IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. L.PA. No. 143 of 2007. Date of Decision: 2nd December, 2009. State of H.P. & ors. …..Appellants. Versus Hukmiya Ram & anr. ……Respondents. Coram The Hon’ble Mr. Justice R.B.Misra, Acting Chief Justice. The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the appellants: Mr. Ankush Dass Sood, Addl. Advocate General For the respondent : None. At the request of learned Addl. Advocate General, L.P.A. No. 31 of 2007 is de-linked. L.PA. No. 143 of 2007. Heard, Mr. Ankush Dass Sood, learned Additional Advocate General for the appellants. The present appeal has been preferred against the impugned judgment dated 6th August, 2007, passed in CWP No. 1124 of 2005. Learned Single Judge, while adjudicating upon the issue involved in the Writ Petition in reference to the award dated 1 Whether Reporters of Local Papers may be allowed to see the judgment? 2 21st July, 2005, passed by the H.P. Labour Court-cum-Industrial Tribunal, Dharamshala, camp at Mandi (in short called the Learned Tribunal hereinafter) in reference No. 8 of 2004, has disposed of the Writ Petition partly allowing the same and giving relief in favour of the respondent-herein, by modifying the award of Learned Tribunal, upsetting the findings of Learned Tribunal that the workman had completed 240 days, thus was entitled to protection of Section 25-F of the Industrial Disputes Act, 1947, however, learned Single Judge, has passed directions that the workman is held entitled to be reinstated with 50% back wages and consequential benefits including the seniority since the workman junior to him was retained at the time of his retrenchment of the respondent on 16.11.2000. It appears that the reference was made to Learned Tribunal and learned Single Judge has considered the facts of the case that the workman-respondent was engaged w.e.f. 1st October 1993 and had completed 216 days preceding his retrenchment on 16.11.2000 and had not completed 240 days. While adjudicating the reference before Learned Tribunal, the workman had appeared himself as PW-1 and had deposed that the employer was giving artificial breaks to him with the intention to prevent him from completing 240 days in a calendar year and has also deposed that the person junior to him namely Sh. Tek Singh son of Sh. Maya was retained while retrenching him on 16.11.2000. One Sh. Rakesh Rana, Assistant 3 Engineer, IPH, Sub Division, Thunag, Distt. Mandi, has appeared as RW-1 for the employer, has deposed that the person junior to the workman was still working in the Department, whereas, 16-17 developmental schemes at the relevant time were being run and these were receiving funds for such schemes, however, RW-1, above mentioned had denied the artificial breaks being given to the workman. The Learned Tribunal, vide order dated 21.7.2005, has arrived at the conclusion that the workman/respondent was prevented from completing 240 days by giving artificial breaks and the principle of ‘last come first go’ could not be adopted and workman/respondent was retrenched keeping his juniors in deployment. Learned Single Judge, has analyzed the documents as well as the evidences on record and has also referred and relied upon the decision of the Hon’ble Supreme Court in Central Bank of India versus S.Satyam and others, (1996) 5 SCC 419, where it was observed that in order to get protection of Section 25 G of the Industrial Disputes Act, the workman need not complete 240 days. The relevant paragraph of the S.Satyam and others (supra) is as under: “The plain language of Section 25-H speaks only of re-employment of 'retrenched workmen'. The ordinary meaning of the expression 'retrenched workmen' must relate to the wide meaning of 'retrenchment' given in Section 2 (oo). Section 28-F also uses the word 'retrenchment' but qualifies it by use of the further words 'workman........ who has been in continuous service for not less than 4 one year'. Thus, section 25-F does not restrict the meaning of retrenchment but qualifies the category of retrenched workmen covered therein by use of the further words 'workman...... who has been in continuous service for not less than one year'. It is clear that Section 25-F applies to the retrenchment of a workman who has been in continuous service for not less than one year and not to any workman who has been in continuous service for less than one year; and it does not restrict or curtail the meaning of retrenchment merely because the provision therein is made only for the retrenchment of a workman who has been in continuous service for not less than one year. Chapter V-A deals with all retrenchment while Section 25-F is confined only to the mode of retrenchment of workmen in continuous service for not less than one year. Section 25-G prescribes the principle for retrenchment and applies ordinarily the principle of 'last come first go' which is not confined only to workmen who have been in continuous service for not less than one year, covered by Section 25-F.” Learned Single Judge has also referred and relied upon the decision of the Hon’ble Supreme Court in Samishta Dube versus City Board, Etawah and another, 1992 (2) SLR 51, where the principle of ‘last come first go’ was elaborated by indicating that even such principle is to be observed in case of daily wagers unless for reasons to be recorded, the employer retrenches any other person. The relevant paragraph of Samishta Dube (supra) is reproduced as under: “We shall next deal with the point whether, in case employees junior to the appellant were retained, the directions issued by the Labour Court be treated as valid. Section 6-P of the U.P. Act (which correspondents to Section 25 G of the Central Act of 1947) states that where any workman in an industrial establishment is to be retrenched and he belongs to a particular category of workmen in that establishment, in the absence of any agreement between the employer and the workman in this behalf- the employer shall 5 ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded, the employer retrenches any other person. New this provision is not controlled by conditions as to length of service contained in Section 6 (N) (which corresponds to Section 25F of the industrial Disputes Act, 1947). Section 6-P does not require any particular period of continuous service as required by Section 6_N. In Kamlesh Singh vs. presiding officer (1996 Suppl. SCC 679) in a matter which arise under this very Section 6_P of the U.P. Act, it was so held. Hence the High Court was wrong in relying on the fact that the appellant had put in only three and a half months of service and in denying relief. (See also in this connection Central Bank of India vs. S. Satyam and others 1996 (5) SCC 419): [ 1996(4) SLR(SC)]. Nor was the High court correct in stating that no rule of seniority was applicable to daily wagers. There is no such restriction in Section 6P of the U.P. Act read with Section 2(z) of the U.P. Act which defines ‘workman’. It is true that the rule of ‘first come, last go’ in Section 6-P could be deviated from by an employer because the section uses the word ‘ordinarily’. It is, therefore, permissible for the employer to deviate from the rule in cases of lack of efficiency or less of confidence etc. as held in M/s Swadesmitran Limited, Madras vs. Their Workmen (1960 (3) SCR 144). But the burden will then on the employer to justify the deviation. No such attempt has been made in the present case. Hence, it is clear that there is clear violation of Section 6-P of the U.P. Act.” After analyzing the material and evidences on record and testimonies of workman/respondent herein and the testimony of Mr. Rakesh Rana, RW-1, learned Single Judge has concluded that the findings of the Labour Court that : 6 i). the workman had completed 240 days preceding his retrenchment i.e. on 16.11.2000, is not legally sustainable. ii) the workman junior to the respondent was retained by the employer while retrenching him on 16.11.2000, thus, the provisions of Section 25 G of Industrial Disputes Act, were apparently violated. In these circumstances, the learned Single judge has modified the award partially and has been pleased to direct the re- instatement of workman/respondent with payment of 50% back wages. We have heard Mr. Ankush Dass Sood, learned counsel for the appellants and perused the documents. We are of the considered view that learned Single Judge has very carefully considered the material on record and in the absence of anything otherwise argued that the workman/respondent was deployed in any other department /venture/unit, in the facts and circumstances has correctly modified the award partially with the direction to re-instate the workman/respondent with 50% back wages. In our respectful consideration, we do not find any scope to interfere in the orders dated 6th August, 2007. Accordingly, the present Latter Patent Appeal is dismissed. (R.B.Misra), ACJ. 2nd December, 2009 (Kuldip Singh), J. (ks) 7