Gujarat High Court
State Of Gujarat vs Mansukhbhai Purshottambhai Vaghela on 16 June, 2025
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
C/SCA/5468/2015 CAV JUDGMENT DATED: 16/06/2025
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Reserved On 08/05/2025
Pronounced On : 16/06/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5468 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
MANSUKHBHAI PURSHOTTAMBHAI VAGHELA & ANR.
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Appearance:
MR PARTH PATEL AGP for the Petitioner(s) No. 1
MR. VISHAL P THAKKER(7079) for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
CAV 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 Page 1 of 27 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Jun 16 2025 Downloaded on : Tue Jun 17 00:21:58 IST 2025 NEUTRAL CITATION C/SCA/5468/2015 CAV JUDGMENT DATED: 16/06/2025 undefined 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 Page 2 of 27 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Jun 16 2025 Downloaded on : Tue Jun 17 00:21:58 IST 2025 NEUTRAL CITATION C/SCA/5468/2015 CAV JUDGMENT DATED: 16/06/2025 undefined 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 Report at Exh.43, Leprosy Center Bhavnagar case referred Page 3 of 27 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Jun 16 2025 Downloaded on : Tue Jun 17 00:21:58 IST 2025 NEUTRAL CITATION C/SCA/5468/2015 CAV JUDGMENT DATED: 16/06/2025 undefined form Exh.44, K.G. Mehta T.B. Hospital Songarh report Exh.45, K.G. Mehta T.B Hospital Songarh discharge report at Exh.46 were produced by the workman to substantiate his case of illness.
3.5 While petitioner department as respondent before the Labour Court produced the registered A.D. Cover dated 10.11.1993, Exh.17 R.P.A.D. dated 25.01.1994, Exh.18 registered A.D. return cover issued from Ramnagar Head Office, Exh.19 is a letter dated 08.04.1994 by the workman to the petitioner department, Exh.20 dated 08.04.1994 a report by way of communication of respondent-workman informing that his parents are ill, Exh.21 is an Javak Number No.386 dated 03.05.1994 informing the respondent-workman to report on duty (registered A.D. post cover), Exh.22 a letter dated 23.05.2004 requesting to reinstate him in the establishment as a sweeper, Exh.23 office Javak No.AB207 dated 18.08.2004, whereby the petitioner department has asked for legal advice from the Advocate, Exh.24 registered A.D. Acknowledgment of the letter dated 25.08.2004, Exh.26 Javak No.EB864 dated 23.07.1996 addressed to the workman (R.P.A.D Cover), Exh.27 salary-slips of March, April, May 1995. On behalf of the petitioner department, Yogendra Kishorilal Sarvaiya examined himself at Exh.37 and Exh.38 is the closing pursis.
4. Learned AGP Mr. Parth Patel submitted that on 29.06.1994, the respondent-workman had filed an undertaking assuring his regular presence for performing his Page 4 of 27 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Jun 16 2025 Downloaded on : Tue Jun 17 00:21:58 IST 2025 NEUTRAL CITATION C/SCA/5468/2015 CAV JUDGMENT DATED: 16/06/2025 undefined duties. Workman had also agreed of any disciplinary action by the office in case of any default. Workman stated that because of his personal reason, he could not attain his duty.
4.1 Learned AGP Mr. Patel has submitted that the respondent-workman had worked till the year 1993 and thereafter till 2004, the workman was never present before the authority to resume his duty. In spite of various communications from the year 1993, the respondent-workman failed to resume duty and had not taken care to reply to the authority. Mr. Patel submitted that as per the affidavit filed by Executive Engineer, R & B Division Bhavnagar, the respondent-workman had neither tried to come with an explanation, nor had presented any medical certificate regarding his absence, which proves that the respondent- workman was an irresponsible person. Mr. Patel stated that the endorsement on the postal cover reflects that the respondent-workman had refused to accept the letter sent by the authority. The facts are clear on record that the respondent-workman was absent from the year 1993 to 2004.
4.2 Learned AGP has relied on the judgment of Vijay S.Sathaye Vs. Indian Airlines Limited, reported in 2013 (10) SCC 253, to submit that the absence for a very long period, may amount to voluntarily abandonment of service and in that eventuality, the service comes to an end automatically without requiring any order to be passed by the employer, and such an act cannot be termed retrenchment from service. Learned AGP has also placed reliance on the Page 5 of 27 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Jun 16 2025 Downloaded on : Tue Jun 17 00:21:58 IST 2025 NEUTRAL CITATION C/SCA/5468/2015 CAV JUDGMENT DATED: 16/06/2025 undefined observation made by the Division Bench in case of Omkarsinh Forensinh Thakur Vs. Manager, Parasnath Chemicals, rendered in Letters Patent Appeal No.133 of 2024 and allied matters dated 13.03.2024, through which reliance has been placed on the judgment of Prabhakar Vs. Joint Director Sericulture Department & Anr., reported in 2015 (15) SCC 1, more specifically para 41 to 43, to submit that delay on the part of the workman in failing to explain the cause itself would amount to presumption of workman accepting his termination and therefore, would have no right to raise any dispute.
5. Per contra, learned advocate Mr. Vishal Thakker appearing for the respondent-workman referred to the facts of the case of the respondent-workman and the observation of the Labour Court in the impugned judgment, to submit that the workman's deposition before the Labour Court has gone unchallenged, since there was no cross-examination from the side of the present petitioner. The whole evidence at Exh.9 has remained undisputed. The application at Exh.33 was moved to reopen the stage of cross-examination and vide Exh.28 the right to cross-examination, both came to be rejected. The orders were never challenged before the higher Court and therefore in that circumstances, there was no cross-examination. Mr. Thakker stated that the Labour Court thus, had no other reason to disbelieve the evidence of the respondent-workman.
Page 6 of 27 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Jun 16 2025 Downloaded on : Tue Jun 17 00:21:58 IST 2025NEUTRAL CITATION C/SCA/5468/2015 CAV JUDGMENT DATED: 16/06/2025 undefined 5.1 Learned advocate Mr. Thakker referred to the deposition of Yogendra Kishorilal Sarvaiya (Exh.37), wherein the witness admitted that the respondent-workman was appointed by way of legal resolution as a labourer; he had also accepted the fact that he was on regular job, his appointment was regular and that they had never terminated the respondent-workman, who further stated that the respondent-workman had not resumed his duty.
5.2 Advocate Mr. Thakker stated that the Demand Notice was given by the respondent-workman in the year 2004. The Assistant Labour commissioner had called petitioners for reinstatement of the respondent-workman. Advocate Mr. Thakker submitted that the witness had no knowledge whether, in the year 2004 their higher office had undertaken any inquiry for absenteeism of the respondent-workman. Mr. Thakker stated that the witness had also affirmed, that the letter which they had addressed to the respondent-workman after the reference to take him in the service, has not been placed on record.
5.3 Learned advocate Mr. Thakker submitted that the long period of absence was because of medical reason. The respondent-workman was suffering from T.B. and had brain injury, he had taken treatment from various Hospitals as well as from Civil Hospital Ahmedabad and had undergone operation, for that necessary documents were produced on record from Exh.41 to 46 to prove his illness. Mr. Thakker submitted that there is no legal inquiry against the Page 7 of 27 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Jun 16 2025 Downloaded on : Tue Jun 17 00:21:58 IST 2025 NEUTRAL CITATION C/SCA/5468/2015 CAV JUDGMENT DATED: 16/06/2025 undefined respondent-workman to prove any misconduct and vide letter at Exh.22, the workman had proved that from 1991 to 1996, he was on duty and thereafter, because of T.B. and brain injury he could not join the service. Mr. Thakker stated that the respondent-workman had even given an undertaking before the respondent department stating that he would not ask for any salary from the year 1996 to 2004 and would waive his seniority, further submitted that though the letter communicated to the respondent-workman states of legal proceedings to be initiated, but without any such inquiry, he has been removed from the service and thus, it is not a case of any abandonment since, the respondent-workman after his treatment of the brain injury had informed the respondent department to take him back in service. Mr. Thakker submitted that without any legal inquiry any retrenchment would be illegal and in spite of the Demand Notice, he was not allowed to resume the work and was victimized.
5.4 Learned advocate Mr. Thakker has relied on the judgment of K.K. Velusamy Vs. N. Palanisamy, reported in (2011) 11 SCC 275, to contend that to reopen the stage of evidence is the discretionary power of the Court and cannot be claimed as a right. Mr. Thakker further relied on the judgments of Syed Yakoob Vs. K.S. Radhakrishnan, reported in AIR 1964 SC 477 and Harjinder Singh Vs. Punjab State Warehousing Corp., reported in (2010) 3 SCC 192, to submit that the High Court should be slow in interfering with the awards of Labour Courts based on equity and justice and that the High Court does not sit in appeal over Page 8 of 27 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Jun 16 2025 Downloaded on : Tue Jun 17 00:21:58 IST 2025 NEUTRAL CITATION C/SCA/5468/2015 CAV JUDGMENT DATED: 16/06/2025 undefined finding of facts unless perverse or illegal.
5.5 Advocate Mr. Thakker by placing reliance on the judgment of Ajaib Singh Vs. Sirhind Coop. Marketing- cum-Processing Service Society Ltd., reported in (1999) 6 SCC 82, submitted that delay in raising the dispute does not bar relief under the Industrial Disputes Act unless it is shown that the employer suffered real prejudice. Advocate Mr. Thakker stated that the Industrial Disputes has no fixed limitation period unless prescribed under the statute. Reinstatement still can be granted even if there is delay, especially where termination was without enquiry and violates natural justice. Further, placing reliance in the case of Bharat Sanchar Nigam Ltd. Vs. Bhurumal, reported in (2014) 7 SCC 177, Mr. Thakker submitted that the Courts may consider the delay in seeking relief, but it must be weighed against the illegality of termination. Relief of back wages may be reduced or denied in case of long delay, but reinstatement may still be ordered.
6. Heard learned AGP Mr. Parth Patel appearing for the petitioner department and learned advocate Mr. Vishal P.Thakker for the respondent-workman and perused the record and proceedings. Learned AGP has placed much reliance on the document Exh.24, which was addressed by the petitioner department to the respondent-workman. The communication is dated 25.08.2004, which is in connection with the letter of respondent-workman dated 23.05.2004. The subject in context was reinstatement in service.
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7. The petitioner contention is that the respondent- workman has remained absent without any permission from August, 1993 and for that purpose there were five registered post communications and lastly on 23.07.1996 a notice was issued, in spite of that workman did not resume duty. Assistant Labour Commissioner was also informed about the last notice however, the respondent-workman failed to mark on his duty and accordingly, from October, 1993 he has abandoned the job, thus, that would amount to end of the service, and since the abandonment from the service is for a very long time, it would not require any order of termination from the employer, and that the abandonment of the service is a consequence of unilateral action on behalf of the employee and the employer has no role in it, and such act cannot be termed as retrenchment from service.
8. Two letters dated 08.04.1994, were received and in one of the letter respondent-workman has referred to the illness of his younger brother and in another even dated letter he has referred to the illness of his wife. Thereafter, as per the petitioner vide a letter dated 26.09.1994, the respondent workman accepted his abandonment and had asked for forgiveness in spite of that, neither he remained present on the job nor had he informed in writing seeking any permission and thus, continuous absence for a long time amounts to voluntarily abandonment of service.
9. On 23.05.2004, the respondent-workman had sent two medical reports of the year 2003, while no report from Page 10 of 27 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Jun 16 2025 Downloaded on : Tue Jun 17 00:21:58 IST 2025 NEUTRAL CITATION C/SCA/5468/2015 CAV JUDGMENT DATED: 16/06/2025 undefined October 1993, till the certificates, as received, were ever sent to the petitioner department hence, in that circumstances the prayer to give medical leave and leave without pay from 1996 to 2004 was not allowed observing that his absence was from October, 1993 hence, his request was not granted, clearly stating in Exh.24 that he has voluntarily left his job in the year 1993.
10. The facts pleaded were required to be proved before the Labour Court. The documents, which had been produced on record, by the respondent-workman had not been challenged, workman was not examined on this aspect. The workman had stated in the examination-in-chief that he was suffering from tuberculosis and therefore, in the initial time, he had no other option, but to take intermediate leaves and in case of necessity had to go for a longer leave. The workman had produced on record medical evidence to show his brain injury; he had taken treatment from neurosurgery department New Civil Hospital Ahmedabad. The cause for absence was informed to the petitioner-department.
11. On perusal of the Judgment of the Labour Court, it appears that the Labour Court has taken into consideration the evidence of the witnesses, observing that the evidence of the respondent-workman has not been challenged in the cross-examination and the same has remained unchallenged. The evidence of Yogendra Kishorilal Sarvaiya (Exh.37) from the side of the petitioner-department was referred, who had accepted that the respondent-workman was legally appointed Page 11 of 27 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Jun 16 2025 Downloaded on : Tue Jun 17 00:21:58 IST 2025 NEUTRAL CITATION C/SCA/5468/2015 CAV JUDGMENT DATED: 16/06/2025 undefined by resolution and has been made permanent, the witness affirmed that the respondent-workman had not been released from the job, but has stated that he had not remained present in service. He had admitted that in the year 2004 a Demand Notice was given. The witness stated that he has no personal information about the matter and therefore, he has no personal knowledge about the illness of the respondent- workman. The Labour Court thus, undisputedly concluded that the appointment was under legal resolution and he was a permanent employee. The illness of the respondent-workman is observed to be proved by documents (Exh.41 to 46). The learned Judge has observed that there has been no legal inquiry with regard to his absence. By Exh.22, which is a letter dated 23.05.2004, the respondent-workman had informed that he had continuously served from 1991 to 1996 and thereafter, because of his ill-health and brain injury, he had taken medical treatment from Ahmedabad Civil Hospital, where he had undergone operation and urged to consider the year 1996 to 2004 as of medical leave; he had also assured that he would not ask for seniority nor any compensation or the salary for that period.
12. The Labour Court observed that the documents (Exh.24 and 26) can be considered as a letter, which is in the form of notice, where the petitioner-department had informed that they would start proceedings to terminate him, the Labour Court observed that however there is nothing on record to prove that he had been terminated from service after initiating proceedings or by any written order. The Labour Page 12 of 27 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Jun 16 2025 Downloaded on : Tue Jun 17 00:21:58 IST 2025 NEUTRAL CITATION C/SCA/5468/2015 CAV JUDGMENT DATED: 16/06/2025 undefined Court observed that it has not occurred that the respondent- workman was released after any disciplinary action or inquiry by the appointing or inquiry officer, therefore, concluded that the respondent-workman was not permitted to join service and was victimized and was illegally terminated.
13. Perusal of Exh.40 suggests that prior to his regular appointment, the respondent-workman had worked for about five complete years and after the completion of five years as a daily wager, he was put on fixed salary in connection with the Government Resolutions dated 17.10.1988 and 17.05.1991. The office order shows the responded-workman at the status of sweeper from 01.05.1991.
14. By the communication dated 23.05.2004, the respondent-workman has stated that he had worked from 01.05.1986 to 15.05.1991 regularly as a daily wager and thereafter, on being appointed as fixed salaried worker, he had performed his duties as a sweeper from 01.05.1991 to 30.08.1996. Exh.22 has been observed by the Labour Court, whereby the respondent-workman has waived his right to demand salary from the year 1996 to 2004 and has urged to consider it as medical leave, but the same came to be rejected by the communication (Exh.24), the respondent-workman was informed by the communication dated 25.08.2004. Though, the cause arose to the petitioner-department to initiate inquiry and departmental action to consider as a misconduct for remaining on leave without any prior sanction, however, nothing was done.
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15. The document dated 23.07.1996 would clarify that Office Letter Nos.809 dated 28.10.1993, 842 dated 10.11.1993, 68 dated 25.01.1994, 386 dated 03.05.1994 and 468 dated 25.05.1994, were communicated by Registered Post A.D. to the respondent-workman and was lastly instructed to appear on the job within four day and in failure it was to be considered that he was not in need of job and thereby, the petitioner-department would initiate proceedings to remove him from the job. Till 2004, workman did not appear on the job and thereafter, on 23.05.2004, workman wrote a letter to the Deputy Executive Engineer to reinstate him as a sweeper stating that, from 01.05.1986 to 15.05.1991, he was working as a daily wager and performing his duties as a sweeper; he was appointed on fixed salary by letter No.K.E. CB(2) 836 dated 05.08.1991. The respondent-workman had informed in the letter that from 01.05.1991 to 30.08.1996, he had performed his duties, thereafter, because of brain injury, he was under medical treatment and during this period he had taken treatment from various hospitals as well as Ahmedabad Civil Hospital and after undergoing operation, on recuperation, urged to consider his economic weak condition and to allow him medical leave from 1996 to 2004. He had also undertaken to waive his seniority and has also given up salary or compensation for the period he remained absent.
16. It is contended by the petitioner that the respondent- workman has failed to explain his absence from the year 1993 to 2004. In the case of Vijay S.Sathaye (supra) relied upon Page 14 of 27 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Jun 16 2025 Downloaded on : Tue Jun 17 00:21:58 IST 2025 NEUTRAL CITATION C/SCA/5468/2015 CAV JUDGMENT DATED: 16/06/2025 undefined by learned AGP, it has been observed in paras 8 and 9 as under:
"8. Even otherwise, the petitioner was asked to continue in service till the decision is taken on his application. However, he did not attend the office of the respondents after 12.11.1994. In view of the above, as the petitioner had voluntarily abandoned the services of the respondents, there was no requirement on the part of the respondents to pass any order whatsoever on his application and it is a clear cut case of voluntary abandonment of service and the petitions are liable to be dismissed.
9. It is a settled law that an employee cannot be termed as a slave, he has a right to abandon the service any time voluntarily by submitting his resignation and alternatively, not joining the duty and remaining absent for long. Absence from duty in the beginning may be a misconduct but when absence is for a very long period, it may amount to voluntarily abandonment of service and in that eventuality, the bonds of service come to an end automatically without requiring any order to be passed by the employer."
17. The facts of the case as was noted in Vijay S.Sathaye (supra), was that the petitioner joined the service of the erstwhile Indian Airlines Limited as First Officer and he acquired license for becoming a Pilot, thereafter was promoted as Captain and then as a Commander. The Indian Airlines came with the Voluntary Retirement Scheme for its employees in 1989. The petitioner submitted an application dated 07.11.1994 seeking VRS vide effect from 12.11.1994. The petitioner was informed vide letter dated 11.11.1994 that he should continue in service till the time decision is taken. However, the petitioner did not attend the duty after 12.11.1994; he joined the services of Blue Dart Ltd. and he did not go the Indian Airlines to work from 12.11.1994. There was no response from the Indian Airlines, so the petitioner filed a writ petition for issuance of writ of mandamus directing Page 15 of 27 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Jun 16 2025 Downloaded on : Tue Jun 17 00:21:58 IST 2025 NEUTRAL CITATION C/SCA/5468/2015 CAV JUDGMENT DATED: 16/06/2025 undefined Indian Airlines to accept his VRS. It was in these facts of the case noted that the petitioner did not ensure compliance of Regulation 12(b) of the Service Regulation, which required three months notice as a condition for applying for VRS.
18. Learned AGP has also referred to Para-13 of Vijay S.Sathaye (supra), wherein the case of Syndicate Bank Vs. General Secretary, Syndicate bank Staff Association & Anr. (AIR 2000 SC 582) has been relied, reads thus:
"13. In Syndicate Bank v. General Secretary, Syndicate Bank Staff Association & Anr., AIR 2000 SC 2198; and Aligarh Muslim University & Ors. v. Mansoor Ali Khan, AIR 2000 SC 2783, this Court ruled that if a person is absent beyond the prescribed period for which leave of any kind can be granted, he should be treated to have resigned and ceases to be in service. In such a case, there is no need to hold an enquiry or to give any notice as it would amount to useless formalities.."
18.1 It is required to be noted that the application (Exh.22) of the respondent-workman for medical leave was rejected by communication dated 25.08.2004. Thereafter, the respondent- workman immediately, sent a Demand Notice through the Union. The respondent-workman has stated that without any departmental investigation or inquiry, he has been removed from the job without any notice pay or retrenchment compensation, gratuity and other benefits. Since before the Assistant Labour Commissioner, the petitioner-department denied to take the respondent-workman on job, the reference was filed on 28.04.2005. Judgment relied upon by learned AGP Mr. Patel in case of Prabhakar (supra) would not be applicable, as there was no delay in raising the dispute. The Hon'ble Supreme Court in para-42 of Prabhakar (supra) has Page 16 of 27 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Jun 16 2025 Downloaded on : Tue Jun 17 00:21:58 IST 2025 NEUTRAL CITATION C/SCA/5468/2015 CAV JUDGMENT DATED: 16/06/2025 undefined held as under:
"42. To summarise, although there is no limitation prescribed under the Act for making a reference under Section 10(1) of the Act, yet it is for the 'appropriate Government' to consider whether it is expedient or not to make the reference. The words 'at any time' used in Section 10(1) do not admit of any limitation in making an order of reference and laws of limitation are not applicable to proceedings under the Act. However, the policy of industrial adjudication is that very stale claims should not be generally encouraged or allowed inasmuch as unless there is satisfactory explanation for delay as, apart from the obvious risk to industrial peace from the entertainment of claims after long lapse of time, it is necessary also to take into account the unsettling effect which it is likely to have on the employers' financial arrangement and to avoid dislocation of an industry.
18.2 In case of Ajaib Singh (supra), the respondent management was shown not to have taken any plea regarding delay. Had this plea been raised, the workman would have been in a position to show the circumstances which prevented him in approaching the Court at an earlier stage or even to satisfy the court that such a plea was not sustainable after the reference was made by the government. It was observed that the High Court was, therefore, not justified in holding that the workman had not given any explanation as to why the demand notice had been issued after a long period. It was also observed that the High Court went wrong in observing in this regard that the courts were bound to render an even-handed justice by keeping balance between the two different parties. The workman is justified in complaining that in the absence of any plea on behalf of the management and any evidence, regarding delay, he could not be deprived of the benefits under the Act merely on the technicalities of law. The High Court appears to have substituted its opinion for the opinion Page 17 of 27 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Jun 16 2025 Downloaded on : Tue Jun 17 00:21:58 IST 2025 NEUTRAL CITATION C/SCA/5468/2015 CAV JUDGMENT DATED: 16/06/2025 undefined of the labour court which was not permissible in proceedings under Articles 226/227 of the Constitution.
19. In the present matter, there is no case of termination of service. The cause, as could be noted vide Exh.24, was rejection of the prayer for medical leave. There is no termination of service of respondent-workman by any order nor any departmental inquiry has been conducted alleging misconduct on the ground of long absenteeism proving continued ill-health. The continuous communications between the petitioner-department and the respondent-workman from the year 1993 to 2004 appears to be informing each other asking the respondent-workman to join the service and the respondent-workman informing the petitioner-department about the illness of his family and his own personal ailment. Learned AGP Mr. Patel has submitted that the respondent- workman has failed to produce any medical documents from the period October 1993 to 2004. It is required to be noted though, examination-in-chief of the respondent-workman was on record, but was not cross-examined by the petitioner department. The facts, as were stated by the respondent- workman had not been controverted by the petitioner- department. The respondent-workman could have produced necessary documents in rebuttal, had he been called upon to produce such documents during the trial. The Labour Court has believed the medical documents produced by the respondent-workman from Exh.41 to 46. The respondent- workman has stated in his deposition that in the initial period, he was suffering from tuberculosis and therefore, he had Page 18 of 27 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Jun 16 2025 Downloaded on : Tue Jun 17 00:21:58 IST 2025 NEUTRAL CITATION C/SCA/5468/2015 CAV JUDGMENT DATED: 16/06/2025 undefined taken few leaves in the beginning, this fact has not been opposed by way of cross-examination. The respondent- workman had produced the medical evidence before the petitioner-department with regard to his treatment of brain injury.
20. The Labour Court had ordered for reinstatement with continuity of service without back wage. In case Bharat Sanchar Nigam Ltd. (supra), the Hon'ble Supreme Court has dealt with the circumstances under which grant of reinstatement with full back wages can be granted and has held in Para 33 to 35 as under:
"33. It is clear from the reading of the aforesaid judgments that the ordinary principle of grant of reinstatement with full back wages, when the termination is found to be illegal is not applied mechanically in all cases. While that may be a position where services of a regular/permanent workman are terminated illegally and/or malafide and/or by way of victimization, unfair labour practice etc. However, when it comes to the case of termination of a daily wage worker and where the termination is found illegal because of procedural defect, namely in violation of Section 25-F of the Industrial Disputes Act, this Court is consistent in taking the view in such cases reinstatement with back wages is not automatic and instead the workman should be given monetary compensation which will meet the ends of justice. Rationale for shifting in this direction is obvious.
"34. Reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the termination is found to be illegal because of non-payment of retrenchment compensation and notice pay as mandatorily required under Section 25-F of the Industrial Disputes Act, even after reinstatement, it is always open to the management to terminate the services of that employee by paying him the retrenchment compensation. Since such a workman was working on daily wage basis and even after he is reinstated, he has no right to seek regularization (See: State of Karnataka vs. Uma Devi (2006) 4 SCC 1). Thus when he cannot claim regularization and he has no right to continue even as a daily wage worker, no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated again after Page 19 of 27 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Jun 16 2025 Downloaded on : Tue Jun 17 00:21:58 IST 2025 NEUTRAL CITATION C/SCA/5468/2015 CAV JUDGMENT DATED: 16/06/2025 undefined reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay. In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose.
35. We would, however, like to add a caveat here. There may be cases where termination of a daily wage worker is found to be illegal on the ground it was resorted to as unfair labour practice or in violation of the principle of last come first go viz. while retrenching such a worker daily wage juniors to him were retained. There may also be a situation that persons junior to him were regularized under some policy but the concerned workman terminated. In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty reasons for adopting the course of grant of compensation instead of reinstatement. In such cases, reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing, such a relief can be denied."
21. Exh.24 is the letter dated 25.08.2004 by the petitioner in response to the letter of the respondent workman dated 23.05.2004 asking for reinstatement in service. The communication Exh.24 notes that the respondent workman had not performed his duty from 01.05.1991 to 30.08.1996. Since August, 1993 had remained absent without any permission, and for that purpose registered letters dated 20.10.1993, 10.11.1995, 25.01.1994, 03.05.1994 and 25.05.1994 and lastly on 23.07.1996 notice was issued. The respondent-workman was informed that in spite of the communication and the notice he had not resumed duties. Exh.24 discloses that the copy of the last notice was given to Assistant Labour Commissioner, in spite of that respondent- workman had not joined the duties. So according to the petitioner-department, the respondent-workman has voluntarily abandoned the job.
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22. Section 2(oo) of the Industrial Disputes Act, 1947 defines 'retrenchment'; under clause (c), termination of the service of a workman on the ground of continued ill-health has been excluded to be considered as retrenchment. Section 2(oo) reads as under:
"Section 2(oo) - "retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action but does not include - [Inserted by Act 43 of 1953, Section 2 (w.e.f. 24.10.1953)]
(a)voluntary retirement of the workman; or
(b)retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or] [(bb) termination of the service of the workman as a result of the on-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or]
(c) termination of the service of a workman on the ground of continued ill-health;"
23. The decision to terminate the service of the employee owing to continued ill-health would be of the employer. This decision to end the service would be based on the employee's inability to perform duties due to a persistent health condition. The term 'continued ill-health' implies a long term condition not a temporary ailment, that prevents the employee from fulfilling his duties. Employer need to present medical evidence to support the claim of "continued ill-health", which potentially includes medical reports and evaluations. Employee would have the right to challenge the termination proving that the illness was not continuous, making it responsible for him to perform his duties. Here, the present Page 21 of 27 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Jun 16 2025 Downloaded on : Tue Jun 17 00:21:58 IST 2025 NEUTRAL CITATION C/SCA/5468/2015 CAV JUDGMENT DATED: 16/06/2025 undefined respondent-workman is on the post of sweeper. The petitioner department failed to question the respondent-workman before the Labour Court by way of cross-examination, nor the petitioner department with appropriate notice and procedure thought it fit to terminate the respondent-workman's service. Exh.24 is neither a termination notice nor a termination order. Medical illness of the respondent-workman was referred and prayer for medical leave was rejected. The workman's absence was considered as voluntary abandonment. The definition of retrenchment under Section 2(oo) does not specifically includes voluntarily abandonment of service as one of the ground to be excluded from the definition of retrenchment.
24. The fact to be noticed is that the workman service was made regular by an order dated 05.08.1991, after having considered his previous continued service from 01.05.1986 to 15.05.1991 as daily-wager. Under policy notification dated 17.10.1988 and 17.05.1991, the order of regularization was issued. Thereafter too, from 01.05.1991, the respondent- workman continued his work, which according to respondent- workman was upto 1996; while for the petitioner department the year is 1993. The undertaking to continuously work was given on 29.06.1994. The record of workman's attendance by way of muster-roll, or other relevant documents could have been produced. The respondent-workman has very emphatically stated in his letter dated 23.05.2004, that he had worked from 01.05.1991 to 30.08.1996 as regular worker.
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25. In case of Anand Bihari and Ors. Vs. Rajasthan State Road Corporation, reported in 1991 (1) GLR 525, the Hon'ble Supreme Court has explained the expression ill-health used under Section 2(oo) sub-clause (c) and has held as under:
"The expression "ill-health" used in sub-clause (c) of Section 2(00) of the Industrial Disputes Act, 1947 has to be construed relatively and in its context. It must have a bearing on the normal discharge of duties. It is not any illness but that which interferes with the usual orderly functioning of the duties of the post which would be attracted by the sub-clause. Conversely, even if the illness does not affect general health or general capacity and is restricted only to a particular limb or organ but affects the efficient working of the work entrusted it will be covered by the phrase. For it is not the capacity in general but that which is necessary to perform the duty for which the workman is engaged which is relevant and material and should be considered for the purpose. Therefore, any disorder in health which incapacitates an individual from discharging the duties entrusted to him or affects his work adversely or comes in the way of his normal and effective functioning can be covered by the said phrase. The phrase has also to be construed from the point of view of the consumers of the concerned products and services. If on account of a workman's disease or incapacity or debility in functioning, the resultant product or the service is likely to be affected in any way or to become a risk to the health, life or property of the consumer, the disease or incapacity has to be categorised as ill-health for the purpose of the sub-clause, otherwise, the purpose of production for which the services of the workman are engaged will be frustrated and worse still in cases such as the present one they will endanger the lives and the property of the consumers. Hence the Court should place a realistic and not a technical or pedantic meaning on the said phrase. Therefore, the said phrase would include cases of drivers such as the present ones who have developed a defective or sub- normal vision or eye-sight which is bound to interfere with their normal working as drivers. Accordingly the termination of the services of the drivers in the present case being covered by sub- clause (c) of Section 2(00) would not amount to retrenchment within the meaning of Section 2(00) of the Act. Hence the termination per se is not illegal because the provisions of Section 25-F have not been followed while effecting it."
26. The expression "continued ill-health" in sub-clause (c) of Section 2(oo) has been explained, as it does not mean Page 23 of 27 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Jun 16 2025 Downloaded on : Tue Jun 17 00:21:58 IST 2025 NEUTRAL CITATION C/SCA/5468/2015 CAV JUDGMENT DATED: 16/06/2025 undefined uninterrupted continued ill-health, but what it means is ill- health for considerable period and long duration affecting normal duties. Unfortunately, the petitioner-department failed to prove such a condition of the respondent-workman before the Labour Court. The workman's absence was not challenged and the witness, who was examined for the petitioner department had no personal knowledge. Though it was open for the petitioner department to establish before the Labour Court 'continued ill-health' not permitting the respondent- workman to work, but failed to do so. While proving that, petitioner could terminate the workman's service without violating Section 25-F. What is 'continued ill-health' would depend on the facts and circumstances of each case, since legislature has not prescribed any direction of the period of ill-health under the exception to Section 2(oo) of the Act. Enquiry was necessary to prove that the employee had continued to be in ill-health. The termination could not have been effected on the basis of some mere presumption.
27. Abandonment of service generally refers to the voluntarily relinquishment of an employment position, often without proper notice or resignation. It can be inferred from an employee's prolonged absence from work, lack of communication with their employer and an apparent lack of intent to return. It is distinct from absenteeism, where employees are absent but plan to return. It is considered a voluntary act by the employees to end their employment, even if, they have not formally resigned. The major indication is the absence of communication with the employer regarding the Page 24 of 27 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Jun 16 2025 Downloaded on : Tue Jun 17 00:21:58 IST 2025 NEUTRAL CITATION C/SCA/5468/2015 CAV JUDGMENT DATED: 16/06/2025 undefined employee's absence and return date.
28. Absenteeism involves missed work with a planned return, while abandonment suggests a permanent departure from employment. The petitioner department failed to prove abandonment of service by the respondent-workman. The respondent-workman was informing the petitioner department the cause of his absence. Illness of T.B. and brain injury and ill-health of family members were put forwarded as ground for absenteeism. The workman had also made a prayer to consider his leave as medical leave. The termination could have become valid, had the petitioner department proved 'continued illness' not allowing the workman to continue with his normal duties.
29. The High Court of judicature at Bombay in the case of M/s. Premsons Trading (P) Ltd. Vs. Shri Dinesh Chandeshwar Rai C/o. Maharashtra Employees Union, rendered in Writ Petition No.4616 of 2019, in paragraph No.13 has held thus:
"13. Petitioner's plea of voluntary abandonment of employment cannot be accepted on account of failure on its part to serve a notice on Respondent calling him upon to join duties. It is well settled law that to prove voluntary abandonment, the employer must issue a notice to the workmen directing him to resume duties and in absence of such notice, voluntary abandonment of employment cannot be accepted. In my view therefore no serious fault can be found in Award of the Labour Court rejecting Petitioner's plea of voluntary abandonment of service. In absence of any notice directing resumption of service and also in absence of conduct of enquiry, the plea of abandonment has rightly been rejected by the Labour Court."Page 25 of 27 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Jun 16 2025 Downloaded on : Tue Jun 17 00:21:58 IST 2025
NEUTRAL CITATION C/SCA/5468/2015 CAV JUDGMENT DATED: 16/06/2025 undefined
30. Exhibit-24 was a reply by the petitioner-department to the letter addressed by respondent-workman responding to a prayer to take him back in service. The workman had made a complaint before Assistant Labour Commissioner, Bhavnagar for reinstatement, since settlement could not be arrived, there was a reference. It is not the case that respondent-workman had left the job with no intent to return. Continued ill-health incapacitating the workman to do his normal duty, had not been proved by the petitioner-department. Even the petitioner-department had failed to prove any inquiry against the respondent-workman, which can corroborate the say of abandonment, much less only preliminary inquiry.
31. The reason given by the Labour Court for reinstating the respondent- workman are on the basis of evidence on record. The award is just and proper, which requires no interference from this Court. In the result, the present petition is rejected.
(GITA GOPI,J) Further Order After the pronouncement of the judgment, learned AGP Mr. Parth Patel submitted that the State proposes to challenge the judgment and thus, has made prayer to stay the present judgment.
Countering the same, learned advocate Mr. Vishal Thakker appearing for the respondent-workman submitted that the respondent-workman is now 65 years of age and has Page 26 of 27 Uploaded by MR PANKAJ KUMAR PRASAD(HC00967) on Mon Jun 16 2025 Downloaded on : Tue Jun 17 00:21:58 IST 2025 NEUTRAL CITATION C/SCA/5468/2015 CAV JUDGMENT DATED: 16/06/2025 undefined no means to even seek any legal advice, thus, Mr. Thakker stated that legal dues are required to be paid so that, in his old age, the respondent-workman can receive the benefits and deal with his illness.
For the reasons given in the judgment and since now the respondent-workman is struggling with his health and at the age of 65 years and when by an order dated 15.07.2015 the award was stayed and the petitioner was directed to pay the respondent-workman as per Section 17-B of the Industrial Disputes Act, there would not be any scope of reinstatement, hence, taking into consideration the circumstances, the prayer made by the learned AGP Mr. Patel for staying of the judgment stands rejected.
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