The main legal point established in the judgment is that abandonment and termination are both positive acts, with abandonment requiring positive intent on the part of the employee not to work, and the onus to prove abandonment or termination rests on the party contending it. The judgment also emphasizes that the jurisdiction of the Labour Court or Industrial Tribunal extends to matters incidental to the points referred for adjudication.

C. HARI SHANKAR, J.

1. The industrial dispute, which has led to the passing of the impugned Award, dated 16th October, 2003, by the Labour Court, was initiated by the petitioner, claiming to be aggrieved by his unceremonious verbal removal from service, by the respondent, on 28th May, 1991.

2. Subsequent thereto, on 24th June, 1991, the Okhla Industrial Workers Union (hereinafter referred to as “OIWU”) addressed a representation to the Regional Labour Officer (Ex. WW-1/4 before the Labour Court), complaining that the petitioner, who had been serving the respondent since 1983, had been verbally removed from service on 28th May, 1991, merely because he had protested against the respondent extracting, from its employees, twice the work which they were supposed to perform. The representation, therefore, requested that the petitioner be reinstated in service with full back wages. The Regional Labour Officer/Labour Inspector responded, vide letter dated 26th June, 1991 (Ex. WW-1/3) addressed to the OIWU, stating that the matter had been discussed, with the respondent, who had stated that the petitioner had not been removed from service, but had remained absent from service, of his own accord, from 28th May, 1991, and that the respondent was prepared to take him back in service. As such, the OIWU was advised to immediately direct the petitioner to rejoin duty with the respondent.

3. Iterating the above facts, the petitioner contended, in his Statement of Claim filed before the Labour Court, that the verbal termination of his services, by the respondent, on 28th May, 1991, was ex facie illegal, and pointed out, in this regard, that he had neither been visited with any notice prior to the said removal from service, nor paid any amount, by the respondent, at the time of such removal. The petitioner further contended that the respondent had misrepresented facts to the Regional Labour Officer, and submitted that, when he reported at the office of the respondent for work, the respondent refused to entertain him. The allegation that the petitioner had, of his own will and volition, chosen to remain absent from work with effect from 28th May, 1991, was categorically denied. Alleging that these acts of the respondent amounted to unfair labour practice, the petitioner prayed that he be reinstated in service with full back wages.

4. It may be noted, here, that, while referring the industrial dispute, raised by the petitioner, for adjudication to the Labour Court, the Secretary (Labour), Delhi Administration framed the following single term of reference:

“Whether the services of Sh. Dev Narayan have been terminated illegally and/or unjustifiably by the management, and if so, to what relief he entitled and what directions are necessary in this regard?”

5. The respondent, in its Written Statement filed before the Labour Court, submitted, as a “preliminary objection”, that, as the respondent had not terminated the services of the petitioner, he “should be directed to report for duty”, albeit with the clear understanding that he would not be entitled to any back wages with effect from 28th May, 1991. Legally, it was contended that, as the petitioner had absented himself from duty without any prior information or sanction of leave, and despite been repeatedly advised, by the respondent, in writing, to report for duty, had failed to do so, no “industrial dispute”, within the meaning of Section 2(k) of the Industrial Disputes Act, 1947 (hereinafter referred to as “the ID Act”), arose. The submission, of the petitioner, that, after the visit of the Labour Inspector at the premises of the respondent, he had reported for work, but was not allowed to do so, was denied.

6. Before the Labour Court, the petitioner filed his affidavit-in-evidence, on 23rd May, 1994, reiterating his contention that the respondent had verbally terminated his services on 28th May, 1991. It may be noted, here, that the petitioner averred, in para 7 of his affidavit, that, as th