Kadarghat vs However
2021 Latest Caselaw 5634 HP

    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

               ON THE 8th DAY OF DECEMBER, 2021




                                                         .

                               BEFORE

             HON'BLE MR. JUSTICE MOHAMMAD RAFIQ,





                            CHIEF JUSTICE

                   CIVIL WRIT PETITION No.317 of 2021





       Between:-
       SH. TEK CHAND,
       S/O SH. DHARAM DASS,
       R/O VILLAGE DUMEHAR, P.O.

       KADARGHAT, TEHSIL SUNI,

       DISTT. SHIMLA, H.P.,
       PRESENTLY SERVING AS A MATE
       IN HPPWD RURAL DIVISION,
       DHAMI, DISTT. SHIMLA, H.P.
                                                      ......PETITIONER


       (BY MR. ABHYENDDRA GUPTA,
        ADVOCATE)




       AND





    1. STATE OF H.P. , THROUGH THE
       PRINCIPAL SECRETARY (PWD) TO
       THE GOVT. OF H.P. WITH





       HEADQUARTERS AT SHIMLA-2

    2. THE ENGINEER-IN-CHIEF,
       HPPWD WITH HEADQUARTERS AT
       NIRMAN BHAWAN, SHIMLA-2

    3. THE EXECUTIVE ENGINEER,
       HPPWD RURAL DIVISION,
       DHAMI, DISTT. SHIMLA, H.P.
                                                 ......RESPONDENTS




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         (BY MR. VIKAS RATHORE AND
          MR. NARENDER GULERIA,
          ADDITIONAL ADVOCATES GENERAL)




                                                                .

                 This petition coming on for hearing this day, the Court





    passed the following:
                                  ORDER

This petition has been filed by Tek Chand, with the

prayer that the respondents may be directed to appoint the petitioner

on actual basis with effect from 1.1.2015 together with all arrears of

pay and allowances from due date with all incidental benefits. This

matter has a checkered history.

2. The petitioner was initially engaged as a daily wage

Beldar/Mate in the year, 1990. According to him, he worked for 240

days in that calendar year. As per Management, the petitioner left

the job at his own will. The petitioner thereafter served a demand

notice on the Management in the year, 2006, demanding his re-

instatement and re-engagement, which was rejected by the Labour

Commissioner, vide order dated 21.07.2008 on the ground of an

inordinate delay of fifteen years.

3. Being aggrieved, the petitioner thereafter, filed CWP

No.1670 of 2008 before this Court, which was disposed of, vide

judgment dated 19.05.2015. The petitioner thereafter filed a Letters

Patent Appeal No.152 of 2015 against the said judgment dated

19.05.2015, which was disposed of by a Division Bench of this

.

Court, vide judgment dated 28.09.2015, with a direction to the

Labour Commissioner, Himachal Pradesh, to make reference to the

Industrial Tribunal-cum-Labour Court within six weeks from the date

of passing of judgment.

4. Thereafter, the Labour Commissioner again referred the

dispute to Labour Court-cum-Industrial Tribunal, Shimla, which was

registered as Reference No.79 of 2015, titled Tek Chand Versus

The Executive Engineer, Division Kumarsain & another. The

reference was answered, vide award dated 13.12.2016 by the

Labour Court-cum-Industrial Tribunal, with a direction to the

Management to re-instate the services of the petitioner forthwith with

seniority and continuity with effect from the date, when the petitioner

raised demand notice, that is, with effect from 24.08.2006.

However, the petitioner was not held entitled to back wages. The

respondent-Department/Management, pursuant to award of Labour

Court-cum-Industrial Tribunal, re-engaged the petitioner with effect

from July, 2017 and subsequently, his services were regularized

vide order dated 07.07.2017. The petitioner is presently working as

a Regular Mate and drawing monthly salary of Rs.16,979/-.

5. Apparently, the period would be covered by the award,

because the Labour Court-cum-Industrial Tribunal having

.

adjudicated upon the dispute between the parties, has decided not

to grant any back wages to the petitioner and accordingly answered

the reference. The prayer of the petitioner to grant him arrears of

salary on actual basis with effect from 01.01.2015, would, therefore,

be barred by the principles of resjudicata.

6. At this stage, the learned counsel for the petitioner has

submitted that as per Sections 17, 17(A) and 17(B) of the Industrial

Disputes Act, the respondents were under obligation to comply with

the award of Labour Court-cum-Industrial Tribunal within one month

from the date of award and since the respondents have taken as

long as seven months to comply with the award, which cannot be

denied. If that be so, for any further grievance, the petitioner can

always approach the respondents, demanding his legitimate dues,

by way of a reprsentation and if by means of appropriate

representation, the same is found due as per applicable law on the

subject, the respondents have to either grant the same to the

petitioner or shall give reasons for not granting the same.

7. With these observations, the writ petition is disposed of

with a direction to the petitioner to approach the respondents/

competent authority, by way of a representation, which may be filed

within one month from today and the respondents/competent

.

authority shall decide the same within three months thereafter.

8. It is made clear that this Court has not expressed any

opinion on merits of the case.

9. Pending miscellaneous application(s), if any, shall also

stand disposed of.

( Mohammad Rafiq ) Chief Justice

December 08, 2021

(Bhardwaj)