The burden of proving 'abandonment of service' is upon the employer, and even in case of abandonment of service, the employer has to give a notice to the workman calling upon him to resume duties and hold an enquiry before terminating his service on that ground.

1. Rule was issued in this petition on 06.08.2007 with directions to deposit 50% of the back wages with effect from 01.11.1998. This direction is reported to have been complied with.

2. The challenge in this petition is directed against the judgment and award dated 05.10.2006 passed by the 4th Labour Court, Mumbai (hereafter referred to as 'impugned award') directing the Petitioner (employer) to reinstate the Respondent No. 1 (workman) with continuity of service along with payment of 75% of the back wages.

3. It is the case of the Petitioner that the Respondent No. 1 abandoned services with effect from 01.03.1999. On the other hand it is the case of the Respondent No. 1 that his services were terminated by the Petitioner with effect from 01.11.1998 without issuance of any show cause notice, conduct of any enquiry and in breach of the provisions contained in Section 25-F of the Industrial Disputes Act, 1947 ('said Act'). The controversy in this petition therefore almost entirely raises an issue of fact as to whether the services of the Respondent No. 1 were terminated by the Petitioner with effect from 01.11.1998 or whether the Respondent No. 1 abandoned his service with effect from 01.03.1999.

4. Mr. Kiran Bapat, the learned counsel appearing for the Petitioner, in his well balanced submissions would urge that the finding that the Petitioner has terminated the services of the Respondent No. 1 is perverse. The relevant material on record which establishes that the Respondent No. 1 was very much in service upto 01.03.1999 and thereafter stopped reporting for duties has been unjustifiably ignored. Mr. Bapat pointed out letters / notices requiring the Petitioner to report for duties and submitted that since the Respondent No. 1 failed to report for duties, the Petitioner was well within its rights to treat the Respondent No. 1 as having abandoned services. Mr. Bapat also pointed out that in the course of conciliation proceedings, the Petitioner once again offered the Respondent No. 1 to resume duties. The same was the position at the stage of decision in Notice of Motion No. 368 of 2011 in the present Petition which is evident from the order dated 22.11.2011. However the Respondent No. 1 avoided resumption of duties and instead has indulged into making false and reckless allegations that he was prevented from resuming duties. In these circumstances, Mr. Bapat submitted that the impugned award deserves to be interfered with and set aside.

5. Mr. J. N. Shiradhonkar appearing for the Respondent No.1 countered the submissions of Mr. Bapat by submitting that the impugned award came to be passed upon appreciation of oral as well as documentary evidence. In the circumstances, the pure findings of fact recorded therein cannot be styled as perverse or interfered with by this court in exercise of its writ jurisdiction. Mr. Shiradhonkar submitted that the material on record clearly establishes that most of the letters referred to by Mr. Bapat were not even served upon the Respondent No. 1. Mr. Shiradhonkar points out that the signatures in the salary register for the months between December 1998 to March 1999 were not of the Respondent No. 1. Mr. Shiradhonkar then submitted that there is no provision in the service conditions applicable to the Respondent No. 1 which permits the Petitioner to treat an employee as having voluntary retired or abandoned services, in case of unauthorised absence beyond a particular period. Therefore, even where there is allegation of unauthorised absence, it was incumbent upon the Petitioner to have issued a charge sheet and held a domestic enquiry prior to terminating the services of Respondent No. 1. This having not been done, the impugned award which directs reinstatement with 75% back wages is legal and proper and requires no interference.

6. With the assistance of the learned counsel of both the parties, I have perused the material on record and the impugned award. As pointed out earlier, the moot