SIKAND AND COMPANY Vs. STATE OF H P

JUDGEMENT

(1.) THESE two writ petitions are being disposed of by this common judgment since they arise out of the same award. One writ petition has been filed by the workman and second by the employer challenging the award of the Labour Court. Shimla in Reference No. 56 of 1994 decided on 26-5-2003. The undisputed facts are that the workman was employed in the Nagrota Bagwan office of the employer on 10-2-1983 at a monthly salary of Rs. 850 alongwith benefits such as bonus, provident fund, gratuity, rent free accommodation etc. The case of the workman is that he was assured that he would be permanently posted at Nagrota Bagwan. On 23-11-1993, the employer transferred the services of the workman and a letter was sent to him transferring him to Barmana in District Bitaspur, H. P. He made a representation against the order on the ground that he was advised by the doctor not to a take long journey. Since the workman did not join his service, the employer terminated his services vide letter dated 18-1-1994. This termination is challenged on the ground that no notice had been given to the workman and no retrenchment compensation was paid to him.

(2.) INITIALLY, an ex parte award was passed in favour of the workman on 9-11-1994. This award was challenged by the employer in this Court by filing a writ petition being CWP No. 1398/95. The said writ petition was decided on 25-4-1996 and the employer was permitted to file an appropriate application for setting aside ex parte proceedings before the Labour Court. The Labour Court rejected the application of the employer for setting aside ex parte proceedings and this order was challenged in CWP No. 9/97. This writ petition was allowed on 18-2-2001 and the ex parte award was set aside on certain conditions. After remand, the employer filed reply raising various objections. It was argued that the petitioner was not a workman and the petition under the Industrial Disputes Act was not maintainable, it was further pleaded that the petitioner had abandoned his job. It was stated that the workman on being transferred to Barmana, did not report for duty at the new place of posting and as such abandoned his job. It was, however, admitted that the services of the petitioner were terminated on 18-1-1994.

(3.) ON the pleadings of the parties, the learned Labour Court framed the following issues: 1. "whether the petitioner has been terminated in violation of the Industrial Disputes Act. as alleged? OPP 2. Whether the petition is not maintainable as petitioner is not a workman as alleged? OPR 3. Whether respondent is a partnership concern as alleged, if so its effect ? OPR 4. Whether petitioner has left the job voluntarily as alleged? OPR 5. Whether petitioner is gainfully employed as alleged. If so its effect? OPR 6. Relief