IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.: 934 of 2006. Reserved on: 26.11.2008. Decided on: 24.02.2009. M/s Karam Chand Thaper and Bros. Limited. …Petitioner. Versus Shri Prem Singh and others. …Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. No. For the petitioner : Mr. K.D. Sood, Advocate. For the Respondents : None. Rajiv Sharma, J. A challenge has been laid by way of this petition to the award passed by H.P. Industrial Tribunal-cum-Labour Court, Dharamshala in reference No.29 of 2001 dated 30.6.2006. Brief facts necessary for the adjudication of this petition are that the State Government has made the following reference to the Labour Court:- “Whether termination of services of Sarv Shri Prem Singh, Tara Chand, Dharam Chand and Jyoti Singh, ex- 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. - 2 - workers w.e.f. 30.9.99 by (1) Managing Director M/s. Karam Chand Thapar & Bros. Ltd., Hydro Consult Division (UHL-III HEP), 124, Janpath, New Delhi-110001 and (2) Assistant Manager M/s. Karam Chand Thapar & Bros. Ltd., Hydro Consult Division (UHL-III HEP), Bawa Building, Main Bazar, Jogindernagar, District Mandi, H.P. without any notice, chargesheet, enquiry in violation of Section 25(F) and 25(N) of the Industrial Disputes Act, 1947, as alleged, is legal and justified. If not, to what relief of consequential service benefits and amount of compensation, the above aggrieved workmen are entitled?” In sequel to the reference made by the State Government, the respondents/workmen (hereinafter referred to as the workmen for convenience sake) filed their statements of claim. It was primarily contended by the workmen that they had completed 240 days preceding their retrenchment and they were entitled to protection of the mandatory provisions of the Industrial Disputes Act, 1947 (hereinafter referred to as “the Act” for brevity). The petitioner (hereinafter referred to as “the employer” for convenience sake) filed reply to the statements of claim. It was contended by the employer that the project was closed and the workmen were issued with termination notices on 23rd September, 1999 and they had been paid their dues in accordance with the provisions of the Act. The learned Labour Court allowed the claim petition on 30th June, 2006. The Labour Court had directed to reinstate all the workmen except respondent No.1, Shri Prem Singh. The present petition is directed against the award dated 30.6.2006. Mr. K.D. Sood has informed the Court during the course of hearing that the matter has already been settled with respondents No. 1 - 3 - and 3 and the present petition is confined only qua respondent No.4 Shri Jyoti Singh Chauhan. Mr. K.D. Sood has strenuously argued that the award dated 30.6.2006 is not sustainable in the eyes of law. He has further contended that the MOU was entered into between the petitioner and the State of Himachal Pradesh on 10.2.1992. The implementation agreement was signed on 22.8.1997. The implementation agreement was cancelled on 1st March, 1999. The Management had issued notices to the workmen on 23rd September, 1999. They refused to accept the same and thereafter the notices were sent by registered post to them on 1st October, 1999. According to Mr. K.D. Sood, compensation amount was paid to the workmen with notice. Respondent No.4 was proceeded ex-parte. I have heard Mr. K.D. Sood and gone through the award and the documents filed with the petition carefully. The respondent No.4 was appointed by the employer on 1st April, 1994 as Junior Engineer. He discharged his duties up to 30th September, 1999. Respondent No.1 has appeared as PW-1. He has filed his statement on affidavit before the learned Labour Court. He has deposed that his services were retrenched alongwith S/Shri Jyoti Singh, Tara Chand and Dharam Chand. He has denied the suggestion that they compelled Shri R.N. Sharma to write mark “A” on Exhibits P-19, P- 20, P-21 and P-22. He has further deposed that when they received letters Ex.P-19 to Ex.P-22, the same did not contain the remarks encircled “A” which were inserted lateron. Respondent No.4 was engaged in April, 1994. He was served with termination letter dated September 23, 1999. A sum of Rs.9,711.54 was tendered with the letter. The copy of letter dated 23rd September, 1999 is placed at page - 4 - 109 of the paper book. It is evident from the break-up of Rs.9,711.54 given in the letter that a sum of Rs.7,211.54 was paid for gratuity and one month’s advance pay was paid to respondent No.4 amounting to Rs.2500.00. He had worked continuously with the employer with effect from 5th April, 1994 to 30th September, 1999. He was entitled to get compensation as per Section 25-F of the Act. The case of the employer is that a sum of RS.9,711.54 had been paid as compensation amount under Section 25-F of the Act. In other words, the case of the Management is that the break-up as given in letter dated September 23, 1999 was obtained by the workman by coercion from RW-1 Shri Ravinder Sharma. This version of the Management cannot be accepted. The Labour Court had come to definitive conclusion that the workman was entitled to gratuity as per the provisions of Payment of Gratuity Act, 1972. Shri Ravinder Sharma while appearing as RW-1 has deposed that the Management had not retrenched the workmen, but terminated them. However, he further submitted that the Management had retrenched the workmen and paid them the compensation. He has admitted that at the time of termination, one month’s salary was given to all the four applicants. He had admitted that writing with pen circled ‘E’ to ‘H’ in Exts. P-19 to P-22 bears his signatures. However, he further deposed that it has been got done forcibly from him and it was not within his powers. In view of the statement of RW-1 read with endorsement made on letter dated 23rd September, 1999, it is clear that the workman had been paid a sum of Rs.7,211.54 as gratuity for five years. He has been paid one month’s salary in advance amounting to Rs.2500/-. He has not been paid any compensation as per Section 25-F of the Act. He was entitled at the - 5 - time of his retrenchment to get compensation equivalent to 15 days’ average pay (for every completed year of continuous service) as per Section 25-F(b) of the Act. The Labour Court on the basis of the endorsement made read with statements of PW-1 and RW-1 had come to just conclusion that the retrenchment of the workman was not effected in accordance with law. Mr. K.D. Sood has strenuously argued that the letter dated 23rd September, 1999 was not accepted by the workmen and thereafter registered letters were sent to them on 1st October, 1999 alongwith draft. He then contended that the workmen had received the amount and lateron they raised demand notice. This plea of Mr. K.D. Sood is no more res-integra in view of the law laid down by their Lordships of the Hon’ble Supreme Court in Nar Singh Pal versus Union of India (2000) 3 SCC 588. Their Lordships have held as under (p.594 (para 14):- “13. The Tribunal as also the High Court, both appear to have been moved by the fact that the appellant had encashed the cheque through which retrenchement compensation was paid to him. They intended to say that once retrenchement compensation was accepted by the appellant, the chapter stands closed and it is no longer open to the appellant to challenge his retrenchement. Thus, we are constrained to observe, was wholly erroneous and was not the correct approach. The appellant was a casual labour who had attained the 'temporary' status after having put in ten years' of service. Like any other employee, he had to sustain himself, or may be, his family members on the wages he got. On the termination of his services, there was no hope left for payment of salary in future. The retrenchement compensation paid to him, which was only a meagre amount of Rs. 6,350/-. was utilised by him to sustain - 6 - himself. This does not mean that he had surrendered all his constitutional rights in favour of the respondents. Fundamental Rights under the Constitution cannot be bartered away. They cannot be compromised nor can there be any esstoppel against the exercise of Fundamntal Rights available under the Constitution. As pointed out earlier, the termination of the appellant from service was punitive in nature and was in violation of the principles of natural justice and his constitutional rights. Such an order cannot be sustained.” Accordingly, in view of the analysis and the observations made hereinabove it is held that the award made by the Labour Court is in accordance with law. The Labour Court has recorded correct finding that the Management has not followed the mandatory provisions of the Act at the time of effecting retrenchment of the workmen on 1st October, 1999. Consequently, there is no force in the writ petition and the same is accordingly dismissed. There shall, however, no order as to costs. February 24, 2009. (Rajiv Sharma ), J. (sck)