IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 1740/2007 Decided on:2.6.2011 _____________________________________________ Vinod Kumar. …Petitioner. Versus Superintending Engineer, HPPWD and another. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No For the petitioner : Mr. Neel Kamal Sood, Advocate. For the Respondents: Mr. R.P. Singh, Asstt. A.G _____________________________________________________ Justice Rajiv Sharma, Judge (oral). Petitioner was engaged as Draftsman in the respondent Department on 22.12.1997, as per the averments contained in the petition. He was not paid the wages for the months of August, October and November, 1998. He approached the erstwhile Himachal Pradesh Administrative Tribunal for the redressal of his grievances by way of O.A. No. 2619/1998. He was also apprehending that his services 1 Whether reporters of the local papers may be allowed to see the judgment? No 2 shall be terminated. The services of the petitioner were terminated during the pendency of the original application No. 2619/1998 on 22.1.1999. Petitioner withdrew O.A. No. 2619/1998 on 8.7.2004 with liberty to avail appropriate remedy under the Industrial Disputes Act. Thereafter, petitioner issued demand notice to the employer. The Conciliation Officer, after the failure of the conciliation proceedings, referred the matter to the Labour Commissioner. The Labour Commissioner made reference No. 37/2005 to the Industrial Tribunal-cum-Labour Court. Petitioner filed claim petition, to which the reply was filed by the employer. Petitioner also filed the rejoinder. Issues were framed by the Labour Court on 22.9.2005 to the following effect: 1. Whether the termination of services of the petitioners by respondents w.e.f. 22.1.1999 without complying with the provisions of I.D. Act, 1947 is proper and justified? OPP. 2. If issue No.1 is not proved, to what relief of services benefit the workman is entitled to? OPR. 3. Relief. 2. Petitioner has appeared as PW-2, Sh. O.P. Bhardwaj, Junior Engineer has appeared as PW-3, Sh. A.N. Sharma, Executive Engineer has appeared as PW-4 and Sh. Sanjay Gupta, S.D.O. has appeared as PW-5. 3 Sh. Chander Parkash, J.E. Kumarsain, who was posted in Teklech Division has appeared as RW-1, Sh. Parvesh Kumar, who was posted at Taklech in the years 1996- 97 as S.D.O. has appeared as RW-2 and Sh. Chhavinder Kumar, J.E. has appeared as RW-3. Statement of RW-4 Ramesh Rana, who was posted as Junior Engineer in Nankhari Section, was also recorded. The Labour Court on the basis of the evidence led by the parties, held the removal of the petitioner illegal. He was held entitled to re-engagement as Work Inspector as per order dated 6.9.2007. 3. Mr. Neel Kamal Sood has vehemently argued that once the retrenchment/removal of the petitioner was declared illegal, his client was entitled to seniority from the date of removal, i.e. 22.1.1999 till his re-engagement. 4. Mr. R.P. Singh, learned Assistant Advocate General has supported the award dated 6.9.2007. 5. I have heard the learned counsel for the parties and have perused the record meticulously. 6. Petitioner was engaged as Draftsman on 22.12.1997. However, the Labour Court has come to a conclusion that the petitioner, in fact, was working as 4 Work Inspector. The learned Labour Court has come to a conclusion that since the Department has failed to produce muster roll for the month of August, 2008, it could safely be concluded that the petitioner had completed 240 days in 2008. These findings have attained finality since the same have not been challenged by the respondents. The Labour Court on the ultimate analysis of the evidence produced by the parties has held the retrenchment/removal of the petitioner illegal vide award dated 6.9.2007. 7. In normal circumstances when the retrenchment/removal has been declared illegal, the normal rule is that the workman is held entitled to back wages and also seniority. However, in this case Mr. Neel Kamal Sood submits that he will confine his submission only to the benefit of seniority. There is merit in the contention of Mr. Neel Kamal Sood that once the removal of the petitioner has been declared illegal, his client should have been given seniority from the due date till his re-engagement with continuity in service. The Court is of the considered view that the learned Labour Court ought to have given the seniority to the petitioner after declaring his removal as illegal as per award dated 6.9.2007. 5 8. Accordingly, in view of the observations and discussions made hereinabove, the petition is partly allowed. Award of the Labour Court dated 6.9.2007 is modified to the extent that the petitioner is held entitled to seniority from the date of termination, i.e. 22.1.1999 till his re-engagement for all intents and purposes. (Justice Rajiv Sharma), Judge. 2.6.2011 *awasthi*