If the petitioners fails to satisfied the Court that the award is neither legally nor factually sustainable the same deserve to be dismissed

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

CWP No.4218 of 2012.

Decided on: June 11, 2012

__________________________________________________________

HRTC (through its Regional Manager Rampur Bushehar, District

Shimla, H.P. .......Petitioner.

Versus

1. Presiding Judge Labour Court/Industrial Tribunal H.P. Shimla-171001

2. Ram Lal son of Shri Raja Ram, resident of village Gaonbill- Tunan, Tehsil Nirmand, District Kullu, H.P. .......Respondents

____________________________________________________________

Coram:

The Hon'ble Mr. Justice Kurian Joseph, Chief Justice

The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.

For the Petitioner: Mr. Vijay Verma, Advocate.

For the Respondents: Nemo.

________________________________________________________

Justice Dharam Chand Chaudhary, J. (Oral)

The challenge herein is to the award Annexure P-4 made by the learned Presiding Judge, Labour Court-cum- Industrial Tribunal, Shimla, on 30.12.2011, in Reference No.12 of 2010, whereby respondent No.2-workman has been ordered to be reinstated with seniority and continuity, with effect from the date of his termination.

2. The facts, as disclosed from the record, in a nutshell are that the petitioner was initially engaged as a helper/tyreman in the petitioner Corporation on 4.9.1997, on monthly remuneration of Rs.1500/-. He was asked to execute an agreement in the month of November, 1997, qua his engagement only for 89 days. He continued discharging his duties till 17.4.2001, when his services were terminated orally. Against such action on the part of the petitioner-Corporation, the respondent-workman had approached the erstwhile H.P. State Administrative Tribunal, by way of filing OA No.1637/2001, which, however, was ordered to be returned, for being presented before the competent forum, vide order dated 5th April, 2002.

3. Consequently, the respondent-workman raised dispute under the provisions of Industrial Disputes Act, which was rejected by the Labour Commissioner on 30th December, 2002. Thereafter Civil Writ Petition No. 951/2003 came to be filed before this Court, which was also dismissed, with the observation that from the petition and the documents annexed thereto, the respondent-workman was not able to successfully demonstrate that he had completed 240 days preceding 12 months of his disengagement. On coming into being the Right to Information Act, 2005, the respondent-workman moved an application thereunder to the Public Information Officer-cum- Divisional Manager HRTC, Shimla, with a request to supply him the detail of all the working days and the payment of wages during his engagement with the petitioner-Corporation from September, 1997 to April, 2001, which was made available to him, vide letter dated 11.6.2009, Annexure P-1 (Colly). After obtaining such information, he served the petitioner-Corporation with a fresh demand notice on the basis whereof the Labour-Commissioner made a reference to the Industrial Tribunal-cum-Labour Court.

4. Learned Presiding Judge, after taking on record the evidence of the parties and affording an opportunity of being heard to them, has answered the reference in affirmative with a direction to the petitioner-Corporation to reinstate the respondent-workman in service with seniority and community from the date of his termination.

5. The legality and validity of the impugned order has been assailed on the grounds, inter alia, that the respondent-workman never completed 240 days in a calendar year while in service with the petitioner-Corporation and as such the finding to the contrary returned by the Tribunal below are not only illegal, but also against the facts of the case. While making reference to the dismissal of earlier Writ Petition bearing No. 951 of 2003 by this Court vide judgment dated 3.12.2003, it has been contended that the Industrial Tribunalcum- Labour Court below has illegally brushed aside the findings recorded by this Court in the said judgment.

According to the petitioner-Corporation, since the engagement of the respondent-workman was purely contractual one, therefore, his disengagement on the expiry of the contract period cannot be said to be within the meaning of Industrial Disputes Act. The impugned award allegedly being illegal, non-speaking and contrary to the facts has thus been sought to be quashed and set aside.

6. On going through the record available at this stage and taking into consideration the submissions made on behalf of the petitioner-Corporation, we are of the considered view that the Industrial Tribunal-cum-Labour Court below has not committed any illegality or irregularity, while entertaining the reference made to it by the appropriate Government and deciding the same in favour of the respondent-workman. The conclusion so drawn by us is supported by the detail of working days for the period from September, 1997 to April, 2001, when the respondent-workman remained engaged with the petitioner-Corporation. Admittedly, he was disengaged from the work on 17.4.2001. The 12 calendar months preceding his disengagement would be March 2001 to April 2000. The detail of working days Annexure P-1 (Colly) amply demonstrates that during this period he worked continuously and without any interruption for 357 days. Thus, it lies ill in the mouth of the petitioner-Corporation to say that the respondent-workman had never completed 240 days in a calendar year, during his engagement.

7. Further plea of the petitioner-Corporation that the engagement of the respondent-workman was contractual one, has no legs to stand as neither any agreement has been produced on record nor would it be proper to conclude so on the basis of bald assertions in the writ petition and also the reply to the demand notice annexure P-2 that it being a contractual engagement, the respondent-workman is not entitled to set in motion the machinery provided under the Industrial Disputes Act against his disengagement from the job. Otherwise also, as per the settled legal principles at this stage to give any break or engagement for 89 days amounts to unfair labour practice.

8. On the other hand, the respondent-workman has successfully pleaded and proved that right from his initial engagement, i.e. September, 1997 till his disengagement orally on 17.4.2001, he had been working with the petitioner- Corporation continuously and without any break, except for the month of April, 1998. The detail to this effect supplied under the Right to Information Act to the respondentworkman, by the petitioner-Corporation, itself substantiates his claim fully.

9. Since the respondent-workman had been working continuously and without any interruption and rather had completed 240 days during preceding 12 calendar months of his disengagement, therefore, the termination of his services orally is in gross violation of the mandatory provisions contained under Section 25-F of the Industrial Disputes Act. The petitioner-Corporation was under a legal obligation to have served the respondent-workman with a legal notice, before resorting to his termination from service. No such course, however, was resorted to and to the contrary, the services of the respondent-workman were terminated orally, which course of action on its part does not stand the test of judicial scrutiny.

10. Much has been said about the dismissal of earlier Writ Petition bearing No.951 of 2003, filed by the respondentworkman against the refusal on the part of the appropriate Government to make a reference on his request to the Industrial Tribunal-cum-Labour Court. Neither pleadings in that writ petition nor copy of the said judgment, however, have seen the light of the day being not produced on the record of the present lis. We could, however, go through the judgment dated 3.12.2003, passed in that writ petition, which has been reproduced in para 9 of the impugned award. A  perusal thereof reveals that the request of the respondent- workman for reference under Section 10 of the Industrial Disputes Act was declined on the sole ground that from the pleadings in the writ petition and the documents annexed thereto, he was unable to successfully demonstrate that he had completed 240 days in the preceding 12 months of his disengagement. Now, the respondent has satisfactorily explained that at that point of time Right to Information Act was not in force and he had no authentic record to satisfy the Court that he had actually worked for more than 240 days preceding 12 months of his disengagement. Now he has obtained such record through an application filed under the Right to Information Act. Above all, the petitioner-Corporation had deliberately withheld such record and as such being guilty of suppression of material facts from the Court is not entitled to take advantage of its own wrongs and also to take a stand that the reference made to the Industrial Tribunal-cum-Labour Court below by the appropriate Government should have not been entertained.

11. No doubt in the earlier writ petition also, the cause of action was same and similar, but it was not finally adjudicated upon, may be on the failure of the respondent workman to satisfy the Court that he had worked for a period of more than 240 days preceding 12 calendar months of his disengagement or on account of the true facts having not been brought on record by the petitioner-Corporation intentionally and deliberately to defeat the just and legitimate claim of the

respondent-workman.

12. Now, when the respondent-workman with the help of the provisions contained under the Right to Information Act has been able to get the information qua the days he worked with the petitioner-Corporation during the period from September 1997 to April, 2001 and had convinced the appropriate Government under the Act qua his request to refer the dispute to the Industrial Tribunal-cum-Labour Court and thereafter also satisfied the Labour Court that his disengagement being violative of the provisions contained under Section 25-F of the Act was illegal, it cannot be said that the proceedings before the Industrial Tribunal Act-cum-Labour Court, were barred by the principle of res judicata nor the observation in the earlier judgment that there was no proof on record qua the respondent-workman having worked for 240 days preceding 12 calendar months of his disengagement can be said to have clinched the point in issue. Thus, when there was no final adjudication by this Court in the earlier writ petition, on the question of the respondent-workman having worked for 240 days preceding 12 months of his disengagement, the judgment passed in that writ petition on 3.12.2003, would not debar the respondent-workman to agitate the issue of his disengagement, on the basis of the material he collected subsequently while resorting to the provisions contained under the Right to Information Act.

13. In the light of what has been stated hereinabove, it is held that the petitioner-Corporation has miserably failed to satisfy this Court that the impugned award is neither legally nor factually sustainable and the same deserves to be quashed and set aside. Thus, there is no merit in the writ petition. As a result of the above discussion, this writ petition fails and the same is accordingly dismissed. Pending application(s), if any, shall also stand dismissed.

(Justice Kurian Joseph),

Chief Justice.

(Justice Dharam Chand Chaudhary),

Judge.