Mere Plea Of Abandonment Not Sufficient, Employer Has To Prove Specific Notices Were Issued To Workman Asking Him To Join Duty: Himachal Pradesh High Court

Brief Facts:

The Respondent (“Workman”) was engaged by the State of H.P. in March 2001 on a daily wage basis at Forest Division Suket. He continued in this capacity until March 2003 when he was allegedly orally disengaged without proper notice as mandated by Section 25-F of the Industrial Disputes Act, 1947. The Workman, feeling aggrieved by this termination, filed an Original Application with the H.P. Administrative Tribunal. Despite an interim order directing the Management to reengage the Workman, this directive was not adhered to, despite repeated requests from the Workman between 2004 and 2009. Consequently, the Workman served a demand notice, prompting the Government to make a reference under Section 10(1) of the ID Act to resolve the dispute.

The Workman argued that he worked continuously from March 2001 to March 2003, fulfilling the criteria for protection under the ID Act. He argued that his termination violated various sections of the Act and requested its annulment. On the other hand, the Management contested the claim, stating that there was delay and abandonment of work by the Workman. It argued that since the Workman did not complete 240 days of work in the preceding calendar year, no notice was necessary under the ID Act.

Following the proceedings, the Tribunal ruled in favor of the Workman and held him entitled to reinstatement with seniority and continuity in service. Feeling aggrieved, the Management approached the Himachal Pradesh High Court (“High Court”) to challenge the decision of the Tribunal.

The Management argued that the Workman's services were allegedly terminated orally in 2003, yet the demand for redress was only raised in 2009 which constituted a substantial delay that should have resulted in the dismissal of the claim. Additionally, it contended that since the Workman did not make himself available for reengagement after the interim order, there was no obligation for the Management to reinstate him.

Observations by the High Court:

The High Court noted that the Workman diligently pursued his case, approaching the tribunal within six months of his alleged termination and securing an interim order in his favor. Despite this, the Management failed to comply with the tribunal's directive to reinstate the Workman.

Moreover, the High Court held that the delay and laches, if any, were primarily attributable to the Management's conduct, absolving the Workman of any culpability. It observed that the Management failed to challenge the Administrative Tribunal's order or extend an offer to the Workman to resume duties post the interim order, despite the availability of funds and work within the department.

Further, the High Court rejected the Management's argument of abandonment, emphasizing that it failed to provide substantiated evidence to support this claim. It reiterated that the burden of proof regarding abandonment rested squarely on the Management, a burden it failed to discharge. The High Court pointed out that the Workman promptly sought recourse by filing Original Application with the H.P. Administrative Tribunal after his alleged termination. This swift action contradicted any notion of abandonment. The High Court held that the very act of filing the Original Application post-termination negated any presumption of abandonment. It held that mere assertions by the employer of abandonment is insufficient to prove abandonment. It held that employers must demonstrate that specific notices were issued to the employee, advising or requesting them to return to work within a stipulated period.

Consequently, the High Court dismissed the petition.

Case Title: The State of H.P. & another vs Prakash Chand

Citation: 2024 LiveLaw (HP) 19

Case Number: CWP No.2565 of 2024