IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.100/2006 Reserved on.16.3.2008 Decided on.10.4.2008 State of Himachal Pradesh and others. …Petitioners. Versus Harnam Singh …Respondent Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting ?1.No. For the petitioners : Mr. Rajesh Mandhotra, Deputy Advocate General. For the respondents: Mr. Manohar Lal Sharma Advocate. Rajiv Sharma, J. The present petition has been filed by the State against the award dated 1.10.2005 in reference No. 101/2004 (RBT No. 101/04) passed by the Presiding Judge, Labour Court-cum-Industrial Tribunal, Dharamshala. The brief facts necessary for the adjudication of this petition are that the State Government has made the following reference to the Labour Court-cum-Industrial Tribunal, Dharamshala: “Whether the termination of services of Shri Harnam Singh s/o Sh. Basant Ram, Ex.daily wages beldar by the Divisional Forest Officer, Forest Division, Dehra, District Kangra, H.P. w.e.f. 1.3.2000 without complying the provisions of the Industrial Disputes Act, 1947 is proper and justified? If not, 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 what relief of service benefits Shri Harnam Singh is entitled to?” In sequel to the reference made by the State Government, the respondent (hereinafter referred to as the workman for convenience sake) filed his statement of claim. He had primarily contended in the statement of claim that he was engaged on muster-roll basis in the year 1985. He was retrenched on 1st March, 2000 without complying the mandatory provisions of section 25-F of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act for brevity sake). The workman had also contended in his statement of claim that he had completed 240 days in a block of 12 calendar months preceding his retrenchment i.e. 1st March, 2000. The employer had filed detailed reply to the statement of claim filed by the workman. The case set out by the employer in the reply was that it was not a case of retrenchment, but it was a simple case of abandonment. In the reply there is a reference to the man-days chart also giving therein the detail of the days the workman had worked. It is evident from the perusal of the contents of the reply that the workman had completed 21 days in 2000, 152 days in 1999 and 228 days in 1998. The workman had filed detailed rejoinder to the reply filed by the employer and had reiterated the contents of the statement of claim. He had also filed his affidavit before the Labour Court sworn on 30.5.2005. The Labour Court answered the reference in the affirmative by declaring the retrenchment of the workman violative of section 25-F of the Act. The workman was also held entitled to re-engagement on the same terms and conditions in which he was working on his first disengagement i.e. 1st March, 2000, however, back wages were restricted to 50% with 6% interest. The Management/ employer was directed to re-engage the workman within a period of 90 3 days failing which it was made liable to pay interest @ 12% to be assessed from year to year basis. The Labour Court has gone to the extent of directing the regularization of the workman as per the policy framed by the State though not prayed for specifically by the workman. The learned Deputy Advocate General had strenuously argued that the award dated 1.10.2005 is not sustainable in the eyes of law. Mr. Manohar Lal Sharma, Advocate had supported the award dated 1.10.2005. We have heard the learned counsel for the parties and have also perused the record carefully. Before we enter into the merits of the case to see whether the award dated 1.10.2005 is valid or not, it will be apt at this stage to take note of few important facts which may have vital bearing in the out come of this petition as gathered from the pleadings of the parties. The workman was engaged in the year 1985. He was retrenched as per the contents of the original application bearing No. O.A. (D) 61/1996 on 20th November, 1995. He approached the learned Himachal Pradesh Administrative Tribunal. The learned Himachal Pradesh Administrative Tribunal passed an interim order on 25.6.1996 which reads thus: “By way of interim relief the respondents are directed to re- engage the applicant in the same place and same work as available on November 20, 1995 and in the alternative in the same division in case the work is available.” The original application was disposed of by the learned Himachal Pradesh Administrative Tribunal on 22.9.2004. The order dated 22.9.2004 reads thus: 4 “The applicant was appointed as Labourer in the year 1985 in Forest Range, Nagrota Surian Beat, Khuman, Tehsil Dehra. His services were dis-engaged on 20.11.1995, therefore, he had preferred this original application seeking the following reliefs: a) That the services of the applicant be ordered to be regularized from the date of his completion of 240 days of service on his respective post of labourer in regular pay scale of the post with arrear of pay allowances and consequential benefits. b) That the respondents be ordered to re-engage the applicant on the same post as at the time of his termination with continuity of service, back wages. Cost of the petition and all the consequential benefits. c) Such other or further order as this Hon’ble Tribunal may deem just and proper keeping in view the facts and circumstances of the case may also very kindly be passed in favour of the applicant and against the respondents in the interest of law and justice. The stand taken up by the respondents is that the forestry works by its nature are casual and time bound, being seasonal character of works respondent-department has no permanent post of worker. Due to seasonal work and after completion of such work labourer is not engaged and is re- engaged when the work becomes available. We have heard Shri Ranjan Sharma counsel for the applicant and Sh. B.S. Parmar, learned Additional Advocate General for the respondents. While admitting the original application for actual hearing, interim order passed on 25.6.1995 reads as under:- “By way of interim relief the respondents are directed to re-engage the applicant in the same place and same work as available on November 20, 1995 and in the alternative in the same division in case the work is available.” 5 The learned counsel for the applicant states that in pursuance of the order dated June 25, 1996 the applicant has been re-engaged and is continuing as such. In case the applicant is continuing in service in pursuance of the interim order as stated by the learned counsel then it is hereby ordered that services of the applicant be not terminated except in due course of law. As regards regularization of the services of the applicant, the same may be considered by the respondents in accordance with the policy formulated by the government, provided the applicant is still in service. Disposed of accoridngly” It is evident from the contents of the order dated 22nd September, 2004 that the original application was closed on the basis of the statement made by the counsel appearing on behalf of the workman. The learned counsel appearing on behalf of the workman had stated that pursuant to order dated 25th June, 1996 as quoted hereinabove; the workman had been re-engaged and was continuing as such. Thereafter the workman had also raised a demand. The reference was made by the State Government to the Labour Court in the year 2004. The statement of claim is dated 27.11.2004. The reply was filed by the management/ employer to which the rejoinder was also filed. We have carefully gone through the contents of the statement of claim, reply and the rejoinder. What has been mentioned in the statement of claim filed by the workman is that he was re-engaged pursuant to the orders passed by the learned Himachal Pradesh Administrative Tribunal on 25th June, 1996, but he was retrenched by the Divisional Forest Officer, Forest Division, Dehra, District Kangra, Himachal Pradesh with effect from 1st March, 2000 without complying with the provisions of Industrial Disputes Act, 1947. The award was passed by the Labour Court on the 6 basis of the evidence led by the workman as well as the respondents on 1.10.2005. Surprisingly in the entire award there is no mention to the effect that earlier original application filed by the workman was finally disposed of on 22nd September, 2004 on the basis of the statement made by the learned counsel appearing on his behalf. It is also apparent that at the time when the original application was disposed of by the learned Himachal Pradesh Administrative Tribunal on 22nd September, 2004 the demand was already raised by the workman since the statement of claim was filed on 27.11.2004. The workman had intentionally withheld the material fact from the Labour Court that the original application preferred by him was disposed of on 22nd September, 2004. It is evident from the relief clause of the original application (O.A.(D) 61 of 1996) that the workman had stated that he was dis-engaged on 20.11.1995. However, it is apparent from the contents of the statement of claim filed by the workman that he has assailed his retrenchment effected on 1.3.2000. The statement has been made before the learned Himachal Pradesh Administrative Tribunal that the workman was in continuous employment pursuant to the interim order passed by the learned Tribunal dated 25th June, 1996. If the workman had been continuing on the basis of the interim relief granted by the Himachal Pradesh Administrative Tribunal on 25th June, 1996, there was no occasion for him to raise industrial dispute. The Presiding Judge of the Labour Court should have asked the workman to apprise it about the fate of the original application preferred by him in the year 1995. If the fact of the original application being disposed of by the learned Tribunal on 22.9.2004 in aforesaid terms had come to his notice, he would have definitely not passed the order dated 1.10.2005 as discussed hereinabove. This sums up the manner in which the workman 7 by concealing the material fact has approached the Labour Court. This conduct of the workman is not approved by us at all. The workman if he had chosen his forum, he should have pursued his remedy in the same forum instead of resorting to forum hunting. It is also necessary to avoid two fora passing two different orders as has happened in the present case. Now, we would advert to the merits of the case as projected by the workman before the Labour Court. The workman was engaged on 1.7.1985. The learned Deputy Advocate General has drawn the attention of the Court to the details of the man-days chart of the workman with effect from 1.7.1995 to February, 2000. It is evident from the man-days chart that the workman had completed 21 days in 2000, 152 days in 1999, 228 days in 1998 and 15 days only in the year 1997. The Labour Court had come to a wrong conclusion that the workman had completed 240 days in a block of 12 calendar months preceding his retrenchment. It was for the workman to establish that he had completed 240 days preceding his retrenchment. The workman has failed to discharge this onus and to the contrary the management has established that the workman had not worked for 240 days in a block of 12 calendar months preceding his retrenchment. Since the workman had not completed 240 days in a block of 12 calendar months preceding his retrenchment, the Labour Court could not pass the award in his favour and the same is liable to be set aside which we accordingly do. We would not go into the legality of the order dated 22.9.2004 passed by the learned Administrative Tribunal in OA (D) No.61/1996 since no specific challenge has been laid to it by any party. 8 Consequently the writ petition is allowed. The award dated 1.10.2005 passed by the Presiding Judge, Labour Court-cum-Industrial Tribunal, Dharamshala is set aside. There shall be no order as to costs. (Deepak Gupta), Judge. ( Rajiv Sharma), Judge. April 10, 2008 *Awasthi*