IMPORTANT POINT
The duty of the employer to re-engage the workman and the requirement of substantial evidence to prove abandonment.

JUDGMENT :

Sandeep Sharma, J.

Being aggrieved and dissatisfied with award dated 23.07.2022 (Annexure P-1), whereby learned Labour Court-cum-Industrial Tribunal, Kangra at Dharamshala, Himachal Pradesh while answering the reference made to it in affirmative, directed petitioner-Department to reinstate the respondent-workman with continuity and seniority, petitioner-Department has approached this Court in the instant proceedings, praying therein to set-aside the aforesaid award.

2. Precisely, the facts of the case, as emerge from the record are that the respondent-workman was engaged by the petitioner-Department in March, 2001 on daily wage basis at Forest Division Suket, Sundernagar, District Mandi, H.P., and in this capacity, he worked uninterruptedly till March, 2003 when he was allegedly disengaged orally without serving notice as required under Section 25-F of the Industrial Disputes Act (hereinafter referred to as the Act).

3. Being aggrieved and dissatisfied with oral termination, respondent-workman approached erstwhile H.P. Administrative Tribunal by way of Original Application No.290 of 2003. Learned Tribunal, taking note of the averments contained in the original application, passed interim order dated 12.9.2003 thereby directing petitioner-Department to reengage the respondent-workman, but fact remains that aforesaid order was never complied with. Though, allegedly respondent-workman repeatedly requested the petitioner- Department in the years 2004, 2005, 2006, 2007, 2008 and 2009 to permit him to join, but since no heed was paid to his request, he was compelled to serve a demand notice. Appropriate Government taking note of dispute interse petitioner-Department and respondent-workman, made following reference while exercising power under Section 10(1) of the Act:-

“Whether alleged termination of services of Sh. Prakash Chand S/o Shri Gandhi Ram, R/o Village and post office Dhawal, Tehsil Sundernagar, District Mandi, H.P. during March, 2003 by the Divisional Forest Officer, Forest Division, Sundernagar, District Mandi, H.P., who had worked on daily wages and has raised his industrial dispute after more than 6 years vide demand notice dated nil received on 20.9.2009 without complying the provisions of the Industrial Disputes Act, 1947 is legal and justified? If not, keeping in view of delay of more than 6 years in raising the Industrial dispute, what amount of back wages, seniority, past service benefits and compensation the above ex-worker is entitled to from the above employment/ management?”

4. In the aforesaid proceedings, respondent-workman while stating that he worked uninterruptedly w.e.f. March 2001 on daily wage basis till March, 2003, claimed that since he had completed 240 days in the preceding 12 calendar months and his name stood mentioned at Serial No.374 of the seniority list, his services could not be dispensed with without resorting to the provisions contained under Industrial Dispute Act. He also claimed that workmen junior to him, as detailed in the claim petition, though were retained, but for no fault of him, his services were disengaged and as such, his termination being in violation of the provisions contained under Sections 25-B, 25- F, 25-G and 25-H of the Act, deserve to be quashed and set-aside.

5. Pursuant to the notices issued in the aforesaid claim petition, petitioner-Department by way of filing reply has attempted to resist and contest the claim of the respondent-workman on the ground of delay and laches. While fairly admitting that respondent-workman was engaged in Kangoo Forest Range w.e.f. June 2001, petitioner-Department claimed that respondent-workman worked intermittently upto March, 2003 as per the availability of works/funds and thereafter of his own abandoned the job. Petitioner-Department also claimed that since respondent-workman had not completed 240 days in the preceding calendar year, there was no requirement, if any, for issuing notice in terms of provision contained under