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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.......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
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.
4. 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
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
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
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
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
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
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
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.
10. 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
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 &
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
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
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
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.
15. 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.
copy 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
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
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
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
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.
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.
28. 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
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
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
