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2016 DIGILAW 1854 (HP)

Ajeet Kumar v. State of Himachal Pradesh

2016-09-01

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The petitioner by way of the present petition has laid challenge to the award dated 31.10.2011, passed by the learned Industrial Tribunal-cum-Labour Court, Dharamshala, H.P. whereby the reference petition was dismissed. 2. Brief facts giving rise to the present petition are that the petitioner was working as daily wage Road Inspector and Mason with the respondent/department w.e.f. 01.10.1994 to 31.10.1994. On and w.e.f. 01.11.1995 he was disengaged by oral orders. Pursuant to this oral disengagement, the petitioner maintained an Original Application before the H.P. State Administrative Tribunal. However, the same was dismissed for want of jurisdiction and the liberty was reserved to the petitioner to approach the competent Forum. Thereafter, before the learned Tribunal below the petitioner sought his re-engagement with all consequential benefits. 3. On the other hand, the respondent/department resisted the reference petition by raising preliminary objection qua maintainability and that the petitioner has suppressed the material facts. As per the respondent/department the petitioner left the job on his own and he did not complete 240 days w.e.f. 01.10.1994 to 31.10.1995. Pursuant to the interim order passed by the learned H.P. State Administrative Tribunal, the petitioner continued working till October, 1998 and thereafter again abandoned the job. The respondent/department, on merits, contended that w.e.f. 01.10.1994 to 31.10.1995 the petitioner worked with the respondent in different capacities, viz., Road Inspector, Mason and beldar. However, he never completed 240 days in a calendar year during the above period. On 01.11.1995, the petitioner himself left the job. However, pursuant to the interim orders of the learned H.P. State Administrative Tribunal he continued working till October, 1998. Thereafter, he did not turn up. On 23.11.1998, a communication directing him to rejoin the duty was sent which was followed by a reminder dated 21.11.1999, but the petitioner did not resume his duty. The respondent/department prayed for dismissal of the reference petition. 4. The learned Tribunal below framed the following issues for determination: “1. Whether the services of the petitioner were terminated by the respondent w.e.f. 18.10.1998? OPP 2. If the above issue 1 is proved, whether the termination of services of the petitioner by the respondent is unlawful. If so, what relief the petitioner is entitled to? OPP 3. Whether the claim petition is not maintainable? OPR 4. Whether the services of the petitioner were terminated by the respondent w.e.f. 18.10.1998? OPP 2. If the above issue 1 is proved, whether the termination of services of the petitioner by the respondent is unlawful. If so, what relief the petitioner is entitled to? OPP 3. Whether the claim petition is not maintainable? OPR 4. Relief.” After deciding issues No. 1 and 2 against the petitioner (claimant) and issue No. 3 against the respondent/department, the reference petition was dismissed. 5. Reply to the petition, laying challenge to the award passed by the learned Labour Court below, has been filed by the respondents, whereby they have mainly reiterated the stand taken before the learned Labour Court below. 6. I have heard the learned counsel for the parties and gone through the record in detail. 7. The case of the employer is that the workman himself has abandoned the job, but no muster roll were placed on record. As per the employer, the workman was served with a notice, but again no copy of muster roll issued to the workman was placed on record. Since the muster rolls issued in favour of the workman were not placed on record, it can be safely assumed that respondent/department has not issued any muster roll to the workman/petitioner. Had the muster rolls been issued, the same would have been placed on record. Therefore, the possible inference could have been drawn that the workman was not allowed to perform duties. The plea of abandonment, raised by the employer, is not proved as the employer has failed to prove the delivery of notice and issuance of muster rolls. Otherwise also, from the conduct of the employer it is clear that he was pursuing the case and wanted to work. Had he abandoned the job, he would not have approached the various authorities time and again for the job. 8. In CWP No. 7162 of 2011, titled Paras Ram vs. Himachal Pradesh State Electricity Board Limited & another, the Hon’ble High Court of Himachal Pradesh, in a similar set of circumstances allowed the petition of the workman/petitioner, relevant text whereof is reproduced as under: “9. Their Lordships of the Hon’ble Supreme Court in G.T. & others vs. Chemicals and Fibers India Ltd., AIR 1979 Supreme Court 582 have held as under: 6. Their Lordships of the Hon’ble Supreme Court in G.T. & others vs. Chemicals and Fibers 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. vs. Venkatiah (1964) 4 SCR 265 : (AIR 1964 SC 1271), 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.” 9. As noticed above, the Hon’ble Apex Court has ordered reinstatement of the workman as Beldar with seniority and continuity, but without back wages for the reason as discussed above. Keeping in view the above decisions, the petition is allowed, the award of the learned Tribunal below is set aside and it is ordered that the petitioner (workman) be re-engaged by the respondent/department with continuity in service, but he will not be entitled to any back wages or any monetary benefits for the period he has not performed the duties. No orders as to costs. 10. In view of the above, the petition stands disposed of, as also pending applications, if any.