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2009 DIGILAW 1299 (HP)

H. P. STATE ELECTRICITY BOARD v. DEV RAJ

2009-12-17

R.B.MISRA, RAJIV SHARMA

body2009
JUDGMENT 1. The present petition is being disposed of at the admission stage. 2. Petitioner has assailed the Award made by the learned Industrial Tribunal-cum-Labour Court, Shimla in Reference No. 326 of 2003 dated 15.12.2008. 3. Material facts necessary for the adjudication of this petition are that respondent No.1 (hereinafter referred to as the ‘workman’) for convenience sake has raised an industrial dispute. 4. The State Government made Reference to the Labour Court. In sequel thereto, the workman filed a separate Claim Petition asserting therein that he was engaged as a Beldar on daily wages by the petitioner-Board w.e.f. 26.12.1989. He had completed 240 days in a calendar year. He was retrenched from service orally w.e.f. 27.11.1996 without complying with the mandatory provisions of the Industrial Disputes Act, 1947 (hereinafter referred to as the ‘Act’) for convenience sake. The petitioner-Board has filed a reply to the same. The workman has examined two PWs in all. PW-1 is the workman himself. He has deposed that he was engaged as Beldar by the petitioner-Board w.e.f. 26.12.1989. He worked uninterruptedly upto 26.11.1996. He had completed 240 days during each calendar year. He filed a demand notice which is Ex.PW-1/A. According to him, Bahadur Singh, Diwan Chand, Baldev Ram and Madan Lal were still working with the petitioner-Board though they were junior to him and their services have been regularized by the Board. PW-2 Shri Balwan Singh has supported the workman’s version. RW1 is the Executive Engineer of the petitioner-Board. He has deposed that the workman has abandoned his job. He has placed on record mandays chart of the workman as Ex.RA. 5. The learned Labour Court has recorded a finding that though the workman has not completed 240 days before his retrenchment, however, the persons junior to him were retained. 6. Mr. J.S. Rana, RW-1 has admitted in his cross-examination that S/Shri Bahader Singh, Diwan Chand, Baldev Ram and Madan Lal are juniors to the workman and they were working with the petitioner-Board. 7. The finding of fact that there is violation of Sections 25-G and H of the Industrial Disputes Act, 1947 has not been controverted in any manner by the petitioner-Board before us. Consequently, there is no occasion for us to take a different view from the view expressed by the Tribunal. 8. 7. The finding of fact that there is violation of Sections 25-G and H of the Industrial Disputes Act, 1947 has not been controverted in any manner by the petitioner-Board before us. Consequently, there is no occasion for us to take a different view from the view expressed by the Tribunal. 8. It is settled law bynow that for invoking the provisions of Sections 25-G and 25-H of the Act, it is not necessary for the workman to complete 240 days in a calendar year. This question is no more res integra in view of the law laid down by their Lordships of the Hon’ble Supreme Court in Central Bank of India vs. S. Satyam and others, (1996) 5 SCC 419. Their Lordships have held as under: “9. The plain language of Section 25-H speaks only of re-employment of “retrenched workmen”. The ordinary meaning of expression “retrenched workmen” must relate to the wide meaning of ‘retrenchment’ given in Section 2 (oo). Section 25-F also uses the word ‘retrenchment’ but qualifies it by use of the further words “workman… who has been in continuance service for not less than one year”. Thus, Section 25-F does not restrict the meaning of retrenchment but qualifies the category of retrenched workmen covered therein by use of the further words “workman who has been in continuance service for not less than one year”. It is clear that Section 25-F applies to the retrenchment of the workman who has -4been in continuance service for not less than one year and not to any workman who has been in continuance service for less than one year; and it does not restrict or curtail the meaning of retrenchment merely because the provision therein is made only for the retrenchment of a workman who has been in continuance service for not less than one year. Chapter V-A deals with all retrenchments while Section 25-F is confined only to the mode of retrenchment of workman in continuance service for not less than one year. Section 25-G prescribes the principles for retrenchment and applies ordinarily the principle of “last come first go” which is not confined only to workmen who have been in continuance service for not less than one year, covered by Section 25-F.” 9. The plea of Mr. Thakur, learned counsel for the petitioner that workman has abandoned his job cannot be accepted. Section 25-G prescribes the principles for retrenchment and applies ordinarily the principle of “last come first go” which is not confined only to workmen who have been in continuance service for not less than one year, covered by Section 25-F.” 9. The plea of Mr. Thakur, learned counsel for the petitioner that workman has abandoned his job cannot be accepted. The plea has to be proved like any fact. (See: G.T. Lad and others vs. Chemicals and Fibres India Ltd., AIR 1979 SC 582). 10. Consequently, the findings recorded by the learned Labour Court are upheld. There is correct appreciation of oral and documentary evidence. The scope to interfere in the matter is also very limited. 11. Accordingly, there is no merit in the writ petition and the same is dismissed.