IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.:1055/2008 Decided on: 17.3. 2009 Dalip Kumar. …Petitioner. Versus State of Himachal Pradesh and others. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. No. For the petitioner : Mr. B.S. Chauhan, Advocate. For the Respondents : Mr. R.K. Sharma, Sr. A.G. with Mr. Rajinder Dogra, Addl. A.G. and Mr. Vikas Rathore, Dy. A.G. Rajiv Sharma, J. (Oral) The petitioner (hereinafter referred to as ‘the workman’ for convenience) was engaged as a Beldar on daily wage basis with effect from November, 1997. He worked in this capacity till June, 2001. His services were terminated orally in the month of June, 2001. The workman submitted demand notice to the employer, however, after the failure report of the Conciliation Officer, the State Government made a reference to the Labour Court. He filed claim petition before the Labour Court in the year 2004. The employer also filed reply to the claim petition on 24.2.2006. The issues were struck by the Labour Court. However, on 27.11.2006 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 neither the workman nor his counsel was present before the Labour Court. The Presiding Judge of the Labour Court dismissed the claim petition by observing that the workman has not produced any evidence on 27.11.2006. The order dated 27.11.2006 reads thus: “Today the case is listed for petitioner evidence but neither the petitioner nor his counsel is present. The onus to prove issue No.1 & 2 was on the petitioner, but no evidence has been produced to support that the termination of the petitioner is illegal without the compliance of the provisions of the Industrial Disputes Act. Accordingly, both the issues are decided against the petitioner. In view of my findings on the aforesaid issues, the present reference is dismissed. Let a copy of this order be sent to the appropriate government for publication in the official gazette.” Mr. B.S. Chauhan, Advocate has drawn the attention of the Court to Annexures P-4 and R-1. It is evident from these Annexures that the petitioner had completed 240 days in 12 calendar months preceding his retrenchment in the month of June, 2001. This position is not disputed by the learned Senior Additional Advocate General. The petitioner has also given the names of the persons, who were junior to him in para 4 of the statement of claim, but were retained and re-engaged. The averments made in this para have also not been denied by the respondent- department. The impugned order on the face of it is bad in law. The workman ought to have been afforded at least one more opportunity to lead his evidence. He had engaged the counsel, who was not present on the material date. The Presiding Judges of the Labour Court-cum-Industrial Tribunal must be sensitive towards the problems faced by the workman. However, the learned counsel have submitted that since the workman 3 admittedly had completed 240 days preceding his retrenchment and persons junior to him have been retained, to cut short the litigation and instead of remitting the matter, the same be decided on merit by this Court. There is merit in the submission of the learned counsel for the parties. Since the workman had completed 240 days as per Annexures P-4 and R-1 preceding his retrenchment in the month of June, 2001, he was required to be served with a notice or to be paid compensation as per section 25 (F) of the Industrial Disputes Act, 1947. There is violation of section 25 (G) of the Industrial Disputes Act, 1947 as well since persons junior to him, as per the details given in para 4 of the statement of claim, have been retained. Consequently, the petition is allowed. The impugned order Annexure P-1 dated 27.11.2006 is quashed and set aside. The retrenchment of the petitioner is declared void ab initio. He will be deemed to be in service without break, however, since the petitioner has not worked from June, 2001 till date, he is not held entitled to any back wages. The respondents shall permit the petitioner to join his duties within a period of two weeks from today. There will, however, be no order as to costs. 17.3.2009 (Rajiv Sharma ), J. *awasthi*