IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 1785/2007 Reserved on:29.9.2008 Decided on:22.10.2008 Rakam Singh. …Petitioner. Versus Presiding Officer, H.P. Industrial Tribunal and another. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes. For the petitioner : Mr. Deepak Kaushal, Advocate. For the Respondents : Mr. Bimal Gupta and Mr. K.S. Kanwar, Advocates for respondent No.2. Rajiv Sharma, J. A challenge has been laid by the petitioner (hereinafter referred to as ‘the workman’ for convenience sake) to the award dated 5.7.2007 passed by the learned Presiding Judge, Himachal Pradesh Industrial Tribunal-cum-Labour Court, Shimla in reference No.312 of 2001. Brief facts necessary for the adjudication of this petition are that the workman was engaged as a Fitter by the respondent No.2 (hereinafter referred to as ‘the employer’ for convenience sake) on 1st August, 1996. 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 He received injury on his left eye on 1.10.1997. He received the first aid from ESI Dispensary, Kala Amb and thereafter he was referred to District Hospital, Nahan. He was ultimately referred to PGI, Chandigarh where he remained under treatment from 3.1.1997 to 2.12.1997. He submitted his joining report on 7th December, 1997. He was not permitted to resume his duties with effect from 7th December, 1997, however, he was permitted to join his duties with effect from 17th December, 1997. He was retrenched with effect from 1.11.1999. He raised a demand notice through the agency of the Labour Officer. The Labour Officer after the failure of the conciliation proceedings referred the matter to the State Government. The Labour Commissioner made the following reference on 20.12.2001: 1. “Whether the termination of Sh. Rakam Singh son of Sh. Janga Ram w.e.f. 1.11.1999 by the General Manager, Krishna Paper Board Industries, Kala Amb District, Sirmaur, H.P. without complying with the section of 25-F of the I.D. Act, 1947 is legal and justified? If not, to what service benefit and relief the concerned workman is entitled to.” 2. Whether the plea of the General Manager, Krishna Paper Board Industries, Kala Amb, District Sirmaur that Shri Rakam Singh son of Shri Janga Ram woken had left the job of his own accord w.e.f. 1.11.1999 is justified? If not, its legal effects as per I.D. Act, 1947?” In sequel to the reference made by the State Government, he filed a claim petition. He, inter alia, pleaded that his retrenchment with effect from 1st November, 1999 was not in accordance with law. His case precisely was that there was violation of section 25-F of the Industrial Disputes Act, 1947. The claim was resisted by the employer. The Presiding Judge, Himachal Pradesh Industrial Tribunal-cum-Labour Court, Shimla vide award dated 5.7.2007 answered the reference against the 3 workman. The present petition has been filed against the award dated 5.7.2007. Mr. Deepak Kaushal has strenuously argued that the award dated 5.7.2007 is not sustainable in the eyes of law. He also contended that the Labour Court has failed to take into consideration the oral as well as documentary evidence produced by the workman during the hearing of the reference. He further contended that the Labour Court has wrongly come to a conclusion that it was a case of abandonment. Mr. Bimal Gupta and Mr. Karan Singh Kanwar, Advocates have supported the award dated 5.7.2007. They also contended that the workman has left the job on his own volition and thereafter got himself gainfully employed with M/s Crystal Engineering, Kala Amb, M/s Vashisht Chemicals, Kala Amb, M/s Saboo Cylinders Private Limited, Kala Amb etc. and he was getting Rs. 600/- as pension from ESI. I have heard the learned counsel for the parties and gone through the award carefully. It is not disputed by the parties that the workman was engaged by the employer on 1st August, 1996. He received injury on his left eye on 1.10.1997. He remained hospitalized initially at Nahan and thereafter he was referred to PGI Chandigarh where he remained under treatment with effect from 3.1.1997 to 2.12.1997. He submitted his joining on 7.12.1997 but the same was not accepted by the employer. It was only on 17.12.1997 that he was permitted to resume his duties. Mr. Deepak Kaushal has strenuously argued that the workman was retrenched with effect from 1st November, 1999 without issuing a show cause notice or compensation. The workman has appeared before the Labour Court to support his case. He has reiterated in his statement that he was appointed as Fitter on 1.8.1996 and he remained hospitalized at PGI 4 Chandigarh. In his cross-examination, he has denied that he abandoned his job. He has also denied that full service benefits were paid to him on 31.10.1999. He has also denied that he was gainfully employed with M/s Crystal Engineering, Kala Amb, M/s Vashisht Chemicals, Kala Amb, M/s Saboo Cylinders Private Limited, Kala Amb etc. He has admitted that he had been getting Rs. 600/- from ESI as pension. The employer has examined one Sh. Rajeev Bansal. He has admitted the engagement of the workman as Fitter with effect from 1.8.1996. He has stated that the workman had left the job on 31.10.1999. He then deposed that a sum of Rs. 37,000/- was spent by the employer on the treatment of the workman and Rs. 12,000/- was to be recovered from him. He has admitted in his cross-examination that no notice was issued to the workman for joining the duties. He then clarified that the workman has left the job hence no notice was required to be issued. He has also admitted that no retrenchment compensation was paid to the workman. It is in this backdrop that the present petition is required to be adjudicated upon. The workman was engaged by the employer and he has discharged his duties with effect from 17th December, 1997 till 1.11.1999. He had completed 240 days preceding his retrenchment. A notice was required to be issued to the workman and in lieu thereof compensation was required to be paid to him as per section 25 of the Industrial Disputes Act, 1947. The workman has denied that he has abandoned the job. Sh. Rajeev Bansal has admitted that neither any notice was issued to the workman nor any compensation was paid to him. He has also admitted that no notice was ever issued to the workman to resume his duties. In view of this tangible evidence led by the workman, the Labour Court has come to a wrong conclusion that it was a case of abandonment. 5 Their Lordships of the Hon’ble Supreme Court in G.T. Lad and others versus Chemicals and Fibres India Limited, AIR 1979 SC 582 have held that question of abandonment is a question of fact and has to be determined in the light of the surrounding circumstances of each case. Their Lordships have held as under: “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. Re: Question No. 2: This takes us to the consideration of the second question namely, whether in the circumstances of the instant case, it could be said that the appellants had voluntarily abandoned the service of the Company. It may be recalled that the appellants had along with 229 other workmen gone on indefinite and peaceful strike (which ended on October 22, 1972) in response to the strike notice given by the union to the company to press its demand for reinstatement of its three dismissed leaders and had not only by their letters dated September 21, 1972 and September 26, 1972 unequivocally intimated to the 6 Company that they did not intend to abandon the service but had also returned the cheques sent to them by the Company on account of their leave salary, gratuity etc. The appellants' stand that the letter of the Company dated September 7, 1972 was received by them on September 20, 1972 and not earlier was never denied or refuted by the Company in the correspondence that passed between the parties. Thus, there was nothing in the surrounding circumstances or the conduct of the appellants indicating or suggesting an intention on their part to abandon service which in view of the ratio of Gopal Chandra Misra's case (1978) 2 SCC 301: (AIR 1978 SC 548) can be legitimately said to mean to detach, unfasten, undo or untie the binding knot or link which holds one to the office and the obligations and privileges that go with it. Their absence from duty was purely temporary and could by no stretch of imagination be construed as voluntary abandonment by them of the Company's service. In Express Newspapers (P) Limited v. Michael Mark, (1963) 3 SCR 405: (AIR 1963 SC 1141) which is on all force with the present case, it was held that if the employees absent themselves from the work because of strike in enforcement of their demands, there can be no question of abandonment of employment by them. In the present case also the appellants' absence from duty was because of their peaceful strike to enforce their demand. Accordingly, we are of the view that there was no abandonment of service on the part of the appellants. Re: Question No. 3: Let us now advert to the last but the most crucial question, namely, whether the action of the Company in removing the names of the appellants from its rolls during the pendency of the proceedings before the Labour Court in respect of the industrial dispute on the presumption that they had abandoned Company's service constituted an alteration in the conditions of service applicable to them immediately before the commencement of the said 7 proceedings which prejudicially affected them. Although the learned counsel appearing on behalf of the respondent has taken us through the certified standing orders as applicable to the appellants, he has not been able to point out anything therein to indicate that the company could terminate the services of the appellants on the ground of abandonment of service because of their going on strike in enforcement of their demands. Thus, there being no provision in the certified standing orders by virtue of which the Company could have terminated the services of the appellants in the aforesaid circumstances, the impugned action on the part of the Company clearly amounted to a change in the conditions of service of the appellants during the admitted pendency of the industrial dispute before the Labour Court which adversely affected them and could not be countenanced. We are fortified in this view by the aforesaid decision of this Court in Express Newspapers (P) Limited v. Michael Mark where repelling an identical contention to the effect that the failure of the workmen to return to work by a notified date clearly implied abandonment of their employment, it was held that the management cannot by imposing a new term of employment unilaterally convert the absence of work into abandonment of employment. It was further held in that decision that if the strike was in fact illegal, the management could take disciplinary action against the employees under the standing orders and dismiss them. If that were done, the strikers would not have been entitled to any compensation under standing orders but that was not what the appellants purported to do and the respondents were, therefore, entitled to relief. The findings recorded by the Labour Court are perverse and are not sustainable in the eyes of law. The Labour Court had come to a wrong conclusion that the petitioner had left the job after receiving injury on his left eye, hence section 25-F of the Industrial Disputes Act, 1947 8 was not attracted. To the contrary the workman had received injury on 1.10.1997 and after his treatment at PGI Chandigarh, he was re-engaged on 17.12.1997 and was retrenched with effect from 1.11.1999. Once the workman had completed 240 days, as noticed above, section 25 of the Industrial Disputes Act, 1947 was to be complied with. It was for the employer to prove that the workman had abandoned his job. The workman could not be forced to discharge negative burden by proving that he was gainfully employed in the industries i.e. M/s Crystal Engineering, Kala Amb, M/s Vashisht Chemicals, Kala Amb, M/s Saboo Cylinders Private Limited, Kala Amb etc. If it was a case of abandonment, the employer ought to have issued a notice to the petitioner to resume his duties. Admittedly no such notice has been placed on record. Sh. Rajeev Bansal who appeared on behalf of the employer has admitted in a categorical terms that no notice was ever issued to the workman. It is clear that it was not a case of abandonment rather it was a case of retrenchment without following the mandatory provisions of the Industrial Disputes Act, 1947 Their Lordships of the Hon’ble Supreme Court in the Delhi Cloth and General Mills Co. Ltd., versus the Workmen and others, AIR 1967 SC 469 have held that the Tribunal must look to the pleadings of the parties to know exact nature of the dispute. Their Lordships have held as under: “So far as the fourth proposition is concerned Mr. Chari, argued that the Tribunal had to examine the pleadings of the parties to see whether there was a strike at all. In our opinion, the Tribunal must, in any event, look to the pleadings of the parties to find out the exact nature of the dispute, because in most cases the order of reference is so cryptic that it is impossible to cull out therefrom the various points about which the parties 9 were at variance leading to the trouble. In this case, the order of reference was based on the report of the Conciliation Officer and it was certainly open to the Management to show that the dispute which had been referred was not an industrial dispute at all so as to attract jurisdiction under the Industrial Disputes Act. But the parties cannot be allowed to go a stage further and contend that the foundation of the dispute mentioned in the order of reference was non-existent and that the true dispute was something else. Under S. l0 (4) of the Act it is not competent to the Tribunal to entertain such a question." Consequently, the writ petition is allowed. The workman is declared deemed to be in employment of the employer with all the consequential benefits i.e. back wages etc. along with interest @ 9% till its realization. The workman is also held entitled to costs, which are quantified at Rs. 5,000/-. 22.10.2008 (Rajiv Sharma ), J. *awasthi*