No Acts & Articles mentioned in this case
High Court of H.P.IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
CWP No.1747 of 2016
Date of Decision: 24.10.2019
Himachal Pradesh State Electricity Board Ltd. & Anr.
…….Petitioners
Versus
Sanjay Kumar … Respondent
Coram:
Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?
1
Yes.
For the Petitioners : Mr. Vikrant Thakur, Advocate
For the Respondent: Mr. Rahul Mahajan, Advocate
____________________________________________________
Sandeep Sharma, Judge (oral):
Instant petition filed under Article 226 of the
Constitution of India, is directed against the award dated
7.10.2015, passed by the Presiding Judge, Labour Court
cum Industrial Tribunal, Kangra at Dharamshala,
Himachal Pradesh, in Ref. No.196 of 2012, whereby learned
Tribunal below partly allowed the reference made to it by
the appropriate Government and held the respondent
1
Whether the reporters of the local papers may be allowed to see the judgment?
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(hereinafter referred to as the ‘workman’) entitled for
reinstatement alongwith seniority and continuity in service
from the date of his illegal termination except back wages.
2. Before adverting to the factual matrix of the
case, it may be noticed that aforesaid impugned award has
been accepted by the workman since he has not laid any
challenge to the same in any of the proceedings, whereas
petitionersDepartment (hereinafter referred to as the
‘employer’) being aggrieved and dissatisfied with the
impugned award of reinstatement passed by the learned
Tribunal below, has approached this Court in the instant
proceedings, praying therein to set aside the aforesaid
impugned award.
3. Briefly stated facts, as emerge from the record
are that the workman filed a claim petition before the
learned Labour Courtcum Industrial Tribunal, Kangra at
Dharamshala, H.P., (hereinafter referred to as the
‘Tribunal’), stating therein that he was engaged vide
muster roll No.35 as daily waged beldar w.e.f. 25.4.1997
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and in this capacity, he worked till 8.7.1998. The workman
claimed that though he served Department with utmost
sincerity as beldar, but vide verbal order dated 8.7.1998 his
services were terminated. Workman claimed that since his
services came to be disengaged without compliance of the
provisions contained under Industrial Disputes Act (for
short ‘Act’), he is entitled to be reinstated. He alleged that
employerDepartment while terminating his services neither
served him with notice under Sections 25F & 25H of the
Act, nor employerDepartment complied with the provisions
contained under Section 25G of the Act, because principle of
“last come First go” was never complied with. Workmen
specifically claimed that person namely, Partap Chand, who
joined on 25.6.1997 was allowed to remain in service when
his services were disengaged. He further alleged that even
after his termination several new persons were appointed
without affording an opportunity of reemployment to him
and as such, employer has violated the provisions of Section
25H of the Act. Workman further alleged that since some
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persons engaged after his termination are still working on
work charge/ regular basis, he is also entitled for
regularization from the date of his juniors have been
regularized. In the claim petition, workman specifically
stated that one person namely, Piar Chand son of Sh.
Sohan Singh, who was engaged by the employer
Department on 25.2.1999, was terminated on 21.4.1999.
Above named person Piar Chand was subsequently
reinstated alongwith 50% back wages pursuant to order
dated 4.8.2005, passed in Reference No.401/2002 (RBT
No.493/2004), further upheld by this Court vide judgment
dated 29.11.2005, passed in CWP No.1166 of 2005.
4. EmployerDepartment contested the aforesaid
claim of the workman on the ground that he never served
the Department continuously for 240 days in a calendar
year. Employer claimed before the learned Tribunal below
that workman was engaged for specific work for different
spells as per availability of work as well as funds and his
claim petition being time barred deserves to be rejected out
rightly. Employer further claimed that employment of the
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workman was purely on casual basis and he has abandoned
the job of his own and as such, there was no requirement, if
any, for the employer to serve notice under Section 25F of
the Act upon the workman before his termination. Though,
employer admitted in the learned Tribunal below that as per
availability of funds as well as work, workman was
employed on 18.5.1998 and he worked upto 7.7.1998 but
claimed that thereafter workman himself abandoned the job.
5. Learned Tribunal below on the basis of the
evidence led on record by the respective parties though
arrived at a conclusion that since workman has failed to
prove that he worked continuously 240 days in a calendar
year preceding his termination, there was no requirement
for the employer to serve him with notice under Section 25F
of the Act, but having taken note of the fact that after
disengagement of the workman, number of persons came to
be employed, learned Tribunal below found employer
Department to have violated Sections 25G and 25H of the
Act and accordingly held workman entitled for
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reinstatement with seniority and continuity in service, but
without back wages.
6. Having heard learned counsel representing the
parties and perused the material available on record, this
Court is not in agreement with Mr. Vikrant Thakur, learned
counsel representing the employerDepartment that learned
Tribunal below has erred while holding the workman
entitled for reinstatement because bare perusal of evidence
led on record though suggests that workman had worked
only for 52 days in two years i.e. 1997 & 1998, but there is
overwhelming evidence available on record suggestive of the
fact that after disengagement of workman, number of new
persons came to be appointed that too without affording an
opportunity to the workman for reemployment and as such,
learned Tribunal below rightly found employerDepartment
to have violated the provisions contained under Sections
25G and 25H of the Act. Evidence available on record
clearly suggests that person namely, Piar Chand had been
engaged by the employerDepartment on muster roll basis
on 25.2.1999, whereas workman was engaged on 25.4.1997.
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Ex.PW1/C i.e. service record of daily waged beldar as stood
30.9.2007, clearly depicts said Piar Chand at Sr. No.60, who
has been shown to have joined on 25.2.1999, whereas
workman though worked for 52 days, as reflected in
mandays chart Ex.PW1/D, had joined prior to the joining of
above named Piar Chand and as such, learned Tribunal
below has rightly arrived at a conclusion that employer
Department while retrenching/terminating the services of
the workman retained the services of a person junior to
him.
7. RW1, Sh. B.R.Rana, Executive Engineer,
HPSEB though has categorically admitted in his cross
examination that workman was senior to Piar Chand, but
claimed that workman himself abandoned the job of his own.
By now it is well settled that plea of abandonment cannot
be taken in air, rather cogent and convincing evidence with
regard to abandonment is required to be led on record in
this regard. Neither notice, if any, issued by the ecmployer
Department ever came to be placed on record suggestive of
the fact that after alleged abandonment of job by the
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workman, Department issued notice to him calling upon him
to join duties, nor inquiry, if any, ever came to be instituted.
8. It is settled law that plea of abandonment taken
by employer may not be sufficient to prove abandonment,
rather it is necessary for the employer to place on record
that specific notice was issued to the workman before
alleged abandonment asking the workman to join duty
within a stipulated period. In this regard, reliance is placed
upon the judgment passed by Bombay High Court in case
titled Ocean Creations Vs. Manohar Gangaram
Kamble 2013 SCC Online Bom 1537:2014)140 FLR 725. It
is profitable to reproduce paras No.8,9 and 10 of the
judgment herein:
“8.The legal position is also settled that
‘abandonment or relinquishment of service’ is always a
question of intention and normally such intention cannot
be attributed to an employee without adequate evidence
in that behalf. This is a question of fact which is to be
determined in the light of surrounding circumstances of
each case. It is well settled that even in case of
abandonment of service, unless the service conditions
make special provisions to the contrary, employer has to
give notice to the workman calling upon him to resume
duties and where he fails to resume duties, to hold an
enquiry before terminating services on such ground.
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9. In somewhat similar circumstances a Division
Bench of this court comprising P.B.Sawant, J.(as he then
was) and V.V.Vaze, J. in the case of Gaurishanker
Vishwakarma v. Engle Spring Industries Pvt. Lted.
Observed thus:
“…..it is now well settled that even in the case of
the abandonment of service, the employer has to
give a notice to the workman calling upon him to
resume his duty and also to hold an enquiry before
terminating his service on that ground. In the
present case the employer has done neither. It was
for the employer to prove that the workman had
abandoned the service….. It is therefore difficult to
believe that the workman who had worked
continuously for six to seven years, would abandon
his service for no rhyme or reason. It has also to be
remembered that it was the workman who had
approached the Government Labour Officer with a
specific grievance that he was not allowed to join
his duty. It was also his grievance that although he
had approached the company for work from time to
time, and the company’s partner Anand had kept
on promising him that he would be taken in
service, he was not given work and hence he was
forced to approach the Government Labour Officer.
In the circumstances, it is difficult to believe that
he would refuse the offer of work when it was given
to him before the Labour Officer….”
10.Again a learned Single Judge of this court
R.M.Lodha, J( as he then was) in the case of
Mahamadsha Ganishah Patel v. Mastanbaug Consumers’
Coop. Wholesale & Retail Stores Ltd. Observed thus:
“….The legal position is almost settled that even in
the case of abandonment of service, the employer
has to give notice to the employee calling upon him
to resume his duty. If the employee does not turn
up despite such notice, the employer should hold
inquiry on that ground and then passs appropriate
order of termination. At the time when
employment is scarce, ordinarily abandonment of
service by employee cannot be presumed.
Moreover, abandonment of service is always a
matter of intention and such intention in the
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absence of supportable evidence cannot be
attributed to the employee. It goes without saying
that whether the employee has abandoned the
service or not is always a question of fact which
has to be adjudicated on the basis of evidence and
attending circumstances. In the present case
employer has miserably failed to discharge the
burden by leading evidence that employee
abandoned service. The Labour Court has
considered this aspect, and, in my view rightly
reached the conclusion that the employer has
failed to establish any abandonment of service and
it was a clear case of termination. The termination
being illegal, the Labour Court did not commit any
error in holding the act of employer as unfair
labour practice under ItemI, Schedule IV of the
MRTU & PULP Act…..”
9. In Samishta Dube Vs. City Board, Etawah &
Another, 1999 LLR 460 (SC), the Hon’ ble Apex Court has
categorically held that principle of “ Last come First go”
even applies to daily waged employees and for invocation of
principle, no particular period of continuous service is
required to be proved. True, it is that employerDepartment
in the case at hand was not required to serve notice under
Section 25F of the Act upon the workman since he had not
completed 240 days in a calendar year preceding his alleged
termination, but definitely he is entitled to protection as
envisaged under Section 25H of the Act on account of
violation of principle of “Last come First go”. Apart from
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above, it stands duly proved on record that number of
persons after termination of the workman came to be
reemployed by the employerDepartment, as has been taken
note hereinabove. RW1 Sh. B.R.Rana,Executive Engineer,
HPSEB has categorically admitted in his crossexamination
that workman was senior to Piar Chand, if it is so,
employerDepartment in the event of availability of work
ought to have dispensed with the services of Piar Chand
prior to alleged termination of the workman. Interestingly,
in the case at hand, services of Piar Chand were also
terminated, but his services were taken back pursuant to
award passed by the learned Labour Court, which was
affirmed by this Court and as such, this Court finds no
justification in rejecting the claim of workman in the case at
hand.
10. Another contention raised by Mr. Vikrant
Thakur, learned counsel representing the employer
Department that since there was considerable delay in
raising demand by the workmen, learned Tribunal below
ought to have dismissed his claim on the ground of delay
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and laches, has no substance. Though, material available on
record reveals that workman had raised dispute after a
considerable time, but definitely that could not be a ground
for learned Tribunal below to reject the claim, specifically in
view of the fact that it was bound to answer the specific
term of reference, made to it by the appropriate
Government, under Section 10(2) of the Act. Objections, if
any, with regard to raising of demand after considerable
delay, could be taken by the employer before framing of term
of reference. Term of reference framed in the instant case for
adjudication nowhere suggests that the learned Tribunal
below was required to decide issue of delay in raising
demand. Rather, learned Tribunal below was called upon to
answer reference that “whether removal of the workman by
the employer was legal and justified”.
11. In Mukand Ltd. v. Mukand Staff &
Officers’Assn.. reported in (2004) 10 SCC 460, the Hon'ble
Apex Court has held as under:
“22.We shall now analyse the submissions
made by the learned senior counsel appearing on
either side with reference to the pleadings,
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documents, records and also with reference to
the judgments cited. The Reference is limited to
the dispute between the AppellantCompany and
the `workmen' employed by it.
23.We have already referred to the order of
Reference dated 17.2.1993 in paragraph supra.
The dispute referred to by the order of Reference
is only in respect of workmen employed by the
appellantCompany. It is, therefore, clear that
the Tribunal, being a creature of the Reference,
cannot adjudicate matters not within the
purview of the dispute actually referred to it by
the order of Reference. In the facts and
circumstance of the present case, the Tribunal
could not have adjudicated the issues of the
salaries of the employees who are not workmen
under the Act nor could it have covered such
employees by its award. Even assuming, without
admitting, that the Reference covered the non
workmen, the Tribunal, acting within its
jurisdiction under the Act, could not have
adjudicated the dispute insofar as it related to
the `non workmen'.
95.The Industrial Tribunal did not have
jurisdiction to adjudicate the present dispute
inasmuch as it pertains to the conditions of
service of nonworkmen. The learned single
Judge and the Division Bench of the High Court
failed to appreciate that parties cannot by their
conduct create or confer jurisdiction on an
adjudicating authority when no such jurisdiction
exists. We have already noticed that the Division
Bench has erred in holding that there is
community of interest between the workmen and
the nonworkmen and holding further that the
workmen could raise a dispute regarding the
service conditions of nonworkmen.”
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12. Apart from above, it is not in dispute that term of
reference made to the learned Tribunal below by the
appropriate Government under Section 10(2) of the Act
never came to be laid challenge on behalf of the employer
Department on the ground of delay, rather it accepted the
term of reference and thereafter contested the claim of the
workman on its own merits.
13. The Hon’ ble Apex Court in Karan Singh Vs.
Executive Engineer, Haryana State Marketing Board,
(2007) 14 Supreme Court Cases 291, has held that
Industrial Tribunal cannot invalidate the reference on the
ground of delay. If the employer claims that the workman
has made stale claim then the employer must challenge the
reference by way of writ petition and say that since claim is
belated there was no industrial dispute. It would be
profitable to reproduce paras No.11 and 12 of the aforesaid
judgment herein:
“11.In Express Newspapers (P) Ltd. Vs. Workers,
AIR 1963 SC 569,it has been held that the jurisdiction of
the Tribunal in dealing with industrial disputes is
limited to the points mentioned in Section 10(4).
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1 2.In National Engg. Industries Ltd. V. State of
Rajasthan (2000) 1 SCC 371, it has been held vide
para 24 that the High Court has jurisdiction to entertain
a writ petition when there is an allegation that there is
no industrial dispute which could be the subjectmatter
of reference for adjudication to the Industrial Tribunal
under Section 10. This is because existence of the
industrial dispute is a jurisdictional fact. Absence of such
jurisdictional fact results in the invalidation of the
reference. For example, even under the Income Tax Act,
1961 as it stood earlier, the Income Tax Officer must
have reason to believe escapement of income. Thus
“reason to believe” is a jurisdictional fact, therefore, writ
petitions were maintainable in cases where the High
Court found absence of basic facts for reopening the
assessment. The Industrial Tribunal under Section 10
gets its jurisdiction to decide an industrial dispute only
upon a reference by the appropriate Government. The
Industrial Tribunal cannot invalidate the reference on
the ground of delay. If the employer says that the
workman has made a stale claim then the employer must
challenge the reference by way of writ petition and say
that since the claim, is belated, there was no industrial
dispute. The Industrial Tribunal cannot strike down the
reference on this ground.”
14. Mr. Vikrant Thakur, learned counsel
representing the employerDepartment was unable to
dispute that no proceedings, if any, ever came to be initiated
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on behalf of the employerDepartment qua the term of
reference framed by the appropriate Government under
Section 10(2) of the Act and as such, it is now estopped from
raising the issue of delay and latches.
15. Having carefully perused the impugned award,
which is based upon the correct appreciation of evidence
adduced on record by the respective parties, this Court has
not hesitation to conclude that there is no illegality and
infirmity in the same.
16. This Court is in agreement with the arguments
having been made by the learned counsel representing the
workman that this Court has very limited jurisdiction to re
appreciate findings of fact returned by the learned Tribunal
below, while exercising writ jurisdiction under Article 226 of
the Constitution of India and it has a limited scope to re
appreciate the findings of fact recorded by the Court below.
In this regard, reliance is placed upon judgment passed in
case Bhuvnesh Kumar Dwivedi vs. M/s Hindalco
Industries Ltd. 2014 AIR SCW 3157.
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17. As far as judgment passed by the Hon'ble Apex
Court in case Bhuvnesh Kumar Dwivedi vs. M/s
Hindalco Industries Ltd. is concerned, there can not be
any quarrel with the settled proposition of law that the
Courts while examining correctness and genuineness of the
Award passed by Tribunal has very limited powers to
appreciate the evidence adduced before the Tribunal below,
especially the findings of fact recorded by the Tribunal
below and same can not be questioned in writ proceedings
and writ court can not act as an appellate Court. Careful
perusal of aforesaid judgment having been relied upon by
the learned counsel representing the workmen, clearly
suggests that error of law, which is apparent on the face of
record, can be corrected by writ Court but not an error of
fact, however, grave it may appear to be. Hon'ble Apex
Court has further held in the aforesaid judgment that if
finding of fact is based upon no evidence that would be
regarded as error of law, which can be corrected by a writ of
certiorari. Hon'ble Apex Court has further held that in
regard to findings of fact recorded by Tribunal, writ of
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certiorari can be issued, if it is shown that in recording said
findings, tribunal erroneously refused to admit admissible
evidence or erroneously admitted inadmissible evidence,
which influenced impugned findings. It would be profitable
to reproduce following paras of the judgment:
“16. ………The question about the limits of the
jurisdiction of High Courts in issuing a writ of certiorari
under Article 226 has been frequently considered by this
Court and the true legal position in that behalf is no
longer in doubt. A writ of certiorari can be issued for
correcting errors of jurisdiction committed by inferior
Courts or tribunals: these are cases where orders are
passed by inferior Courts or Tribunals without
jurisdiction, or is in excess of it, or as a result of failure
to exercise jurisdiction. A writ can similarly be issued
where in exercise of jurisdiction conferred on it, the
Court or Tribunal acts illegally or improperly, as for
instance, it decides a question without giving an
opportunity to be heard to the party affected by the
order, or where the procedure adopted in dealing with
the dispute is opposed to principles of natural justice.
There is, however, no doubt that the jurisdiction to issue
a writ of certiorari is a supervisory jurisdiction and the
Court exercising it is no entitled to act as an Appellate
Court. This limitation necessarily means that findings of
fact reached by the inferior court or Tribunal as result of
the appreciation of evidence cannot be reopened for
questioned in writ proceedings. An error of law which is
apparent on the face of the record can be corrected by a
writ, but not an error of fact, however grave it may
appear to be. In regard to a finding of fact recorded by
the Tribunal, a writ of certiorari can be issued if it is
shown that in recording the said finding, the Tribunal
had erroneously refused to admit admissible and
material evidence, or had erroneously admitted
inadmissible evidence which has influenced the
impugned finding. Similarly, if a finding of fact is based
on no evidence, that would be regarded as an error of law
which can be corrected by a writ of certiorari. In dealing
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with this category of cases, however, we must always
bear in mind that a finding of fact recorded by the
Tribunal cannot be challenged in proceedings for a writ
of certiorari on the ground that the relevant and
material evidence adduced before the Tribunal was
insufficient or inadequate to sustain the impugned
finding. The adequacy or sufficiency of evidence led on a
point and the interference of fact to be drawn from the
said finding are within the exclusive jurisdiction of the
Tribunal, and the said points cannot be agitated before a
writ Court. It is within these limits that the jurisdiction
conferred on the High Courts under Article 226 to issue a
writ of certiorari can be legitimately exercised.
18. In the instant case, learned counsel representing
the employer was unable to point out any error of law
committed by the Tribunal while allowing claim of the
workman. Similarly, learned counsel representing the
employer was unable to point out any illegality committed
by the learned Tribunal below, while recording findings of
fact, as such, this Court sees no perversity or illegality in
the award passed by the learned Tribunal below.
19. Accordingly, the writ petition is dismissed.
Impugned award passed by the learned Tribunal below is
upheld. Pending applications are disposed of.
(Sandeep Sharma),
Judge
24
th
October, 2019
(shankar)
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