The Himachal Pradesh High Court (Shimla Bench) has affirmed that abandonment cannot be presumed and that removal from service, particularly where the employer alleges non-reporting for duty, cannot be sustained in the absence of disciplinary proceedings, notice, and compliance with natural justice. The Court also accepted that where another employee is engaged in place of the terminated workman, compliance with Section 25-H of the Industrial Disputes Act, 1947 is required.
The Court held that since the respondent had completed more than 240 days in the 12 calendar months preceding his termination, compliance of Section 25-F of the Industrial Disputes Act was an absolute imperative must, and in the absence thereof, the termination was illegal and bad in the eyes of law. The Court held that the findings returned by the Labour Court, and affirmed by the Single Judge in exercise of jurisdiction under Article 226 of the Constitution of India, suffered from no infirmity warranting interference, and no plausible reason existed to take a different view on the concurrent findings.
The Division Bench comprising the Chief Justice G.S. Sandhawalia and Justice Bipin Chander Negi noted that no licence in terms of Section 12 of the Contract Labour (Regulation and Abolition) Act, 1970 was placed on record by the appellant to show that the alleged contractor had a licence issued by the competent authority to deploy contract labour. Moreover, no evidence was led to show that the work of the respondent was being supervised by the alleged contractor.
The documentary material relied upon by the appellant, namely the appointment letter alleged to have been issued by the contractor, the identity card, the resume, and various salary statements, were all mere photocopies and were therefore correctly not taken into account by the Labour Court, since they were not admissible in evidence and the originals had not been produced. No material was also placed on record to show that salary had been disbursed through the alleged contractor. On this basis, the Labour Court correctly concluded that the services of the respondent had been engaged by the appellant and not by the contractor.
On the plea of abandonment, the Bench observed that non-reporting for duty is a serious misconduct, but no disciplinary proceedings were initiated against the respondent and no notice was ever issued by the appellant on account of the respondent not reporting for duty from Mar 07, 2017. The Labour Court had therefore correctly observed that abandonment cannot be presumed and that before removal, compliance of natural justice was an absolute imperative must. Since another employee had been engaged in place of the respondent, compliance of Section 25-H was required, and in the absence thereof, there was infraction of Section 25-H of the Act.
The Bench also recorded that the Labour Court had correctly held the respondent to be a “workman” and the appellant to be an “industry”.
Briefly, the respondent, Padam Kumar, was engaged as a Security Guard by the appellant, Maharishi Markandeshwar Medical College, in October 2012 and continued to perform his duties until Mar 07, 2017, when he proceeded on leave on account of the death of his mother. Upon his return to duty on Mar 21, 2017, he was not permitted to join and his services were terminated. A Reference under Section 10 of the Industrial Disputes Act, 1947 was received by the H.P. Industrial Tribunal-cum-Labour Court, Shimla, to consider the validity of the termination and the consequential relief to be granted. The respondent alleged violation of Sections 25-F, 25-G, and 25-H of the Industrial Disputes Act, 1947, contending that he had completed more than 240 days of continuous service in the 12 calendar months preceding his termination, that juniors were retained in service post his termination, and that a new worker was engaged against the post which fell vacant on account of his illegal termination.
The appellant contested the claim on the grounds that the petition was not maintainable, was bad for non-joinder of necessary parties, and that the appellant did not qualify as an “industry” under the Act. On merits, the appellant contended that the respondent’s services had been engaged by a contractor and not by the appellant, and therefore no employer-employee relationship existed between the parties. The appellant further contended that the respondent had abandoned the job of his own free will and volition.
