 226 and 227 of the Constitution of India, or by filing appeal in the Hon''ble Supreme Court, under the provisions of Administrative Tribunals Act. Now, when Original Application had been dismissed, vide order dated 26th May, 1994, Annexure P-7, and he had been re-engaged, pursuant to interim order, Annexure P-1, passed in the said Original Application, he had no right to continue to remain in service, because he was retained in service only on account of the passing of the aforesaid interim order, which became inoperative and was rather specifically vacated, when the order, dismissing the Original Application, Annexure P-7, was passed. If that is so, respondent''s plea that his retrenchment in July, 1994 was bad, on account of non-compliance of the provision of Section 25F of the Industrial Disputes Act, could not have been upheld.

Learned Counsel for the respondent submits that in respondent''s case there is violation of Section 25H, inasmuch as some persons have been engaged in 2001, though the respondent, who had been retrenched, had the preferential right to be re-engaged. Submission has been noticed only to be rejected. State Administrative Tribunal, vide order dated 26th May, 1994, Annexure P-7, had held that the respondent was engaged, in connection with a Project and that Project having come to an end, he was not entitled to serve under the said Project. He was never engaged by the petitioners in their Department, but was retained, even after the Project was complete, because of the interim order dated 9th July, 1990, Annexure P-1, and when that order became inoperative, on account of dismissal of the Original Application itself, his continuation as a workman, under the petitioners, automatically came to an end. Other persons, engaged in 2001, have been employed in the Government Department and not in the Project. In fact, Project had been completed in 1990 and no one has been engaged in connection with the Project.

For the foregoing reasons, present petition is allowed and the impugned award of the Presiding Judge, Labour Court-cum-Industrial Tribunal, is quashed.

Writ petition stands disposed of. Pending application(s), if any, also stand disposed of, having become infructuous.