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2011 DIGILAW 482 (HP)

Joginder Kumar v. State of Himachal Pradesh

2011-02-21

RAJIV SHARMA

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JUDGMENT Rajiv Sharma, .Judge According to the man-days chart, placed on record by the respondent State, the petitioner has worked for 238 days in a block of 12 calendar months. He has been terminated without issuing any show cause notice under Section 25-F of the Industrial Disputes Act, 1947. 2. Mr. P.M. Negi, learned Deputy Advocate General has vehemently argued that the petitioner himself has abandoned the job. 3. The abandonment of service is a question of intention and such intention cannot be attributed to an employee without adequate evidence in that behalf, as held by their Lordships of Hon'ble Supreme Court in G.T Lad and others v. Chemicals and Fibres India Ltd., AIR 1979 SC 583. Their Lordships have held as under (para 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. 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 hat 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 norn1ally, such an intention cannot be attributed to an employee without adequate evidence in that behalf. Thus whether there has been 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.” 4. It is apparent that the petitioner has not been permitted to complete 240 days to deprive him the benefit of mandatory provisions of the Industrial Disputes Act, 1947. The break in service of two days could be due to unfair labour practice, illness, shortage of funds etc. It is not believable that a workman in these days will ever abandon his job. The respondents have also not placed any tangible evidence on record (0 prove that the petitioner was ever served with a show cause notice to resume his duties. In these circumstances, the petitioner Will be deemed to have completed 240 days continuous service as per Section 25-Bof the Industrial Disputes Ac 1947. The respondents have also not placed any tangible evidence on record (0 prove that the petitioner was ever served with a show cause notice to resume his duties. In these circumstances, the petitioner Will be deemed to have completed 240 days continuous service as per Section 25-Bof the Industrial Disputes Ac 1947. He was entitled to the benefit of Section 25-F of the Industrial Disputes Act before hi retrenchment. 5. In normal Circumstances, the petitioner ought to have been relegated to get redressed his grievance by machinery provided under the Industrial Disputes Act, 1947. However, in this case since the O.A. was filed in the year 2003, at this stage, It will not be proper to relegate the petitioner to a lengthy procedure provided under the Industrial Disputes Act, 1947. 6. Accordingly, in view of the observations and discussion made hereinabove, the petition is allowed. Retrenchment of the petitioner effected on 6th February, 2003 is declared void ab initio. He will be deemed to be in continuous service except back wages. The pending application(s), if any, also stands disposed of. No costs.