IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C.W.P. No. 6357 of 2010-G. Reserved on : 25.11.2011. Decided on: 06.12.2011. ____________________________________________________ The Divisional Manager, Himachal Pradesh State Forest Corporation, Hamirpur Division at Hamirpur, Himachal Pradesh. …Petitioner. -Versus- 1. The Principal Secretary Labour to the Government of Himachal Civil Secretariat Shimla-2, Himachal Pradesh. 2. The Presiding Judge Labour Court, Shimla, Himachal Pradesh. 3. Shri Prithi Singh son of Shri Bansi Ram, resident of village & post office Samtana, Tehsil Barsar, District Hamirpur, Himachal Pradesh. …Respondents. Civil writ petition under Article 226 of the Constitution of India for issuance of appropriate writ order or directions. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. ____________________________________________________ For the petitioner.: Mr. V.B. Verma, Advocate. For respondent No. 1. : Mr. Vikas Rathore, Deputy Advocate General with Mr. R.P. Singh, Assistant Advocate General. For respondent No.2 : None. For respondent No. 3: Mr. K.B. Khajuria, Advocate. ----------------------------------------------------- Rajiv Sharma, Judge: Petitioner-Management (hereinafter referred to as “the Management” for convenience sake), has assailed the award made by the learned H.P. Industrial Tribunal-Cum-Labour Court, Dharamshala on 04.06.2010 in Reference No. 97/2006. 1 Whether the reporters of the local papers may be allowed to see the judgment?. No. - 2 - 2. Material facts necessary for adjudication of this petition are that respondent No.3-Workman (hereinafter referred to as “the workman” for brevity sake), was engaged as Chowkidar on daily wage basis in 1989. He was retrenched w.e.f. 01.09.1997. He raised the industrial dispute. The State Government made a reference to the learned Industrial Tribunal-Cum- Labour Court after the submission of failure report. The workman filed a claim petition. The reply was filed by the Management. According to the averments contained in the reply filed by the Management, the workman has abandoned his job w.e.f. 01.09.1997. Learned Labour Court answered the reference in favour of the workman by ordering his reinstatement with 50% back-wages and his seniority was also protected from the date of his termination. 3. Mr. V.B. Verma, learned counsel for the petitioner has strenuously argued that the learned Industrial Tribunal-Cum-Labour Court has erred in law by ordering the reinstatement of the petitioner, that too, with 50% back-wages and continuity in seniority from the date of retrenchment. According to him, it was a case of abandonment and the Management has never retrenched the workman. 4. Mr. K.B. Khajuria, learned counsel for respondent No. 3 has supported the award, dated 04.06.2010. - 3 - 5. I have heard the learned counsel for the parties and gone through the award and pleadings carefully. 6. The workman was engaged as a Chowkidar on daily wage basis in the year 1989. Case of the workman, in a nut-shell, is that he has been retrenched without following the mandatory provisions of Section 25-F of the Industrial Disputes Act, 1947 (hereinafter referred to as “the Act” for convenience sake). The workman had been continuously working w.e.f. 1989 and as per the averments contained in the claim petition, he has completed 240 days in each calendar year. The Management has admitted that the workman had completed 240 days in each calendar year w.e.f. 1990 to 1997, except in 1989. The Divisional Manager has sought clarification from the Assistant Manager why the workman be not removed from job on 27.09.1997. It is not borne out from the record that the workman was ever issued any notice under the Act or he was paid in lieu of period of notice. Even, according to RW-1 Narender Singh, no notice has been issued to the workman before his retrenchment. 7. Mr. V.B. Verma, learned counsel for the petitioner has drawn the attention of the Court to Annexure P-4, whereby the workman was directed to report in the office of Divisional Officer, Hamirpur on 01.10.1997. The Management has not placed any tangible evidence on record to establish that the workman has ever been issued any notice why he has not - 4 - joined his duties in the office of Divisional Officer, Hamirpur on 01.10.1997. 8. It is settled law by now that the plea of abandonment is required to be proved like other fact. The simple case of the workman, as discussed hereinabove, is that he has completed 240 days in a block of twelve calendar months before his retrenchment. His services could not be retrenched without complying with the mandatory provisions of Section 25-F of the Act. The Management has failed to prove that it was a case of abandonment by the workman. The Management has neither paid any compensation to the workman nor any notice has been issued to him as per Section 25-F of the Act. Thus, the retrenchment of the workman w.e.f. 01.09.1997 was void abinitio. 9. Their Lordships of the Hon’ble Supreme Court in G.T. Lad and others Vs. 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 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 - 5 - 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. 10. Since the workman has been retrenched without following the mandatory provisions of Section 25-F of the Act and his retrenchment was void abinitio, there is no infirmity or illegality in the award dated 04.06.2010, whereby he has been directed to be reinstated with 50% back-wages and continuity in seniority. There is neither any procedural error nor any illegality in the award dated 04.06.2010. 11. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in this petition and the same is dismissed, so also the pending application(s), if any. (Rajiv Sharma) Judge December 06, 2011. (bhupender) - 6 - - 7 - `