Himachal Pradesh High Court
The State Of Himachal Pradesh vs Unknown on 31 October, 2022
Bench: Satyen Vaidya
REPORTABLE/NON-REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 31st DAY OF OCTOBER, 2022
.
BEFORE
HON'BLE MR. JUSTICE SATYEN VAIDYA.
CIVIL WRIT PETITION No. 2131 OF 2016
Between:-
1.THE STATE OF HIMACHAL PRADESH
THROUGH PR. SECRETARY (FORESTS)
TO THE GOVERNMENT OF HIMACHAL PRADESH.
2. THE DIVISIONAL FOREST OFFICER,
JOGINDER NAGAR FOREST DIVISION,
JOGINDER NAGAR DISTRICT MANDI (H.P.)
...PETITIONERS
(BY SH. ARVIND SHARMA, ADDITIONAL ADVOCATE
GENERAL)
AND
1. SHRI SOHAN LAL SON OF SHRI
GANGA RAM, R/O VILLAGE KARALADHI
POST OFFICE URLA TEHSIL PADHAR DISTRICT
MANDI (H.P.)
2. PRESIDING JUDGE, H.P. INDUSTRIAL
TRIBUNAL-CUM LABOUR COURT, DHARAMSHALA.
.... RESPONDENTS.
(SH. RAHUL MAHAJAN, ADVOCATE, FOR RESPONDENT
NO.1)
RESERVED ON: 20.10.2022.
DECIDED ON: 31.10.2022.
______________________________________________________________
::: Downloaded on - 31/10/2022 20:32:55 :::CIS
2
This petition coming on for pronouncement of
judgment this day, the Court passed the following:
ORDER
.
By way of instant petition, petitioners have taken
exception to the award dated 30.06.2015 passed by learned
Presiding Judge, Labour Court-cum-Industrial Tribunal,
Kangra at Dharamshala, (Camp at Mandi), H.P. (for short,
"the Tribunal") in Reference No. 33/2014 whereby the relief
in following terms was granted to respondent No.1-
workman: -
"18. As sequel to my findings on foregoing issues, it
is held that the petitioner was in continuous
uninterrupted service with the respondent from the
date of his initial engagement and that the breaks
given by the respondent being fictional in nature shall
have no effect on the seniority and continuity of
service of the petitioner and his seniority shall be
reckoned from his initial date of engagement.
Accordingly, claim of petitioner is hereby allowed in
part and reference is accordingly answered in favour
of petitioner. The petitioner shall thus be deemed to be
in continuous service of respondent with all
consequential benefits except back wages. He shall,
however, be considered for regularization by
respondent at the time when his juniors have been
regularized as per policy governing daily wagers as
framed by State Government and operative from time
to time. The parties, however, shall bear their own
.
costs."
2. Brief facts necessary for adjudication of the
petition are that the workman raised an industrial dispute
against the action of employer whereby the workman was
being subjected to repeated fictional breaks with a purpose
to deny him the benefit of completion of 240 days of service
in one calendar year and resultant continuity in service.
The workman further claimed discrimination vis-à-vis his
juniors, who were allowed to continue to work for 240 days
in a year whereas by employing fictional breaks against
petitioner he was not allowed to complete the requisite
mandays.
3. The appropriate Government made the following
reference for adjudication of the Tribunal:
"Whether time to time termination of the services of
Shri Sohan Lal, S/o Shri Ganga Ram, R/o Village
Kraladhi, P.O. Urla, Tehsil Padhar, District Mandi,
H.P. during 2006 to 2012 by the Divisional Forest
Officer, Joginder Nagar Forest Division, Joginder
Nagar, District Mandi, H.P., without complying with
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 worker is entitled to from the
above employer?"
4. The workman in his claim petition filed before the
learned Tribunal reiterated his stand. The employer
contested the claim of the workman on the grounds that he
was engaged in forest department as casual labourer and
not as daily waged forest worker. The engagement of
petitioner was only for seasonal forestry works keeping in
view the availability of funds and work. The violation of
principle of 'last come first go' was also denied.
5. On the pleadings of the parties, learned Tribunal
framed the following issues:
"1. Whether time to time termination of services of
the petitioner by the respondent is illegal and
unjustified as alleged. If so, its effect? OPP
2. Whether the claim petition is not maintainable in
the present form? OPR
3. Whether the petition is bad on account of delay
and laches as alleged. If so, its effect? OPR
4. Relief.
Issue No. 1 was decided in affirmative and petition was
.
allowed in terms as noticed above.
6. I have heard learned counsel for the parties and
have also gone through the records of the case carefully.
7. Shri Arvind Sharma, learned Additional Advocate
General has contended that the award passed by the
learned Tribunal is absolutely erroneous. The findings
returned by learned Tribunal to the effect that the fictional
breaks were being granted to respondent No.1-workman
were against the material available on record. Shri Arvind
Sharma, learned Additional Advocate General further
submitted that the engagement of workman against
seasonal work was duly proved on record and in such view
of the matter the findings regarding fictional breaks being
granted to the workman are not sustainable.
8. On the other hand, Shri Rahul Mahajan,
Advocate, representing respondent No.1-workman has
supported the award. He contended that the impugned
award suffers from no illegality or perversity. The findings
recorded therein are borne out from the available evidence.
9. It is not denied that the workman was initially
.
employed in 2005. The mandays chart Ext.RW-1/B relied
upon by the respondents proved that the workman had
been working since 01.05.2005 with 92, 89, 31, 182, 211,
212, 122 and 120 days in each successive year till 2013.
Evidently, the engagement of petitioner for 182 days, 211
days, 212 days and 122 days in successive years cannot be
said to be engagement for casual or seasonal work.
Further, the Divisional Forest Officer, Joginder Nagar while
appearing as RW-1 admitted that one Shri Shyam Singh,
who was junior to petitioner, was retained in service above
the petitioner.
10. The jurisdiction of this Court under Article 226
of the Constitution of India though is wide, but needs due
care and great circumspection, while dealing with the
orders of the Tribunals constituted under special
legislations. The Hon'ble Supreme Court in Sadhu Ram vs.
Delhi Transport Corporation (1983) 4 SCC 156 has
observed as under:
"We are afraid the High Court misdirected itself. The
.
jurisdiction under Art. 226 of the Constitution is truly
wide but for that very reason, it has to be exercised
with great circumspection. It is not for the High Court
to constitute itself into an appellate court over
Tribunals constituted under special legislations to
resolve disputes of a kind qualitatively different from
ordinary civil disputes and to re-adjudicate upon
questions of fact decided by those Tribunals. That the
questions decided pertain to jurisdictional facts does
not entitle the High Court to interfere with the findings
on jurisdictional facts which the Tribunal is well
competent to decide. Where the circumstances
indicate that the Tribunal has snatched at
jurisdiction, the High Court may be justified in
interfering. But where the Tribunal gets jurisdiction
only if a reference is made and it is therefore
impossible ever to say that the Tribunal has clutched
at jurisdiction, we do not think that it was proper for
the High Court to substitute its judgment for that of
the Labour Court and hold that the workman had
raised no demand with the management. There was
a conciliation proceeding, the conciliation had failed
and the Conciliation Officer had so reported to the
Government. The Government was justified in
thinking that there was an industrial dispute and
referring it to the Labour Court."
11. In State of H.P. and another vs. Biri Singh
.
and another, CWP No. 217 of 2016 decided by a Co-
ordinate Bench of this Court on 22.09.2016, in almost
identical facts it has been observed as under:
"9. It has been the well-established principle that
industrial adjudication is not merely adjudicating
contractual rights based on strict principles of law.
The higher Courts can interfere against the awards
passed by the Labour Courts only if there are
manifest errors or the order is contrary to the
provisions of law and the order has been passed
without jurisdiction and that is the scope of
jurisdiction of this Court under Article 226 of the
Constitution of India. It was held that the High Court
cannot sit on appeal over the findings recorded by the
competent tribunal by converting itself into a court of
appeal."
12. It is otherwise trite law that this Court will not sit
in appeal on the decisions of the Tribunals created under
special statutes. It is only in the case of absolute illegality
or perversity in the award passed by the Industrial
Tribunal-cum-Labour Court that interference by way of
writ jurisdiction may be required. The facts of instant case
do not warrant any interference. The findings returned by
.
learned Tribunal are borne from the record and thus no
perversity can be attached to such findings.
13. Even otherwise it can be seen that the employer
has not placed on record any material to establish that the
services of the workman were engaged for undertaking
forestry works only or to establish that the work was
seasonal and dependant upon the grant from the
Government.
14. Apart from above, RW-1, the then Divisional
Officer revealed on oath that one Shyam Singh was junior
to the workman and had been regularized by counting his
seniority from the date of initial appointment. On such
basis, the violation of Section 25-G was found by the
learned Tribunal. The conclusion so drawn by learned
Tribunal cannot be faulted in view of the material on
record.
15. In result, I find no merit in the petition and the
same is accordingly dismissed, so also the pending
miscellaneous application(s) if any.
.
31st October, 2022 (Satyen Vaidya)
(GR) Judge
r to
