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Himachal Pradesh High Court
State Of Hp & Ors vs Desh Raj on 1 May, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
Civil Writ Petition No. 1346 of 2020 with
CWP No. 3215 of 2016, CWP Nos. 348, 351,
394, 396, 397, 398, 399, 400, 401, 402,
403, 407, 408, 446, 447, 451, 452, 453,
454, 455, 458, 459, 460, 513, 605, 606,
607, 608, 615, 616, 697, 701, 747, 792,
793, 825 and 1275 of 2017, CWP Nos. 991,
992, 993, 994, 1182 and 1185 of 2019 and
CWP Nos. 729, 731, 732 and 4986 of 2020
Date of Decision: 01.05.2024
_____________________________________________________________________
1. CWP No. 1346 of 2020
State of HP & Ors.
.........Petitioners
Versus
Desh Raj
.......Respondent
2. CWP No. 3215 of 2016
State of HP & Ors.
.........Petitioners
Versus
Purshotam Chand and Anr.
.......Respondents
3. CWP No. 348 of 2017
Suneel Kumar
.........Petitioner
Versus
The Divisional Forest Officer and Anr.
.......Respondents
4. CWP No. 351 of 2017
Hari Krishan
.........Petitioner
Versus
The Divisional Forest Officer and Anr.
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2
.......Respondents
.
5. CWP No. 394 of 2017
State of HP and Ors.
.........Petitioners
Versus
Kamer Chand and Anr.
.......Respondents
6. CWP No. 396 of 2017
State of HP and Ors.
.........Petitioners
Versus
Gaggan Singh and Anr.
.......Respondents
7. CWP No. 397 of 2017
State of HP and Ors.
.........Petitioners
Versus
Mohinder Singh and Anr.
.......Respondents
8. CWP No. 398 of 2017
State of HP and Ors.
.........Petitioners
Versus
Prakam Ram and Anr.
.......Respondents
9. CWP No. 399 of 2017
State of HP and Ors.
.........Petitioners
Versus
Kalyan Chand and Anr.
.......Respondents
10. CWP No. 400 of 2017
State of HP and Ors.
.........Petitioners
Versus
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Parkash Chand and Anr.
.......Respondents
.
11. CWP No. 401 of 2017
State of HP and Ors.
.........Petitioners
Versus
Dev Raj and Anr.
.......Respondents
12. CWP No. 402 of 2017
State of HP and Ors.
.........Petitioners
Versus
Deep Raj and Anr.
r .......Respondents
13. CWP No. 403 of 2017
State of HP and Ors.
.........Petitioners
Versus
Rakesh Chand and Anr.
.......Respondents
14. CWP No. 407 of 2017
State of HP and Ors.
.........Petitioners
Versus
Sanjay Kumar and Anr. .......Respondents
15. CWP No. 408 of 2017
State of HP and Ors.
.........Petitioners
Versus
Kultar Chand and Anr.
.......Respondents
16. CWP No. 446 of 2017
State of HP and Ors.
.........Petitioners
Versus
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Bishamber Singh and Anr.
.......Respondents
.
17. CWP No. 447 of 2017
State of HP and Ors.
.........Petitioners
Versus
Hari Krishan and Anr.
.......Respondents
18. CWP No. 451 of 2017
State of HP and Ors.
.........Petitioners
Versus
Desh Raj and Anr.
r .......Respondents
19. CWP No. 452 of 2017
State of HP and Ors.
.........Petitioners
Versus
Ravi Kumar and Anr.
.......Respondents
20. CWP No. 453 of 2017
State of HP and Ors.
.........Petitioners
Versus
Sunil Kumar and Anr.
.......Respondents
21. CWP No. 454 of 2017
State of HP and Ors.
.........Petitioners
Versus
Anita Devi Bakshi and Anr.
.......Respondents
22. CWP No. 455 of 2017
State of HP and Ors.
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.........Petitioners
Versus
.
Mouji Ram and Anr.
.......Respondents
23. CWP No. 458 of 2017
State of HP and Ors.
.........Petitioners
Versus
Kuldeep Singh and Anr
.......Respondents
24. CWP No. 459 of 2017
State of HP and Ors.
.........Petitioners
r Versus
Pritam Singh and Anr.
.......Respondents
25. CWP No. 460 of 2017
Kamer Chand
.........Petitioner
Versus
The Divisional Forest Officer and Anr.
.......Respondents
26. CWP No. 513 of 2017
Kuldeep Singh Jamwal
.........Petitioner
Versus
The Divisional Forest Officer and Anr.
.......Respondents
27. CWP No. 605 of 2017
State of HP and Ors.
.........Petitioners
Versus
Sandeep Singh Rana and Anr.
.......Respondents
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28. CWP No. 606 of 2017
.
State of HP and Ors.
.........Petitioners
Versus
Tara Chand and Anr.
.......Respondents
29. CWP No. 607 of 2017
State of HP & Ors.
.........Petitioners
Versus
Meenakshi Sharma & Anr.
.......Respondents
30. CWP No. 608 of 2017
State of HP and Ors.
.........Petitioners
Versus
Atma Ram and Anr
.......Respondents
31. CWP No. 615 of 2017
State of HP and Ors.
.........Petitioners
Versus
Swaroop Chand and Anr.
.......Respondents
32. CWP No. 616 of 2017
State of HP and Ors.
.........Petitioners
Versus
Yash Pal and Anr.
.......Respondents
33. CWP No. 697 of 2017
State of HP and Ors.
.........Petitioners
Versus
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Sunita Devi and Anr.
.......Respondents
.
34. CWP No. 701 of 2017
Rakesh Chand
.........Petitioner
Versus
The Divisional Forest Officer and Anr.
.......Respondents
35. CWP No. 747 of 2017
State of HP and Ors.
.........Petitioners
Versus
Jaspal Singh Rana and Anr
r .......Respondents
36. CWP No. 792 of 2017
State of HP and Ors.
.........Petitioners
Versus
Ram Saroop and Anr
.......Respondents
37. CWP No. 793 of 2017
State of HP and Ors.
.........Petitioners
Versus
Sunil Kumar and Anr.
.......Respondents
38. CWP No. 825 of 2017
State of HP and Ors.
.........Petitioners
Versus
Balwant Singh and Anr.
.......Respondents
39. CWP No. 1275 of 2017
State of HP & Ors.
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.........Petitioners
Versus
.
Jagat Ram
.......Respondent
40. CWP No. 991 of 2019
State of HP & Ors.
.........Petitioners
Versus
Ravi Kumar
.......Respondent
41. CWP No. 992 of 2019
The State of HP & Ors.
.........Petitioners
Versus
Vandana Kumari
.......Respondent
42. CWP No. 993 of 2019
State of HP & Ors.
.........Petitioners
Versus
Gurbax Singh (now deceased) Through LRs
.......Respondents
43. CWP No. 994 of 2019
The State of HP & Ors.
.........Petitioners
Versus
Jagtamba Devi
.......Respondent
44. CWP No. 1182 of 2019
The State of HP & Ors.
.........Petitioners
Versus
Suresh Kumar
.......Respondent
45. CWP No. 1185 of 2019
The State of HP & Ors.
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.........Petitioners
Versus
.
Vijay Kumar
.......Respondent
46. CWP No. 729 of 2020
The State of HP & Ors.
.........Petitioners
Versus
Vinod Kumar
.......Respondent
47. CWP No. 731 of 2020
The State of HP & Ors.
.........Petitioners
r Versus
Sanjeev Kumar
.......Respondent
48. CWP No. 732 of 2020
The State of HP & Ors.
.........Petitioners
Versus
Balbir Singh
.......Respondent
49. CWP No. 4986 of 2020
The State of HP & Ors.
.........Petitioners
Versus
Sudershna Kumari
.......Respondent
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? Yes.
For the Petitioner(s): Mr. Rajan Kahol, Mr. Vishal Panwar and Mr.
B.C. Verma, Additional Advocates General
with Mr. Ravi Chauhan, Deputy Advocate
General, for petitioners/State in all petitions
except CWP Nos. 348, 351, 460, 513 and
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701 of 2017 and for the respondents/State
in CWP Nos. 348, 351, 460, 513 and 701 of
.
2017.
For the respondent(s): Mr. Rahul Mahajan, Advocate, for
respondent No.1/private respondent in CWP
No.3215 of 2016, CWP Nos. 396, 397, 398,
399, 400, 452, 454, 455, 615, 616, 697,
747, 792 & 1275 of 2017 and CWP Nos. 991
& 993 of 2019.
Mr. K.D. Sood, Senior Advocate with Mr. Het
Ram Thakur, Advocate, for respondent No.1
in CWP No. 394, 447, 458, 605, 793, and
825 of 2017 and for the petitioner(s) in CWP
r Nos. 348, 351, 460, 513 and 701 of 2017.
Mr. Umesh Kanwar, Advocate, for the
respondent No.1/private respondent in CWP
Nos. 401, 402, 403, 408, 446, 459, 608 of
2017 and 731 of 2020.
Mr. Peeyush Verma, Advocate, for the
respondent in CWP No. 4986 of 2020.
Mr. Kuldeep Chand Thakur, Advocate, for
the respondent in CWP No. 407 of 2017.
Mr. Adarsh K. Vashista, Advocate, for the
respondents in CWP Nos. 994 and 1182 of
2019.
Mr. Vijay Bir Singh, Advocate, for the
respondent in CWP No. 1185 of 2019.
Mr. Rajneesh K. Lal, Advocate, for the
respondent in CWP No. 451 of 2017.
Nemo for IGCP, Palampur.
___________________________________________________________________________
Sandeep Sharma, J. (Oral)
Since common questions of facts as well as law are involved in the above captioned cases and similar relief has been ::: Downloaded on - 17/05/2024 20:33:08 :::CIS 11 claimed, all the matters were heard together and are being disposed of .
vide common judgment.
2. Being aggrieved and dissatisfied with award(s) dated 13.11.2018, 28.7.2015, 22.7.2015, 31.3.2015, 6.5.2015, 29.4.2015, 24.4.2015, 25.5.2018, 3.5.2018, 29.11.2018 and 29.4.2019 passed by the learned Industrial Tribunal cum Labour Court, Kangra at Dharamshala, Himachal Pradesh, in reference Nos. 798 of 2016, 183 of 2015, 217 of 2013, 227 of 2013, 187 of 2015, 223 of 2013, 224 of 2013, 125 of 2014, 184 of 2015, 232 of 2013, 221 of 2013, 219 of 2013, 226 of 2013, 238 of 2013, 229 of 2013, 222 of 2013, 185 of 2015, 225 of 2013, 230 of 2013, 218 of 2013, 228 of 2013, 233 of 2013, 128 of 2014, 239 of 2013, 119 of 2014, 220 of 2013, 186 of 2015, 126 of 2014, 129 of 2014, 235 of 2013, 188 of 2015, 127 of 2014, 234 of 2013, 259 of 2012, 797 of 2016, 857 of 2016, 758 of 2016, 756 of 2016, 478 of 2016, 579 of 2016, 853 of 2016, 802 of 2016, 760 of 2016 and 795 of 2016, petitioners have approached this Court in the instant proceedings, praying therein to set-aside aforesaid award(s).
3. Petitioners in CWP Nos. 348, 351, 460, 513 and 701 of 2017, have also approached this Court against the award(s) dated 31.3.2015, 22.7.2015 and 29.4.2015 in reference Nos. 225 of 2013, 229 of 2013, 217 of 2013, 228 of 2013 and 236 of 2013, whereby they have been denied the back wages.
::: Downloaded on - 17/05/2024 20:33:08 :::CIS 124. Though facts of the above captioned case are common, .
but for the sake of brevity and clarity, facts of CWP No. 3215 of 2016, State of Himachal Pradesh and Ors v. Purshotam Chand, are being discussed herein after:
5. For having bird's eye view, relevant facts as emerge from the pleadings adduced on record by the respective parties are that on 1.7.1995, respondent herein came to be engaged on daily wage basis in the petitioner-department, but neither any appointment letter was issued nor any terms and conditions with regard to service were ever settled. Subsequent to his appointment on verbal order, respondent was deputed to work in Indo German Changer Project, Palampur, District Kangra, Himachal Pradesh (in short "the IGCP"), controlled and managed by the State of Himachal Pradesh/Forest Department.
In the aforesaid capacity, respondent continued to render his services uninterruptedly till 31.3.2006, without any break with 240 days in each and every calendar year in terms of Section 25-B of the Industrial Disputes Act (in short "the Act"). On 31.3.2006, petitioner-department retrenched the respondent in violation of provisions contained under the Act because at no point of time, any prior notice as envisaged under Section 25-F of the Act, was ever given. Since petitioner department decided to close the IGCP, services of the respondent alongwith other 85 daily wage workers, came to be retrenched/terminated. Since none of the retrenched workers were ::: Downloaded on - 17/05/2024 20:33:08 :::CIS 13 issued notice under Section 25-F of the Act and they were not paid .
any compensation in lieu of notice, they requested the petitioner department to reengage/adjust them in other departments. Pursuant to aforesaid request made by the respondent and other similarly situate persons as mentioned in the above captioned cases, State Government, vide letter dated 17.11.2008, sent a communication to various departments that 99 daily wage workers of IGCP Palampur and 258 daily wage workers of Kandi Project, would be reengaged against the vacant posts. After issuance of aforesaid communication, petitioner department also sent a communication to the respondent and other similarly situate persons, thereby calling upon them to give their willingness for particular post in other departments. Though willingness to serve in the other departments was furnished by the respondent as well as other similarly situate persons, but admittedly, none of the worker, who was working in the IGCP, was ever reengaged.
Since in similar facts and circumstances, one daily wage worker namely Bhishan Dass, who was engaged in the year, 1993, by the State/Forest Department, but was working in the IGCP, Palampur, was disengaged orally, he also raised industrial dispute by way of reference No. 117 of 2007, which ultimately came to be decided in his favour. Though award passed by the Labour Court-cum-Industrial Tribunal in the aforesaid reference was laid challenge upto the Hon'ble Apex Court, but fact remains that same remained intact, as a result ::: Downloaded on - 17/05/2024 20:33:08 :::CIS 14 thereof, above named person was re-engaged and still continuing in .
his service. Taking note of the re-engagement of Bhishan Dass in the similar facts and circumstances though respondent herein as well as other similarly situate persons, requested the petitioner department to reengage them in the Forest Department or other departments, but since such prayer of them was not acceded to, they raised industrial dispute, however demand to raise industrial dispute, at the first instance, was rejected by the Labour Commissioner and as such, respondent herein as well as other similarly situate persons were compelled to approach this Court by way of Civil Writ Petitions. This Court while allowing the writ petitions filed by the respondent herein as well as other similarly situate persons, held that delay in raising the demand was not attributable to the respondent as well as other similarly situate persons, rather same occurred on account of repeated assurances given by the petitioner department that daily wage workers disengaged from IGCP, would be reengaged in other departments and as such, specifically directed the Labour Commissioner, Himachal Pradesh, to make reference to the Labour Court. In the aforesaid background appropriate government under Section 10 (1) of the Act, made following reference:
"Whether the industrial dispute raised by worker Shri Parshotam Chand s/o Shri Sant Ram, r/o Village Simbielahar, P.O. Kahanpat, Tehsil Palampur, District Kangra, H.P. before (1) The Principal Chief Conservator of Forest, Forest ::: Downloaded on - 17/05/2024 20:33:08 :::CIS 15 Department, Himachal Pradesh, Shimla (2) The Divisional Forest Officer, Forest Division, Palampur, District Kangra, H.P. .
vide demand notice dated 03.06.2011 regarding his alleged illegal termination of service w.e.f. 31.03.2006 suffers from delay and latches? If not, Whether termination of the services of Shri Parshotam Chand s/o Shri Sant Ram, r/o Village Simbielahar, P.O. Kahanpat, Tehsil Palampur, District Kangra, H.P. employed as daily wage worker in the Indo German Changer Project, Palampur, District Kangra, H.P., managed by the H.P. Eco Development Society, on the completion of project w.e.f. 31.03.2006 by (1) The Principal Chief Conservator of Forest, Forest Department, Himachal Pradesh, Shimla (2) The Divisional Forest Officer, Forest Division, Palampur, District Kangra, H.P. without complying the provisions of the Industrial Disputes Act, 1947, is legal and justified? If not, what amount of back wages, seniority, past service benefits and compensation the above aggrieved workman is entitled to form the above employer?"
6. Pursuant to notices issued in the aforesaid reference petition, respondent herein filed claim petition, claiming therein that he was engaged on daily wage basis on muster roll basis w.e.f.
1.7.1995, by the Forest Department, but no appointment order was ever issued. Respondent submitted that after his appointment in the forest department, he was deputed to work in the IGCP Palampur, controlled and managed by State of Himachal Pradesh. He further submitted that though he worked uninterruptedly till 31.3.2006 without any break with 240 days in each calendar year, but his services were disengaged for no reason, that too, without there being compliance of Section 25-F of the Act because neither any notice was ::: Downloaded on - 17/05/2024 20:33:08 :::CIS 16 issued nor any compensation in lieu of the same was ever paid.
.
Petitioner (respondent herein) specifically claimed that salary was being paid by the Forest Department and as such, after closure of the IGCP, Palampur, he was required to be deputed in some other department. Claiming requirement of issuance of three months' notice pay in lieu of notice period as required under Section 25-N of the Act, he was issued only one month notice, but no retrenchment compensation as envisaged under Section 25-N read with Section 25 -
F (b) of the Act was paid to him. Petitioner also claimed that since there were more than 100 daily wage employees in the Forest Department, permission under Section 25-N was required to be taken prior to their disengagement, but since such procedure was not followed, respondent alongwith similarly situate persons, deserves to be re-engaged. Respondent workman also claimed that some of the daily wage workers, who had worked with him had been adjusted by the department arbitrarily. He submitted that two workers namely Bishan Dass and Sushil Kumar, who had continued to work uninterruptedly till 31.3.2006, though were terminated, but subsequently, on the basis of award passed by the learned Labour Court-cum-Industrial Tribunal, their services were reengaged and as such, he being similarly situate to the afore persons also needs to be re-engaged. Respondent also submitted in the claim petition that pursuant to policy decision taken by the government, though ::: Downloaded on - 17/05/2024 20:33:08 :::CIS 17 willingness to serve in the other departments was taken by the .
petitioner department, but despite that, he was not reengaged. He submitted that Under Secretary (Revenue) to the Government of Himachal Pradesh, had issued letter dated 3.12.2009, intimating therein that 512 vacancies were lying vacant in the revenue department and due to shortage of staff, there existed necessity to fill up these posts and State Government had taken decision to reengage the daily wage workers of the IGCP Palampur and IWDP (Hills) Kandi area in the afore department, but fact remains that their services were never re-engaged.
7. Aforesaid claim put forth by respondent workman came to be resisted on behalf of the petitioner department, which in its reply besides taking preliminary objection qua the maintainability, nowhere disputed factum with regard to engagement of the respondent in the department in the year, 1995, but claimed that services of the respondent came to be retrenched on account of closure of the IGCP, Palampur, on account of non-availability of funds. Petitioner department in their reply submitted that since respondent was appointed for a particular project, on account of closure of the project, he cannot claim continuity, rather employee concerned has to go alongwith the project. While denying relationship of employer and employee between the parties, petitioner-department maintained that prior to retrenchment, one month notice was served upon the workers ::: Downloaded on - 17/05/2024 20:33:08 :::CIS 18 as per law and as such, there is no violation of any of the provisions .
contained in the Act. It also came to be submitted on behalf of the petitioner-department, that appointment of the respondent was with an object to perform work only in the IGCP, Palampur, and at no point of time, it had any kind of control over the project and as such, it has otherwise no power to reengage the services of the respondent alongwith other similarly situate persons, without prior approval of the State Government. While admitting the factum with regard to re-
engagement of person namely Bhishan Dass, petitioner department submitted that above named person was appointed as Beldar on 5.9.1993, in the department, whereas respondent was engaged by the IGCP, Palampur. Petitioner department also submitted in their reply that retrenchment notice, as required under law, was served, however, admitted that person namely Sushil Kumar, who was previously engaged as daily wage worker in the year 1997 had thereafter joined the IGCP, Palampur, at his own sweet will and was subsequently reengaged as per order of the Court. Though petitioner-department, also raised issue with regard to delay and laches, but such plea of it, came to be rejected on the ground that delay, if any, in approaching the competent court of law, stands condoned with the passing of judgment dated 3.12.2014 in CWP No. 8682 of 2024, whereby this court while ignoring the objections raised by the department with regard to delay and laches specifically directed the Labour ::: Downloaded on - 17/05/2024 20:33:08 :::CIS 19 Commissioner to make reference to the Labour Court-cum-Industrial .
Tribunal.
8. On the basis of aforesaid pleadings adduced on record by the respective parities, Tribunal below framed following issues:
"1.Whether termination of services of the claimant/petitioner by the respondents w.e.f. 31.03.2006 is/was illegal and unjustified as alleged? OPP
2. If issue no.1 is proved in affirmative to what service benefits the petitioner is entitled to ? OPP
3. Whether the claim petition is not maintainable in the present form? OPR
4. Whether the claim petition is bad on account of delay and laches as alleged. If so, its effect? OPR
5. Whether the claim petition is bad for non joinder of the necessary party as alleged?OPR
6. Relief."
9. Subsequently, vide award impugned in the instant proceedings, reference, as detailed herein above, came to be answered in affirmative. While passing impugned award, Tribunal below though directed the petitioner department to re-engage the services of the respondent as well as other similarly situate persons with seniority and continuity in service from the date of their illegal termination, but without back wages. In the aforesaid background, petitioner department has approached this Court in the instant proceedings, praying therein to set aside the award impugned in the instant proceedings.
::: Downloaded on - 17/05/2024 20:33:08 :::CIS 2010. I have heard the learned counsel for the parties and .
perused the record of the cases.
11. Precisely, the grouse of the petitioner-department, as has been highlighted in the petition and further canvassed by Mr. Rajan Kahol, learned Additional Advocate General is that Tribunal below while passing impugned award has failed to appreciate the pleadings as well as evidence adduced on record by the respective parties in its right perspective. Mr. Kahol, while making this Court peruse material available on record vehemently argued that once it could not be disputed by the respondent as well as other similarly situate persons that they were not engaged by the Forest Department, rather their services were hired by the IGCP, Palampur, there was no occasion, if any, for the Tribunal below to direct the petitioner department to reengage the services of the respondent(s) with seniority and continuity in service. Learned Additional Advocate General, further submitted that it also never came to be disputed that IGCP was a registered society, which was otherwise responsible for running the affairs of the project. He submitted that with the termination of the project, daily wage services of the respondent(s) were terminated by the project authority, but not by the department, as has been wrongly held by the Labour Court below. Mr. Kahol, submitted that Tribunal below erred in holding that respondent(s) was illegally retrenched without compliance of Section 25-F of the Act w.e.f. 1.4.2006 and as ::: Downloaded on - 17/05/2024 20:33:08 :::CIS 21 such, is entitled to be reengaged alongwith seniority and past service .
benefits except back wages. He submitted that respondent as well as other similarly situate persons were engaged by the project authority during the year 1995 and in that capacity, worked till the culmination of the project i.e. 31.3.2006 and thereafter, their services were terminated after issuance of notice dated 15.2.2006 (Annexure P-11).
If it is so, there was otherwise no requirement, if any, to pay the compensation as is being claimed by the respondent as well as other similarly situate persons.
12. While referring to the judgment passed by the Hon'ble Apex Court in State of Himachal Pradesh v. Ashwani Kumar and Ors, AIR 1997 SC 352, learned Additional Advocate General, submitted that when the project is concluded and closed due to non-
availability of funds, employees working in the project are to go alongwith closed project and they cannot claim any right to be re-
engaged in the department under whose aegis project was working.
He submitted that since IGCP stood closed on 31.3.2006, Tribunal below had no occasion to direct the petitioner department to reengage the respondent and similarly situate persons, with seniority and continuity in service from the date of their illegal termination. He also placed reliance upon judgments passed by the Hon'ble Apex Court in Karnataka State Coop. Apex Bank Limited v. Y.S. Shetty, (2000) 10 SCC 179, M.D., U.P. Land Dev. Corpn. and Anr v. Amar Singh & ::: Downloaded on - 17/05/2024 20:33:08 :::CIS 22 Ors (2003) 5 SCC 388 and Lal Mohammad and Ors v. Indian .
Railway Construction Co. Ltd and Ors, (2007) 2 SCC 513.
13. To the contrary, Mr. Rahul Mahajan, learned counsel appearing for the respondent(s), while supporting the impugned award vehemently argued that there is overwhelming evidence adduced on record suggestive of the fact that respondent was though initially engaged in the forest department, but was deputed to work in the IGCP, Palampur, which was otherwise being controlled and managed by the Forest Department. He further submitted that though project was working under the society, but since aforesaid society was being controlled and managed by the government officials, it does not lie in the mouth of the department to claim that it had no role in the appointment of the respondent, rather material available on record reveals that salary of the respondent-workman as well as other similarly situate persons was being paid by the Forest Department.
Mr. Mahajan, further submitted that since it is not in dispute that no appointment letter was ever issued specifying the terms and conditions coupled with the fact that factum with regard to non-
issuance of appointment letter was admitted by the RW1 Mr. B.S. Yadav, an official of the petitioner-department, it may not be open at this stage for the petitioner department to claim that respondent as well as other similarly situate persons were directly engaged by the IGCP, Palampur. He further submitted that aforesaid RW1 ::: Downloaded on - 17/05/2024 20:33:08 :::CIS 23 categorically accepted before the Tribunal that after closure of the .
project, entire record of IGCP, Palampur, was handed over by the Eco Development Society to the respondent department, but such record was never produced in the Labour Court by the petitioner department to controvert the claim of the respondent as well as other similarly situate persons that their engagement was not made by the IGCP, but by the Forest Department. He further submitted that if the cross-
examination conducted upon RW1 is perused in its entirety, he categorically admitted that no compensation in lieu of the retrenchment was ever paid and as such, Tribunal below rightly held the retrenchment of the respondent to be illegal and unlawful in terms of provisions contained under Section 25 of the Act. While referring to the judgment passed by the Hon'ble Apex Court in Mackinnon Mackenzie and Company Limited v. Mackinnon Employees Union (2015) 5 SCC 544, Mr. Mahajan, submitted that prior to retrenchment, notice under Section 25 of the Act, is required to be issued, but since in the case at hand, none of the aforesaid provisions contained in the law were complied with and as such, no illegality can be said to have been committed by the Tribunal below while passing the impugned award. Lastly, Mr. Mahajan, submitted that finding has been recorded by the Labour Court to the effect that respondent herein as well as other similarly situate persons working in the IGCP were the employees of the State and no record with regard to engagement was ::: Downloaded on - 17/05/2024 20:33:08 :::CIS 24 ever produced despite availability, cannot be otherwise interfered in .
the proceedings under Article 226 of the Constitution of India, especially when there is no perversity and mis-interpretation of evidence.
14. Admittedly, close scrutiny of the pleadings as well as evidence clearly reveals that respondent herein was engaged verbally on 1.7.1995 in Forest Department, but was made to work in IGCP.
Respondent alongwith other 85 daily wage workers continued to work uninterruptedly with 240 days in each calendar year till 31.3.2006, when his services alongwith other 85 candidates were retrenched on account of closure of the IGCP. Though it repeatedly came to be claimed on behalf of the petitioner department that respondent as well as other 85 workers were not the employees of the petitioner department, rather they were working in a project named IGCP, but it is not in dispute rather, stands admitted that after closure of the aforesaid project, state government wrote to various departments for reengagement of persons disengaged from the IGCP, Palampur and Kandi Project. Pursuant to aforesaid communication made by the State Government, under Secretary (Revenue) to the Government of Himachal Pradesh issued letter dated 3.12.2009 intimating therein that 512 vacancy were lying vacant in the revenue department and due to shortage of staff, there is necessity to fill up the posts. With a view to fill up the aforesaid existing vacancies in the department of ::: Downloaded on - 17/05/2024 20:33:08 :::CIS 25 Revenue as well as other departments, though petitioner department .
called for willingness from the respondent as well as other similarly situate persons, but fact remains that despite there being willingness given by the respondents and others, they were not reengaged.
Similarly, this Court finds that person namely Bhishan Dass, who was also working with the petitioner department was compelled to approach the Labour Court vide reference No. 117/2007 against his oral termination. Labor Court, Dharamshala, in aforesaid reference, held the above named person entitled for reengagement with full back wages, seniority and all consequential benefits. Though aforesaid award was laid challenge by way of CWP 2511/2009, but same was dismissed. Judgment dated 18.6.2010 passed by this Court, upholding the aforesaid award was further laid challenge in the Hon'ble Apex Court by way of filing Special Leave Petition (Civil) No. 5588 of 2011, but fact remains that same was also dismissed. As of today, above named Bhishan Dass, though was initially engaged by the petitioner department, but was made to work in IGCP, is still continuing to work with the Forest department. Similarly, person namely Sushil Kumar, son of Sh. Bhim Sen, who was also working alongwith the respondent in IGCP was retrenched at one stage on account of closure of IGCP, Palampur, but subsequently was reengaged by the petitioner-department and since then, he is working that too on regular basis in the Forest department.
::: Downloaded on - 17/05/2024 20:33:08 :::CIS 2615. Though by way of placing on record show cause notice .
Annexure P-1, an attempt came to be made by the petitioner department to prove that before disengaging the respondent, notice was issued, but it is not in dispute that such notice, if any, issued was never placed before the Labour Court-cum-Industrial Tribunal, rather RW1, an official of the department, categorically admitted in his cross examination that neither notice was issued nor any compensation was paid.
16. With a view to prove his case, petitioner- while examining himself as PW1 tendered in evidence his affidavit under Order 18 Rule 4 CPC, Ex. PW1/A, copy of letter dated 21.12.2004 Ex. PW1/B, copy of letter dated 1.1.2009 Ex. PW1/C, copy of letter dated 15.12.2009 Ex. PW1/D, copy of letter dated 3.12.2009 Ex. PW1/E, copy of letter dated 15.2.2006 Ex. PW1/F, copy of letter dated 29.2.2004 Ex.
PW1/G, copy of letter dated 17.11.2008 Ex PW1/H, copy of letter dated 2.1.2014 Ex. PW1/I, copy of letter dated 21.9.1994 Ex. PW1/J, copy of experience certificate of Shyam Lal Ex. PW1/K, copy of RTI information dated 4.1.2011 Ex. PW1/L, copy of RTI information dated 22.9.2014, 11.9.2014, 18.9.2014 Ex. PW1/M, copy of judgment dated 1.12.2009 Ex. PWI/N, copy of appeal of appeal order dated 28.2.2013 Ex. PW1/O, copy of RTI information dated 1.1.2014 Ex. PW1/P, copy of order of Bishan Dass dated 2.12.2008 Ex.PW1/Q, copy of RTI dated 14.8.2014 Ex. PWI/R, copy of reply to demand notice Ex. PW1/S, Ex.
::: Downloaded on - 17/05/2024 20:33:08 :::CIS 27copy of staff engaged as on 3.12.2009 Ex. PW1/U and closed the .
evidence.
17. To the contrary, respondent-department examined Shri B.S. Yadav, the Divisional Forest Officer, who tendered/proved his affidavit Ex. RWI/A, copy of mandays chart Ex. RW1/B, copy of notice dated 20.2.2006 Ex. RW1/C and closed the evidence.
18. If the aforesaid evidence led on record is read in its entirety, there appears to be merit in the contention of Mr. Rahul Mahajan, learned counsel, that respondent successfully proved on record that his initial engagement as daily wage employee was under
the department of Forests and subsequently, he was made to work in IGCP. At this stage, Mr. Mahajan, submitted that since with the appreciation of evidence as detailed herein above, it stands duly established on record that services in the capacity of daily wage basis were engaged by the petitioner-department and his wages were being paid by the petitioner-department, he could not have been retrenched without following due process of law as envisaged under Section 25 F of the Act.
19. Since respondent workman successfully proved on record employer employee relationship inter-se him and the petitioner department coupled with the fact that his services were retrenched orally, Tribunal below rightly held that respondent herein was entitled to protection under Section 25 F of the Act. Since engagement of the ::: Downloaded on - 17/05/2024 20:33:08 :::CIS 28 respondent is not in dispute by the petitioner department, rather .
stands admitted, it was necessary for the petitioner department to comply with the provisions contained under Section 25 F of the Act, especially when the respondent had been continuously working w.e.f.
1995 till the year 2006 that too with completion of 240 days in each calendar year. Factum with regard to respondent's having worked w.e.f. 1995 till the year 2006 with 240 days in each calendar year, has been specifically admitted by RW1.
20. Hon'ble Apex Court in case titled S.M. Nilajkar and Ors.
v. Telecom District Manager, Karnataka (2003) 4 SCC 27, has categorically held that before terminating the services of the workman engaged in scheme of project employer is required to satisfy four compositions; (i) that the workman was engaged in a project or scheme of temporary duration; (ii) the employment was on a contract, and not as a daily-wager simpliciter, which provided inter-alia that the employment shall come to an end on the expiry of the scheme or project; (iii) the employment came to an end simultaneously with the termination of the scheme or project and consistently with the terms of the contract; and (iv) the workman ought to have been apprised or made aware of the aforesaid terms by the employer at the commencement of employment. All the aforesaid parameters laid down in the aforesaid judgment rendered by the Hon'ble Apex Court do not exist in the present case. Though petitioner department ::: Downloaded on - 17/05/2024 20:33:08 :::CIS 29 claimed that respondent was appointed in a project, but as has been .
discussed in detail herein above, respondent was though initially engaged by the department, but he was deputed to work in the IGCP, which was also managed and controlled by the Society run by the State. Composition of the society itself suggests that Secretary (Forest) to the Government of Himachal Pradesh was the Chairman of the governing body and Conservator of Forests was the Director of the Project.
21. Leaving everything aside, at no point of time, record which actually after culmination of the project stood transferred to the petitioner department ever came to be produced before the Labour Court. Since petitioner department had become the custodian of the record after culmination of the project, it is not understood what estopped it from producing the same before the Tribunal.
22. At this stage, it would be apt to take note of the admission made by RW1 that on closure of the project, record was handed over to his office and same is in the custody of the forest department.
Aforesaid RW1 further admitted that no appointment letter, if any, was ever issued to the respondent in that regard. Since no appointment letter was ever issued or produced, it is not understood that on what basis, petitioner department could claim that services of the respondent were engaged by the IGCP, not by the department.
Aforesaid fact gains significance on account of the fact that at no point ::: Downloaded on - 17/05/2024 20:33:08 :::CIS 30 of time, appointment of the respondent in the year, 1995, may be on .
oral basis, ever came to be refuted by the department, rather its specific stand throughout has been that after being appointed on daily wage basis, respondent was made to work in IGCP, which as per evidence available on record, was actually being controlled and managed by the Forest Department.
23. Since it never came to be disputed that more than hundred daily wage workers were working in the Forest department, it was otherwise under obligation to take permission from the government under Section 25(N) of the Act, before retrenching the services of the respondent and other similarly situate persons, which procedure in the case at hand, has not been followed and as such, tribunal below rightly held the termination of the respondent as well as other persons to be bad in law.
24. Claim of the petitioner department that respondent as well as other daily wage workers were actually engaged by the IGCP falls to the ground on account of the fact that after closure of the aforesaid project, Government of Himachal Pradesh itself though initiated process to depute the respondent and other similarly situate persons in other departments and in that regard, willingness was also obtained from the respondent No.6, but for one reason or the other, proposal could not be taken to its logical end. Had the respondent not been an employee of the department, there was otherwise no occasion for it or ::: Downloaded on - 17/05/2024 20:33:08 :::CIS 31 State of Himachal Pradesh, to initiate process for adjusting the .
respondent as well as other similar situate persons in other departments.
25. Since respondent workman specifically admitted factum with regard to his engagement in the agricultural pursuits during the period of termination, no illegality can be said to have been committed by the Tribunal below while denying the back wages.
26. Hon'ble Apex Court in North-East Karnataka Road Transport Corporation v. M. Nagangouda, (2007) 10 SCC 765, has categorically held that if one remains engaged in the agricultural pursuits, he can be said to be gainfully employed. If it is so, respondent otherwise cannot claim back wages. Relevant paras of the aforesaid judgment read as under:
"25.It was sought to be urged that after coming to a finding on the basis of the evidence of the respondent himself that the during the period of termination of his services, he was engaged in agriculture and that he was receiving certain amounts therefrom, it was not open to the Labour Court to observe that "gainful employment" would not include such income from agriculture. It was urged that income from any source, whether from employment in an establishment or from self-employment, would have to be treated as income for the purposes of deciding whether the respondent would be entitled to receive full back wages. It was urged that both the Tribunal and the High Court erred in taking a view to the contrary and the orders passed on the basis thereof were liable to be set aside.::: Downloaded on - 17/05/2024 20:33:08 :::CIS 32
17.On the said question, we are unable to accept the reasoning of the Labour Court that the income received by the respondent .
from agricultural pursuits could not be equated with income from gainful employment in any establishment. In our view, "gainful employment" would also include self- employment wherefrom income is generated. Income either from employment in an establishment or from self- employment merely differentiates the sources from which income is generated, the end use being the same. Since the respondent was earning some amount from his agricultural pursuits to maintain himself, the Labour Court was not justified in holding that merely because the respondent was receiving agricultural income, he could not be treated to be engaged in "gainful employment".
27. Having scanned the entire pleadings as well as evidence adduced on record vis-a-vis impugned award, this Court is unable to see any perversity in the same, rather same appears to have been passed on the proper appreciation of factum as well as law. Needless to say, finding of fact based upon oral and documentary evidence and admission of witnesses cannot be interfered with in proceedings under Article 226 of the Constitution of India, especially when no perversity, illegality or irregularity and procedural impropriety with regard to interpretation of law is pointed, however, in the case at hand, learned Additional Advocate General while conducting the case on behalf of the petitioner-department has not been able to satisfy this Court with regard to flouting of the aforesaid parameters.
::: Downloaded on - 17/05/2024 20:33:08 :::CIS 3328. Reliance is also placed upon judgment passed by the .
Hon'ble Apex Court in case Bhuvnesh Kumar Dwivedi vs. M/s Hindalco Industries Ltd. (2014) 11 SCC 85, wherein it has been held that 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 cannot be questioned in writ proceedings and writ court cannot act as an appellate Court. Careful perusal of aforesaid judgment having been relied upon by the learned counsel representing the workman, 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 certiorari can be issued, if it is shown that in recording the 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 ::: Downloaded on - 17/05/2024 20:33:08 :::CIS 34 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 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 ::: Downloaded on - 17/05/2024 20:33:08 :::CIS 35 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.
29. Consequently, in view of the detailed discussion made herein above as well as law taken into consideration, this Court finds no illegality or infirmity in the impugned awards and as such, same are upheld and Civil Writ Petition Nos. 1346 of 2020 with CWP No. 3215 of 2016, CWP Nos. 394, 396 to 403, 407, 408, 446, 447, 451 to 455, 458, 459, 605 to 608, 615, 616, 697, 747, 792, 793, 825 & 1275 of 2017, CWP Nos. 991 to 994, 1182 & 1185 of 2019 and CWP Nos.
729, 731, 732 and 4986 of 2020 fail and dismissed accordingly.
30. Since while rendering instant judgment, this Court having taken note of the judgment passed by the Hon'ble Apex Court in M. Nagangouda (supra), has held that if one remains engaged in the agricultural pursuits, he can be said to be gainfully employed, prayer made in CWP Nos. 348, 351, 460, 513 and 701 of 2017 for grant of back wages also deserves to be rejected for the reason that it is not in dispute that petitioners, in the aforesaid petitions, after being disengaged, remained engaged in the agricultural pursuits, as such, CWP Nos. 348, 351, 460, 513 and 701 of 2017, are also dismissed being devoid of any merit.
May 1, 2024 (Sandeep Sharma),
manjit Judge
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