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2009 Supreme(Bom) 1021
IN THE HIGH COURT OF BOMBAY
CORAM: S. R. DONGAONKAR, J.
SUB DIVISIONAL OFFICER, PUBLIC WORKS DIVISION
Versus
STATE OF MAHARASHTRA
WRIT PETITION NO. 3591 OF 1997
Decided On : AUGUST 14, 2009
P.D.KOTHARI, S.A.KALBANDE
The main legal point established in the judgment is the requirement to demonstrate a genuine attempt to resume duties and the absence of justification for abandonment of services to claim reinstatement and back wages.
Headnote:
Abandonment of Service - Industrial Disputes Act - Section 2-A, Section 17(B), Section 25-F, Section 25-G - The court analyzed the letters issued to the respondent, the demand notices, and the evidence presented. It discussed the legal principles of abandonment of service, intention of the employee, and entitlement to reinstatement and back wages. The court referred to various judgments to support its decision. The final decision quashed and set aside the impugned order.
Fact of the Case:
The respondent was in service of the petitioner as a daily wage laborer. The petitioner alleged that the respondent absented himself from work without intimation and did not resume duties despite warning letters. The respondent claimed oral termination and sought reinstatement with back wages. The court analyzed the evidence and contentions of both parties.
Finding of the Court:
The court found that the respondent had abandoned the services without justification and did not make any attempt to resume duties. It held that the respondent's intention was not to join the duties or resume work, and therefore, he was not entitled to reinstatement or back wages.
Issues: The main issue was whether the respondent had abandoned the services and was entitled to reinstatement and back wages.
Ratio Decidendi: The court's decision was based on the lack of evidence showing the respondent's attempt to resume duties, the absence of justification for abandonment of services, and the respondent's intention not to join the duties or resume work.
Final Decision: The impugned order was quashed and set aside, and the petition succeeded. The court held that the respondent was not entitled to reinstatement or back wages.
This petition has been filed under articles 226 and 227of the Constitution of India to challenge the order of Presiding Officer, Labour Court, Nagpur dated 18. 8. 1997, which reads thus: the reference is answered in affirmative 2. Oral termination of the party No. 2 w. e. f. 20. 4. 1986 stand quashed and set aside being illegal and improper. 3. Party no. 1 is directed to reinstate the Party no. 2 in the post last held by him and pay him full full back-wages from 23. 10. 1989 when he has approached before the Conciliation Officer onwards till he is reinstated. 4. Copies of award be sent to Commissioner of Labour, Mumbai, through the Deputy Commissioner of Labour, Nagpur for information and necessary action. 5. Papers in conciliation proceedings be returned to Deputy Commissioner of Labour, Nagpur. 6. The parties bear their own cost.
( 2 ) RESPONDENT no. 1 was in service of the petitioner. He was working as Oilman / labour on Jam Warora Road w. e. f. 1. 11. 1983 on daily wages. It is alleged by the petitioners that he had himself absented from the work w. e. f. 7. 2. 1986, without any intimation. He did not resume the duties despite letters dated 21. 4. 1986 and 6. 5. 1986. According to petitioners, the respondent no. 1 did not pay any heed to these letters, nor resumed his duties for a pretty long time. However, later on, he issued demand notice on 14. 10. 1988 alleging that he was illegally terminated from the services without any notice w. e. f. 10. 4. 1986 and he should be allowed to resume his duties. He again sent second demand notice on 6. 10. 1989 with a similar request. As his request was not accepted, respondent no. 1 approached to the Conciliation Officer by preferring an application dated 23. 10. 1989 under section 2-A of the Industrial Disputes Act, 1947. Another such application raising same contention dated 3. 10. 1989 was filed raising same dispute. The matter was referred to the Labour Court bearing Reference No. IDA 77 of 1991. Petitioners filed their written statements to which respondent no. 1 had also filed rejoinder. The evidence led by parties was recorded and by the impugned order respondent no. 1 was directed to be reinstated on the post held by him with back wages from 23. 10. 1989. This order is challenged in this petition.
( 3 ) LEARNED A. G. P. has submitted that the impugned order is incorrect inasmuch as there no case was made out by the respondent no. 1. He had himself remained absent from the duties without any intimation and therefore, he had abandoned his services. According to him the letters of warning and asking him to resume services were issued on 21. 4. 1986 and 6. 5. 1986, but he did not join. Therefore, it has to be presumed that he had abandoned the services with requisite intention. According to him, the respondents notices of demand were just to make a show that he wanted to join, but petitioners did not allow him. He has contended that since respondent no. 1 abandoned the services there can not be any reinstatement, so also the back wages.
( 4 ) LEARNED counsel for the respondent no. 1, submitted that there was oral termination of respondent by the petitioners and therefore, there was no question of any abandonment of service. According to him, no letters were issued by the respondent no. 1. On the contrary when the notice was served on the petitioners, same was not replied. Meaning thereby the petitioner had accepted the fact that before the order of termination that there was no abandonment of service. The conciliation proceedings were initiated but did not yield any satisfactory result, so the dispute was referred to Labour Court, wherein impugned order was passed which is in accordance with law. According to him, respondent no. 1 is also entitled for the back wages in the circumstances of the case, inasmuch as there was no legal valid termination.
( 5 ) IT is necessary to note at this stage that this court on 19. 1. 1998 had passed the following order
