Executive Engineer, HPPWD and Another vs Attar Singh

Rajiv Sharma, J.—Petitioners (hereinafter referred as the "employer" for convenience sake) have assailed the award dated 7.8.2012 passed by the Presiding Judge, Industrial Tribunal-cum-Labour Court, Shimla in Reference No. 111 of 2007.

Pertinent facts necessary for the adjudication of this petition are that respondent (hereinafter referred to as the ''workman) was initially engaged on 4.12.1998. He has completed 206 days during the year 1998-1999. He again joined in the month of June, 2000 and worked for 19 days. The workman raised the industrial dispute. Labour-cum-Conciliation Officer submitted failure report. The following reference was made by the State Government to the Industrial Tribunal-cum-Labour Court:

Whether the termination of services of Sh. Attar Singh son of Sh. Gulab Singh workman by the Executive Engineer, HPPWD, Division No. 1, Winter Field, Shimla-3 w.e.f. June, 2000 without complying the provisions of the Industrial Disputes Act, 1947, is proper and justified? If not, what relief and service benefits and amount of compensation the above aggrieved workman is entitled to?

Workman filed the claim petition. According to him, he has completed 240 days preceding his retrenchment. He has never abandoned his job. Persons junior to him were retained. Employer also filed the reply. According to the employer, workman has not completed 240 days as per manday''s chart. According to the employer, workman has abandoned the job. Industrial Tribunal-cum-Labour Court made award on 7.8.2012. Retrenchment of the workman was declared violative of section 25-F of the Industrial Disputes Act, 1947. He was ordered to be reinstated in service with seniority and continuity from the date of his termination. However, he was not held entitled to back wages.

I have heard the learned counsel for the parties and have perused the pleadings carefully.

Workman has led his evidence by way of affidavit Ex. PA. Employer has placed on record manday''s chart. It is evident from the manday''s chart that workman has not completed 240 days in a block of 12 calendar months. He has worked only for 206 days in the year 1998-1999. He was re-engaged in the year 2000 and has worked for only 19 days.

Employer has not led any tangible evidence to establish that the workman has abandoned the job. RW-1 Ajay Kumar Soni has specifically admitted that no notice was ever issued to the workman. Thus, it cannot be said that the workman has abandoned his job. The plea of abandonment has to be proved like any other fact.

Their Lordships of the Hon''ble Supreme Court in G. T. Lad and Others Vs. Chemical and Fibres of India Ltd., have held as under:

From the connotations reproduced above it clearly follows that to constitute abandonment, there must be total or complete giving up of duties so as to indicate an intention not to resume the same. In The Buckingham and Carnatic Co.Ltd. Vs. Venkatiah and Another, , it was observed by this Court that under common law an interference that an employee has abandoned or relinquished service is not easily drawn unless from the length of absence and from other surrounding circumstances an interference to that effect can be legitimately drawn and it can be assumed that the employee intended to abandon service. Abandonment or relinquishment of service is always a question of intention, and normally, such an intention cannot be attributed to an employee without adequate evidence in that behalf. Thus whether there has been a voluntary abandonment of service or not is a question of fact which has to be determined in the light of the surrounding circumstances of each case.

The Industrial Tribunal-cum-Labour Court has come to a wrong conclusion that the workman has completed 240 days preceding his retrenchment. He has only completed 206 days in the year 1998-1999 and 19 days in the year 2000. Thus, he has not completed 240 days in a block of 12 calendar months preceding his retrenchment. However, fact of the matter is that as per Ex. PA Gauri Dutt, Dhani Ram and Ram Prakash were engaged after the retrenchment of workman. Thus, there was violation of section 25-H of the Industrial Disputes Act, 1947. It has also come in the statement of RW-2 Ranjeet Singh that work was available with the employer in the years 1999 and 2000.

Consequently, findings recorded by the Industrial Tribunal-cum-Labour Court that workman has completed 240 days preceding his retrenchment, are set aside. However, to get the benefit of section 25-G and H, the workman is not supposed to complete 240 days in a block of 12 calendar months preceding his retrenchment.

The Apex Court in Harjinder Singh Vs. Punjab State Warehousing Corporation, has held that the workman need not prove continuous service for availing benefit u/s 25-G of the Industrial Disputes Act, 1947. Their Lordships have further held that while exercising jurisdiction under Articles 226 and 227 of the Constitution of India, the goals set out in the Preamble and in Part IV of the Constitution are required to be taken into consideration. Their Lordships have held as under:

It is true that in the writ petition filed by it, the Corporation did plead that the dispute raised by the appellant was not an industrial dispute because he had not worked continuously for a period of 240 days, the learned Single Judge rightly refused to entertain the same because no such argument was advanced before him and also because that plea is falsified by the averments contained in Para 2 of the reply filed on behalf of the Corporation to the statement of claim wherein it was admitted that the appellant was engaged as work-charge motor mate for construction work on 5.3.1986 and he worked in that capacity and also as work munshi from 3.10.1986 and as mentioned above, even after expiry of the period of three months specified in the order dated 5.2.1987, the appellant continued to work till 5.7.1988 when the first notice of retrenchment was issued by the Managing Director of the Corporation. Therefore, it was not open for the Corporation to contend that the appellant had not completed 240 days'' service. Moreover, it is settled law that for attracting the applicability of Section 25-G of the Act, the workman is not required to prove that he had worked for a period of 240 days during twelve calendar months preceding the termination of his service and it is sufficient for him to plead and prove that while effecting retrenchment, the employer violated the rule of "last come first go" without any tangible reason.

Accordingly, in view of the analysis and discussion made herein above, there is no merit in the petition and the same is dismissed. Pending application(s), if any, also stands disposed of. No costs.