Dismissed

Mahinder v. State of Hp and Ors.

Himachal Pradesh HC4 Nov 2024CWP/12255/2024

Case brief

AI extract

What is this about?

Petitioner challenged a Labour Court award rejecting his claim of illegal termination under the Industrial Disputes Act 1947, arguing he should be treated as having continuous daily wage service. High Court found no infirmity in the record review approach and dismissed the writ petition, noting reliefs not co-relatable to the award were excluded.

What did the court decide?

Writ petition dismissed; Labour Court award upheld; other reliefs excluded as not co-relatable to the impugned award.

Mahinder Vs State of Hp and Ors. — Pension and Retirement Benefits | Himachal Pradesh HC (2024)

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2024:HHC:10560

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IN THE HIGH COURT OF HIMACHAL PRADESH AT

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SHIMLA

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CWP No. 12255 of 2024 Decided on : 04.11.2024

Mahinder

…Petitioner

Versus

State of Himachal Pradesh and others.

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…Respondents

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Coram

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Hon’ble Mr. Justice Ajay Mohan Goel, Judge Whether approved for reporting?¹

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For the petitioner : Mr. Rajender Sharma, Advocate. For the respondents : Mr. Pushpinder Jaswal, Additional Advocate General.

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Ajay Mohan Goel, Judge (Oral )

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By way of this writ petition, the petitioner has, inter alia, prayed for the following reliefs:-

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“(i) That the impugned award dated 01.07.2023 (Annexure P-5) passed by Learned Labour Court, Shimla, may kindly be quashed and set aside.

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(ii) That the respondent department may kindly be directed to consider the working days as rendered by the petitioner under Sanjhi Van

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1 Whether reporters of the local papers may be allowed to see the judgment?

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2024:HHC:10560

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Pariyojna from the year 2006 to 2009 as on continuous service on daily wage basis, as directed by this Hon'ble Court in CWP No. 10086/2012, dated 04.09.2014 (Annexure P-7).

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(iii) That the respondent department may kindly be directed to consider the services of the petitioner as on daily wage basis instead of bill basis after 2009 and regularise the services of the petitioner after completion of 8 years daily wage services with all consequential benefits.

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(iv) That the fictional breaks given in the services of the petitioner after 2017 may be condoned and further direction may be issued that the petitioner may be treated in continuous service and to provide the continue work to the petitioner.

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(v) That the respondents may kindly be directed to grant all service benefits to the petitioner from the date of his initial engagement i.e. 2006 such as; continuity in service, seniority, arrears of pay as well as all other consequential benefits.”

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Brief facts necessary for the adjudication of this

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petition are that on an industrial dispute having been raised by the petitioner, the following reference was made by the appropriate Government to the Learned Labour Court for the purposes of adjudication:-

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“Whether termination of the servics of Sh. Mahinder S/o Shri Sunder Lal, R/o Village & P.O. Jula, Tehsil Arki, District Solan, H.P., by the Divisional Forest Officer, Kunihar, District Solan, H.P. w.e.f. 03.05.2017 without complying with the provisions of the Industrial Disputes Act, 1947, as alleged by the workman, is legal, and justified? If not, what relief including reinstatement, amount of back wages, past service benefits and compensation the above ex-worker is entitled to from the above employer?”

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In terms of Award passed by the Learned Labour Court dated 01.07.2023, the reference has been answered by rejecting the case of the petitioner.

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Feeling aggrieved, the petitioner has filed this writ petition.

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I have heard learned counsel for the petitioner and also carefully gone through the Award.

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The reference that was made by the appropriate

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Government to the Learned Labour Court was whether the termination of the service of the petitioner with effect from 03.05.2017 without complying with the provisions of the Industrial Disputes Act, 1947, as alleged by the workman was illegal and justified and if not, what relief the workman was entitled to.

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On the basis of the feelings of the parties, learned

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Labour Court framed the following issues:-

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“1. Whether the termination of the services of the petitioner by the respondent w.e.f. 02.05.2017 without complying the provisions of the Industrial Disputes Act, is illegal and unjustified? If yes, to what relief the petitioner is entitled to? OPP

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2. Whether the petition is not maintainable in the present form? OPR

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3. Whether there is no cause of action accrued in favour of the petitioner as alleged? OPR

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4. Whether the petition is barred by limitation as alleged? OPR

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5. Relief.”

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On the strength of the material on record, these

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issues were decided as under by the learned Labour Court :-

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“Issue No.1 : No. Not entitled to any relief. Issue No.2 : No. Issue No.3 : No. Issue No.4 : No.

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Relief : Reference is answered in negative as per operative part of the award.”

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Learned Labour Court thus decided issue no.1 by

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holding that the petitioner could not demonstrate that his services were terminated by the employer without complying with the provisions of the Industrial Disputes Act.

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A perusal of the Award demonstrates that after taking into consideration the respective contentions of the parties, statements of the witnesses, as also the evidence, learned Labour Court held that from the examination of record it was manifestly clear that the case put up by the petitioner of termination of service was incorrect, whereas, the issue in fact was regarding the condition of service of the petitioner whom respondents had offered the work on bill basis from the month of March, 2013 onwards.

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Learned Labour Court also held that in terms of the record, the petitioner was earlier serving on muster roll basis with effect from the year 2006 and thereafter he was engaged with effect from the month of March 2013 till the month of February, 2018, on bill basis and this fact was satisfactorily

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proved on record. Learned Labour Court also held that as per record the petitioner left the job in the year 2007 and thereafter, he started working again with the respondent on bill basis. Learned Labour Court also held that the contentions raised at the bar on behalf of the petitioner that he was engaged on daily wage basis and not as a seasonal worker and that he had completed 240 working days in each calendar year, were not proved by the petitioner and there was nothing on record to demonstrate that the petitioner had actually completed 240 days prior to his alleged termination.

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With regard to the issue of unfair labour practice, learned Labour Court returned the finding that as the onus was upon the petitioner to demonstrate that there was indeed violation of the provisions of the Industrial Disputes Act, which he failed to do, therefore, the petitioner was not entitled for any relief.

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Learned counsel for the petitioner was called upon by this Court to demonstrate from the record that the findings so returned by the learned Labour Court were perverse and incorrect. Learned counsel failed to do so and submitted that

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though the petitioner did not place any material on record before the learned Labour Court to demonstrate and prove that the petitioner indeed had put in more than 240 days before his alleged termination but now he was having certain material with him from which all these facts could be proved.

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This Court is of the considered view that in the exercise of its power of judicial review, the Award of a learned Labour Court has to be tested by the High Court on the strength of the material which was before the learned Labour Court. The Court cannot adjudicate or adjudge an Award passed by the learned Labour Court on the strength of documents or materials, which was not before the learned Labour Court as this would both be unfair and unjust to the learned Labour Court.

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Thus, as it is evidently clear that the petitioner miserably failed to demonstrate before the learned Labour Court that there was indeed termination of his service in violation of the provisions of the Industrial Disputes Act, this Court does not find any infirmity with the Award passed by the learned Labour Court. In fact, it is apparent and evident that it is

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a simple case wherein the petitioner stood engaged on bill basis and the engagement on bill basis was being agitated by him as if his services were terminated, which allegation has been found to be incorrect by the learned Labour Court, on the basis of the material placed before it by the parties.

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At this stage, learned counsel for the petitioner submits that there are other reliefs also which are being prayed for by the petitioner in addition to the seeking of the quashing of the Award passed by the Learned labour Court. This Court is of the considered view that in this writ petition wherein the Award passed by the learned Labour Court has been assailed under Article 226 of the Constitution of India, the petitioner cannot be

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allowed to agitate other reliefs which are not co-relatable to the Award passed by the learned Labour Court, which is under challenge. It is clarified that the jurisdiction of this Court has been invoked so as to judicially review the Award passed by the learned Labour Court and, therefore, the reliefs which are being sought for, by the petitioner, can neither be agitated compositely in this writ petition nor they can be so granted. 17. In view of the above discussion, as this Court does

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not finds any infirmity with the Award passed by the learned Labour Court, this writ petition is dismissed. Pending miscellaneous application(s), if any, also stand disposed of accordingly.

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(Ajay Mohan Goel) Judge

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November 04, 2024 (Shivank Thakur)

Mahinder v. State of Hp and Ors.

Case brief

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Mahinder v. State of Hp and Ors.

Case brief

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