IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 4062 of 2008. Judgment reserved on 21.06.2011. Date of decision: 13.07.2011. _______________________________________________________ Megh Raj. ….. Petitioner. Versus State of H.P. & anr. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Petitioner : Mr. P.P. Chauhan, Advocate. For the Respondents : Ms. Ruma Kaushik, Addl. Advocate General. Kuldip Singh, Judge. The petitioner has prayed mainly the following releifs in the petition:- “(i) The retrenchment order dated 27.6.1997 Annexure A-1 be declared void and in effective in the eyes of law. (ii) That the applicant be directed to be treated as having continued in employment on daily wages as if such retrenchment has not taken place. (iii) That the services of the applicant be ordered to be regularized as he has completed more than 10 years in continuous service as cleaner with the respondent.” 2. The facts, in brief, are that petitioner joined with respondents as daily wager in July, 1979. He worked as Helper/Cleaner. The department had been taking the work of driver from the petitioner, but he was paid wages of Cleaner. Whether the reporters of the local papers may be allowed to see the Judgment? Yes 2 3. The petitioner had been driving truck No. HIK-3518 since 1990. On 02.03.1993, the petitioner while driving truck No. HIK-3518 met with an accident due to sagging of ‘danga’, Krishan Kumar Cleaner traveling in the truck died on the spot, the petitioner also sustained injuries. 4. A claim petition was filed by the legal representatives of Krishan Kumar and the learned Motor Accident Claims Tribunal awarded ` 1,80,000/- to be paid jointly and severally by the respondents, an FIR was also registered and challan was put in the Court. 5. The petitioner was not allowed to join duty on 03.03.1993 and his services were orally terminated. The petitioner filed O.A. No. 1808 of 1993 which was disposed of with the observations that the respondents are at liberty to take action as they deem fit in the facts and circumstances of the case and in accordance with law. It has been alleged that no disciplinary proceedings were initiated against the petitioner, no show cause notice was ever issued to the petitioner and he has been held guilty for causing accident and made liable for major penalty vide order dated 27.06.1997. The action of the respondents is illegal and against the principles of natural justice. The petitioner has been retrenched by way of punishment without following the principles of natural justice. The retrenchment notice is invalid as retrenchment compensation has been paid only for three years though petitioner had served for 17 years. The impugned order is in violation of Industrial Disputes Act, 1947. 3 6. The petition has been contested by respondents by filing reply. It has been alleged that on 02.03.1993 Tipper No. HIK-3518 was assigned miscellaneous duties. The driver of vehicle parked the vehicle near the Office of Assistant Engineer, Shahpur at about 6.30 p.m. The driver came to the Office to enquire about his pay. The petitioner drove out the vehicle at his own risk without the knowledge and consent of the respondents. The vehicle met with an accident at about 8.30 p.m. In the accident, Krishan Kumar work charged Clearner died on the spot. The case was registered with the Police Station, Shahpur against the petitioner. 7. The petitioner thereafter did not resume his duties feeling guilty. In the departmental inquiry the Committee fixed responsibility on the petitioner and held him guilty for accident in question. The inquiry was conducted after giving proper opportunity of being heard to the affected parties. The government has spent ` 55,000/- for the repair of the Tipper. The legal heirs of Krishan Kumar filed claim petition and Motor Accident Claims Tribunal-I, Kangra at Dharamsala awarded ` 1,80,000/- along with 12% interest on 01.08.1994 in favour of legal heirs of Krishan Kumar 8. In O.A.No. 1808 of 1993 by way of interim order dated 21.09.1993 the respondents were directed to re-engage the petitioner. The original application has been dismissed by the Tribunal. After the decision of original application the respondent No. 2 vide order dated 27.06.1997 has retrenched the petitioner under Section 25-F of the Industrial Disputes Act. Om Parkash was the authorized driver of the 4 vehicle, the Sub Divisional Officer concerned had no authority to issue certificates in favour of petitioner. It has been denied that petitioner was not allowed to join duties on 03.03.1993 and his services were orally terminated. The petitioner had left the services on his own on 03.03.1993 and re-joined services after getting the stay order from Tribunal on 21.09.1993. Therefore, his services were not counted for the year 1993 or back period prior to it for payment of compensation as he did not complete 240 days during the year 1993 and lost seniority. He completed 240 days work in 1994, 1995 and 1996. The notice was served to the petitioner and amount paid in lieu of one month notice along with retrenchment compensation. 9. The Superintending Engineer filed supplementary affidavit dated 24.11.2010 and placed on record inquiry report Annexure R-1. It has been stated in the affidavit that Committee has also examined petitioner and recorded his statement. The petitioner has filed counter to the supplementary affidavit and denied that he made statement Annexure R-2. It has been alleged that the document showing the statement of the petitioner is forged. 10. I have heard the learned counsel for the parties. It is the pleaded case of the petitioner that accident took place on 02.03.1993 and he was not allowed to join duty on 03.03.1993 and his services were orally terminated. The respondents took the stand that petitioner abandoned the job. This apart, the petitioner challenged his termination in O.A. No. 1808 of 1993 before the Tribunal. The respondents in the reply have pleaded that in O.A. No. 1808 of 1993 the Tribunal issued interim direction vide order dated 21.09.1993 to re- 5 engage the petitioner. O.A. No. 1808 of 1993 was dismissed by the Tribunal on 28.04.1997 and the interim order dated 21.09.1993 was vacated. The Tribunal observed that the respondents are at liberty to take action as they deem fit in the facts and circumstances of the case and in accordance with law. It is thus clear that the petitioner took the stand before the Tribunal that his services were terminated on 03.03.1993 by the respondents. The Tribunal did not give any relief to the petitioner. The petitioner was engaged by the respondents in view of order dated 21.09.1993. The interim order dated 21.09.1993 was vacated by the Tribunal when O.A. No. 1808 of 1993 was dismissed on 28.04.1997. 11. The petitioner was engaged by the order of the Tribunal, therefore, after the dismissal of the O.A. No. 1808 of 1993 the petitioner cannot take benefit of his engagement by respondents which was by virtue of Tribunal order. The Tribunal did not protect the engagement of petitioner ordered vide interim order dated 21.09.1993. The observation of the Tribunal in the order dated 28.04.1997 that respondents are at liberty to take action as they deem fit in the facts and circumstances of the case and in accordance with law cannot be stretched to the extent that the respondents were to comply any specific provision of Industrial Disputes Act, 1947, before terminating the engagement of petitioner which was in compliance to interim order dated 21.09.1993 of the Tribunal. In the facts and circumstances of the case, dispensing with services of petitioner after the decision in O.A. No. 1808 of 1993 by respondents cannot be termed as retrenchment of the petitioner. 6 12. The learned counsel for the petitioner has submitted that principle of natural justice has been violated in terminating the services of the petitioner. The inquiry report is wrong, the petitioner did not give any statement implicating himself or the said statement is forged, one member of the Inquiry Committee was also held liable for the negligence, has no bearing in the facts of the present case. These contentions are not available to the petitioner inasmuch as petitioner himself approached the Tribunal by filing O.A. No. 1808 of 1993 alleging therein that his services were terminated on 03.03.1993 by respondents. The Tribunal dismissed that petition on 28.04.1997. The order dated 28.04.1997 has attained finality. The petitioner cannot now reopen the case. Thus, seen from any angle, there is no merit in the petition. In view of above, the petition deserves dismissal and is accordingly dismissed. No costs. July 13, 2011. (Kuldip Singh), ( krt) Judge.