Tikhu Ram vs H.P.S.E.B. And Others
2021 Latest Caselaw 3330 HP

                                            1




             HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                                C.W.P. No. 3073 of 2018




                                                                                 .

                                                Date of decision: 02.08.2021

    Tikhu Ram                                                            ...Petitioner





                                      Versus


    H.P.S.E.B. and others                         ...Respondents
    ____________________________________________________





    Coram:
    The Hon'ble Mr. Justice Ravi Malimath, Acting Chief Justice

    The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge

    Whether approved for reporting1 :

    For the Petitioner(s):            Ms. Anoop Rattan, Advocate.


    For the Respondents:              Mr. Tara Singh Chauhan, Advocate

                         Through Video Conference
    ____________________________________________________




    Jyotsna Rewal Dua,J.

Learned Labour Court has partly allowed the

reference and directed the respondents to reinstate the workman-

petitioner as daily wage beldar from the date of the award

(09.09.2014) without previous seniority and continuity. The

petitioner has assailed this award in the instant writ petition. The

Whether Reporters of local newspaper are permitted to see the judgment ?

main thrust of argument of learned counsel for the petitioner is

that petitioner is entitled to his previous service and continuity.

.

2. The case of the petitioner before the learned

Reference Court was that he was engaged on 29.05.1986 as

daily wage beldar. His services were terminated by the

respondent on 30.04.1998. The termination was in contravention

of the provisions of the Industrial Disputes Act 1947. The stand of

the respondent-Board was that the petitioner was in the habit of

remaining absent from duty without any sanctioned leave. But for

the years 1987 and 1988, the petitioner could not complete 240

days of continuous service in any calendar year. The petitioner

had abandoned the job on his own, therefore, there was no

question of termination of his services by the Board.

3. After appreciating the respective pleadings and the

evidence, the learned Labour Court held that there was no

satisfactory and cogent evidence about petitioner's abandoning

the job in the year 1998. Petitioner's services were terminated by

the respondents in the year 1998 without issuing any notice and

without paying him the retrenchment compensation. Holding

termination of the petitioner's service in contravention to the

provisions of Industrial Disputes Act 1947, the learned Labour

Court directed the respondents to reinstate him as daily wage

beldar.

.

Learned Labour Court vide impugned order dated

09.09.2014 though directed the respondents to reinstate the

petitioner as daily wage beldar, but w.e.f. the date of the award

and without awarding him benefit of his previous service towards

seniority and continuity. The petitioner is aggrieved against denial

of benefit of his previous service.

4. While denying the petitioner benefit of his past

service towards seniority and continuity, the learned Labour Court

has taken note of oral as well as documentary evidence adduced

by the parties. The mandays chart Ex. R-1 proved by the

respondents clearly indicates that in the year 1986, the petitioner

had worked for 216 days, 337 in 1987, 337 in 1988, 149 in 1989,

118 in 1990, 109, 192, 68 in 1991, 71 in 1993, 94 in 1994, 53 in

1995, 67 in 1996, 10 in 1997, and 9 days in 1998. The mandays

chart reveals that but for the years 1987 and 1988, the petitioner

never completed 240 days in any of the years. The contention

raised by learned counsel for the petitioner that the respondents

had given him artificial breaks is de-hors the facts. Instant is not a

case of giving artificial breaks. The petitioner has remained

absent from duty for long periods and not intermittently. Period of

absence of the petitioner, therefore, cannot be treated as notional

.

breaks in the facts and circumstances of the case. Therefore, we

are not inclined to interfere with the factual findings of the learned

Labour Court.

We may also notice here that against the same

award, respondents had also filed CWP No. 2389 of 2015 titled

Assistant Executive Engineer and another Versus Tikhu Ram.

The writ petition filed by the respondents was against the

direction given to them in the award for reinstating the petitioner.

The petitioner was a party to the writ petition and was

represented by a learned counsel. Vide judgment dated

30.10.2015 passed in CWP No. 2389 of 2015, the award was

upheld and the writ petition was dismissed. Subsequent to the

dismissal of their writ petition, the respondent-Board implemented

the award by reinstating the petitioner on 30.01.2016. After two

years of his reinstatement, the petitioner has chosen to assail the

award by filing this writ petition on 26.12.2018. Having accepted

the award without any demur and protest for four years, it is

highly debatable as to whether the petitioner can question the

award at this stage.

For all the aforesaid reasons, we see no reason to

interfere with the impugned award. The writ petition is, therefore,

.

dismissed alongwith the pending applications, if any.

                                             ( Ravi Malimath )
                                            Acting Chief Justice



    2nd August, 2021 (K)
                    r            to         ( Jyotsna Rewal Dua )
                                                   Judge