State of H.P. and another vs Padma Dolkar

The present petition has been filed against the award passed by the Industrial Tribunal-cum-Labour Court (for short ''Labour Court'') whereby the claim petition of the respondent herein-Padma Dolkar came to be allowed.

It is not in dispute that the respondent had intermittently worked with the petitioners with effect from 1.5.1998 and thereafter her services were abruptly disengaged on 1.11.2013. This constrained her to raise an industrial dispute and upon failure of conciliation proceedings, the following reference was made to the Labour Court: "Whether time to time termination of the services of Smt. Padma Dolkar w/o Sh. Nawang Lotey R/o Village & Post Office Kaza, District Lahaul and Spiti, H.P. during 2002 to 2010 and finally during 2011 by the Executive engineer, I&PH Division Kaza, District Lauhal-Spiti, H.P. without complying with the provisions of the Industrial Disputes Act, 1947, is legal and justified? If not, what amount of back wages, seniority, past service benefits and compensation the above worker is entitled to from the above employer?

The learned Labour Court after calling for the reply and after affording opportunity to the parties to lead evidence came to the conclusion that the services of the respondent had been illegally retrenched and thereafter answered the reference in the following terms: "The petitioner shall be deemed to be in the continuous service of the respondent with all consequential benefits, except back wages. She shall be considered for regularization by the respondent, at the time when her juniors are said to be regularized, as per the policy governing the daily wagers, as framed by the State Government and operative from time to time."

The petitioners have assailed this award primarily on the ground that (i) it was the respondent, who herself had abandoned the services and (ii) the learned Labour Court could not have ordered her regularization.

The respondent has not filed any reply but has filed an application for early hearing wherein she has annexed the copies of judgments rendered by this Court in CWP No. 1681 of 2015, titled as State of H.P. and another vs. Smt. Chhering Butith decided on 15.6.2016 and CWP No.1684 of 2015, titled as State of Himachal Pradesh and others vs. Padma Youdan decided on 1.9.2016 and would contend that her case is squarely covered by these judgments.

I have heard the learned counsel for the parties and have gone through the material placed on record of the case.

It is not disputed that the judgments passed by this Court in Chhering Butith and Padma Youdan cases have attained finality. Further it is not in dispute as regards the findings regarding regularization of the services of workmen like the respondent herein, the same have already been set aside by this Court in CWP No. 1681 of 2015.

Now, what remains is the allegation of the petitioners that they have not retrenched the services of the respondent and rather it was the respondent herself, who had abandoned the job.

Notably, these contentions have already been negated by this Court in the case of Chhering Butith and Padma Youdan (supra).

That apart, abandonment or relinquishment of services is always a question of intention and normally such intention cannot be attributed to an employee without adequate evidence in this behalf. The burden of proving that the workman voluntarily left the job always falls on the employer. In addition thereto, mere accusation that the workman has abandoned the job is not enough unless such abandonment is established by the employer. Therefore in absence of any evidence having been led by the petitioners herein, this question has rightly been decided against the petitioners.

Notably, juniors of the respondent were retained and she had also completed 160 days of service in the respective calendar year, i.e. proceeding 12 months prior to the date of her retrenchment. In such circumstances no fault can be found with the award.

The services of the respondent could not have been ordered to be regularized in a manner as has been done by the learned Labour Court. At the maximum, services of the petitioner could have been ordered to be considered for regularization as per policy(ies) of the Government as framed from time to time.

In view of above, the instant petition is partly allowed by modifying the impugned award only to the extent that the services of the petitioner shall be regularized strictly in accordance with the policy(ies) issued by the Government from time to time. The remaining award shall stand as it is.

The petition is disposed of in aforesaid terms, leaving the parties to bear their own costs.