IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C.W.P. No. 308 of 2009 alongwith C.W.Ps. No. 309, 974, 1653, 1654, 1655, 1674, 3602, 3843, 3844 and 4428 of 2009. Decided on : 18.06.2010. _________________________________________________________ 1. Himachal Pradesh State Electricity Board and others. …Petitioner. -Versus- Ghanshyam and others. …Respondents. 2. Himachal Pradesh State Electricity Board and another. …Petitioner. -Versus- Molak Ram and another. …Respondents. 3. Himachal Pradesh State Electricity Board and another. …Petitioner. -Versus- Surinder Singh and another. …Respondents. 4. Himachal Pradesh State Electricity Board and another. …Petitioner. -Versus- Munish Kumar and another. …Respondents. 5. Himachal Pradesh State Electricity Board and another. …Petitioner. -Versus- Shyam Singh and another. …Respondents. 6. Himachal Pradesh State Electricity Board and another. …Petitioner. -Versus- Sohan Lal and another. …Respondents. 7. Himachal Pradesh State Electricity Board and another. …Petitioner. -Versus- Shiv Singh and another. …Respondents. 8. Himachal Pradesh State Electricity Board and another. …Petitioner. -Versus- Mansa Ram. …Respondent. 9. Himachal Pradesh State Electricity Board and another. …Petitioner. -Versus- Bhagat Ram and others. …Respondents. 10. Himachal Pradesh State Electricity Board and another. …Petitioner. -Versus- Inder Singh and another. …Respondents. 11. Himachal Pradesh State Electricity Board and another. …Petitioner. -Versus- Narinder Kumar and another. …Respondents. Coram: The Hon’ble Mr. Justice Kurian Joseph, Chief Justice. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1Yes. For the petitioner(s)- Electricity Board. : Mr. Vinod Thakur, Advocate (in all the petitions) For private respondents : M/s. Rohit Sharma, Anuj Gupta, Neel Kamal Sood, V.B. Verma, C.S. Thakur, Surinder Saklani, M.S. Kanwar, Vishal Panwar, Rahul Mahajan & P.P. Chauhan, Advocates (in all the petitions). Rajiv Sharma, Judge(Oral): Since common questions of law and facts are involved in these petitions, the same were taken up together and are being disposed of by this common judgment. 1 Whether the reporters of the local papers may be allowed to see the judgment? 2. The employer, i.e., Himachal Pradesh State Electricity Board has assailed the awards passed by the learned Industrial Tribunal-Cum-Labour Court, Shimla and Dharamshala, dated 3.11.2008, 27.10.2008, 26.11.2008, 27.12.2008, 27.12.2008, 28.2.2009, 20.1.2009, 20.07.2009, 3.8.2009, 17.8.2009 and 31.08.2009. 3. The respondents (hereinafter referred to as “the workmen” for convenience sake) were engaged by the employer on daily wage basis. They were retrenched. Thereafter, they raised demand notice. The State of Himachal Pradesh after the failure of conciliation proceedings, made references to the Industrial Tribunal-Cum-Labour Court, Shimla and Dharamshala. 4. The case of the workmen, in a nut-shell, before the Industrial Tribunal-Cum-Labour Court, Shimla & Dharamshala, was that they had completed 240 days in a block of 12 calendar months preceding their retrenchment. They have also pleaded before the Labour Court that the persons junior to them have been retained, which violates Section 25-G of the Industrial Disputes Act, 1947 (hereinafter referred to as “the Act” for brevity sake). The workmen had also pleaded that persons junior to them were re-engaged and the cases of the workmen were not considered, which violates Section 25-H of the Act. 5. The case of the Management precisely before the learned Labour Court was that the workmen had not completed 240 days preceding their retrenchment and the persons junior them, had neither been retained nor fresh hands were engaged. The workmen filed claim petitions before the learned Labour Court. The Management also filed replies thereto. The learned Labour Court, on the basis of the evidence adduced by the workmen and the Management, came to a definitive conclusion that the workmen had not completed 240 days in a block of 12 calendar months preceding their retrenchment. However, after appreciation of oral and documentary evidence, the learned Labour Court come to the conclusion that the persons junior to the workmen had been retained. The learned Labour Court had also concluded that after the retrenchment of the workmen, fresh hands were engaged. Consequently, the learned Labour Court held that there was violation of Sections 25-G & H of the Act. The learned Labour Court directed the reinstatement of the workmen alongwith seniority and continuity in service, however, denied the back wages. 6. Mr. Vinod Thakur, learned counsel for the petitioners-Electricity Board has strenuously argued that since the workmen had not completed 240 days in a block of 12 calendar months, they could not be held entitled to the benefit of Section 25-G & H of the Industrial Disputes Act, 1947. He has also argued that the petitioners have abandoned their jobs. 7. The issue raised by Mr. Vinod Thakur, learned counsel for the petitioners-Electricity Board is no more res integra in view of the law laid down by the Supreme Court in following judgments. 8. Their lordships of the Hon’ble Supreme Court in Central Bank of India versus S. Satyam and others (1996) 5 Supreme Court Cases 419 have held that it is not necessary for a workman to complete 240 days to get the benefit of Section 25- G &H of the Industrial Disputes Act, 1947. Their Lordships have held as under: “6. On the rival contentions, the real question for decision is : whether the provisions for re-employment of retrenched workmen made in Section 25-H should be confined only to the category of retrenched workmen covered by Section 25-F by restricting the meaning of 'retrenchment' in Section 2 (oo) for this purpose ? Chapter V-A containing Sections 25-A to 25-J was inserted by Act No. 43 of 1953 with effect from 24-10-1953. This Chapter relates to 'Lay off and Retrenchment'. Section 25-F prescribes the conditions precedent to retrenchment of workmen. It applies only to the retrenchment of a workman employed in any industry who has been in continuous service for not less than one year and not to any workman who has been in continuous service for less than one year. Section 25-B defines continuous service for the purposes of this chapter and it says, inter alia, that a workman shall be deemed to be in continuous service under an employer for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than 240 days. In other words, the expression 'continuous service for not less than one year' in Section 25-F has to be so construed by virtue of Section 25-B. The benefit of applicability of Section 25-F can therefore, be claimed by a workman only if he has been in continuous service for not less than one year as defined in Section 25-B. Any other retrenched workman who does not satisfy this requirement of continuous service for not less than one year cannot avail the benefit of Section 25-F which prescribes the conditions precedent to retrenchment of workman of this category. Section 25-G prescribes the procedure for retrenchment of ordinarily applies the principle of last come first go'. 7. Section 25-H then provides for re-employment of retrenched. It says that then the employer proposes to take into his employ any persons, he shall, in such manner as may be prescribed, give an opportunity to the retrenched workmen who are citizen of India to offer themselves' for re- employment, and such retrenched workmen who offer themselves for re-employment shall have preference over other persons. Rules 77 and 78 of the Industrial Disputes (Central) Rules, 1957 prescribe the mode of re-employment. Rule 77 requires maintenance of seniority list of all workmen in a particular category from which retrenchment is contemplated arranged according to seniority of their service in that category and publication of that list. Rule 78 prescribes the mode of re-employment of retrenched workmen. The requirement in Rule 78 is of notice in the manner prescribed to every one of all the retrenched workmen eligible to be considered for re-employment. Shri Pai contends that Rules 77 and 78 are unworkable unless the application of Section 25-H is confined to the category of retrenched workmen to whom Section 25-F applies. We are unable to accept this contention. 8. Rule 77 requires the employer to maintain a seniority list of workmen in that particular category from which retrenchment is contemplated arranged according to the seniority of their service. The category of workmen to whom Section 25-F applies is distinct from those to whom it is inapplicable. There is no practical difficulty in maintenance of seniority list of workmen with reference to the particular category to which they belong. Rule 77, therefore, does not present any difficulty, Rule 78 speaks of retrenched workmen eligible to be considered for filling the vacancies and here also the distinction based on the category of workmen can be maintained because those falling in the category of Section 25-F are entitled to be placed higher than those who do not fall in that category. It is no doubt true that persons who have been retrenched after a longer period of service which places them higher in the seniority list are entitled to be considered for re- employment earlier than those placed lower because of a lesser period of service. In this manner a workman falling in the lower category because of not being covered by Section 25-F can claim consideration for re-employment only if an eligible workman above him in the seniority list is not available. Application of section 25-H to the other retrenched workmen not covered by Section 25-F does not, in any manner, prejudice those covered by Section 25-F because the question of consideration of any retrenched workman not covered by Section 25-F would arise only, if and when, no retrenched workman covered by Section 25-F is available for re- employment. There is, thus, no reason to curtail the ordinary meaning of 'retrenched workmen' in Section 25-H because of Rules 77 and 78, even assuming the rules framed under the Act could have that effect. 9. The plain language of Section 25-H speaks only of re-employment of 'retrenched workmen'. The ordinary meaning of the expression 'retrenched workmen' must relate to the wide meaning of 'retrenchment' given in Section 2 (oo). Section 28-F also uses the word 'retrenchment' but qualifies it by use of the further words 'workman........ who has been in continuous 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 continuous service for not less than one year'. It is clear that Section 25-F applies to the retrenchment of a workman who has been in continuous service for not less than one year and not to any workman who has been in continuous 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 continuous service for not less than one year. Chapter V-A deals with all retrenchment while Section 25-F is confined only to the mode of retrenchment of workmen in continuous service for not less than one year. Section 25-G prescribes the principle for retrenchment and applies ordinarily the principle of 'last come first go' which is not confined only to workmen who have been in continuous service for not less than one year, of ordered by Section 25-F. 10. The next provision is Section 25-H which is couched in wide language and is capable of application to all retrenched workmen, not merely those covered by Section 25-F. It does not require curtailment of the ordinary meaning of the word 'retrenchment' used therein. The provision for re- employment of retrenchment workmen merely gives preference to a retrenched workman in the matter of re-employment over other persons. It is enacted for the benefit of the retrenched workmen and there is no reason to restrict its ordinarily meaning which promotes the object of the enactment without causing any prejudice to a better placed retrenched workman. 11. Chapter V-A providing for retrenchment is not enacted only for the benefit of the workmen to whom Section 25-F applies but for all cases of retrenchment and, therefore, there is no reason to restrict application of Section 25-H therein only to one category of retrenched workmen. We are, therefore, unable to accept the contention of Shri Pai that a restricted meaning should be given to the word 'retrenchment' in Section 25-H. This contention is, therefore, rejected.” 9. In Samishta Dube versus City Board, Etawah and another, (1999) 3 Supreme Court Cases 14, their lordships of Hon’ble Supreme Court have held that the procedure under Section 6-P of U.P. Industrial Disputes Act, 1947 is not subject to any particular period of service. Their Lordships have held as under: “7. We shall next deal with the point whether, in case employees junior to the appellant were retained, the directions issued by the Labour Court could be treated as valid. Section 6-P of the U.P. Act (which corresponds to Section 25-G of the Central Act of 1947) states that where any workman in an industrial establishment is to be retrenched and he belongs to a particular category of workmen in the establishment, - in the absence of any agreement between the employer and the workmen in this behalf - the employer shall ordinarily retrench the workmen who was the last person to be employed in that category, unless for reasons to be recorded, the employer retrenches any other person. Now this provision is not controlled by conditions as to length of service contained in Section 6(N) (which corresponds to Section 25-F of the Industrial Disputes Act, 1947). Section 6-P does not require any particular period of continuous service as required by Section 6-N. In Kamlesh Singh v. Presiding Officer, 1986 Suppl. SCC 679 in a matter which arose under this very Section 6-P of the U.P. Act, it was so held. Hence the High Court was wrong in relying on the fact that the appellant had put in only three and a half months of service and in denying relief. (See also in this connection Central Bank of India v. S. Satyam, (1996) 5 SCC 419 : (1996 AIR SCW 3138).” 10. Their lordships of the Hon’ble Supreme in Regional Manager, SBI versus Rakesh Kumar Tewari (2006) 1 Supreme Court Cases 530 have again reiterated that there is no need for a workman to have been in continuous employment within meaning of Section 25-B, for applicability of Sections 25-G and 25-H of the Act. 13. Section 25G provides for the procedure for retrenchment of a workman. The respondents have correctly submitted that the provisions of Sections 25G and 25H of the Act do not require that the workman should have been in continuous employment within the meaning of Section 25B before he could said to have been retrenched. The decision in Central Bank of India v. S. Satyam (1996) 5 SCC 419 is clear authority on the issue. We see no reason to take a contrary view. 11. Similarly, in Jaipur Development Authority versus Ramsahai and another (2006) 11 Supreme Court Cases 684, their lordships of the Hon’ble Supreme Court have held that continuous work in terms of Section 25-B of the Act is not necessary insofar as statutory requirements under Sections 25- G and 25-H are concerned. Their Lordships have held as under: “24. Mr Jain appears to be right when he submits that continuous work in terms of Section 25-B of the Act is not necessary insofar as statutory requirements under Sections 25-G and 25-H are concerned. The said question appears to have been considered by this Court in some decisions.” 12. Now, we will advert to the submission made by Mr. Vinod Thakur, learned counsel for the petitioners-Board that the workmen had abandoned their jobs. The Board had not placed any tangible evidence on record to suggest, even remotely that the workmen had abandoned their jobs. Whether there is voluntary abandonment of service or not, is a question of fact and is required to be proved by leading cogent evidence. 13. Their Lordships of the Hon’ble Supreme Court in G.T. Lad and others versus 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 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 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.” 14. There is thus neither any jurisdictional error nor procedural irregularity in the awards passed by the learned Industrial Tribunal-Cum-Labour Court. The writ petitions are hence dismissed, so also the pending application(s), if any. No costs. (Justice Kurian Joseph), Chief Justice. (Justice Rajiv Sharma), Judge. June 18, 2010. (bhupender)