CWP No.8525 of 1993 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.8525 of 1993 (O&M) Decided on : 05-05-2011 State of Punjab and another ....Petitioners VERSUS Udho Ram and another ....Respondents CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Mr. Salil Sagar, Addl. AG, Punjab with Mr. Vijay Kumar Chaudhary, AAG, Punjab for the petitioner. None for the respondents MAHESH GROVER, J This writ petition is directed against the award of the Labour Court, Gurdaspur which was required to determine a reference made to it by the appropriate Government under Section 10 1(c) of the Industrial Disputes Act and to determine the question whether the termination of the services of respondent no.1 was justified and in order and if not to what relief / exact amount of compensation he was entitled to. The workman raised an industrial dispute when his services were terminated and pleaded that he had been removed from service on 24.1.1984 without compliance of the provisions of the Industrial Disputes Act. He further pleaded that the persons who were junior to him were retained in service. The demand was raised on 3.7.1987. The petitioners controverted the demand raised by respondent no.1 and set up a plea that it CWP No.8525 of 1993 (O&M) 2 was a case of the abandonment of service and not a case of the termination as has been projected. It was also pleaded that the demand raised was belated and which ought to have been considered by the learned Tribunal. On perusal of the material before it, the learned Tribunal came to the conclusion that it was a case of retrenchment of the service of the respondent no.1 which was without compliance of provisions of Section 25F of the Act and thus the respondent no.1 was required to be reinstated in service alongwith all the back wages. The plea of the petitioners regarding delay was also negated. Aggrieved by the same, the instant writ petition has been filed. This Court as an interim measure has initially granted the interim stay of the impugned award but subsequently vide orders dated 15.2.1994 the order was modified to say that the respondent no.1 would be paid wages every month equivalent to the wages last drawn by him at the time of his termination. He was also directed to be paid the arrears with effect from the date of filing of the application i.e 26.11.1993 as also the wages for the month of February, 1994. No one has put in appearance on behalf of the respondent no.1 despite the fact that on a prior date notice was also issued to respondent no.1 as per the report he was not found residing at the given address. He was being represented by a counsel Mr. Kuldip S. Kapoor and by an erroneous unfortunate impression given to this Court, it was noticed that he was no more although this information was incorrect. The fact remains that despite his initial representation by the counsel no one has put in appearance and the case has been shown in the warning list repeatedly. CWP No.8525 of 1993 (O&M) 3 This leaves the Court with no option but to proceed to determine the issue. Learned counsel for the petitioners contended that its a clear case of abandonment of service as respondent no.1 never reported back for duty after 1.6.1983. According to the petitioners repeated notices have been sent to respondent no.1 to report for duty but he failed to do so. I am unable to accept this contention as there is no material on record from where it can be inferred that respondent no.1 had voluntarily abandoned his service and that the petitioners had made any effort to require him to report for duty. What needs to be considered here is that it is the respondent no.1 who approached the Labour Court and thus it was incumbent upon him to prove that he was a workman within the meaning of the Act who had completed 240 days in the year preceding his termination and was thus a workman. The petitioners in para no.2 of the instant writ petition have averred as follows:- “That the respondent no.1 namely Sh. Udho Ram joined as Fitter on work charged basis on 9.9.1981 and worked as such upto 31.5.1983 at the in Dam Project under Executive Engineer, Field Mechanical Division, RSD Shahpurkandi. The services of the respondent no.1 were terminated due to his long absence from duty at his own. He absented himself from duty w.e.f 1.6.1983. He was served notice by the Superintending Engineer, Mechanical Circle Registered letter no. 7324-29/7-E, dated 30.9.1983, Annexure P-2 and was directed to join duty within ten days but he failed to comply with the order of the competent authority. A second notice was sent to respondent CWP No.8525 of 1993 (O&M) 4 no. 1 by the Superintending Engineer, Mechanical Circle registered letter no. 7014-18/7-E dated 12.10.83 (copy enclosed as Annexure P-3) and he was given another opportunity to report for duty within ten days but he failed to do so. Thereafter, an appeal was made through nine newspapers dated 22.9.83 appealing the respondent no.1 to join duty. But the respondent no.1 deliberately ignored the instructions. The final notice was issued to the respondent no.1 by Superintending Engineer, Mechanical Circle registered letter no. 561-66/7-E dated 24.1.1984 (copy annexed as Annexure P-4) informing the respondent no. 1 that his name has been removed from the rolls of this division.” There is no specific denial to this paragraph. It is therefore clear that respondent no.1 was working on work charge basis and has not completed 240 days so as to enable him to avail himself of the benefits of the Industrial Disputes Act. There is no such material from where it can be inferred that the Tribunal had failed to notice this aspect of the matter and proceeded on erroneous assumption that respondent no.1 was a workman. For the said reason when the finding on the record is not conclusive enough to warrant a finding in favour of respondent no.1 regarding his being a workman, I am of the considered opinion that error has certainly crept in the impugned award. The factum of the workman having worked from 9.9.1981 upto 31.5.1983 is however conceded by the petitioners themselves and in such an eventuality it would ought to have been better for the Tribunal to explore the possibility of resorting to an alternate prayer of granting compensation which was also prayed by the workman in his CWP No.8525 of 1993 (O&M) 5 statement of claim. The award is thus modified by accepting the petition partially and noticing that the respondent no.1 had worked for little over one year and deemed it appropriate to award him compensation of Rs.15,000/-. Hence, the writ petition is disposed of with the aforesaid modifications. May 5 , 2011 (Mahesh Grover) rekha Judge