IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.: 1041 of 2008. Reserved on: 31.12.2008. Decided on: 09.01.2009. Shri Sattar Mohammad. … … … Petitioner. Versus The H.P. State Electricity Board and Others. … … … Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 No. For the petitioner: Mr. Ashwani Kumar Gupta, Advocate. For Respondents No.1 and 2: Mr. Baldev Singh, Advocate. Rajiv Sharma, Judge: The present petition is directed against award dated 3.6.2006 passed by the Presiding Judge, H.P. Labour Court, Shimla in Reference No.101 of 2003. Brief facts necessary for the adjudication of this petition are that the State Government has made the following reference to the Labour Court:- Whether reporters of local papers may be allowed to see the judgment? No. - 2 - ”Whether the termination of services of Shri Sattar Mohammad S/O Shri Nur Deen by the Executive Engineer, H.P.S.E.B. (Electrical) Division, Nalagarh, Distt. Solan, H.P. w.e.f. 31.12.1992 without complying the provisions of the Industrial Disputes Act, 1947 is proper and justified? If not, what relief of service benefits, seniority, backwages and amount of compensation the aggrieved workman is entitled to?” In sequel to reference made by the State Government, the petitioner (hereinafter referred to as “the workman” for convenience sake) filed his statement of claim before the Labour Court. He has primarily contended in the statement of claim that he was engaged on 26.1.1987 and worked continuously upto 20.12.1992. However, he was retrenched without following the mandatory provisions of the Industrial Disputes Act, 1947 (hereinafter referred to as “the Act” for brevity sake). The respondent (hereinafter referred to as “the Management” for convenience sake) filed its reply to the statement of claim. The learned Labour Court dismissed the claim of the petitioner on 3.6.2006. Mr. Ashwani Kumar Gupta has strenuously argued that his client had completed 240 days preceding his retrenchment. He has strongly relied upon Ex.RW-1/A and on the statement of RW-1. Mr. Baldev Singh has supported the impugned award. I have heard the learned counsel for the parties and perused the record carefully. The workman was engaged on 26.1.1987. He had worked as T-Mate upto 20th December, 1992. He was retrenched on 21.12.1992. - 3 - A bare perusal of RW-1/A proves that the workman had completed 240 days preceding his retrenchment. The learned Labour Court has failed to count the days preceding 12 calendar months from the date of retrenchment. RW-1 has also admitted that the workman had completed 240 days preceding his retrenchment. In view of this tangible evidence the finding recorded by the Labour Court that the workman had not completed 240 days preceding his retrenchment is liable to be interferred with and deserves to be set aside. Since the workman had completed 240 days preceding his retrenchment, he was entitled to get the benefits available under the Act. It is borne out from the record that the workman had challenged his retrenchment before the H.P. State Administrative Tribunal. The original application was directed to be considered as representation. The representation was rejected by the competent authority on 23.2.2000. Thereafter the workman had raised the industrial disputed by serving demand notice. The reconciliation proceedings also took considerable time and it is only after the failure report was received by the Labour Commissioner that he has made the reference to the Labour Court. In these circumstances, it cannot be held that there was inordinate delay in invoking the provisions of the Act. The learned Tribunal has failed to take this aspect into consideration. It is also well settled that the plea of delay and laches can be considered at the time of moulding of relief by the Labour Court. Consequently, the finding recorded by the Labour Court that there was delay in agitating the matter is set aside. The presumption drawn by the learned Labour Court that the workman had abandoned the job is - 4 - also contrary to law. The plea of abandonment is required to be proved like any other fact. Accordingly, in view of the observations made hereinabove, the writ petition is allowed. Award dated 3.6.2006 is set aside. The retrenchment of the petitioner effected on 21.12.1992 is declared void ab initio. The petitioner shall be deemed to be in employment. However, in peculiar facts and circumstances of the case he will only be entitled to 50% back wages. There shall, however, be no order as to costs. January 09, 2009. (Rajiv Sharma) (sck). Judge.