Himachal Pradesh High Court
Nagar Parishad vs Bone Ram And Anr. on 12 October, 2004
Equivalent citations: (2005)IILLJ123HP
Author: K.C. Sood
Bench: K.C. Sood
JUDGMENT K.C. Sood, J.
1. This petition arises out of the award made by learned Presiding Judge, H.P. Labour Court, Shimla dated November 28, 2002.
2. It appears, respondent Bone Ram, hereinafter referred to as the "workman" was employed by the Petitioner Nagar Parishad, Bilaspur as a daily waged Beldar/Chowkidar on November 1, 1991. He as such worked till] March 31, 1995. In the year 1998, the petitioner raised a dispute claiming that he was disengaged on April 2, 1996. On that date at about 9.00 p.m., when he was on duty as Chowkidar, he suffered from stomachache and ] was taken to the Hospital. He was hospitalized till April 17, 1995 and on the next day, when he reported for duty, the Junior Engineer concerned told him that his services stood terminated with effect from April 2, 1995. It is the further case of the workman that Employer engaged Sita Ram and Sukh Dev as Beldars after his retrenchment. His services were terminated without complying with the provisions of Sections 25-F and 25-G of the Industrial Disputes Act, therefore bad in law.
3. The employer contested the claim of the respondent on several grounds including that the workman himself abandoned the work. He was never retrenched. There is unexplained delay of about three years in raising the dispute which would show that no dispute existed at the time of making the reference. It was, however, not disputed that the workman had worked for 240 days immediately prior to his leaving the services. The Employer also took a plea that there is no post of Beldar or Chowkidar available in the Municipal Council at Bilaspur. There exist only two posts which had been filled up on regular basis through Employment Exchange.
4. The learned Labour Court allowed the reference holding that as no notice was issued to the workman by the Employer for his willful absence from duty nor an inquiry was held and therefore, it cannot be said that the workman abandoned his job. The learned Labour Court accordingly proceeded to make the award directing the Employer to reinstate the workman in service with seniority from the date of the reference. The workman, however, was held not entitled to back wages.
5. Dissatisfied, the Employer filed this petition under Articles 226 and 227 of the Constitution of India.
6. Mr. Vipin Negi, learned counsel for the Employer contends that in the month of March, 1995, the workman left the services of the Employer without any intimation and it was only on December 28, 1997 that he raised the dispute before the Conciliation Officer which resulted into Reference in the year 1998.
7. Learned Labour Court without referring to the evidence produced by the Employer to the effect that the workman was engaged as Beldar from November 1, 1991 to March 31, 1995 and thereafter he left and abandoned the job on his own and, therefore, was not entitled to any notice nor any compensation, returned a finding of retrenchment on the ground that no show cause notice was issued to the workman by the employer and therefore, it would "not be unsafe to hold that this is a case of retrenchment pure and simple". The findings of the learned Labour Court are based on conjectures and surmises without any foundation in the evidence on record.
Section 2(oo) defines retrenchment:
" 2(oo) "retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action but does not include-
"(a) voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or... ".
(Emphasis given)
8. Expression "voluntary retirement" in Clause (a) of Section 2(op) of the Act would include abandonment of job by an employee. In common law, an inference can be drawn from the length of absence of an employee from duty and surrounding circumstances that an employee has relinquished his job. It is true that the length of time for which employee abstains, to conclude abandonment, may vary with facts and circumstances of each case. That is why the Standing Orders of Industrial Establishment normally provide that the absence of an employee for certain number of days would be deemed as "abandonment of employment" unless such absence is otherwise explained by the employee.
9. Voluntary retirement of the workman would not be retrenchment within the meaning of Section 2(oo) of the Act. The contract of service indeed comes to an end when the workman abandons his job. Even though "abandonment of service" is not defined in the Act, yet abandonment "would mean to leave completely and finally" or in other words, voluntarily relinquish the office. The presumption of abandoning the job by an employee can be raised on account of his long absence from duty without leave or permission. However, it is always open to the workman to contend and prove, by satisfactory evidence, that in fact he was not absent or explain the reasons for his absence from work. It is admitted position that workman was absent from duties on and with effect from April 1, 1995 without leave or permission. He did not make any representation to any Authority that he is not being permitted to join the work after his hospitalization.
10. The workman, in this case remained absent from work for more than two years without leave or any communication to the employer. He did not contact his Employer or made any representation to any Authority about oral termination of his services. There was not a murmur of protest. In this background, the only inference which can be drawn from the conduct of the workman is that he abandoned his job and his services stood automatically terminated in law. Such an automatic termination of services, caused by workman himself and not by the Employer, would not fall within the definition of "retrenchment".
11. When the workman abstains from his work without a protest or representation or demur for more than two years, then, in my view, by no stretch, it can be said that such a workman has been retrenched by the Employer. In these circumstances, there is no question of violation of Section 25-F of the Act. The reasoning of the learned Labour Court that workman was not given any notice for his absence and therefore would be deemed to have been terminated is conjectural. Had the workman been disengaged orally, he would have protested, and represented and not remained silent for more than two years. It was for the workman to explain his long silence for more than two years in raising the dispute.
12. This in turn also shows that no dispute existed at the time of raising the dispute (See: Nedungadi Bank Ltd. v. K.P. Madhavankutty and Ors., AIR 2000 SC 839 : 2000 (2) SCC 455 : 2000-I-LLJ-561).
13. For the aforesaid reasons, the petition is allowed. The impugned award is set aside. No costs. Interim orders dated February 27, 2003 as confirmed on May 13, 2004 in CMP No. 233 of 2003 shall stand vacated.