Home   |   About us   |   Contact us   |   Request Callback  
 
   
ALREADY A MEMBER ?
Username
Password

Translate

This Page To:

 
DY. DIRECTOR OF AGRICULTURE, BILASPUR V/S DESH RAJ, decided on Monday, July 18, 2016.
[ In the High Court of Himachal Pradesh, CWP No. 5050 of 2010. ] 18/07/2016
Judge(s) : SANDEEP SHARMA
Advocate(s) : Rupinder Singh Thakur, Additional General, with Rajat Chauhan, Law Officer. K.B. Khajuria.
Judgment Full Text : Existing LawyerServices Members, kindly login above.

Non Members, Enter your email address:- and , to request this judgment.

Alternatively, you may send a request by email to info@lawyerservices.in for the Full Text of this Judgment (chargeable).

LawyerServices Facebook Page






#LawyerServices #bestlegalsoftware #legalsoftware #judgment #caselaw

  "2016 (4) LLJ 615"  ==   ""  







    Oral:By way of present writ petition filed under Article 226 of the Constitution of India the petitioner i.e. Deputy Director of Agriculture Bilaspur has assailed the judgment dated 27.4.2010 passed by the learned Industrial Tribunal-cum-Labour Court Dharamshala in Reference No. 157 of 2007 whereby the ld. Tribunal while answering terms of reference referred to him held termination of the petitioner bad and accordingly set-aside and quashed the same being in violation of the provisions of the Sections 25-G and 25-H of the Industrial Disputes Act 1947(“The Act” for the sake of brevity). Learned Tribunal has further directed the petitioner to reinstate the respondent with all consequential benefits except back-wages.2. Briefly stated facts as emerge from the record of the case are that respondent-petitioner (respondent herein) was engaged as beldar on daily wage by the petitioner-department w.e.f. 15.11.1994 and as such he continued to work with the department till 31.10.1998. Thereafter his service was terminated by the petitioner department in complete violation of the provisions enumerated in the Act.3. The respondent (applicant therein) being aggrieved with his termination preferred OA No. 33/99 before the learned HP Administrative Tribunal at Shimla for redressal of his grievance. Learned Tribunal taking cognizance of the averments contained in the Original Application while issuing notices to the State (respondent therein) stayed his termination. However fact remains that at later point of time the application was dismissed on 24.8.2004 as a result of which the petitioner-department again terminated the service of the respondent-applicant.4. Feeling aggrieved and dis-satisfied with his termination respondent approached the competent authority for making reference to the labour Court. Further perusal of the record suggests that appropriate Government referred following term of reference to the learned Industrial Tribunal cum Labour Court Dharamshala who registered the reference as Ref No. 157 of 2007:-“Whether the termination of services of Shri Desh Raj S/o Shri Sunder Ram workman by the Deputy Director of Agriculture Bilaspur District Bilaspur H.P. w.e.f. 06.10.2004 without complying the provisions of the Industrial Disputes Act 1947 whereas junior to him were retained by the 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?”5. The learned Tribunal Dharamshala on the basis of material adduced by the respective parties answered the reference holding the respondent-workman entitled for reinstatement with all consequential benefits except back wages. Learned Tribunal also held termination of the respondent-workman in violation of the 25-G and 25-H of the Act and accordingly quashed and set-aside the same in the aforesaid background. The petitioner-Deputy Director Bilaspur by way of instant writ petition assailed the award dated 27.4.2010 passed by the learned Tribunal in Ref. No. 157/2007. As per petitioner respondent-workman was initially engaged in the particular project namely National Watershed Development Project Gharna Matla in Development Block Jhandutta Bilaspur which was later on transferred to soil conservation Wing of the department of Agriculture w.e.f. 1.10.1998 to 31.10.1998. Petitioner also stated that respondent abandoned the work at his own and filed Original Application as has been referred above and procured stay. The petitioner-department in terms of stay order passed by the learned Tribunal engaged the respondent-workman in Seed Multiplication Farm Auhar but after vacation of stay of order passed by the learned Tribunal petitioner-department retrenched/terminated the services of the respondent-petitioner-workman vide letter dated 5.10.2004 strictly in terms of the provision laid down in the Act. As per the petitioner finding returned by the labour Court that services of the respondent were retrenched in complete violation of 25-G and 25-H of the Act is not based upon the correct appreciation of the evidence adduced on record. Similarly the petitioner disputed that the observations of the Court that department while terminating the services of the respondent failed to abide by the principle of “last come first go” also not based on facts available on record. It is stated on behalf of the petitioner that provisions of 25-G and 25-H of the Act could not be made applicable in the case of Shri Chaman Lal who was senior most to him was also terminated which was further upheld by the ld. Labour Court vide judgment dated 27.4.2010.6. Petitioner further stated that since respondent had worked casually and had left the work on his own he could not be granted any relief as has been granted by the Labour Court. But specific case of the petitioner has been that respondent never worked continuously with them rather petitioner department came up with the plea that in 1996 respondent worked as Contractor for creating wheat seeds and participated in the bidding by submitting quotations. Petitioner to substantiate the aforesaid plea also stated that respondent being successful bidder was awarded the contract for a sum of Rs. 13 500/-. The petitioner department further stated that department had regularized services of those workmen who had completed 240 days in every calendar year and had worked for next 10 years or more as a daily wager as per the policy of the Government. But in the present case where the petitioner had not worked continuously till year 1997 he could not be considered for regularization as was claimed by him in para-5 of the statement of claim. Petitioner department also submitted that case of the respondent could not be compared with persons named in the plaint/petition because admittedly they had been working continuously from the date of their initial engagement till their regularization. Moreover while dispensing with the services of respondent-workman petitioner duly complied with the principle of “last come first go” and due compensation as envisaged under Section 25 –N was paid to the respondent-workman by them.7. On the other hand respondent-workman claimed that he was appointed as daily wage workman on 1.10.1983 and he continued to work as such till 18.12.2002. To substantiate his claim aforesaid he also submitted that his name was reflecting at serial No. 3 in the seniority list but petitioner -department wrongly reflected the name of Meera Devi in his place. Respondent-workman specifically set up a case that petitioner dispensed with his service verbally without issuing any notice on 19.12.2002 and as such being aggrieved with the same he challenged the same vide OA No. 3021/2002 before the learned Tribunal but same was dismissed. However respondent-workman has stated that he was appointed as Beldar on daily wage bases w.e.f.15.11.1994 and as such he continued to work with the department till 30.1.1998 when his services were dispensed with by the petitioner department without following procedure envisaged under the Act. The respondent stated that while dispensing with his services petitioner-department specifically retained the persons junior to him namely Sh. Baghwant Kishore S/o Shri Shri Roshan Lal and Chaman Lal S/o Jodh Singh who were employed by the petitioner on 17.11.1994 and 1.10.1997 respectively. Respondent-applicant-workman stated that since both the aforesaid persons were junior to him his services could not be retrenched that too prior to them and as such his termination deserves to be held invalid and not in accordance with law. Respondent also claimed that he completed 240 days as enshrined under Section 25-B of the Act and since no notice whatsoever was issued to him before his retrenchment no action was taken by the department in violation of the 25-G and 25-H of the Act deserves to be quashed and set-aside. The petitioner department also raised objection that since petitioner was engaged in specific project i.e. National Watershed Development Project Gharna Matla in Development Block Jhandutta Bilaspur HP for a period of five year his services could not be ordered to be continued after the completion of project on 31.10.98. The petitioner also submitted that at later point of time aforesaid project was transferred to Soil Conservation Wing of the department of Agriculture on 31.10.1998 and services of the petitioner were also transferred where petitioner only worked for one month with the department. Petitioner also contended that since project period was only for five years respondent workman had no right whatsoever to claim the continuation of service after closure of the project. The petitioner also stated that claim of the respondent that his junior namely Chaman Lal was retained at the time of his retrenchment is of no consequence since services of Chaman Lal were also dispensed with which was further upheld by the labour Court vide Ref. No. 195/2007 dated 27.4.2010.8. Mr. Rupinder Singh Thakur Additional Advocate General with Mr. Rajat Chauhan Law Officer for the petitioner vehemently argued that award passed by the learned Tribunal is not sustainable in the eye of law as the same is not based upon the correctness of the evidence adduced on record by the petitioner department. Shri Thakur contended that bare perusal of the impugned award suggest that same is illegal irrational unreasonable and contrary to the settled law of the land and as such deserves to be set-aside. During the arguments having been made by him he made this Court to travel through the documents available on record to demonstrate that respondent was a junior most and had worked in a particular project scheme and his services were rightly dispensed with after completion of Project in accordance with law and there was no requirement if any for compliance of Section 25-G and 25-H of the Act. He also invited the attention of the Court to Annexure-P2 placed on record along with petition to demonstrate that Mr. Chaman Lal who as per petitioner department was junior to him was also removed by the petitioner-department on 19.12.2002 which action of department was further upheld by the Tribunal by passing award dated 27.4.2010 in Ref. No. 195/2007. While rendering explanation to the retention of another person Bhagwant Kishore who as per petitioner was also junior to him and retained in service at the time of his retrenchment Mr. Thakur stated that he was engaged in the office of Soil Conservation Wing of the department of Agriculture to assist the Agricultural Development Officer/ Agriculture Extension Officer for distribution of seed implements and plant protection material etc. and he is working till date since he was not engaged in any particular project/Scheme whereas respondent in the present case was engaged for particular project. It is also contended on behalf of the petitioner department that respondent was engaged temporarily as casual labour on muster roll basis in the particular project Scheme i.e. NWDPRA at Gharanmatla by the petitioner department. Since project was transferred to soil conservation Wing i.e. Sub Divisional Soil Conservation Officer Ghumarwin along with staff on 31.10.1998 respondent-workman was transferred who worked there and abandoned the work and filed Original Application as has been mentioned above which was dismissed at later point of time by the learned Tribunal. Mr. Thakur forcefully contended that learned Tribunal while passing the impugned award failed to appreciate that services of the petitioner were retrenched in accordance with law and he was paid one month wage along with compensation for retrenchment amounting to Rs. 7800/- specifically in terms of Section of 25 F (a) and (b) on the Act and as such impugned award is unsustainable and unjust. It is also contended on behalf of the petitioner that in case award is allowed to be implemented there will be multiplicity of litigation since similar situate persons who were senior to respondent would claim similar relief as has been granted to him by the labour Court. In the aforesaid background Thakur prayed that present petition be allowed and the impugned award be quashed and set-aside.9. Mr. K.B. Khajuria Advocate representing the respondent-workman supported the impugned award and stated that bare perusal of the same suggests that no interference whatsoever of this Court is warranted in the present facts and circumstances of the case rather careful reading of the award clearly suggests that learned Tribunal while deciding the reference in favour of the respondent-workman has dealt with each and every aspect of the matter meticulously. Mr. Khajuria forcefully contended that it stands duly proved on record that respondent-workman was appointed as Beldar on daily wages by the department w.e.f. 15.11.1994 and as such he continued to work till 31.10.1998 where his services were illegally and arbitrarily terminated that too without resorting to the principles/procedure enshrined in the Act. He stated that even after termination he was allowed to continue to work in the petitioner-department in terms of interim order dated 8.3.1999 passed by the ld. Tribunal in OA No. 33 of 2009 which was ultimately dismissed on 24.8.2004 but fact remains that during this period he continuously served the department. Mr. Khajuria strenuously argued that it duly stands proved on record that while terminating the service of respondent-workman the petitioner-department had not followed the procedure laid down in the Act because admittedly juniors to him were retained in the service at the time of his retrenchment. Mr. Khajuria categorically stated that another Junior Bhagwant Kishore is still continuing with the petitioner department and as such it cannot be said that juniors were not retained at the time of retrenchment of the respondent-workman. He also forcefully contended that the plea of respondent workman having been appointed against the project in project may not be available to them because as per petitioner-department subsequently the project was transferred to the Soil Conservation Wing Department of Agriculture w.e.f. 31.10.1998 wherein services of the respondent were transferred. He also stated that petitioner-department has nowhere been able to place on record the document suggestive of the fact that petitioner himself abandoned the job and notice if any was ever issued advising him to resume the services. He stated that there is no illegality whatsoever in the impugned award passed by the learned Tribunal and as such same deserves to be upheld and no interference whatsoever of this Court is warranted in the present facts and circumstances and present petition deserves to be dismissed.10. I have heard learned counsel for the parties as well carefully gone through the record.11. Bare perusal of the pleadings available on record as well as impugned award dated 27.4.2010 suggests that respondent was appointed as Beldar on daily wage basis by the petitioner-department w.e.f. 15.11.1994 wherein he continued to work till 30th November 1998 without any interruption however fact remains that services of the petitioner were later on terminated by the petitioner-department in November 1998 but he continued to work in the department in terms of order dated 8.3.1999 passed by learned Tribunal in OA No. 33 of 99 which ultimately came to be dismissed on 24.8.2004 meaning thereby the respondent kept on working with the petitioner-department w.e.f. 15.11.1994 to 24.8.2004 approximately for 10 years. It is own case of the petitioner-department that respondent-applicant worked in the project w.e.f. 15.11.194 till 31.10.1998 under National Watershed Development Project in Gharan Matla in Dev. Block Jhanduta in District Bilaspur control whereof was later on transferred to Soil Conservation Wing of the Agriculture Department w.e.f 1.10.1998. It is also case of the petitioner-department that on transfer of the project services of the respondent were also transferred who after rendering services for one month left the job himself without any rhyme and reason. As per the petitioner since respondent himself abandoned the job there was no occasion whatsoever for the respondent department to comply with the sections 25 G and 25 F of the Act and as such award passed by the Court being unsustainable in the eye of law deserves to be quashed and set-aside. Petitioner-department has also tried to justify its action in retaining one Shri Roshan Lal who was admittedly appointed on 17.11.1994 i.e. after the respondent by stating that he was not appointed in the project rather he was appointed in department. The petitioner has also stated that Bhagwant Kishore was engaged in office of Agriculture Development Officer Swarghat/Bassi to assist the Agriculture Development officer/Agriculture Development Officer for distribution of seed implements and plant protect in material etc. and admitted that he is still working till date. It is undisputed that services of another person namely Chaman Lal who as per the petitioner was junior to him were dispensed with by the petitioner-department and action of the petitioner was further upheld by the learned Tribunal while rejecting the reference made by the appropriate Government in the case of Shri. Chaman Lal. But at this stage allegation of the respondent that juniors to him were retained at the time of his termination stands duly established on record because petitioner itself has admitted that Bhagwant Kishore who was engaged by the petitioner has been retained in the office of Agriculture development officer Swarghat. Since respondent was able to prove that Bhagwant Kishore was retained by the petitioner-department at the time of his retrenchment no fault if any can be found with the impugned award passed by the learned Tribunal wherein it has been specifically concluded that there is a complete violation of Section 25 G of the Act because no principle of “last come first go” has been followed by the department while terminating services of the respondent.12. In the present case respondent while substantiating his claim appeared before the ld. Tribunal as PW1 and categorically stated that his services were terminated on 30.11.1998 without any notice. He also stated that junior namely Bhagwant Kishore was retained at the time of retrenchment. He also denied the suggestion of the respondent that he was a seasonal worker and to substantiate his claim he specifically placed on record mandays chart i.e. Ext.PA-1 w.e.f. November 1994 to October 2004 and Seniority list of daily wage workers as it stood on 31.5.2002 issued by the Deputy Director Agriculture Bilaspur vide Ext.PA-2.13. Bare perusal of Ext. PA-1 clearly suggests that the respondent continued to work w.e.f. 15.11.1994 to October 2004 without there being any interruption. Similarly perusal of Ext.PA2 clearly suggests that persons junior to him were retained at the time of his retrenchment. Though petitioner-department has been able to show by placing on record the award passed by the ld. Tribunal in Ref No. 195 of 2007 that services of Chaman Lal have been dispensed with but fact remains that petitioner itself has admitted that another person Bhangwant Kishore who was junior to the respondent was retained at the time of retrenchment of the respondent and he has been continuously working till date with the petitioner-department. As far as another assertion/contention of the petitioner-department that service of respondents were hired for a particular project and as such he could not be equated with Bhagwant Kishore who was engaged in office of Agriculture Development Officer Swarghat also appears to be baseless because it is an admitted case of the petitioner that the project against which respondent was appointed was ultimately transferred to the Soil conservation wing of the Department of Agriculture w.e.f. 31.10.1998 along with staffs wherein the respondent was also working meaning thereby work in the project if any was not complete and finally work assigned in particular project was ultimately transferred to the other department. Though petitioner has stated that respondent-workman after working for one month himself left/abandoned the job but this Court could not lay its hand to any document suggestive of the fact that after the alleged abandonment notice if any was ever issued to the respondent calling him to either join the service or to dispense with his service resorting to principles/guidelines enshrined in the Act.14. Mr. Rajinder Singh Mahajan Dy. Director of Agriculture Bilaspur while deposing as RW1 before the Hon’ble Tribunal admitted that the respondent-workman worked as casual labour under the said project. He also admitted that later on control of the project was transferred to the Department of Agriculture wherein respondent worked for one month after transfer of the project. He also admitted that services of the respondent were re-engaged in pursuance of the interim order of learned Tribunal dated 8.3.1999. Though RW1 denied that persons junior to the respondent were retained by the department but he admitted that Bhagwant Kishore was working in the department; as per him he was not appointed in the project but was daily wager engaged with the department. He also admitted that department prepared the seniority list of Beldar. Though petitioner has been able to show that at the time of termination of the respondent on 6.1.2004 after dismissal of original application filed before the learned tribunal he was paid one month wage in lieu of the notice along with compensation amounting to Rs. 7800/- but there is no evidence worth the name on record to corroborate the same. But fact remains as emerge from Ext.PA-1 that respondent kept on working from year 1994 till 1998 and during this period he had completed 240 days prior to his termination. It is also fact that persons namely Chaman Lal (who was later on removed) and Bhagwant Kishore were junior to him at the time of retrenchment of the respondent. As far as Bhagwant Kishore is concerned respondent has tried to justify his continuance in the service by stating that he was appointed as a daily wage worker in the department whereas as per petitioner respondent was appointed against project and as such there cannot be any parity but record nowhere suggests that petitioner department ever led any evidence suggestive of the fact that two separate seniority lists were drawn by the petitioner department at the time of making aforesaid engagement. Rather respondent placed on record final seniority list of daily wage workers issued by Deputy Director Agriculture Bilaspur vide Ext. PA-1; bare perusal of the same clearly suggests that there was no separate seniority list whatsoever and all the persons including respondent Bhagwant Kishore and Chaman Lal have been shown in the seniority list Ext.PA-1 hence aforesaid plea being raised by the petitioner is not justifiable and deserves to be rejected outrightly.15. Moreover petitioner department has nowhere placed on record any document to demonstrate that the respondent-applicant was appointed in some project. However it is admitted fact that later on project if any was transferred to the Department of Agriculture which clearly suggests that at the time of alleged termination of services of respondent he was working with the petitioner and as such plea of respondent workman having been appointed against the project may not be available to the petitioner-department. At the cost of repetition it may be again observed that there is no document at all suggestive of the fact that petitioner ever issued some kind of notice to the respondent-workman warning/advising him that in case he does not assume duty his service would be dispensed with.16. This court after hearing the arguments having been made by the counsel representing the parties and perusing the documents adduced on record as well as impugned award is of the view that respondent workman has been successful to prove that junior persons Bhagwant Kishore and Chaman Lal were retained in service at the time of his retrenchment and as such there was a complete violation of provision of Section 25–G of the Act. However petitioner-department by placing award dated 27.4.2010 in Ref No. 195 of 2007 has been able to show that services of Chaman Lal were later on dispensed with which action of them was upheld by the learned Tribunal in the reference as mentioned above but fact remains that at the time of termination of the service of the respondent both the juniors named above were retained in service meaning thereby at that point of time petitioner-department had sufficient work but for the reasons best known to them services of respondent-workman were dispensed with that too without adhering to the provisions of the Act.17. At this stage if this Court takes into consideration the award passed by the learned Tribunal. Ref. No. 195/2007 dated passed in case of Chaman Lal no benefit of the same can be extended to the petitioner for two reasons: i) This fact was never brought to the notice/knowledge of the Learned Tribunal in the present proceedings. ii) The petitioner-department has not rendered plausible explanation whatsoever as far as the retention of Bhagwant Kishore who is admittedly junior to the respondent. Rather it is admitted case of the petitioner that since Bagwant Kishore was appointed in department his services cannot be equated with the petitioner and as such explanation offered for his retention at the time of retrenchment of service of respondent is not worth lending any credence. Moreover petitioner department has miserably failed to prove that department had been maintaining separate seniority lists in the department for the persons engaged in project as well as department.18. Apart from above this Court while exercising its power under Article 226 of the Constitution of India cannot be persuaded to re-appreciate the evidence based on which labour court had come to its conclusion. In this regard reliance is placed on decision of Hon’ble Apex Court in Hari Shankar Sarma and others v. M/s Artificial Limbs Manufacturing Corporation and others AIR 2002 SC 226 para No. 12 of which is reproduced herein below:-“12. Before the Labour Court the contractor stated in cross- examination that he used to supervise and control his employees and pay their salaries. Even the witnesses for the appellants stated that their salaries were paid by the contractor. The appellants witnesses also said that the respondent No. 2 brought the raw material. The respondent No. 1s witnesses said that the respondent No. 1 had no hand in the selection of the employees of the canteen. The prescribed procedure for appointing employees of the respondent No. 1 was not applied to them. The respondent No. 1 did not record their attendance nor paid them their salaries. The Labour Court also noted that the appellants witnesses were unable to identify or name any officer of the respondent No. 1 who they claimed supervised their work. The Labour Court found that the appellants were unable to prove that the respondent No. 1 exercised any control or supervision over the employees of the contractor. After a detailed analysis of the evidence the Labour Court concluded that the appellants were not the employees of respondent No. 1. The finding cannot be termed to be perverse. Given this it would have been inappropriate for the High Court under Article 226 to re-appreciate the evidence and come to a different factual conclusion. The High court did not do that nor do we propose to do so under Article 136.”19. Reliance is also placed on “K.V.S. Ram v. Bangalore Metropolitan Transport Corporation” 2015 LLR 229 and “Mackinon Machenzie and Co. Ltd. v. Machinon Employees Union ” 2015 LLR 337 perusal of aforesaid pronouncements made by the Hon’ble Apex Court clearly suggests that this Court enjoys very limited jurisdiction to reappreciate the evidence on the basis of which learned labour Court has returned its findings.20. Consequently in view of the detailed discussion made hereinabove this Court sees no illegality and infirmity in the impugned award which appears to be based upon the correct appreciation of the evidence available on record and as such present petition is dismissed accordingly.