IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 4959 of 2008. Decided on 27.07. 2010. _____________________________________________________ Mangat Ram. …Petitioner. -Versus- Himachal Pradesh Housing Board and others. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. __________________________________________________________ For the petitioner. : Mr. B.S. Ranjan, Advocate. For respondents No. 1 and 2. : Mr. J.R. Thakur, Advocate. None for respondent No. 3. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge (Oral): The petitioner was engaged as a daily wage Beldar on 22.01.1996. He discharged his duties till 30.09.1996. Thereafter, he was retrenched from service. He approached the erstwhile learned Himachal Pradesh Administrative Tribunal by way of O.A. No. 1613 of 1996. The learned Tribunal disposed of the same on 2nd January, 1997. The operative portion of the order reads thus:- “Before parting with the case, we may state that the period of absence till the date of his joining shall be computed towards his seniority but he shall not be entitled to the backwages for the reason that no evidence that he had not engaged himself in any manual work at any other place, has been place or annexed with his pleadings.” 2. In sequel to the judgment passed by the learned Tribunal on January 2, 1997, the workman-petitioner was re- 1 Whether the reporters of the local papers may be allowed to see the judgment? No. engaged on 1st January, 1997. He worked in the same capacity up to September, 1997. However, he was again retrenched on 1st October, 1997. 3. The case of the petitioner, in a nut-shell is that the action of the respondents retrenching him before completing 240 days, amounts to unfair labour practice. He further contended that he never abandoned his job, rather he was always ready and willing to work with the respondent-Board. 4. The case of the respondent-Board, precisely is that workman had abandoned his job since he has not resumed his duties after 1st October, 1997. 5. Whether there is voluntary abandonment of service or not, is the question of fact and is required to be proved by leading cogent evidence. 6. Their Lordships of the Hon’ble Supreme Court in G.T. Lad and others versus 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 inference that an employee has abandoned or relinquished service is not easily drawn unless from the length of absence and from other surrounding circumstances an 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.” 7. In the present case, the petitioner has been re- engaged on the basis of the order passed by the learned Tribunal on 2nd January, 1997. It cannot be presumed that the workman will abandon his job after working for 220 days continuously. It appears that the petitioner has been terminated by the respondent-department in order to prevent him from completing 240 days, which amounts to unfair labour practice. The respondent-Board has not placed any tangible material on record that any notice was ever issued to the petitioner to resume his duties after 30th September, 1997. The action of the respondent- Board is actuated with legal malafides as well. Once the petitioner has been directed to be re-engaged, he should not have been terminated in the manner in which the respondent-Board has done it. In normal circumstances, the matter ought to have been relegated to the machinery provided under the Industrial Disputes Act, 1947, however, taking into consideration the fact that the present petition was admitted on 28.12.1998 and is pending for more than 12 years, the same has been decided on merits by the Court itself. 8. Consequently, the petition is allowed. The retrenchment of the petitioner dated 1st October, 1997 is set aside. The respondents are directed to re-engage the petitioner forthwith. However, the petitioner is held entitled to seniority and continuity in service only. No costs. (Rajiv Sharma) Judge July 27, 2010. (bhupender)