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Himachal Pradesh High Court · body

2009 DIGILAW 1206 (HP)

State of H. P. v. Prem Lal

2009-12-03

R.B.MISRA, RAJIV SHARMA

body2009
JUDGMENT 1. Petitioners have assailed the order passed by the learned H.P. State Administrative Tribunal in OA No. 1407 of 1997 dated 3.8.2001. The material facts necessary for adjudication of this petition are that respondent hereinafter referred to as the "workman" for convenience sake was engaged as daily waged Beldar in the month of November, 1993. His services were terminated orally on 1.1.1995. He has assailed his retrenchment by filing OA No. 1402 of 1997 before the learned Tribunal. The learned Tribunal has allowed the Original Application on 3.8.2001. 2. Mr. Sharma, learned Senior Additional Advocate General has vehemently argued that the judgment of the Tribunal is contrary to law. He then argued that the learned Tribunal could not direct re-engagement of the petitioner. 3. Mr. K.B. Khajuria, learned counsel for the workman has supported the order of the learned Tribunal. 4. We have heard the learned counsel for the parties and gone through the pleadings carefully. 5. Petitioner was engaged in the month of November, 1993. It was admitted case of the parties before the learned Tribunal that Shri Yashwant Singh, who was junior to the petitioner was retained at the time when the petitioner was retrenched. It violated the principle of "first come last go". 6. Mr. Sharma then argued that Yashwant Singh was also retrenched. However, as a matter of fact, Yashwant Singh had also approached the learned Tribunal and he was re-engaged vide office order dated 11th March, 1997. There is no merit in the submission of Mr. Sharma that the petitioner has abandoned his job. The plea of abandonment has to be proved like any other fact. 7. Their Lordships of the Hon'ble Supreme Court in G.T. Lad and others vs. Chemicals and Fibres India Ltd., AIR 1979 SC 582 have held as under: "6. 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 Buckingham Co. 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 Buckingham Co. v. Venkatiah (1964) 4 SCR 265 : ( AIR 1964 SC 1272 ), it was observed by this Court that under common law an inference that an employee has abandoned or relinquished service is not easily drawn unless from the length of absence and from other surrounding circumstances an inference 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." 8. Mr. Sharma also argued that the petitioner had not completed 240 days preceding his retrenchment. It is settled law by now that for invoking Sections 25-G and 25-H of the Industrial Disputes Act, 1947 it is not necessary that the workman should complete 240 days. The Hon'ble Supreme Court in Jaipur Development Authority vs. Ram Sahai and another, 2006 (11) SCC 684 has held as under on this issue: “24. Mr. Jain appears to be right when he submits that continuous work in terms of Section 25-B of the Act is not necessary insofar as statutory requirements under Sections 25-G and 25-H are concerned. The said question appears to have been considered by this Court in some decisions. 25. In Central Bank of India v. S. Satyam (1996) 5 SCC 419 : 1996 SCC (L & S) 1273 this Court opined: (SCC p. 427, para 10) The next provision is Section 25-H, which is couched in wide language and is capable of application to all retrenched workmen, not merely those covered by Section 25-F. It does not require curtailment of the ordinary meaning of the word 'retrenchment' used therein. The provision for reemployment of retrenched workmen merely gives preference to a retrenched workman in the matter of re-employment over other persons. The provision for reemployment of retrenched workmen merely gives preference to a retrenched workman in the matter of re-employment over other persons. It is enacted for the benefit of the retrenched workmen and there is no reason to restrict its ordinary meaning which promotes the object of the enactment without causing any prejudice to a better placed retrenched workman. 26. Yet again in Samishta Dube v. City Board (1999) 3 SCC 14 : 1999 SCC (L & S) 592 this Court held: 7. We shall next deal with the point whether, in case employees junior to the appellant were retained, the directions issued by the Labour Court could be treated as valid. Section 6-P of the U.R Act (which corresponds 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 workmen in this behalf-the employer shall 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. Now this provision is not controlled by conditions as to length of service contained in Section 6-N (which corresponds to Section 25-F 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 v. Presiding Officer1986 Supp SCC 679 : 1987 SCC (L & S) 75 in a matter which arose under this very Section 6-P of the UP. 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 v. S. Satyam) 8. 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 6-P of the UP. Act read with Section 2(z) of the UP. Act which defines 'workman'. 9. 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'. There is no such restriction in Section 6-P of the UP. Act read with Section 2(z) of the UP. Act which defines 'workman'. 9. 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 loss of confidence, etc., as held in Swadesamitran Ltd. v. Workmen (1960) 3 SCR 144 : AIR 1960 SC 762 . But the burden will then be 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. " 27. Yet again, recently in Regional Manager, SBI v. Rakesh Kumar Tewari (2006) 1 SCC 530 : 2006 SCC (L & S) 143 this Court followed Central Bank of India 1 stating: 13. Section 25-G provides for the procedure for retrenchment of a workman. The respondents have correctly submitted that the provisions of Sections 25-G and 25-H of the Act do not require that the workman should have been in continuous employment within the meaning of Section 25-B before he could be said to have been retrenched." 9. Accordingly, in view of the observations made hereinabove, there is no merit in the writ petition and the same is dismissed.