Absence due to illness does not equate to voluntary abandonment of service; a formal inquiry is required before termination based on absenteeism.

JUDGMENT :

1. The petitioner R&B Division through Executive Engineer has challenged the judgment and award dated 16.10.2014 passed in Reference (LCB) No.105 of 2005 by the Labour Court, Bhavnagar, whereby the reference instituted by the respondent – workman was partly allowed and the present petitioner was ordered to reinstate the respondent–workman without back wages along with continuity of service.

2. It has been stated that the respondent-workman got engaged with the petitioner department on 01.05.1991 as a daily wager and was assigned work of a sweeper. The respondent-workman claims to be on fix pay wages having worked with petitioner department from 01.05.1991 to 25.08.2004. Since the respondent-workman had made complaint to the Assistant Labour Commissioner, Bhavnagar asking for reinstatement with back wages, the reference to the dispute was referred to the Labour Court.

3. The facts, as noted in the impugned judgment signifies that when the dispute was raised before the Assistant Labour Commissioner Bhavnagar, the settlement failed and therefore, the reference was handed over to the Labour Court on 26.05.2005. Thereafter, the respondent-workman produced his statement of claim at Exh.5 with the facts that he was working on fix pay. He was appointed by the petitioner department by an office communication dated 13.08.1991 in accordance with the Government Resolutions dated 17.10.1988, dated 17.05.1991 as a sweeper from 01.05.1991, and was placed on the scale of fix pay at serial No.12.

3.1 The respondent-workman contended before the Labour Court that owing to his illness, by letter dated 28.10.1993 and by other letters, he was put to clarification by the petitioner department and thereafter, on 29.06.1994, he gave an undertaking assuring his regular presence. The petitioner department communicated with him on 03.05.1994 and 25.05.1995 and the undertaking was sought from him. It was contended by the respondent-workman that often he had requested to allow him to join the service however, by a letter dated 25.08.2004, he was denied to join the service.

3.2 The respondent-workman thereafter, through the Union had sent a Demand Notice. The respondent-workman stated that there was no departmental investigation or inquiry for terminating his service and notice pay, retrenchment compensation, gratuity and other rights were never paid to him, and that the junior employees still continued in the job. The petitioner department had not released any seniority list. It is stated that because of his and his family members illness, he was illegally removed from the service, therefore, had asked the relief of reinstatement.

3.3 The present petitioner department filed their reply before the Labour Court vide Exh.7 contending that there was continuous absence of the workman from the year 1993; he has not followed the rules for the leave and has not attended the job. As per the petitioner department, the respondent- workman on his own has abandoned the service and therefore, was not entitled for any consequential benefits and since on his own stopped coming to service, it was prayed to reject the reference.

3.4 During the course of the trial, the workman– Mansukhbhai Purshottambhai Vaghela filed his affidavit at Exh.9 and had produced vide Exh.40 the office order dated 13.08.1991, pathology report Exh.41, Neurosurgery Department New Civil Hospital case at Exh.42, C.T. Scan Rep