The employer's refusal of service amounted to illegal retrenchment as it did not comply with the provisions of the Industrial Disputes Act.

JUDGMENT :

B.K. Patel, J. - In this writ petition the employer has assailed the legality of the award dated 26.6.2000 passed by the learned Presiding Officer, Labour Court, Jeypore (for short 'the Labour Court') in I.D. Case No. 74 of 1999 directing reinstatement of the opposite party No. 1-workman as N.M.R. Mate within three months from the date from which the award becomes enforceable failing which the workman has been held to be entitled to get full back wages from that date.

2. The impugned award was passed in adjudicating the following reference made u/s 10(1) read with Section 12(5) of the Industrial Disputes Act, 1947 (for short 'the Act'):

Whether the action of the Executive Engineer, Badanala Irrigation Vision, Kenduguda, Dist, Rayagada in terminating the services of Sri Ratnakar Sahu, Ex-N.M.R. Mate with effect from 11.2.87 is legal and/or justified ? if not, what relief Sri Ratnakar Sahu is entitled to ?

3. The workman's case, in brief, is that he was engaged as N.M.R. in different Sub-divisions under the petitioner during the period from July, 1982 to December, 1989. Though he worked on each day including all holidays, the petitioner showed artificial breaks on records. Finally his service was terminated in December, 1989 without complying with the provision u/s 25-F of the Act. Though about 28 persons were engaged as N.M.Rs. after the workman's retrenchment, he was not offered any opportunity as required u/s 25-H of the Act. In the written statement it was pleaded by the employer that the workman had worked between 15.2.1983 to 11.2.1987. However, he used to remain absent frequently and finally abandoned his work from 11.2.1987. According to the employer, the workman had worked for 51 days in 1983, 256 days in 1984, 341 days in 1985, 155 days in 1986 and 38 days in 1987. It was further contended by the employer that the workman could not be given employment due to ban order issued by the State Government. On the basis of rival pleadings, learned Labour Court settled the following three issues for adjudication :

(i) Whether the workman abandoned his job or he was refused employment with effect from 11.2.87 ?

(ii) If it is a case of refusal of employment whether it is legal and/or justified ?

(iii) What relief ?

In order to substantiate his claim, workman examined himself as WW No. 1 and also relied upon documentary evidence. No evidence was adduced from the side of the employer. In answering issue Nos.(i) and (ii), it was held on the basis of materials on records by the Labour Court that the workman was refused employment w.e.f. 11.2.1987 and that such refusal was neither legal nor justified. Accordingly, the impugned order directing reinstatement was passed. But it was held that the workman would not be entitled to backwages.

4. In assailing the impugned award, the learned counsel for the employer reiterated the stand taken before the Labour Court. It was contended that not only the workman remained frequently absent during the period of his engagement between 1983 to 1987 but also he finally abandoned the engagement from 11.2.1987. It was further contended that the workman did not adduce any evidence to indicate that he was in continuous service for not less than one year prior to 1987.

5. Learned counsel appearing for the workman contended that the workman adduced cogent evidence on the basis of which the learned Labour Court has come to a categorical finding that the workman was refused employment. Despite his representations made till he took recourse to remedies under the Act, the workman's grievance was ignored by the employer On the contrary, the employer provided engagement to 28 new NMRs. No attempt was made to substantiate the stand taken by the employer that the workman abandoned his employment. As the workman was retrenched without adhering to the conditions prescribed u/s 25-F of the Act, there is no infirmity in the impugned order.

6. Admittedly, no evidence was adduced on behalf of the employer to substantiate