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Himachal Pradesh High Court · body

2014 DIGILAW 495 (HP)

Devi Singh v. Executive Engineer, H. P. P. W. D.

2014-04-29

RAJIV SHARMA

body2014
Judgment : Justice Rajiv Sharma, Judge. Petitioner (hereinafter referred to as the “workman” for convenience sake) has challenged the award dated 3.1.2006 rendered by the Presiding Judge, Industrial Tribunal-cum-Labour Court, Dharamshala in Reference No. 313/2001. 2. Pertinent facts necessary for the adjudication of this petition are that the workman was engaged by the respondent (hereinafter referred to as the “employer” for convenience sake) in the month of January, 1995 as Beldar on daily wage basis. He was retrenched in the month of December, 1999. He raised industrial dispute and on the basis of failure report, State Government made the following reference to the Industrial Tribunal-cum-Labour Court: “Whether the action of the Executive Engineer, H.P.P.W.D. Division Saluni, District Chamba to give intermittent breaks during daily wage period to Sh. Devi Singh son of Sh. Muhnu Ram workman without giving any notice is legal and justified? If not, to what seniority, service benefit and relief the concerned workman is entitled to.” 3. Workman filed the claim petition. Employer filed reply to the same. Workman also filed re joinder to the reply filed by the employer. He has specifically stated in para 5 of the rejoinder that persons, namely, Suresh Kumar son of Baldev, Iqbal son of Gulam Rasul and Dharamender son of Chamaru were retained when he was retrenched. Learned Industrial Tribunal-cum-Labour Court dismissed the claim petition on 3.1.2006 and the reference was answered accordingly. Hence, the present petition. 4. I have heard the learned counsel for the parties and have perused the record carefully. 5. The workman was engaged in the year 1995. He has completed 301 days in the year 1995, 211½ days in the year 1996, 238 days in the year 1997, 235 days in the year 1998, 140 days in the year 1999 and 132 days in the year 2000. It is evident that systematic efforts have been made by the employer to give fictional breaks to the workman by not allowing him to complete 240 days. 6. The workman has appeared as PW-1. According to him, he was engaged in the year 1995. His services were retrenched without any notice and payment of compensation. He was given artificial breaks. His services were terminated by the employer illegally and persons, namely, Bhavna Kumari, Suresh, Bhanu, Iqbal, Dharminder etc., who were junior to him, were retained. 7. Sh. 6. The workman has appeared as PW-1. According to him, he was engaged in the year 1995. His services were retrenched without any notice and payment of compensation. He was given artificial breaks. His services were terminated by the employer illegally and persons, namely, Bhavna Kumari, Suresh, Bhanu, Iqbal, Dharminder etc., who were junior to him, were retained. 7. Sh. P.C. Matlotia, Assistant Engineer has appeared on behalf of employer as RW-1. According to him, the workman has completed 301 days in the year 1995 and thereafter he has never completed 240 days. According to him, the workman has abandoned his job and he was never retrenched by the employer. In his cross-examination, RW-1 P.C. Matlotia, Assistant Engineer, has admitted that at the time of retrenchment, his explanation was never called for. No notice of retrenchment was given to the workman. No compensation was paid to him. No charge-sheet was issued to him. No inquiry was held against the workman. No opportunity of hearing was given to the workman. He has also categorically admitted in his cross-examination that the persons, namely, Dharminder and Suresh were employed. He has also given their date of engagement. They were engaged in the months of October, 1995 and August, 1997, respectively. 8. Learned Industrial Tribunal-cum-Labour Court has not discussed the evidence of PW-1 and RW-1 Sh. P.C. Matlotia in its right perspective. The workman has specifically given in his rejoinder the names of junior persons who were retained, to which no sur-rejoinder was filed by the employer. He has specifically stated that persons junior to him, namely, Suresh Kumar son of Baldev, Iqbal son of Gulam Rasul and Dharamender son of Chamaru were still working with the employer. RW-1 P.C. Matlotia has categorically admitted, as discussed hereinabove, that these persons are still working with the employer. In order to bring the case within the ambit of section 25-G of the Industrial Disputes Act, 1947, the workman need not to prove continuous service of 240 days in a block of 12 calendar months. 9. The Apex Court in Harjinder Singh Vs. Punjab State Warehousing Corporation (2010) 3 Supreme Court Cases 192 has held that the workman need not prove continuous service for availing benefit under Section 25-G of the Industrial Disputes Act, 1947. 9. The Apex Court in Harjinder Singh Vs. Punjab State Warehousing Corporation (2010) 3 Supreme Court Cases 192 has held that the workman need not prove continuous service for availing benefit under Section 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: “16. 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.” 10. The employer has violated the principles of “last come first go”. It has come on record that the workman was neither given any notice nor any compensation was paid to him. In case the workman had abandoned the job, notice was required to be issued to him to rejoin his services. No notice has been placed on record by the employer. It has come on record that the workman was neither given any notice nor any compensation was paid to him. In case the workman had abandoned the job, notice was required to be issued to him to rejoin his services. No notice has been placed on record by the employer. The plea of abandonment has to be proved like any other fact. 11. Their Lordships of the Hon’ble Supreme Court in G.T. Lad and others Vs. Chemicals and Fibres India Ltd., AIR 1979 Supreme Court 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. V. Venkatiah (1964) 4 SCR 265 : ( AIR 1964 SC 1272 ), 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. 12. Accordingly, in view of the discussion and analysis made herein above, the retrenchment was in violation of section 25-G of the Industrial Disputes Act, 1947 since persons, namely, Bhavna Kumari, Suresh, Bhanu, Iqbal, Dharminder etc., though junior to the workman, were retained at the time of retrenchment of the workman. 13. Consequently, the retrenchment of the workman was void ab initio. He would be deemed to be in continuous service and permitted to join his duties forthwith. He is entitled to all the consequential benefits, including seniority, continuity in service and back wages etc. 14. Accordingly, the petition is allowed. Award dated 3.1.2006 is set aside. The employer is ordered to reengage the workman forthwith. He shall be entitled to all the consequential benefits, including seniority, continuity in service and back wages etc. He is entitled to all the consequential benefits, including seniority, continuity in service and back wages etc. 14. Accordingly, the petition is allowed. Award dated 3.1.2006 is set aside. The employer is ordered to reengage the workman forthwith. He shall be entitled to all the consequential benefits, including seniority, continuity in service and back wages etc. and the same be released to him within a period of four weeks. Pending application(s), if any, also stands disposed of. No costs.