Writ Petition (M/S) No. 1235 of 2011. Case: Shambhu Prasad Vs Presiding Officer and Ors.. Uttarakhand High Court
|Writ Petition (M/S) No. 1235 of 2011
|For Appellant: M.C. Pant, Advocate and For Respondents: R.C. Arya, Standing Counsel
|Rajiv Sharma, J.
|Constitution of India - Articles 226, 227; Income Tax Act, 1961 - Section 89; Industrial Disputes Act, 1947 - Sections 11A, 25(F)(a)
|January 07, 2017
|Uttarakhand High Court
Rajiv Sharma, J.
1. The present petition is instituted against the award dated 23.08.2010, passed by Presiding Officer, Labour Court, Haridwar in Adjudication Case No. 95 of 2005, whereby the claim of the petitioner for reinstatement has been rejected.
2. "Key facts" necessary for adjudication of this petition are that the petitioner was engaged as a daily wage employee in the respondent-Irrigation department on 01.12.1989. He worked in the department upto 30.03.1992.
3. He was retrenched from his services without following the provisions of Section 6(N) of the U.P. Industrial Disputes Act, 1947. The petitioner raised the industrial dispute.
4. Learned Labour Court declared the retrenchment of the petitioner illegal but instead of ordering reinstatement, a lump sum amount of Rs. 1.00 lakh was ordered to be paid to the petitioner. Hence, this writ petition seeking modification of award with a prayer of reinstatement instead of lump sum compensation.
5. The workman was engaged on 01.12.1989 and his services were retrenched on 30.03.1992. He raised the industrial dispute and the matter was referred to learned Labour Court vide Government Order dated 09.03.2005.
6. The employer has not challenged the order dated 09.03.2005. The workman has conclusively proved that he had completed 305 days' in a block of 12 calendar months.
7. Learned Labour Court has rightly come to the conclusion that Sundays and paid holidays are to be included while determining continuous service.
8. The employer has admitted that neither any notice nor any compensation was paid to the petitioner/workman at the time of his retrenchment.
9. The sum and substance of the plea raised by the employer is that the workman has abandoned the job. There is no material available on record that the workman was ever issued any notice to rejoin his duties, in case, he has abandoned the job. The plea of abandonment is required to be proved like any other fact.
10. Their Lordships of the Hon'ble Supreme Court in AIR 1979 SC (582) in the case of "G.T. Lad & others vs. Chemicals and Fibres India Ltd." have held as under on the issue of reinstatement of workman:
"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 and Ors.: (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 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.
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 re-instatement of its three dismissed leaders and had not only by their letters dated September 21, 1972 and September 26, 1972 unequivocally intimated to the 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...
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