Bombay High Court
Dharmaraj Vithoba Natekar vs Unique Industries & Ors. on 13 March, 1995
Equivalent citations: (1996)IILLJ948BOM
Author: B.N. Srikrishna
Bench: B.N. Srikrishna
JUDGMENT
B.N. Srikrishna J.
1. This writ petition under Article 227 of the Constitution of India is directed against an Award of the Second Labour Court, Pune, dated 30th July, 1987 made in Reference (IDA) No. 165 of 1985 under the provision of the Industrial disputes Act, 1947 (hereinafter referred to as 'the Act').
2. The facts which are necessary to dispose of this writ petition are as follows : The petitioner was continuously working in the service of the First Respondent as a Planner Operator from 1.8.1992 upto 30.3.1985. The last drawn salary of the petitioner was Rs. 21.85 per day. The petitioner was absent from work from 7.2.1985 to 15.2.1985, but had attended the office on 8.2.1985 at 4.00 p.m. for collecting his salary. He produced Medical Certificate of E. S. I. Panel Doctor seeking to explain his absence in which it was stated; "Patient not attended my dispensary from 8.2.1985 to 14.2.1985". The petitioner again remained absent from 15.2.1985 to 22.2.1985, for which there was no medical certificate produced by him at all. During the period 26.2.1985 to 8.3.1985, the petitioner was treated at Aundh Hospital and was discharged. The relevant medical certificate from the said Hospital states that the petitioner was not fit to resume his duties until 20.3.1985. A further medical certificate produced by the petitioner states that he was declared fit for duty from 30.3.1985. Armed with this certificate the petitioner attended the work from 8.3.1985, but was not allowed to resume work on the ground that he had voluntarily abandoned service. The petitioner demanded reinstatement in service with continuity and full back wages. The unconceded demand resulted in the industrial dispute, vide Reference (IDA) No. 165 of 1985, being made to the Labour Court, Pune. The Labour Court framed the following issues and answered them as under :
"POINTS :
(1) Whether the second party worker establishes that his services were terminated orally on 30.3.1985 without following the provisions of I. D. Act? (2) In the alternative, whether first party proves that this is a case of self-abandonment due to disinterestedness? (3) Whether second party worker is entitled to reinstatement with full back wages? (4) What order?
FINDINGS :
(1) Negative (2) Affirmative (3) Negative (4) As below."
The Labour Court took the view that the termination of service was the result of voluntary abandonment and declined to grant any relief to the petitioner. Hence, this writ petition.
3. A perusal of the reasons given by the Labour Court for its findings on points 1 and 2 would indicate two facts. Firstly, that the petitioner was in the habit of remaining away from work and later covering the absence by producing medical certificates, irrespective of what they stated. The other fact established is that, in regard to the last absence, only a short period had remained uncovered by the medical certificate. During the period from 26.2.1985 to 30.3.1985, at least, he was undergoing medical treatment at the Aundh Hospital. In these circumstances, in my judgment, it was not correct to impute the intention of voluntary abandonment of service to the petitioner. In my judgment, the finding of the Labour Court on this issue is clearly erroneous and needs to be interfered with. By now, it is well established that abandonment of service is an inference which can be raised upon consideration of the totality of circumstances and that the Court should raise that inference only if it is satisfied that the circumstances do indicate that he workman was clearly not interested in continuing with his service. The circumstances established before the Labour Court, in my view, though they do indicate that the petitioner was careless with regard to his service with the First Respondent, do not make out a case of voluntary abandonment of service. I am, therefore, of the view that the petitioner is entitled to be reinstated in service.
4. On the issue of back wages, however, I am not inclined to accept the contention of Mr. Dharap that the petitioner should be allowed full back wages. The learned Judge of he Labour Court accepted the evidence of the first respondent that the petitioner was working under a contractor at Bajaj Auto Limited and also running a grocery shop. Mr. Dharap then contended that the evidence on record does not indicate as to what wages the petitioner was drawing, either by working under a contractor in Bajaj Auto Limited or by running a grocery shop and that, in the absence of such evidence, the petitioner should be granted full back wages. I am not inclined to accept this contention. In the first place, the petitioner owed a duty to honestly tell the Trial Court as to what were his circumstances subsequent to 30th March, 1985. It does not appear from a reading of the petition that this Court is also informed of the true facts subsequent to the termination of service of the petitioner. In these circumstances, I am disinclined to exercise my discretion in favour of the petitioner. I am inclined to accept the finding of the Labour Court on Issue No. 3.
5. In the result, the impugned order of the Labour Court is quashed and set aside. It is directed that the first respondent shall reinstate the petitioner in service with continuity of service, but without any back wages for the period from 30th March, 1985 till the date of reinstatement. The order of reinstatement shall be implemented with effect from 1st April, 1995.
6. Petition is allowed, Rule is accordingly made absolute on the aforegoing terms.
7. There shall, however, be no order as to costs.
8. Certified copy expedited.