RAM PARKASH Vs. PRESIDING OFFICER AND ORS.

JUDGEMENT

(1.) THE petitioner had served for 13 years as a Coolie in the Forest Department, i.e., from 1988 to 2001 when the Forest Department and the Wild Life Department were merged by the State Government. It is said that a list of employees was prepared and after the exercise was carried out, the petitioner was transferred from Bathinda to Dialpura as was the alleged case stated by the department. When the dispute of retrenchment was referred to the Labour Court under section 10(1)(c) read with Section 2A of the Industrial Disputes Act, 1947 for adjudication, the State took the defence in the written statement in para. 3 as follows: - -

(2.) IT is apparent from the deposition that letter Ex. M3 dated 6.2.2002 was not proved by proper delivery to the workman. If there was no proper delivery, then the pleaded case of a verbal command is not trustworthy and the Labour Court has committed fundamental flaw in accepting the theory that letter dated 6.2.2002 was served on the workman and consequentially because he did not comply with its terms therefore a presumption can be drawn that it was a case of abandonment of services. It may be noted that though letter is dated 6.2.2002 but the retrenchment had taken place earlier on 5.2.2001. The conclusion drawn that the present was a case of abandonment of job is not a proper conclusion on the evidence adduced on the file. When the basic foundation of service of notice/letter dated 6.2.2002 is not established beyond doubt, then a fair opportunity was not given to the petitioner to make a conscious choice whether to accept the transfer or refuse it. The burden to prove abandonment was on the management but they have failed to prove abandonment on the facts of this case. It is well embedded in law that question of abandonment is one of intention of the party which has to be gathered from contemporaneous facts and such facts as are available on the file do not suggest that a case of abandonment was made out in cast iron. Mere non -reporting for duty is not conclusive of intention to abandon work. Duration of the absence is relevant to measure abandonment together with accompanying circumstances and the cumulative bundle of facts presented and determined on a case to case basis rooted in the probative evidence adduce on file.