IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 2592 of 2009. Date of Decision : February 18, 2009. Pyare Lal. .... Petitioner. Versus. The Presiding Officer, Labour Court-cum- Industrial Tribunal, Panipat, and another. ...Respondents. CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present:- Ms. Abha Rathore, Advocate, for the petitioner. AUGUSTINE GEORGE MASIH, J. (ORAL). In the present writ petition, the challenge is to the award dated 03.09.2008 (Annexure-P-5), vide which the reference has been answered against the workman holding therein that the workman has abandoned the job and it is not a case of termination. Counsel for the petitioner contends that it is an admitted fact that the workman was appointed on 16.12.1997 and he worked continuously till 07.08.1999. Thereafter, it is the stand of the management that the workman has absented himself from duty and has not turned up again on the work. She contends that only a letter, copy whereof has been produced by the management as Ex. M.W.1/3 regarding his absence from duty has been held against the workman while holding that the workman has abandoned the job. She further contends that the said document could not be taken into consideration at all as it has not been proved in accordance with law on the ground that neither the said document has been put to workman in his cross- examination, nor the original documents has been produced before the C.W.P. No. 2592 of 2009. Labour Court, nor the author of the letter or the recipient thereof has been produced to show that actually the letter was sent to the workman. She further contends that the management was required to produce attendance register, if they were to prove that the workman has actually absented himself from duty after 07.08.1999. She relies upon the Judgment of a Division Bench of this Court wherein it has been held that if there is absence from duty and there is termination of the services on such ground, it would amount to mis-conduct and therefore, would be covered by the definition of retrenchment and the workman would be protected under Section 25-F of the Industrial Disputes Act which admittedly in the present case has not been complied with. She further relies upon the Judgment of Hon'ble the Supreme Court in the case of D.K. Yadav Versus J.M.A. Industries Limited, 1993(2) L.L.J. 696, to contend that if there is absence from duty, a fair inquiry is to be held as it is a mis-conduct which the management under the Industrial Disputes Act is required to conduct and further contention that provisions of Section 25-G of the Industrial Disputes Act have not been complied with, therefore, the workman is entitled to reinstatement with continuity of service. I have gone through the records of the case and have also perused the award passed by the Labour Court. The factum regarding the working period of workman which has been admitted by the management is clear. A perusal of the records would further show that Shri Sanjay Kumar, who appeared as M.W.1 has submitted an affidavit M.W.1/1 where the said period has been accepted. The said affidavit further goes to show that the workman did not turn up for his duty after 07.08.1999. No mala fides can be alleged against the management as the management has been very fair in -2- C.W.P. No. 2592 of 2009. accepting the period of work which he had performed with them. No proof has been submitted by the workman to the effect that after 07.08.1999, the workman has come present on duty and the management has not taken him on the job. The onus to prove this much was upon the workman if he alleges that his services have been terminated. On the other hand, a document which is a letter Ex. M.W.1/3 which has been sent to the workman to come present on the job. It has also been stated in the affidavit that repeated calls were made to the workman but he failed to report back on duty. The intimation which has been sent to him has been received by one of his co-worker which according to the petitioner having neither been received by him nor has been communicated to him. The contention as raised by counsel for the petitioner that the said document has not been proved even if it is accepted to be correct then also since the workman has failed to show the proof that he has infact made himself available for work after the date of termination as alleged by the management, cannot be accepted. Further contention that after the alleged termination of the services of the workman, demand notice was made on 03.01.2000 shows that the workman did not report for duty during the said period. In view of this position, the submission and the judgment which has been relied upon by counsel for the petitioner would not be applicable to the present case and the present writ petition deserves to be dismissed. Ordered accordingly. (AUGUSTINE GEORGE MASIH) JUDGE February 18, 2009. sjks. -3-