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6. As per the statement of claim filed by the respondent no.2/workman, he claimed his employment with the petitioner management as general worker for about fifteen years from the date of filing of the claim and his grievance was that he was illegally terminated by the petitioner management without adhering to the mandate of Section 25-F of the Industrial Disputes Act. The stand taken by the petitioner management before the Labour Court was that the respondent no.2/workman had left the job on 25.12.2001 voluntarily and thereafter he did not return back on his duty without any rhyme or reason. Both the parties led evidence in terms of the aforesaid reference and the respondent no.2 workman examined himself as WW-1, while the petitioner management had examined one Mr. Brij Kishan as MW-1. Based on the evidence led by the parties, the learned Labour Court found the termination of the respondent workman as illegal, unjust and in violation of Section 25-F of the Industrial Disputes Act. The learned Labour Court disbelieved the defence taken by the petitioner management that the respondent workman had himself abandoned his job by not returning back on his duty. The learned Labour Court found that the respondent no.2 workman had sent a demand notice through regd. A.D. covers through which he made a request for taking him back on duty and for the payment of his outstanding dues but no reply was sent by the petitioner management. The said demand notice was proved on record by the respondent no.2 in his evidence as Ex. WW-1/1 and the receipt of the said demand notice was also admitted by the petitioner management before the conciliation officer in their reply. The learned Labour Court further found that the respondent no. 2 was not cross-examined by the petitioner management to give any contrary suggestion to him that he never reported back to the petitioner management for joining his duty. On the other hand, MW-1 Mr. Brij Kishan in his cross-examination duly admitted the fact that the petitioner management did not write any letter to the respondent no.2 workman after his alleged absenteeism from 25.12.2001, calling upon him to resume his duties. The said witness had also admitted that no charge sheet was issued to the respondent workman because of his absenteeism from the duty. The Labour Court after placing reliance on the case of MCD Vs. Brij Mohan, LLR 1994, page 332 came to the conclusion that it cannot be assumed that the workman had abandoned the employment as it was the duty of the petitioner management to show their readiness to allow the workman to resume his duty.

7. Nothing illegal and perverse has been pointed out by the petitioner management to assail the said findings arrived at by the learned Labour Court. It is a settled legal position that the labour courts are the final fact finding courts and unless the findings given by the labour court are illegal or perverse on the very face of it, this court in exercise of its powers under Article 227 of the Constitution of India will not interfere to reverse such findings. It is also no more res integra that even in a case of unauthorized absenteeism or to prove abandonment of service on the part of the workman the management must place on record necessary material to prove that enough efforts were made by it to call upon the workman to resume back his duty and the workman has shown his clear reluctance for the same. Here it would be relevant to refer to the judgment of the Apex Court in the case of Scooters India Ltd. vs. Mohammad Yaqub (2001)1SCC61 where the workman when reported for duty was not allowed to join and according to the standing orders automatically terminated, the Court held that it was not a case of absenteeism but retrenchment in the following para:

13. In this view of the matter, in our view, the decisions of the Labour Court as well as High Court are correct and require no interference. Accordingly, the appeal stands dismissed. There will, however, be no order as to costs."

Undoubtedly, unauthorized absenteeism is a ground for termination and has been held to be misconduct in a catena of judgments. But when is it an unauthorized absenteeism is to be determined from the facts and circumstances of each case. Here it would be relevant to refer to the judgment of the Division Bench this court in the case of Ram Niwas vs. Union of India 2010(4)AD(Delhi)281 where in the facts of the case the petitioner was compulsorily retired on the ground of unauthorized absenteeism, but the court held such action illegal as the petitioner was prevented from coming to work as he was not paid his wages and it cannot be said to be unauthorized absenteeism. It would be relevant to reproduce the said para here as under:

8. It is also a settled legal position that abandonment of service is different from absenteeism. Abandonment of service is the voluntarily relinquishment of ones services with the intention not to resume the same. It is a matter of inference to be drawn from the facts and circumstances of each case and mere absenteeism for a continuous period does not mean that the employee has abandoned his service. The management has to bring on record sufficient material to show that the employee has abandoned the service and abandonment cannot be attributed to the employee without there being sufficient evidence. On the failure to report for duty, the management has to call upon the employee and if he refuses to report, then an enquiry is required to be ordered against him and accordingly action taken. In the absence of anything placed on record by the petitioner management, no presumption against the respondent can be drawn. No enquiry in this case was set up by the petitioner management and even no letter was sent by the management to the respondent workman calling upon him to resume his duty. The case in hand is a clear case of violation of Section 25-F of the Industrial Disputes Act as the petitioner management failed to adhere to the procedure prescribed under Section 25-F of the I.D. Act before dispensing with the service of the respondent workman. The plea taken by the petitioner management that the respondent workman after having absented himself from the duty was working as an agriculturist is a plea worth outright rejection. If the petitioner management had not permitted the respondent workman to join back on his duties and during such period even if he had worked as an agriculturist to sustain and survive himself, the same cannot be taken against to deprive the respondent workman to claim back wages. The learned Labour Court has already been considerate enough to grant 40% of the back wages instead of granting full back wages.