The main legal point established in the judgment is the obligation of the respondent under Section 25-H of the Industrial Disputes Act and Clauses 4d and 4e of the Model Standing Orders to provide re-employment to retrenched workmen and give priority to persons in the waiting list maintained under the Model Standing Orders.

( 1 ) THIS petition by the workman takes exception to the dismissal of his complaint recording unfair labour practice under Items 9 and 10 of Schedule IV of the Maharashtra recognition of Trade Unions and Unfair Labour Practices Act by the learned Member, Industrial Court, Nagpur, by his impugned order dated 25-11-1998.

( 2 ) FACTS, which are material for deciding this petition, are as under :

It is not in dispute that the respondent Co-operative bank had engaged the services of the petitioner as Daily wager Clerk since 1-12-1989. It also cannot be disputed that in the period of one year preceding 7-5-1991, the petitioner had put in more than 240 days of continuous service. It was the petitioners case that he had not been regularized and instead he was retrenched on the ground that he was a surplus employee and that no work was available. He submitted that one Dhargave was recruited by the respondent on 9-10-1991 without offering to him an opportunity of re-employment, thus breaching the provisions of Section 25-H of the Industrial Disputes Act as also the Model Standing orders framed under the Bombay Industrial Relations Act. He, therefore, filed a complaint before the Industrial Court that the respondents had indulged in unfair labour practice as defined in Items 9 and 10 of Schedule IV of the MRTU and PULP Act. He had also filed an application for interim relief.

( 3 ) THE respondent Bank filed a reply to the application for interim relief and later adopted it as written statement, whereby they admitted that the petitioner had put in 288 days of work since March 1990 to May 1991. The respondent denied that the petitioner was appointed on any vacant post. However, according to the respondent, the petitioner himself stopped reporting for duty from 6-5-1991. The petitioner had applied in response to the advertisement issued for recruitment of Clerks and had failed in the recruitment examination. One Vishnu Gerve qualified from the category to which the petitioner belonged and one Dhargave qualified from the category of Scheduled Caste and, therefore, they were appointed. The respondent, therefore, prayed for dismissal of complaint.

( 4 ) AFTER considering the evidence tendered before him, the learned Member, Industrial Court, dismissed the complaint. Aggrieved thereby, the petitioner is before this court.

( 5 ) I have heard Shri M. P. Jaiswal, learned counsel for the petitioner, and Shri S. A. Radke, learned counsel for the respondent Bank.

( 6 ) IT is really difficult to believe that the petitioner would himself stop reporting for duty, since he would be a person in need of the employment. Therefore, his contention that he had in fact been retrenched ought to have been accepted in the background of the fact that according to the respondent, it undertook a process of recruitment at which it found the petitioner not qualified. Therefore, ordinarily, it is the respondent, who might have discontinued the petitioner, rather than the petitioner himself failing to report for duty.

( 7 ) THE learned counsel for the petitioner submitted that as far as abandonment of service is concerned, the case of the petitioner that his services were orally terminated would have to be accepted by rejecting the word to the contrary of the respondents General Manager, in view of the judgment of this court in Gangaram K. Medekar v. Zenith Safe Mfg. Co. and others, reported at 1996 I CLR 172.

( 8 ) IN M/s. Nicks (India) Tools v. Ram Surat and another, reported at 2004 (103) FLR 102, the Supreme Court held that since the Management admitted that the workman was in their service till a particular date, the burden of proving that he voluntarily left the service would fall on the Management. In view of this, the contention that the petitioner abandoned the service, could not have been upheld.

( 9 ) THE contention of the learned counsel for the respondent that there is no question of retrenchment, since the petitioner had himself abandoned work has to be rej

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