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4] Mr. Kiran Bapat, the learned counsel appearing for the Petitioner, in his well balanced submissions would urge that the skc WP-1032-2007 finding that the Petitioner has terminated the services of the Respondent No. 1 is perverse. The relevant material on record which establishes that the Respondent No. 1 was very much in service upto 01.03.1999 and thereafter stopped reporting for duties has been unjustifiably ignored. Mr. Bapat pointed out letters / notices requiring the Petitioner to report for duties and submitted that since the Respondent No. 1 failed to report for duties, the Petitioner was well within its rights to treat the Respondent No. 1 as having abandoned services. Mr. Bapat also pointed out that in the course of conciliation proceedings, the Petitioner once again offered the Respondent No. 1 to resume duties. The same was the position at the stage of decision in Notice of Motion No. 368 of 2011 in the present Petition which is evident from the order dated 22.11.2011.

However the Respondent No. 1 avoided resumption of duties and instead has indulged into making false and reckless allegations that he was prevented from resuming duties. In these circumstances, Mr. Bapat submitted that the impugned award deserves to be interfered with and set aside.

5] Mr. J. N. Shiradhonkar appearing for the Respondent No.1 countered the submissions of Mr. Bapat by submitting that the impugned award came to be passed upon appreciation of oral as skc WP-1032-2007 well as documentary evidence. In the circumstances, the pure findings of fact recorded therein cannot be styled as perverse or interfered with by this court in exercise of its writ jurisdiction. Mr. Shiradhonkar submitted that the material on record clearly establishes that most of the letters referred to by Mr. Bapat were not even served upon the Respondent No. 1. Mr. Shiradhonkar points out that the signatures in the salary register for the months between December 1998 to March 1999 were not of the Respondent No. 1.

12] Even if I were to agree with the submissions of Mr. Bapat that evidence on the part of the Respondent No. 1 is not quite satisfactory, then the same criticism squarely applies to the evidence led on behalf of the Petitioner as well. In such a situation, I have to fall back upon the law enunciated in the rulings of Gaurishanker (supra) and Mahamadsha (supra), which in no uncertain terms lays down that the burden of proving 'abandonment of service' is upon the employer and where an employer fails to discharge such burden, an award may be made in favour of the workman.

13] As observed earlier, this is not a case where any specific provision has been made in the service conditions permitting the employer - Petitioner to treat absence beyond a specified period as presumptive of abandonment of service. In absence of such a provision, the Petitioner was duty bound to serve a proper notice skc WP-1032-2007 upon the Respondent No. 1 to resume duties. If despite receipt of said notice, the Respondent No. 1 failed to turn up, then as laid down in the rulings of Gaurishanker (supra) and Mahamadsha (supra), the Petitioner ought to have held a domestic enquiry by charging the Respondent No. 1 with unauthorised absence or any similar misconduct. This admittedly has not been done by the Petitioner. In such circumstances no useful purpose will be served by accepting the submissions of Mr. Bapat, on the aspect of appreciation of evidence. That apart, as observed earlier the scope of interference with findings of fact as may be recorded by the Labour Court is quite limited. This writ court is certainly not exercising any appellate jurisdiction. Therefore the circumstance that two views may be possible, is not a ground to justify interference, unless the view taken by the court / tribunal of first instance is palpably perverse and unreasonable.