BALWINDER SINGH Vs. STATE OF HP

JUDGEMENT

(1.) The applicants filed this application under section 19 of the Administrative Tribunals Act for their oral termination on May 31, 1998 without giving a notice as per section 25 F of the Industrial Disputes Act. Briefly the case of the applicants are that they were engaged on daily wage muster roll basis on August 24, 1997 and May 31, 1998 respectively and continued with the respondents till May 31, 1998 when their services were orally terminated. It is further submitted that the services could not be terminated without giving prior notice. It is also stated that the applicants have not completed 240 days preceding their dis -engagement on May 31, 1998, then also, the action of the respondents in retaining the junior beldars i.e. S/Sh, Bikram, Harbans, Rakesh, Gian Chand and Parkash Chand is violative of Section 25 -G of the Industrial Disputes Act. As per Section 25 H of the Industrial Disputes Act, it was obligatory on the respondents to give an opportunity to the applicants, for re -employment in [writing before engaging fresh beldars.

(2.) Reply has been filed alongwith the Mandays chart by the respondents in which it is stated that the applicant were working with the respondent department as a daily, rated beldars w.e.f. 24.08.1997 and 09.12.1997 respectively and had been attending to their duties intermittently and had finally abandoned the jobs on their own volition after May, 1998. It is further submitted that the applicants have not completed 240 days in the preceding twelve months.

(3.) We have heard Shri Ranjan Sharma, the learned counsel for the applicants and Sh.R.K.Sharma, the learned Additional Advocate General and gone through the records. The case of the respondent is that the applicants services never terminated and they left the job at their own volition. The learned counsel for the applicant brought to our notice that in Kesavan Nair alias Omanakuttan Versus The Sub Divisional Officer Telegraphs Mavelikkara and Ors. 1992(2) SLJ 312 in para 5 of this judgment it was held which is reproduced in full: - "The Principal Bench of the Central Administrative Tribunal is consistently taking the view that in order to sustain a plea of abandonment of job the employer is bound to give a notice to the employee calling upon him to resume duty and failure on the part of the employee. In O.A 3/88 decided on 28.04.1991, the Tribunal held as follows: "In case the employer intends to terminate his service on the ground of abandonment he should hold an enquiry before doing so." In another case O.A 2578/90 decided on 19.04.1991 the Tribunal observed as follows : "The respondents plea of the applicant having abandoned service on his own cannot be acceptable since in the case of abandonment, it is incumbent on the employer to give notice to the employee calling upon him to join duty within a particular period failing which his services would be terminated." The absence from service may be for a short duration or long period. But merely by the length of absence of an employee coupled with no other circumstances to infer relinguishment of his office, an abandonment cannot be presumed. A person may be absent from duty due to reasons beyond his control and in such circumstances there may not be any legal inference of abandonment of job by a Government employee unless his intention to abandon the job is proved beyond any doubt. In Delhi cloth and General Mills Limited v. Piara Lal 1976 Lab I.C 21, the High Court held that when the absence of a workman for any reason beyond his control and it was not possible for him to apply for leave it would be unreasonable for the employer to take a view that he has abandoned his job. Likewise the Court in Bata India Limited vs. Nalhani, 1978 Lab I.C. 386, held that it would be an illegal termination of an employee understanding order for continued absence for a long period due to protracted sufferings and illness."