State of Himachal Pradesh and Executive Engineer, Irrigation and Public Health Division vs Shri Nokhi Ram

V.K. Sharma, J.—The challenge herein in this writ petition under Article 226 of the Constitution is against the award dated 15.02.2010, passed by the learned Presiding Judge, Industrial Tribunal-cum-Labour Court, Shimla, H.P., in Reference No. 53 of 2008, Nokhi Ram vs. The Executive Engineer, whereby the respondent (workman), a daily wager, has been ordered to be reinstated in service from the date of his illegal termination, forthwith with seniority and continuity in service, but without any back-wages. Admittedly, the workman had joined the employment of the petitioner No. 1-State through petitioner No. 2-Executive Engineer (employer) in November, 1996. Whereas, according to him, his services were terminated by the employer in August, 1998, the stand of the employer was that he had himself abandoned the job.

Against the foregoing background an industrial dispute was raised by the workman, which was referred by the appropriate government for adjudication to the learned Industrial Tribunal-cum-Labour Court in the following terms:

Whether the termination of services of Shri Nokhi Ram S/o. Shri Dhanu Ram by the Executive Engineer, I&PH Division Rampur Bushahr District Shimla, HP w.e.f. 1.10.1998 as alleged by the workman without complying the provisions of Industrial Disputes Act, 1947 is legal and justified? If not, what relief of service benefits, amount of compensation, back wages and seniority, the aggrieved workman is entitled to?

As already noticed, the reference has been partly answered in favour of the workman.

The learned Deputy Advocate General submits at the very outset that the findings returned by the learned Industrial Tribunal-cum-Labour Court to the effect that the workman had completed the requisite service of 240 days and his services were terminated by the employer are not based on the materials on record. In this regard a reference has been made to mandays chart, Ex. R-B, according to which, the workman had worked only for 27 days in 1996, 214 days in 1997 and 139 days in 1998. Thus, he had not completed the requisite service of 240 days during the year 1998 when his services were allegedly terminated, as in that year he had worked only for 139 days. However, the contention cannot be looked into favourably as the requisite period of 240 days is to be reckoned "during a period of twelve calendar months preceding the date with reference to which calculation is to be made" as provided under sub-clause (a)(ii) of Clause 2 of Section 25B of the Industrial Disputes Act, 1947 (in short ''the Act''). In the present case, since the workman has alleged that his services were terminated in the month of August, 1998, the requisite period of 240 days is required to be considered during the preceding 12 calendar months, which goes back to August, 1997. A perusal of mandays chart, Ex. R-B, would go to show that during the period August, 1997 to July, 1998 the petitioner had, in fact, worked for 262 days and thus completed the requisite service of 240 days.

As far as the second contention is concerned, that services of the workman were not retrenched by the employer and instead he himself had abandoned the job, suffice it to say that the onus to prove issue No. 1 was laid on the parties and once the petitioner was able to prove retrenchment, the onus shifted to the employer to prove abandonment. However, it failed to discharge the onus as no evidence was led to prove abandonment such as issuance of any notice to the workman.

In any case the petitioner was also entitled for relief on the principle of "last come first go" as RW-1, Engineer Changu Ram, has categorically admitted during cross-examination that Seema and Vijay Kumar, who were junior to the workman were still continuing in the employment of respondent No. 1-Department. Please see: State of H.P. and Others Vs. Chet Ram , wherein a Division Bench of this Court has held as under vide paras 4 to 7:

However, admittedly, though the workman, who had joined the employment of the employer in the year 1993, was disengaged, yet persons junior to him, namely, Het Ram son of Shri Dile Ram, who had joined in July, 2003, and Nihal Singh son of Shri Mangat Ram, engaged in January 1996, were retained and their services have since been regularized. Thus, manifestly the action on the part of the employer to retrench the workman and retain his juniors, as aforesaid, is in violation of the principle of "last come first go" as embodied in Section 25G of the ID Act and can not be sustained in law and the learned Industrial Tribunal-cum-Labour Court has rightly held so.

The difference between Section 25F read with Section 25B and Section 25G and 25H is that a workman has to be in continuous service for claiming the benefit u/s 25F read with Section 25B, whereas for the protection of Section 25G and 25H one need only be a workman covered by the Industrial Disputes Act. In fact, last come first go is the crux of the consideration u/s 25G and 25H of the ID Act, as held by the Apex Court in Harjinder Singh Vs. Punjab State Warehousing Corporation,

We may also make a passing observation that the said principle of last come first go has also exceptions. In case employer is in a position to establish on evidence that the retrenchment without respecting the principle of last come first go was required in good faith and on justifiable grounds, the Court/Tribunal shall not interfere with the action, thus taken by the employer. This principle also has been settled by the Apex Court in various decisions, Workmen of Sudder Workshop of Jorehaut Tea Co. Ltd. Vs. Management of Jorehaut Tea Co. Ltd., Om Oil and Oilseeds Exchange Ltd., Delhi Vs. Their Workmen, and Swadesamitran Limited, Madras Vs. Their Workmen,

However, in the instant case, there is no such case for the employer. Rather it has come out in evidence to the contrary that while the juniors are being retained, the senior has been kept out.

In view of the above, the petition is dismissed, being without any merit. In view of disposal of the writ petition, interim order dated 14.09.2010 shall stand vacated forthwith. Resultantly, consequences as per law would follow.