High Court of H.P.IN THE HIGH COURT OF HIMACHAL PRADESH

SHIMLA

CWP No.6280 of 2014

alongwith CWP No.850 of 2016

Reserved on : 07.11.2016

Date of Decision: 15.11.2016.

1. CWP No.6280 of 2014

The Senior Executive Engineer …Petitioner

Versus

Mansa Ram ...Respondent

2. CWP No.850 of 2016

Mansa Ram …Petitioner

Versus

H.P.S.E.B. LTD. & Anr. ...Respondents

Coram:

The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge.

Whether approved for reporting? Yes.

For the petitioner : Mr. Satyen Vaidya, Sr. Advocate

with Ms. Priyanka Khenal

Advocate, in CWP No.6280 of 2014

and Mr. Virender Thakur,

Advocate, in CWP No.850 of 2016.

For the respondents : Mr. Virender Thakur, Advocate, in

CWP No.6280 of 2014.

Mr. Satyen Vaidya, Sr. Advocate

with Ms. Priyanka Khenal

Advocate, in CWP No.850 of 2016.

Chander Bhusan Barow alia, Judge

Both the aforesaid writ petitions are being

disposed of by this order, as common questions of law and

facts are involved.

_____________________________

1

Whether reporters of Local Papers may be allowed to see the judgment?

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2. The above writ petitions are maintained by the

employer and workman vice-versa against the award dated

14.1.2014 (Annexure P-8) in Reference No.103 of 2007,

which was remanded back to the learned Tribunal by this

Hon’ble High Court through Civil Writ Petition No.5344 of

2013, decided on 5.11.2013, with a direction to decide Issue

No.4 afresh. Thereafter, the learned Tribunal decided

Reference No.103 of 2007, vide its order dated 6.10.2012

(Annexure P-1) which is being assailed by both the employer

and workman in these petitions.

CWP No.6280/2014

3. The petitioner-Board in this petition has prayed

for the following relief :-

“for issuance of an appropriate writ,

order or direction to quash and set aside

the impugned Award dated 14.1.2014

(Annexure P-8) passed by the

learned Labour Court-cum-Industrial

Tribunal, Shimla, in Reference No.

103/2007.”

4. The petitioner is the H.P. State Electricity

Board Ltd./employer (hereinafter referred to as “the

petitioner”). The petitioner being aggrieved by the

award dated 5.12.2013, passed by the learned Labour

Court-cum-Industrial Tribunal (hereinafter referred to

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as ‘the Tribunal’) in Reference No.103 of 2007 has

assailed the same by way of present writ petition.

5. It has further been averred that on failure

of the conciliation, the State Government sent the

following reference for adjudication to the learned

Labour Court-cum-Industrial Tribunal, Shimla:

“Whether the termination of services of

Sh. Mansa Ram son of Sh. Hazaru

Ram workman by the Senior Executive

Engineer, Electrical Division,

HPSEBL, Arki, Distt. Solan, H.P. w.e.f.

21.8.1994 without complying the

provisions of the Industrial Disputes

Act, 1947 is proper and justified? If

not, what relief of service benefits and

amount of compensation the above

aggrieved workman is entitled to?”

6. It has been submitted that the

respondent/workman (hereinafter referred to as “the

workman”), pursuant to such reference, filed his

statement of claim/demand alleging therein that he

had been engaged as Beldar Board w.e.f. 26.3.1982

and thereafter his services were terminated orally on

20.2.1995, without any compensation and notice. It

was also alleged that he had completed 240 days in a

calendar year and a number of juniors are working in

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HPSEB Division, Arki, however, the workman has not

been re- engaged. It has also been alleged that in the

year 1995, the respondent(workman) fell ill and

submitted his medical leave, but the petitioner/Board

did not allow him to work and thereafter, the

respondent submitted various representations to the

petitioner. So, the disengagement was alleged to be

wrong and in complete violation of the provisions of

Sections 25-F and 25-G of the Industrial Disputes Act.

7. In reply to the reference petition filed by

the petitioner/Board, it was alleged that the reference

petition was being hit by delay and laches and the

standing orders of HPSEB were not applicable upon

the workman. It was stated on merits that though the

respondent was engaged on 26.3.1982, but his services

were not orally terminated on 20.2.1995, as alleged,

rather the respondent did not work continuously

during the aforesaid period and had never completed

240 days in a calendar year or preceding 12 months of

his termination. It has also been alleged that the

petitioner/Board did not terminate the services of

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respondent and, in fact, the respondent/workman had

left the job at his own and thus the workman had not

performed his duties regularly, as per the requirement

of the department. It has also been alleged that the

respondent worked with the petitioner-Board till

20.2.1995 and thereafter, he left the job and did not

report for duties. The respondent remained absent so

many times during the aforesaid period and that the

petitioner annexed the man-days chart to show the

period in which the respondent/workman actually

worked with the petitioner.

8. It has been submitted that the respondent

filed rejoinder to the reply, wherein he reasserted and

reiterated the averments made in the petition and

stated that number of juniors, namely Rakesh Kumar,

Baldev Singh, Mast Ram etc. etc. were still working in

Arki Division. In reply, the petitioner had took a

specific stand that the respondent had submitted the

demand notice after a period of nine years. It has

been submitted that the learned Tribunal framed, as

many as, four issues and the respondent was

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examined as PW-1. The learned Labour Court-cum-

Industrial Tribunal, Shimla, vide its order dated

6.10.2012, held that termination of the services of the

respondent had been effected without complying with

the provisions of the Act and issued directions for re-

instatement of the respondent in service with

immediate effect with seniority and continuity of

service, but without back wages.

9. It has been submitted that the petitioner

assailed the award by way of filing CWP No.5344 of

2013 and this Court had ordered to set-aside the

findings of the learned Tribunal, vide judgment dated

5.11.2013 and remanded back the matter to the said

Tribunal for its decision afresh on Issue No.4.

Issue No.4 reads as under :

“Whether the reference, at the

instance of respondent employee,

was hit by delay and laches ?

To answer this Issue, learned Tribunal merely

observed thus:

“Issue No.4.

19. For the reasons recorded hereinabove

while deciding Issues No.1 &3, the services,

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of petitioner were illegally terminated on

21.8.1994 by the respondent without

complying with the provisions of Industrial

Disputes Act, 1947. Therefore, there is no

question of any delay and laches. Hence,

this issue is also decided against the

respondent.”

However, the petitioner was granted liberty to

re-assail the findings on all the issues and in case, the

said learned Tribunal decide Issue No.4 against the

petitioner, it will be open to the petitioner to challenge

the said findings in appropriate proceedings and in

accordance with law. Thereafter, the learned Tribunal

decided Issue No.4 against the petitioner, vide its

order dated 14.1.2014.

10. The petitioner has challenged both the

orders 6.10.2012 & 14.1.2014, respectively, passed by

the learned Tribunal and submitted that the learned

Tribunal has erred in not dismissing the reference

petition on the ground of delay alone , more

particularly, when it was the admitted case of the

respondent/workman himself that he had been

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initially engaged on 26.3.1982 and was terminated on

20.2.1995, and the demand notice came to be

submitted only after a period of nine years.

11. It has been further contended that the

award dated 14.1.2014, passed by the learned

Tribunal, is perverse being against the specific

mandate of this Court. It has also been contended that

the learned Tribunal was legally bound to consider the

effect of delay and laches.

12. In reply to the petition, the respondent has

submitted that he had filed a Reference, which was

decided by the learned Labour Court on 6.10.2012. It

has also been submitted that the petitioner had also

filed writ petition and challenged the award of the

learned Labour Court in CWP No.5344 of 2013, which

was remanded back to the learned Tribunal on

5.11.2013, directing it to decide Issue No.4 afresh and

answer the same on its own merit and in accordance

with law. The learned Labour Court was also directed

to decide the issue of delay and laches. It has also been

submitted that the learned Labour Court decided the

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above mentioned Issue on merits, after hearing both

the parties and gave full opportunities to the parties in

the lis to defend their case and the issue was decided

in favour of the respondent/workman. It has been

submitted that the learned Tribunal below has passed

the impugned award in favour of the respondent. It

has also been submitted that the respondent/workman

is fighting for his claim for the last more than 12 years

and indulgence of this Hon’ble Court is required to

protect the lawful rights of a poor worker so that

justice is done to him.

CWP No.850 of 2016

13. By way of filing this petition, the

petitioner(hereinafter referred as “the petitioner/

workman”) has prayed for the following relief :-

“for issuance of an appropriate writ, order

or direction to the respondents to pay the

back wages to the petitioner from the date of

his termination from service till the date of

his reinstatement in se rvice will all

consequential benefits such as

regularization, seniority, continuity in service,

increments etc. etc.”

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14. The petitioner/workman has submitted that

he was initially engaged by the respondent-Board on

daily wages basis, as Beldar, on 26.3.1982, and worked

as such upto 20.2.2015. Further, it has been submitted

that in the month of February, 1995, his services were

terminated by the respondent/Board (hereinafter

referred to as “the Board) orally without issuing any

notice or any compensation.

15. It has been contended that the petitioner,

at a number of times, made written representations,

as well as oral requests and also visited the office of

the board, i.e. Sub Divisional Officer,HPSEB,

Darlaghat, wherein the petitioner requested for his re-

engagement, but nothing was done. The petitioner, in

the year, 2003 filed an application before the learned

Labour-cum-Conciliation Officer, Shimla alongwith

representation to the respondent/Board for his re-

engagement in the service. It has also been alleged

that the respondent/Board terminated the services of

the workman orally and without complying the

provisions of the Industrial Disputes Act.

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16. It has been contended that the Labour-

cum-Conciliation Officer had tried to settle the matter

between the parties and ultimately the Labour-cum-

Conciliation Officer sent a failure report to the Labour

Commissioner, Shimla, Himachal Pradesh, in the year

2004. The learned Labour Commissioner, Shimla, sent

the Reference under Section 12 of the Act to the

learned Labour Court -cum-Industrial Tribunal,

Shimla, for adjudication to the following effect:-

“Whether the termination of services of

Sh. Mansa Ram son of Sh. Hazaru

Ram workman by the Senior Executive

Engineer, Electrical Division,

HPSEBL, Arki, Distt. Solan, H.P. w.e.f.

21.8.1994 without complying the

provisions of the Industrial Disputes

Act, 1947 is proper and justified? If

not, what relief of service benefits and

amount of compensation the above

aggrieved workman is entitled to?”

17. It has been submitted that the petitioner

had filed the statement of claim before the learned

Labour Court, which was contested by the

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respondent/Board. The petitioner stated that number

of junior workers were engaged by the respondents-

Board after his termination, therefore, he has prayed

for his re-engagement with all consequential benefits

alongwith back-wages, seniority and continuity in

service, as the services of the petitioner/workman were

terminated by the respondents without complying

with the provisions of Industrial Disputes Act, 1947.

18. The respondents contested the claim of the

petitioner and objected the same on the ground of

delay and laches. However, the respondent/Board

admitted that the petitioner was engaged by it on

26.3.1982, but the petitioner/workman left the job at

his own and did not come again to join the service.

19. It has also been contended that the learned

Labour Court-cum-Industrial Tribunal had framed

four issues before deciding the reference and after

scrutinizing the facts and circumstances, the learned

Labour Court-cum-Industrial Tribunal, Shimla

decided the Reference in favour of the petitioner on

6.10.2012. The learned Labour Court, Shimla, allowed

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the reference and held that termination of the services

of the petitioner was improper, unjustified and bad

and the said Court below had reinstated the services

of the petitioner with seniority and continuity in

service, but without any back-wages.

20. It has been averred that against the award

of the Labour Court, Shimla, dated 6.10.2012, the

respondent/Board filed a Civil Writ Petition No.5344

of 2013, with a prayer that the learned Labour Court

had not decided the issue of delay and laches and no

findings have been given on the issue by the learned

Labour Court. This Court vide order dated 5.11.2013,

set aside the findings recorded by the Learned Labour

Court, Shimla, on Issue No.4 only and remanded the

reference to the Learned Labour Court for answering

the same on its own merit in accordance with law. It

has been averred that this Hon’ble Court had

remanded the reference to the Labour Court to decide

Issue No.4 on merits and the Learned Labour Court

gave a specific finding and allowed the Reference vide

its order dated 14.1.2014.

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Issue No.4 read as under ;

“Whether the reference, at the

instance of respondent employee, was

hit by delay and laches ?

To answer that issue, learned Judge

merely observed thus:

“Issue No.4.

19. For the reasons recorded hereinabove

while deciding Issues No.1 &3, the services,

of petitioner were illegally terminated on

21.8.1994 by the respondent without

complying with the provisions of Industrial

Disputes Act, 1947. Therefore, there is no

question of any delay and laches. Hence,

this issue is also decided against the

respondent.”

21. It has been contended that the learned

Labour Court-cum-Industrial Tribunal, Shimla

decided the reference in favour of the petitioner and

held the petitioner entitled for re-instatement in

service with immediate effect with seniority,

continuity in service, but without back-wages.

22. Reply to the reference petition was filed by

the petitioner. The respondent/Board has submitted

that petition suffers from the vice of delay and laches

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and the same is nothing, but a counterblast to CWP

No.6280 of 2014, filed by respondent No.2 against the

petitioner in this Court. It has also been submitted

that the allegations with respect to the retrenchment

of the petitioner are baseless, as a matter of fact, the

petitioner had left the job at his own.

23. It has also been denied that the petitioner

has been making representations orally, as well as, in

writing. Without admitting the claim of the petitioner,

demand notice, which was served upon the petitioner

in the year 2003, i.e., after a period of more than 8

years from the date of alleged retrenchment,

disentitles him to the relief as claimed. It has also

been submitted that the respondent/Board has already

challenged the award passed by the learned Labour

Court, Shimla, on 14.1.2014, by way of CWP No.6280

of 2014, which is also being disposed of with this

petition. Therefore, the respondent/Board has denied

all the allegations levelled in the present petition. The

respondent/Board has submitted that the relief

granted by the learned Labour Court-cum-Industrial

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Tribunal to the petitioner/ workman are wrong, illegal

and impermissible in law.

24. The respondent/workman has also assailed

a writ petition on the ground that the learned Labour

Court-cum-Industrial Tribunal, Shimla has no

jurisdiction in not granting the back wages him, so the

judgment of the learned Tribunal be modified and the

respondent-Board be directed to pay all the benefits

including the back wages to the petitioner/workman.

25. Heard the learned counsel for the parties.

26. The petitioner had placed on record the

copy of seniority list, which he obtained under the

Right to Information Act. The seniority list has not

been disputed by the respondent-Board, as no cross-

examination of petitioner/workman, as to the said

seniority list, was conducted by the respondent/Board.

The seniority list reveals that after 20.8.1994, the

respondent/Board had engaged other workers namely,

Dineshwar Sharma, Roshan Lal, Ramesh Pal,

Trilochan Singh, Mast Ram etc. The witness of

respondent RW-1 Inder Singh in his cross-examination

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had expressed his ignorance whether any junior

workman was engaged after petitioner left the job.

This evasive reply on the part of the witness of the

respondent is sufficient to suggest that he had not

specifically denied the plea of the petitioner that in

fact junior workmen were engaged by the respondent

after the termination of the petitioner. Moreover, the

seniority list is sufficient to establish that junior

workmen were engaged by the respondent after the

retrenchment of the petitioner. Hence, there is also

violation of Section 25-H of the Industrial Disputes

Act, 1947, as no opportunity was given to the

workman by the employer/Board to re-engage him.

27. However, the reference was received in the

learned Labour Court -cum-Industrial Tribunal,

Shimla, in the year 2007, so it cannot be believed that

from 1994 to 2007, the petitioner/workman remained

without any job. So, it can safely be inferred that

during the said period, the petitioner was gainfully

employed. So, the petitioner was rightly held not

entitled for the back wages. Further, as the services of

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the petitioner were illegally terminated, therefore, this

Court finds that the learned Tribunal has rightly

exercised its jurisdiction.

28. The Hon’ble Supreme Court in a case

titled Bhuvnesh Kumar Dwivedi vs. Hindalco

Industries Limited (2014) 11 Supreme Court

Cases 85, has held as under :-

“18. The appellant has claimed that the

High Court has modified the award passed by

the Labour Court which has awarded

reinstatement of the appellant with full back

wages and other consequential benefits to

simply awarding compensation to the tune of

Rs. 1,00,000/- by the High Court in lieu of

reinstatement with back wages and

consequential benefits which order is bad in

law in the light of the legal principles laid

down by this Court in the catena of cases.

19. In the case of Heinz India (P) Ltd. v.

State of U.P., this Court, on the issue of the

power of the High Court for judicial review

under Article 226, held as under:

“60. The power of judicial review is

neither unqualified nor unlimited. It has its

own limitations. The scope and extent of the

power that is so very often invoked has been

the subject-matter of several judicial

pronouncements within and outside the

country. When one talks of 'judicial review'

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one is instantly reminded of the classic and

oft quoted passage from Council of Civil

Service Unions v. Minister for the Civil Service,

where Lord Diplock summed up the

permissible grounds of judicial review thus:

“……Judicial Review has I think

developed to a stage today when, without

reiterating any analysis of the steps by which

the development has come about, one can

conveniently classify under three heads the

grounds on which administrative action is

subject to control by judicial review. The first

ground I would call 'illegality', the second

'irrationality' and the third 'procedural

impropriety'.

By 'illegality' as a ground for judicial

review I mean that the decision-maker must

understand correctly the law that regulates

his decision-making power and must give

effect to it. Whether he has or not is par

excellence a justiciable question to be

decided, in the event of dispute, by those

persons, the judges, by whom the judicial

power of the State is exercisable.

By 'irrationality' I mean what can by

now be succinctly referred to as “Wednesbury

unreasonableness”. It applies to a decision

which is so outrageous in its defiance of logic

or of accepted moral standards that no

sensible person who had applied his mind to

the question to be decided could have arrived

at it. Whether a decision falls within this

category is a question that judges by their

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training and experience should be well

equipped to answer or else there would be

something badly wrong with our judicial

system... ...

I have described the third head as

'procedural impropriety' rather than failure to

observe basic rules of natural justice or

failure to act with procedural fairness towards

the person who will be affected by the

decision. This is because susceptibility to

judicial review under this head covers also

failure by an administrative tribunal to

observe procedural rules that are expressly

laid down in the legislative instrument by

which its jurisdiction is conferred, even where

such failure does not involve any denial of

natural justice.”

21. The judgments mentioned above can be

read with the judgment of th is Court in

Harjinder Singh’s case, the relevant

paragraph of which reads as under:

“21. Before concluding, we consider it

necessary to observe that while exercising

jurisdiction under Articles 226 and/or 227 of

the Constitution in matters like the present

one, the High Courts are duty-bound to keep

in mind that the Industrial Disputes Act and

other similar legislative instruments are

social welfare legislations and the same are

required to be interpreted keeping in view the

goals set out in the Preamble of the

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Constitution and the provisions contained in

Part IV thereof in general and Articles 38,

39(a) to (e), 43 and 43-A in particular, which

mandate that the State should secure a social

order for the promotion of welfare of the

people, ensure equality between men and

women and equitable distribution of material

resources of the community to subserve the

common good and also ensure that the

workers get their dues. More than 41 years

ago, Gajendragadkar, J. opined that:

“10. … The concept of social and

economic justice is a living concept of

revolutionary import; it gives sustenance to

the rule of law and meaning and significance

to the ideal of welfare State.” (State of Mysore

v. Workers of Gold Mines13, AIR p. 928, para

10.)

22. A careful reading of the judgments

reveals that the High Court can interfere with

an order of the Tribunal only on the

procedural level and in cases, where the

decision of the lower courts has been arrived

at in gross violation of the legal principles.

The High Court shall interfere with factual

aspect placed before the Labour Courts only

when it is convinced that the Labour Court

has made patent mistakes in admitting

evidence illegally or have made grave errors in

law in coming to the conclusion on facts. The

High Court granting contrary relief under

Articles 226 and 227 of the Constitution

amounts to exceeding its jurisdiction

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conferred upon it. Therefore, we accordingly

answer the Point (i) in favour of the

appellant.”

29. It can easily be construed from the

analysis of the record that since the respondent-Board

has not given any opportunity to the petitioner for re-

engagement, therefore, the action of the respondent-

Board is in violation of Section 25-H of the Industrial

Disputes Act, 1947. This Court finds that the award

passed by the learned Tribunal is just, reasoned and

after appreciating the facts, which has come on record

to its true perspective.

30. In these circumstances, this Court finds

that the impugned awards dated 6.10.2012 and

14.1.2014 passed in Reference No.103/2007, by the

learned Labour Court-cum-Industrial Tribunal,

Shimla, are just reasoned and after appreciating the

facts, which have come on record to its true

perspective and calls for no interference.

31. Accordingly, there is no merit in the

instant petitions hence, both the petitions deserve

dismissal and are accordingly dismissed.

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32. All pending application(s), if any, shall also

stands disposed of accordingly. No order as to costs.

(Chander Bhusan Barowalia)

Judge

November 15,2016.

(M. gandhi)

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