IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 352/2011-A. Date of decision: 20.10.2011 State of H.P. and another …. Petitioners Versus Rajesh Kumar ... Respondent Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the petitioners: Mr. J.S. Guleria, Assistant Advocate General. For the respondent: Mr. Praneet Gupta, Advocate. V.K. Ahuja, J.(Oral): The petitioners have filed the present writ petition under Article 227 of the Constitution of India, for setting aside the award passed by the Industrial Tribunal-cum-Labour Court, Dharamshala, dated 24.7.2010, vide which the reference petition filed by the respondent was allowed and he was held entitled to continuity of service and the termination of the respondent herein with effect from 31.3.1998 was set aside. 2. A notice of the petition was issued to the respondent, who filed reply to the petition. 3. I have heard the learned counsel for the parties and have gone through the record. 4. The undisputed facts are that the respondent herein was engaged as workman by respondent No. 2/District Ayurvedic Officer, 1Whether reporters of Local Papers may be allowed to see the judgment? 2 Hamirpur, on 21.5.1996 for 89 days and that he worked as such till 28.12.1997. On 29.12.1997, he was again engaged on daily wage basis with effect from 1.1.1998. However, his services were terminated verbally on 31.3.1998 without complying with the provisions of the Industrial Disputes Act. Petitioner No. 1/State had decided to fill up 150 posts of daily wages in November/December, 1998, out of which 22 posts were meant for District Hamirpur and the respondent herein though eligible and having applied on 18.12.1998, was not called for interview and was ignored. The petitioners/State had engaged fresh persons namely Anil Kumar and others and the respondent was ignored. The respondent herein challenged his termination being violative of Section 25(f) of the Industrial Disputes Act and that he was not granted employment by the department of Ayturveda. The learned Tribunal entered into the reference petition and framed the issues, which need not to be reiterated. The two important issues framed by the learned Tribunal are reproduced as under:- “1. Whether the termination of services of the petitioner by the respondent is unlawful. If so, what relief of service benefits and the amount of compensation the petitioner is entitled to? … OPP 2. Whether the respondent engaged Anil Kumar, Raj Kumar, Kashmir Singh, Shakuntla Devi and Raj Kumar without observing the provisions of section 25-H of the Industrial Disputes Act, 1947? … OPP” 5. The reference petition was allowed as per the impugned award, which is under challenge by the State. 6. The first ground taken by the State is that the Department of Ayurveda does not come within the meaning of industry as defined under Section 2(j) of the Industrial Disputes Act. This question has been settled by the Hon’ble Apex Court in The State of 3 Bombay and others Vs. The Hospital Mazdoor Sabha and others, AIR 1960 Supreme Court 610, wherein the following observations were made:- “The State is carrying on an undertaking within S. 2(j) when it runs a group of hospitals for the purpose of giving medical relief to the citizens and for helping to impart medical education. They are thus an ‘industry’ within the meaning of the Act.” 7. It is, clear that Department of Ayurveda comes within the definition of term industry of the provisions of Section 2(j) of the Act and other provisions are applicable to the case of the respondent. This contention of the learned Assistant Advocate General for the State is rejected accordingly. 8. The other point taken was that the name of the respondent was not again sponsored by the Employment Exchange, therefore, he was not entitled to be appointed to the post. This question has also been answered by the decision of the Apex Court in Union of India and others Vs. N. Hargopal and others, (1987) 3 Supreme Court Cases 308, also referred to by the learned Tribunal below, in which it has been clearly laid down that the employers are not bound to appoint only persons sponsored by Employment Exchanges. Employers are only obliged to notify vacancies. Moreover, in the case of the respondent when he had already served the department, his name need not be referred to again by the Employment Exchange and he would have directly applied to the department for providing employment to him and once he had already worked with the department, he had preferential right to be considered for the post as and when it falls vacant. This question has been rightly answered by the learned Tribunal below, who has held that 4 the respondent was entitled to be considered for appointment and was entitled to be appointed as such and, therefore, termination of the respondent with effect from 31.3.1998 was rightly set aside by the learned Tribunal. 9. The respondent is also entitled to the relief as per Section 17-B of the Industrial Disputes Act and he shall be entitled to full wages during the time the proceedings were pending in this Court. 10. In view of the above, I accordingly hold that there is no merit in the petition, which is dismissed accordingly, so also the pending miscellaneous application(s), if any. ( V.K. Ahuja ), October 20, 2011 Judge (BSS)