Sunil Kumar Vs State of Hp

For the petitioner : Mr. Atharv Sharma, Advocate. For the respondents : Mr. Pushpinder Jaswal, Additional Advocate General and Mr. Sumit Sharma, Deputy Advocate General.

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Ajay Mohan Goel, Judge (Oral )

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By way of this writ petition, the petitioner has assailed the Award dated 11.08.2014, passed by the learned Labour Court, in terms whereof the Reference made by the appropriate Government was answered by the learned Labour Court, by rejecting the claim of the petitioner.

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Brief facts necessary for the adjudication of this petition are that on an industrial dispute raised by the petitioner,

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

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2

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the following Reference was made by the appropriate Government to the learned Labour Court:-

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“Whether termination of the services of Sh. Sunil Kumar s/o Sh. Purshottam Dass, Village Chunhal, P.O. Jhaniari Devi, Tehsil & Distt. Hamirpur, H.P. by i) The District Ayurvedic Officer, District Ayurvedic Hospital, Hamirpur, H.P. ii) The Chairman-cum-Deputy Commissioner, Rogi Kalyan Samiti, Ayurvedic Hospital, Hamirpur, H.P. w.e.f. 01-12-2010 without following the provisions of the Industrial Disputes Act, 1947 is legal and justified? If not, to what amount of back wages, seniority, past service benefits & compensation the above aggrieved workman is entitled to from above employer?” 3. The case put up by the petitioner before the learned

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Labour Court was that the petitioner was engaged by District Ayurvedic Officer as a Masseur at Pachkarma Department of Ayurvedic Hospital, Hamirpur, under the Asptal Kalyan Samiti on 06.09.2008. He continued to serve as such till 30.04.2010 and was paid monthly consolidated salary of Rs. 2000/-. With effect from 01.05.2010, the petitioner rendered his services as such under Rogi Kalyan Samiti, which took over the Asptal Kalyan Samiti along-with the staff of the said Samiti. The

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petitioner continued to serve as such till 30.11.2010, when his services were terminated by the District Ayurvedic Officer in violation of the provisions of the Industrial Dispute Act. According to the petitioner, as he had completed more than 240 days in preceding 12 months as from the date of his termination, the non-compliance of the provisions of Section 25-F of the Industrial Dispute Act was fatal and his termination

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be held to be bad and he be ordered to be reinstated with all consequential benefits.

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The claim was resisted by the respondents, inter alia, on the ground that the petitioner had earlier joined Asptal Kalyan Samiti as a Masseur on the terms and conditions as were agreed between him and Asptal Kalyan Samiti and thereafter, he served under the Rogi Kalyan Samiti independently. As per the respondents, Asptal Kalyan Samiti and Rogi Kalyan Samiti were two different independent registered Socities which had got nothing to do with the Department of Ayurveda per se and, therefore, as the appointment of the petitioner was on contractual basis, after the end of his contract, there was no illegality in the dispensation of

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his services.

On the basis of the pleadings of the parties, the following issues were framed by learned Labour Court on 30.04.2013:-

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“1. Whether the termination of the services of the petitioner by the respondent w.e.f. 01-12-2010 is illegal and unjustified as alleged? OPP.

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2. Whether the petitioner has a cause of action? OPP.

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

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4. Whether the claim petition is hit by the vice of delay and laches as alleged. If so, its effect? OPR.

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5. Whether the petition is bad for non-joinder of the necessary parties as alleged. If so, its effect? OPR.

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6. Whether the petitioner has concealed the true and material facts from the Court as alleged. If so, its effect? OPR.

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7. Relief.”

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On the basis of the evidence led by the parties, the

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same were answered as under:-

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“Issue No.1 : No Issue No.2 : No

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Issue No.3	:	No
Issue No.4	:	No
Issue No.5	:	No
Issue No.6	:	No
Relief	:	Reference answered accordingly.”

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The Reference was answered by the learned

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Labour Court by dismissing the claim petition and by holding that the petitioner had failed to demonstrate that his services were illegally terminated by the respondents.

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Feeling aggrieved, the petitioner has filed this writ

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petition.

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Learned counsel for the petitioner vehemently

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argued that the findings returned by the learned Labour Court are perverse and not sustainable in the eyes of law. He argued

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that it stood proved from the record that the petitioner continuously served from 06.09.2008 upto 01.12.2010, when his services were arbitrarily terminated. He submitted that the petitioner was rendering his services in a Government Hospital as a Masseur and the Societies also are Government owned and controlled Societies, as the Chairman of the these Societies are none other but the District Commissioner of the

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District. He further submitted that in the present case as there is no dispute that the petitioner was a workman, his services could not have been terminated in the guise of his being purportedly engaged by the Societies and this extremely important aspect of the matter was not appreciated by the Learned Labour Court. He submitted that the findings returned by the learned Labour Court that the Societies were independent and not Government Department are incorrect findings, as learned Labour Court erred in not appreciating that the Societies were fully owned and controlled by the Government of Himachal Pradesh. Accordingly, he prayed that the Award be set aside and the termination of the petitioner be held to be bad in law, with consequential benefits.

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Learned Additional Advocate General has supported the Award by submitting that the findings returned therein are totally borne out from the record of the case and there is no perversity therein. He submitted that the records are self speaking that the petitioner was engaged independently by the Societies and his services were disengaged when there was no requirement of his services. This was for the reason that

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regular Masseurs were appointed to perform the duties in the hospital concerned. Accordingly, he submitted that as there is no merit in the petition, the same be dismissed.

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I have heard learned counsel for the parties and also carefully gone through the record of the case as well as the pleadings and the documents.

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It is not in dispute that the petitioner served as a Masseur in District Ayurvedic Hospital, Hamirpur, with effect from 06.09.2010 to 01.12.2010. It is also not in dispute that when his services were terminated on 01.12.2010, he was not served any notice, in terms of Section 25-F of the Industrial Dispute Act. It is also not in dispute that the petitioner had completed more than 240 days in the preceding 12 months as from the date when his services were terminated.

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In the light of these undisputed facts, what this Court has to examine is as to whether the findings returned by the learned Labour Court that the Societies by which the petitioner was engaged, were independent Societies and had got nothing to do with the Government, are correct findings or not. The Societies in issue are Asptal Kalyan Samiti and Rogi

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Kalyan Samiti. It could not be proved in the course of the arguments of this case that Rogi Kalyan Samiti and Asptal Kalyan Samiti are private Societies or Societies being run by non-Governmental organization. In fact, these Societies have been constituted by the Health Department of the Government of Himachal Pradesh and rather than engaging Officers and staff necessary for running Hospitals directly, the engagement is being done through such kind of Societies. However, the persons who are recruited through such Societies, are performing their duties in Government Hospital. Not only this, the Societies are fully funded by the Government and the Chairmen of the Societies are also ex-officio Officers not below the rank of the Deputy Commissioner of the District.

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That being the case, these Societies of course are Societies which are owned and controlled by the Government. Their management etc. and their administration etc., is completely in terms of the dictate of the Government, as the Chairmen of these Societies are none other than the Deputy Commissioner concerned and the Societies work strictly in consonance with the directions of the Chairman, of course, in

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terms of the Bye-laws of the Societies.

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Therefore, in this backdrop, the findings returned by

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the learned Labour Court that these two Societies were independent and had got nothing to do with the Government, are perverse findings and not sustainable in the eyes of law. In cases like the present one, whether or not a Society has something to do with the Government are not simplistic issues, which can be adjudicated upon by the Court in a mechanical manner. The Court has to lift the veil and see as to how the Society was constituted, for what purpose the Society was constituted and who is at the helm of the affairs as far as the running of the affairs of the Society are concerned. Learned Labour Court failed to appreciate this extremely important aspect of the matter, which has resulted in the rejection of the claim of the petitioner. The findings returned by the learned Labour Court that the services of the petitioner were terminated after the agreement entered into between him and the Society came to an end, are also perverse findings, because there is no agreement on record, from which this inference could have had been drawn by the learned Labour Court.

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Therefore, in the light of the above findings, this writ petition is allowed. The Award passed by the learned Labour

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Court is set aside and the termination of the petitioner without complying with the provisions of Section 25-F of the Industrial Dispute Act, is held to be bad.

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Now, though this Court has allowed this writ petition, yet a call has to be taken by the Court as to what relief should be granted to the petitioner. Here is a case, where the petitioner worked lastly in the year 2010 and today, we are in the year 2025. This Court is of the considered view that in this backdrop, it will not be in the interest of justice to order his reinstatement because that will again give a tool in the hands of the respondents of disengaging him and throwing him out of the job after sometime, by following the provisions of Section 25-F of the Industrial Dispute Act.

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In the present case, the petitioner worked as a Masseur regularly with effect from 06.09.2008 to 01.12.2010, meaning thereby, he worked for the period of little more than two years. In these circumstances, this Court is of the considered view that an amount of Rs. 2,50,000/- would be

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adequate compensation.

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Accordingly, this writ petition is disposed of with the

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direction that in lieu of his engagement, let compensation to the tune of Rs. 2,50,000/- be paid to the petitioner. In case, the compensation will be paid within a period of three months from today, it will not entail any interest, but if it is paid thereafter, then it will entail an interest, at the rate of 6% per annum, from

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the date of this judgment. Pending miscellaneous

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application(s), if any, also stand disposed of accordingly.

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(Ajay Mohan Goel) Judge

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April 08, 2025 (Shivank Thakur)

Sunil Kumar v. State of Hp

Case brief

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Sunil Kumar v. State of Hp

Case brief

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