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Uttarakhand High Court · body

2017 DIGILAW 149 (UTT)

State of U. P. v. Sukh Ram

2017-03-06

RAJIV SHARMA

body2017
JUDGMENT : Rajiv Sharma, J. A challenge has been laid to the Award dated 21.04.2011 passed by the Presiding Officer, Labour Court, Haridwar, in Adjudication Case No.211 of 2009 (Old Adjudication No.35 of 2002). 2. “Key facts” necessary for adjudication of this petition are that the respondent no.1-workman was engaged as a daily wager on 01.02.1987. He was retrenched on 21.12.1992. The workman-respondent no.1 raised the industrial dispute. The matter was referred to the Labour Court. The workman filed the claim petition stating therein that he had worked for more than 240 days and he was retrenched without following the provisions of Section 6(N) of the U.P. Industrial Disputes Act, 1947. He was neither issued any notice nor paid any compensation in lieu of the notice. Learned Labour Court answer the reference in favour of the workman-respondent no.1. The retrenchment of the workman was declared illegal. He was ordered to be treated in service but without back wages. Hence, the present petition. 3. The case of the workman-respondent no.1 precisely is that he had worked for 240 days and his retrenchment was illegal. He appeared before the learned Labour Court as WWI. He had duly proved that he had worked for 185 days in the year 1990 and after adding the Sundays and other paid holidays, he had worked for more than 240 days. 4. The statement made by the workman remained uncontroverted. The workman since had completed more than 240 days’ in a calendar year, hence, he was required to be issued notice and paid compensation, under the provisions of Section 6(N) of the U.P. Industrial Disputes Act, 1947. 5. Ms. Beena Pandey, learned Standing Counsel appearing on behalf of State of U.P./petitioners has also argued that the irrigation department is not an “industry”. 6. Their Lordships of the Supreme Court in (2013) 16 SCC 16 in the case of “State of Maharashtra and another Vs. Sarva Shramik Sangh, Sangli and others”, have relied upon “Bangalore Water Supply” case and have held that the activities of the Irrigation Department fall within the ambit of “industry”. Their Lordships have held as under:- “26. To begin with, we must note that the workmen concerned were engaged as pump operators and chowkidars, etc. on 25 lift irrigation schemes, which were carrying out the process of pumping water. Their Lordships have held as under:- “26. To begin with, we must note that the workmen concerned were engaged as pump operators and chowkidars, etc. on 25 lift irrigation schemes, which were carrying out the process of pumping water. The process of pumping water is specifically covered under the definition of “manufacturing process” under Section 2 (k)(ii) of the Factories Act, 1948. Thus, the workmen concerned were engaged in a “manufacturing process”. Once that is established, it follows that the activity of the undertaking in which they were working, constituted a “factory” within the meaning of Section 2 (m) of the said Act. Explanation (i) to Section 25-A of the ID Act, 1947, covers “factories” within the definition of an “industrial establishment”, and therefore Chapter V-A of the ID Act, 1947 applies to “manufacturing process” of pumping water. Hence, it cannot be denied that the undertaking in which the workmen concerned were employed was covered under the provisions of the ID Act. 27. It is, however, contended on behalf of the appellant that the said undertaking was being run by the Irrigation Department of the first appellant, and the activities of the Irrigation Department could not be considered to be an “industry” within the definition of the concept under Section 2(j) of the ID Act. As noted earlier, the reconsideration of the wide interpretation of the concept of “industry” in Bangalore Water Supply and Sewerage Board is pending before a larger Bench of this Court. However, as of now we will have to follow the interpretation of law presently holding the field as per the approach taken by this Court in State of Orrisa v. Dandasi Sahu, referred to above. The determination of the present pending industrial dispute cannot be kept undecided until the judgment of the larger Bench is received.” 7. Another plea raised by the employer-petitioners is that the workman has abandoned the job. There is no material available on record that the workman was ever issued any notice to rejoin his duties, in case, he has abandoned the job. The plea of abandonment is required to be proved like any other fact. 8. Their Lordships of the Hon’ble Supreme Court in AIR 1979 SC (582) in the case of “G.T. Lad & others vs. Chemicals and Fibres India Ltd.” have held as under:- “6. The plea of abandonment is required to be proved like any other fact. 8. Their Lordships of the Hon’ble Supreme Court in AIR 1979 SC (582) in the case of “G.T. Lad & others vs. Chemicals and Fibres India Ltd.” 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 and Ors. : (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. Re.-Question No. 2: This takes us to the consideration of the second question, namely, whether in the circumstances of the instant case, it could be said that the appellants had voluntarily abandoned the service of the Company. It may be recalled that the appellants had along with 229 other workmen gone on indefinite and peaceful strike which ended on October 22, 1972) in response to the strike notice given by the union to the Company to press its demand for re-instatement of its three dismissed leaders and had not only by their letters dated September 21, 1972 and September 26, 1972 unequivocally intimated to the Company that they did not intend to abandon the service but had also returned the cheques sent to them by the Company on account of their leave salary gratuity etc. The appellants stand that the letter of the Company dated September 7, 1972 was received by them on September 20, 1972 and not earlier was never denied or refuted by the Company in the correspondence that passed between the parties. The appellants stand that the letter of the Company dated September 7, 1972 was received by them on September 20, 1972 and not earlier was never denied or refuted by the Company in the correspondence that passed between the parties. Thus, there was nothing in the surrounding circumstances or the conduct of the appellants indicating or suggesting an intention on their part to abandon service which in view of the ratio of Gopal Chandra Misra's case (1978) 2 SCC 301 : ( AIR 1978 SC 548 ), can be legitimately said to mean to detach, unfasten, undo or untie the binding knot or link which holds one to the office and the obligations and privileges that go with it. Their absence from duty was purely temporary and could by no stretch of imagination be construed as voluntary abandonment by them of the Company's service. In Express Newspaper (P) Limited v. Michael Mark (1963) 3 SCR 405 : ( AIR 1963 SC 1141 ) which is on all fours with the present case, it was held that if the employees absent themselves from the work because of strike in enforcement of their demands, there can be no question of abandonment of employment by them. In the present case also the appellant's absence from duty was because of their peaceful strike to enforce their demand. Accordingly, we are of the view that there was no abandonment of service on the part of the appellants. Re.-Question No. 3: Let us now advert to the last but the most crucial question, namely, whether the action of the Company in removing the names of the appellants from its rolls during the pendency of the proceedings before the Labour Court in respect of the industrial dispute on the presumption that they had abandoned Company's service constituted an alteration in the conditions of service applicable to them immediately before the commencement of the said proceedings which prejudiciously affected them. Although the learned Counsel appearing on behalf of the respondent has taken us through the certified standing orders as applicable to the appellants, he has not been able to point out anything therein to indicate that the company could terminate the services of the appellants on the ground of abandonment of service because of their going on strike in enforcement of their demands. Thus, their being no provision in the certified standing orders by virtue of which the Company would have terminated the services of the appellants in the aforesaid circumstances, the impugned action on the part of the Company clearly amounted to a change in the condition of service of the appellants during the admitted pendency of the industrial dispute before the Labour Court which adversely affected them and could not be countenanced. We are fortified in this view by the aforesaid decision of this Court in Express Newspapers (P) Limited v. Michael Mark and Anr. (Supra) where repelling an identical contention to the effect that the failure of the workmen to return to work by a notified date clearly implied abandonment of their employment, it was held that the management cannot by imposing a new term of employment unilaterally convert the absence of work into abandonment of employment. It was further held in that decision that if the strike was in fact illegal, the management could take disciplinary action against the employees under the standing orders and dismiss them. If that were done, the strikers would not have been entitled to any compensation under standing orders but that was not what the appellants purported to do and the respondents were, therefore, entitled to relief.” 9. Learned Standing Counsel for the State of Uttar Pradesh/petitioners has vehemently argued that there is a delay in raising the industrial dispute. However, the fact of the matter is that the employer has not challenged the reference made by the State Government. Moreover, the question of delay can be seen at the time of moulding the relief. 10. Accordingly, there is no illegality or perversity in the Award dated 21.04.2011. Accordingly, there is no merit in this petition and the same is hereby dismissed.