DIVISIONAL WILDLIFE OFFICER Vs. KALAWATI

JUDGEMENT

(1.) EMPLOYMENT part -time as a Sweeper was admitted by the management and that the respondent served them from January 1997 to February 2011. Trouble started when the respondent was served with the notice Ex.MW -1/2 conveying decision that part -time workers would henceforth be appointed on contract basis from March 01, 2011 and those who were willing to work on contract basis may apply for part -time jobs. It is said that the workman never applied for leave nor reported for duty and from this it was facilely inferred by the management that she had abandoned her services. The Labour Court read notice Ex.MW -1/2 and found in it stated that from March 01, 2011 till February 29, 2012 part -time Sweepers would be appointed only through the agency of labour contractors. The notice did not say that the services of existing part -time Sweepers would be dispensed with while implementing the new system.

(2.) IT is argued by the management in the present petition that the Labour Court erred in reasoning that the notice did not entitle the management to invite applications of willing candidates and it was the contractor alone who could have invited applications of willing candidates and from this the Court a quo inferred that the management had failed to make out a case of abandonment of services. The reasoning may not be absolutely correct or might be a tad fallacious but to my mind that would not impact the final decision in this case that relief of reinstatement and back wages, though granted partially, is pre -eminently accordable. For the future, it was open to the management to field workers by adopting any other method of employment but so as not to change their conditions of service to their detriment unilaterally.

(3.) IT is settled position that abandonment is a matter of intention of the party and every absence is not abandonment. The push -factors will come into play immediately and be required to be closely examined by labour courts to discern whether the worker was ready and willing to work and was being pushed out unceremoniously. But that apart, what seals the fate of the stand of the management vis - -vis abandonement is that the respondent had worked for 16 long years when the axe fell and her services were terminated/retrenched/disengaged on March 01, 2011 under colour of the notice Ex.MW -1/2 but to the contrary the respondent -workperson raised a demand notice for justice soon enough on April 25, 2011 thus feeling aggrieved by the abrupt severance from continued gainful employment on daily wages, which cannot be seen as raising of the dispute belatedly or for it to cast a reasonable shadow of doubt of the intention to abandon service for all times to come. The respondent elected her remedy close at heels of unlawful retrenchment which act does not suggest abandonment of services and hence it would not be possible to return a finding in favour of the management as sought by it that this is a case of abandonement. Neither is there anything on record to suggest that in conciliation proceedings the respondent was offered reinstatement either with the management or with the alleged contractor and, therefore, this Court finds nothing remiss in the impugned award dated August 06, 2014 holding the termination illegal for want of compliance of the mandatory provisions of Section 25 -F of the Industrial Disputes Act, 1947 (for short "the Act"). The length of continuous service of 16 years eminently tilts the question of relief in favour of the worker for the court a quo to rightly hold this case as a fit one for award of reinstatement with continuity of service. However, the question of 50% back wages is kept open so as not to prejudice or curtail the rights of the worker ex parte in case she approaches this Court for enhancement, in which event, the issue will be decided on merits and nothing can be said for the present in absence of challenge. Consequently, the award in its relief is upheld even though the reasons supporting it, to the extent indicated above, may not be true logically. However, the contention of the learned Deputy Advocate General, Haryana appearing for the petitioning management, that the present is not a case of retrenchment within the definition of Section 2(oo) of the Act but of abandonement and therefore compliance of the provisions of Section 25 F of the Act was not fatal to the action is liable to the rejected. Retrenchment encompasses termination of services by definition "for any reason whatsoever" which includes most types of severance of employment relationships. Besides, the management did not plead or show that the worker was gainfully employed during the intervening period of her forced idleness which might disentitle her to back wages. I can only remind the labour court for its continued guidance, the trenchant observations of the Supreme Court in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya and Ors, 2013 10 SCC 324 which ruling should ever be kept in mind while dealing with moulding relief in labour matters. To quote: