IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 10052 of 2008. Decided on: 26.8.2011. ___________________________________________________________ Shri Kishori Lal and others. … Petitioners. Versus State of H.P. and others. … Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 No. For the petitioners : Mr. Ranjan Sharma, Advocate. For the respondents : Mr. P.K. Sharma, Addl. AG and Mr.Anil Jaswal, Dy.A.G. for the respondents No. 1 and 3 to 5. Mr. Naveen K. Bhardwaj, Advocate for respondents No.6 & 7. ___________________________________________________________ V.K. Sharma, Judge (Oral). The petition has been filed with the following prayers, vide para 7 (ii) & (iii):- “7 (ii). That the applicants may be termed as still posted and regular employees under the respondents, as discussed, and are entitled for their salary, as well as total sum which remained unpaid to them, despite they being worked in the factory as stated, by ignoring the verbal order of termination of the services of the applicants by the respondent i.e. since October, 2002 without considering their dues and service benefits including future prospects of the applicants by providing them job. (iii). That the dues including salary, increment, bonus provident fund and other service benefits be released to the applicants by the respondents.” 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 2. In reply on behalf of respondents No. 1, 3 & 4, the following stand has been taken vide para 2 of the preliminary objections and para 6 (i) to (vi) on merits:- “Preliminary Objections:- 2. That this Hon’ble Tribunal has no jurisdiction to entertain and try service matter cases of the employees of Cooperative Societies registered under the H.P. Cooperative Societies Act, 1968. The respondent No.7 is a Cooperative Society registered under the H.P. Cooperative Societies Act, 1968 and no Original Application is maintainable against it. The affairs of the respondent society are vested in a duly elected Board of Directors constituted in accordance with the provisions of the Act, Rules and the Bye-laws as per provision contained in Section 34 of the Act. The entire day-to-day expenditure of the respondent society is being borne by the said Federation out of its own resources. Moreover, the respondent society is neither owned or controlled by the State Govt. in terms of the provision laid down under Section 15 of the Administrative Tribunals Act, 1985. Moreover, there is no deep and pervasive control of the State Govt. over the affairs of the respondent society as has been held by the Hon’ble High ourt of H.P. in C.K. Malhotra’s case Shimla Law Cases, Volume-II, P 243. Hence the present OA is liable to be dismissed by this Hon’ble Tribunal. 6 (i) to (vi). That the contents of these sub paras pertain to the respondent society. It may, however, be submitted that the applicants were given employment by the management of the respondent No.7 society to run its Tea Factory established at Dari. Due to non-supply of Tea 3 leaves by the Tea Planters of the area to the society, it has suffered heavy losses. The establishment cost of the factory continued to increase on account of increase in pay and allowances of its employees. The total accumulated losses of the respondent society as per Balance Sheet stood at Rs. 1,96,08,656.00 as on 31.3.2003 and losses for the period 1.4.2002 to 31.3.2003 (one year) is to the tune of Rs. 24,18,774.35. Keeping in view the continuous losses in the factory, the management of the society had decided to terminate services of the applicants as the society has no work and the employees have now been rendered surplus. Consequently, the management of the respondent society had decided to lay off the services of surplus staff. As regards release of dues by the State Govt. to the applicants is concerned, no funds have been provided to the Tea Factory by the State Govt. for making payment of dues to the applicants. The respondent society is responsible to pay all the legitimate claims to the applicants out of its own resources and State Govt. is not liable to pay these benefits to the employees of the society. Similarly, the State Govt. is not in a position to provide alternate employment to the retrenched employees of the society. In view of these submissions, the action taken by the management to terminate services of the applicant is perfectly in order and is liable to be upheld by this Hon’ble Tribunal.” 3. The following averments have been set up on behalf of respondent No.6 vide para 6 (iv) to 6 (vi):- 4 “That the contents of para Nos. 6 (iv) to 6 (vi) of the application are denied totally. The applicants themselves started remaining absent from their respective job during the year 2002 onwards as the Tea Factory/Management was having a very tough/crucial time and was facing financial crisis. There were very heavy losses in the factory which were in crores and due these losses the increments and bonus etc. of the applicants could not be disbursed among them in time. The total loss of the factory till 31.3.2006 was Rs. 24054819.40 and the factory was on the verge of closure. (Annexure R-6/14 to R-6/18). It is worthwhile to state here that the applicants since 22.3.2004 onwards are working with M/s Kunal Enterprises as their regular employees/workers and the said firm is liable for all the future liabilities of the applicants. Prior to 22.3.2004 pension and provident fund of all the applicants have been cleared. (Annexure R-6/4). The salary & wages, D.A. arrear, leave salary of most of the applicants have been paid and only of few of applicants remains to be paid. (Annexure R- 6/5). The receipts regarding the payment made to the applicants is attached herewith this reply. (Annexure R-6/6 to R-6/12). The replying respondent is paying all the balance dues of the applicants with its limited source of lease money and is trying to clear the same as early as possible. Rest of the contents are denied for want of knowledge.” 4. The learned counsel for the petitioners fairly submits at the very outset that except payment of compensation for the 5 period of lay off from 1.10.2002 to March, 2004, all other reliefs prayed by the petitioners have since been granted by the concerned respondents. The learned counsel further submits that the petitioners are entitled for lay off compensation for the aforesaid period in terms of sub section (8) of Section 25-O of the Industrial Disputes Act, 1947 (in short the I.D. Act). 5. In view of the above, the petition is disposed of with a direction that subject to the petitioners making a detailed representation supported by documents along with copy of this judgment, jointly or severally, to respondents No. 6 & 7 within a month from today, the same shall be considered and decided by the said respondents within further three months in accordance with law, after affording the petitioners/their authorised representative an opportunity of being heard, if so desired. Needless to say that the petitioners shall be entitled to consequential benefits, if any, flowing from the decision on the representation(s). It is made clear that in case the petitioners are still aggrieved by the decision on the representation(s), they shall be free to seek their remedy, if any, before the appropriate Court/Forum in accordance with law in which event the bar of limitation would not come in their way as they have been prosecuting the claim throughout, earlier before the H.P. Administrative Tribunal (since abolished) and thereafter before this Court. 6. The petition stands disposed of in the above terms, so also pending application(s), if any. Copy dasti. (V.K. Sharma) Judge. August 26, 2011. (cr) 6