CWP No. 11706 of 2001 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 11706 of 2001 Date of decision: 30.03.2010 Mangat Ram son of Phool Singh, Ex. Fitter Coolie ...... PETITIONER VERSUS Presiding Officer, Labour Court and others ....... RESPONDENTS CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. J.S.Maanipur, Advocate, for the petitioner. Mr. D.S.Nalwa, Addl. A.G. Haryana, for respondents No. 2 and 3. *** AUGUSTINE GEORGE MASIH, J. (ORAL) The present writ petition has been preferred by the workman challenging the Award dated 13.09.2000 (Annexure P-6) passed by the Presiding Officer, Labour Court, Ambala, wherein the reference has been answered against the workman holding him not entitled to any relief. Briefly the facts of the case are that the petitioner-workman was appointed as a Fitter-Coolie on daily wage basis on 01.10.1987. His CWP No. 11706 of 2001 2 services were terminated on 01.10.1990. The persons junior to him were retained and fresh recruitment was made. He remained unemployed and therefore, after a period of about 5 years i.e. on 09.02.1995, the workman served a demand notice on the Management claiming therein that the termination of his services was in violation of Sections 25-F, 25-G and 25-H of the Industrial Disputes Act and thus, he was entitled to reinstatement in service with all consequential benefits. As the conciliation proceedings failed, the dispute was referred to the Labour Court, Ambala for decision. A claim petition was submitted by the workman, to which a response was given by the Management. On the basis of the pleadings of the parties, issues were framed as per the reference i.e. “Whether the termination of the services of the workman was valid and justified? If not so, what relief is he entitled?” Apart from this, three other issues were framed vide order dated 23.04.1997, which read as follows:- “2. Whether the reference is bad on account of delay and latches? OPM 3. Whether the workman voluntarily abandoned his job? OPM 4. Relief.” On the basis of the evidence led by the parties, the Labour Court proceeded to decide issues No. 1 and 3 together. A finding was returned by the Labour Court that the workman had not completed 240 days in service in 12 preceding months' from the date of his termination and, therefore, there was no violation of Section 25-F of the Industrial Disputes Act. The Labour Court further proceeded to decide issue No. 3 in CWP No. 11706 of 2001 3 favour of the Management holding that the workman had abandoned the job and this presumption was drawn on the basis of the presentation of the demand notice after the expiry of the period of about 5 years as his date of termination was 01.10.1990, whereas the demand notice is dated 09.02.1995. Since a finding with regard to the abandonment of the job by the petitioner was returned, the Court did not proceed to decide the question of violation of Sections 25-G and 25-H of the Industrial Disputes Act. As regards issue No. 2, which was regarding delay and latches, the Labour Court proceeded to decide the same in favour of the workman. Since the final outcome of the Award was against the workman holding him not entitled to any relief, the present writ petition has been filed by the workman challenging the Award passed by the Labour Court. Counsel for the petitioner contends that the plea of abandonment was taken by the Management against the workman and, therefore, the onus to prove the same was on the Management itself. No evidence was led by the Management to prove this issue and the Labour Court has wrongly proceeded to decide the same in favour of the Management on the presumption of delay on the part of the workman in presenting his demand notice. He contends that the onus to prove an issue, which was claimed by the Management, was on it, which it has failed to discharge and, therefore, the findings recorded by the Labour Court cannot be sustained. His further submission is that the abandonment as such has not been defined under the Act and the Hon'ble Supreme Court in the case of G.T.Lad and others vs. Chemicals and Fibres India Ltd., AIR 1979 Supreme Court 582 has, relying upon the meaning of the expression 'abandonment of service', proceeded to hold that the abandonment would amount to voluntary relinquishment of the office, or CWP No. 11706 of 2001 4 the job. It must be total and under such circumstances as clearly to indicate an absolute relinquishment. It is not the position in the present case, he contends, as the workman has put forth his claim for reinstatement in service and violation of the provisions of the Industrial Disputes Act while terminating his services. He contends that there is no limitation provided under the Industrial Disputes Act for putting forth a claim by a workman against the Management and, therefore, the finding of abandonment on the basis of the delayed claim by the workman cannot be said to be justified and in accordance with law. He, on this basis, contends that the present writ petition deserves to be allowed, the Award set aside and the petitioner held entitled to reinstatement in service with all consequential benefits. On the other hand, counsel for respondents No. 2 and 3 submits that the specific stand of the Management before the Labour Court was that the service of the workman was not terminated but he had abandoned the job. After 30.09.1990, the workman did not turn up on his duty. He absented himself continuously and thus, the plea of abandonment, as taken by the Management, stood fully proved. His further contention is that it is not even the assertion of the workman in the evidence led before the Labour Court that after the date of his alleged termination, he had ever approached the Management for taking him back in service. The workman had neither given any explanation nor any details as to when he approached the Management for re-employment. He, on this basis, contends that the presumption, which has been drawn by the Labour Court against the workman for abandonment of job, is fully justified as he has not led any evidence to show either documentary or oral before the Labour Court that he had ever reported for duty. His further contention is that the petitioner was a daily wager and he is paid for the days he puts in CWP No. 11706 of 2001 5 service with the Management and he is not bound to come on each and every day. It is also dependent upon the availability of the work. He, thus, contends that the employment of the daily wagers is not governed by any statutory Rules. He, on this basis, contends that the petitioner cannot take the benefit of his own wrongs to now plead that he has not abandoned the job when no explanation whatsoever has come forth for submitting his demand notice after about 5 years of his alleged termination from service. Since the workman was aware of the specific stand of the Management about the abandonment of the service, the workman could have, either in his evidence before the Labour Court, made a statement or produced any document in support of his contention that he had reported for duty with the Management but the Management had refused to take him back in service. As regards the abandonment of his service, in case of delay in submitting the demand notice without any explanation thereof, counsel for respondents No. 2 and 3 relies upon a judgment of a Division Bench of this Court in the case of Shishan Kumar vs. Presiding Officer and another, 2007 (1) SCT 653, a Single Bench judgment of this Court in the case of Panipat Co-operative Sugar Mills Limited, Panipat vs. Presiding Officer, Labour Court, Ambala and another, 1993 (2) PLR 421 as also a judgment of the Bombay High Court in the case of Sub-Divisional Officer, Hinganghat and another vs. Laxman and another, 2010 (124) FLR 251. I have heard the counsel for the parties and have gone through the records of the case. It is not disputed that after the termination of the services of the workman on 01.10.1990 as alleged by the workman, there is no evidence on the record suggesting that the workman had reported for duty. Not an iota of evidence has come on record either oral or documentary CWP No. 11706 of 2001 6 which would indicate that the workman, after his alleged termination from service on 01.10.1990 by the Management, had approached the respondents-Management for granting him job, on which he was earlier working. This would show that the workman, after 30.09.1990, had never approached the Management for either redressel of his grievance with regard to his termination from service or for claiming employment on the post on which he was performing the duties as a daily wager. A daily wager is employed in the morning and is, with the completion of the day, discharged. There is no/any mandate on him to report for duty on the next day. It is his sweet will and desire. If he intends to take the job, he can come present, if he does not, the Management has no means or powers to force him to join duties. There are no penal consequences also in case the workman, who is a daily wager, does not report for duty unless the terms of appointment provide for the same. In the present case, it is an admitted position on behalf of the parties that no written appointment letter, terms of appointment or conditions of service entered into between the parties nor was a written termination order served on the workman. Under these circumstances, the responsibility of the Management to summon the workman cannot be said to be on the Management. In the light of the fact that the workman had not reported for duty after his alleged termination on 01.10.1990 and raised a demand notice on 09.02.1995 for the first time, the only presumption is that the workman was not interested in the job. That being so, the Labour Court, on the appreciation of the evidence led by the parties, has rightly come to a conclusion that the workman was not interested in the job and had abandoned the same. The judgment relied upon by the counsel for the petitioner with regard to the definition of the abandonment of service CWP No. 11706 of 2001 7 i.e. G.T.Lad and others (supra), paras 5 and 6 whereof read as follows:- “5. We will deal with these questions seriatim: Re: Question No. 1: In the Act, we do not find any definition of the expression 'abandonment of service'. In the absence of any clue as to the meaning of the said expression, we have to depend on meaning assigned to it in the dictionary of English language. In the unabridged edition of the Random House Dictionary, the word 'abandon' has been explained as meaning to leave completely and finally; forsake utterly, to relinquish, renounce, to give up all concern in something'. According to the Dictionary of English Law by Earl Jowitt (1959 edition) 'abandonment' means 'relinquishment of an interest or claim'. According to Black's Law Dictionary 'abandonment' when used in relation to an office means 'voluntary relinquishment'. It must be total and under such circumstances as clearly to indicate an absolute relinquishment. The failure to perform the duties pertaining to the office must be with actual or imputed intention, on the part of the officer to abandon and relinquish the office. The intention may be inferred from the acts and conduct of the party, and is a question of fact. Temporary absence is not ordinarily sufficient to constitute as 'abandonment of office'. 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. vs. Venkatiah (1964) 4 SCR 265: (AIR 1964 SC 1272), it was observed by this CWP No. 11706 of 2001 8 Court that under common law an inference that an employee has abandoned or relinquished service is not easily drawn unless from the length of absence and from other surrounding circumstances as inference to that effect can be 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 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.” A perusal of the above would show that the observations made by the Hon'ble Supreme Court, as referred to above, would be applicable to the case in hand, wherein it has been held that 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. A Division Bench judgment of this Court in the case of Shishan Kumar (supra) also points out to the same position with regard to the abandonment of service. Similar is the position in the cases of Panipat Co-operative Sugar Mills Limited, Panipat (supra) and Sub-Divisional Officer, Hinganghat and another (supra). It cannot be disputed that the onus to prove a fact or plea is on the party which asserts the same but the same can be discharged by the party by either leading its own evidence or relying on the evidence produced by the other party. The Court considers and evaluates the evidence produced by the parties and then draws its own conclusions and CWP No. 11706 of 2001 9 forms its own opinion and on that basis returns its findings. The findings recorded by the Labour Court in the present case is correct and based on proper appreciation of the evidence. In this view of the matter, the finding, as recorded by the Labour Court with regard to the abandonment of the service by the petitioner-workman is in accordance with law and, therefore, does not call for any interference by this Court in exercise of its writ jurisdiction. Finding no merit in the present petition, the same stands dismissed. ( AUGUSTINE GEORGE MASIH ) JUDGE March 30, 2010 pj