Civil Appeal No 1188 of 1976
Appeal by special leave from the Award dated 27 2 1976 of the Industrial Tribunal Maharashtra in Complaints IT Nos
48 53 and 55 63 of 1973 in Ref
IT No 375 of 1972 published in the Maharashtra Govt
Gazette L dated 3 6 1976
M K Ramamurthi and Naunit Lal for the Appellant
Sachin Chaudhuri and B R Aggarwala for the Respondent
The Judgment of the Court was delivered by JASWANT SINGH J
This appeal by special leave is directed against the common award dated February 27 1976 of the Industrial Tribunal 615 Maharashtra Bombay rejecting as not maintainable complaints Nos
48 of 1973 to 63 of 1973 made by the appellants against the respondent hereinafter referred to for brevity as the Company under section 33A of the hereinafter called the Act  in reference IT No 336 of 1972
The facts material for the purpose of this appeal are The appellants hereinafter described as Workmen  were employees of the Company
During the pendency of the above mentioned reference No 336 of 1972 before the Second Labour Court Bombay for adjudication of a dispute 344 workmen of the Company including the appellants went on an indefinite peaceful strike with effect from August 30 1972 pursuant to the strike notice given to the Company by their registered union called The Association of Chemical Workers  in support of its demand for re instatement of three of the union leaders who had been dismissed by the Company
On the even date ie August 30 1972 the Company put up a notice stating that the strike embarked upon by the workmen was illegal and those participating in the said strike were liable to disciplinary action for misconduct as per Company s certified standing orders Nos
22b and 24a
On September 7 1972 the Company issued notices to the appellants and 10 others asking them to report for duty on or before September 18 1972 failing which their absence would be construed as voluntary abandonment of service and their names would be struck off from the muster rolls of the Company
On September 19 1972 the Company sent separate communications to the appellants and 10 others informing them that since by not reporting for duty they had confirmed its presumption that they were no longer interested to continue in service of the Company and had totally abandoned the Company s service their names had been struck off from the rolls of the Company from that date
Along with its communication the Company sent a cheque to each one of the appellants for the amount due to him on account of gratuity leave salary and one month s salary
On September 26 1972 the appellants wrote to the Company returning the cheques sent by the Company and stating that its letter dated September 7 1972 which had reached them only on September 20 1972 had already been replied by letter dated September 21 1972 that they were interested in the service of the Company and had neither voluntarily abandoned the service of the Company and did they wish to do so and that they would report for work the moment the strike was called off 616 by their union
On October 23 1972 the Company wrote to the appellants acknowledging their letter dated September 26 1972 but stating therein that it did not wish to revise its earlier decision under which their names had been struck off the rolls
It is to be noted that in its letter the Company did not refute the averment made by the appellants in their letter dated September 26 1972 that the Company s letter dated September 7 1972 had reached them only on September 20 1972
On the even date ie September 26 1972 the appellants  union wrote to the Labour Commissioner complaining about the arbitrary termination of service of 25 workmen including the appellants and emphasising that they had not abandoned service
On October 2 1972 the appellants and other striking workmen addressed letters to the Works Manager of the Company protesting against the action of the Company in removing them from service and asserting that the said action was by way of victimization for their participation in the strike
On March 30 1973 the union made a formal demand calling upon the Company to re instate the appellants and others who had been removed from service on the ground that they had abandoned their service
On May 19 1973 certain proposals for settlements were made on behalf of the employees whose services were terminated by the Company and requesting the Company for re instatement of the appellants and 10 other workmen
On July 5 1973 the union wrote a letter to the Assistant Commissioner of Labour Naupada soliciting his intervention in the dispute concerning the re instatement of the 16 employees including the appellants
The Assistant Commissioner thereupon summoned the parties for discussion on July 19 1973 but his attempts at conciliation did not bear any fruit
Thereafter the appellants made the aforesaid complaints before the Industrial Tribunal with the result as stated above
Appearing in support of the appeal Mr Ramamurti has vehemently urged that the action of the Company in removing the names of the appellants from its rolls was illegal and arbitrary that the appellants had not abandoned the Company s service that at any rate the termination of their services could only be in terms of the Company s standing orders and since the standing orders did not provide for treating the workmen as having abandoned service in case they were absent in connection with the notified strike the Company s action was manifestly illegal and invalid
Three questions arise for consideration in this case namely 1 what is the true meaning of the expression abandonment of service  617 2 whether in the circumstances of the case it could be said that the appellants had voluntarily abandoned the service of the Company and 3 whether the action of the Company in removing the names of the appellants from its rolls on the presumption that they had abandoned service would constitute a change in the conditions of service of the appellants  We will deal with these questions seriatim Re
Question No 1 In the Act we do not find any definition of the expression abandonment of service 
In the absence of any clue as to the meaning of the said expression we have to depend on meaning assigned to it in the dictionary of English language
In the unabridged edition of the Random House Dictionary the word abandon  has been explained as meaning to leave completely and finally for sake utterly to relinquish renounce to give up all concern in something 
According to the Dictionary of English Law by Earl Jowitt 1959 edition abandonment  means relinquishment of an interest or claim 
According to Blacks Law Dictionary abandonment  when used in relation to an office means voluntary relinquishment
It must be total and under such circumstances as clearly to indicate an absolute relinquishment
The failure to perform the duties pertaining to the office must be with actual or imputed intention on the part of the officer to abandon and relinquish the office
The intention may be inferred from the acts and conduct of the party and is a question of fact
Temporary absence is not ordinarily sufficient to constitute an abandonment of office 
From the connotations reproduced above it clearly follows that to constitute abandonment there must be total or complete giving up of duties so as to indicate an intention not to resume the same
In Buckingham Co vs Venkatiah  Ors
it was observed by this Court that under common law an inference that an employee has abandoned or relinquished service is not easily drawn unless from the length of absence and from other surrounding circumstances an inference to that effect can be legitimately drawn and it can be assumed that the employee intended to abandon service
Abandonment or relinquishment of service is always a question of intention and normally such an intention cannot be attributed to an employee without adequate evi 618 dence in that behalf
Thus whether there has been a voluntary abandonment of service or not is a question of fact which has to be determined in the light of the surrounding circumstances of each case
Question No 2 This takes us to the consideration of the second question namely whether in the circumstances of the instant case it could be said that the appellants had voluntarily abandoned the service of the Company
It may be recalled that the appellants had along with 229 other workmen gone on indefinite and peaceful strike which ended on October 22 1972 in response to the strike notice given by the union to the Company to press its demand for re instatement of its three dismissed leaders and had not only by their letters dated September 21 1972 and September 26 1972 unequivocally intimated to the Company that they did not intend to abandon the service but had also returned the cheques sent to them by the Company on account of their leave salary gratuity etc
The appellants stand that the letter of the Company dated September 7 1972 was received by them on September 20 1972 and not earlier was never denied or refuted by the Company in the correspondence that passed between the parties
Thus there was nothing in the surrounding circumstances or the conduct of the appellants indicating or suggesting an intention on their part to abandon service which in view of the ratio of Gopal Chandra Misra s case can be legitimately said to mean to detach unfasten undo or untie the binding knot or link which holds one to the office and the obligations and privileges that go with it Their absence from duty was purely temporary and could by no stretch of imagination be construed as voluntary abandonment by them of the Company s service
In Express Newspaper P Limited vs Michael Mark  Anr2 which is on all fours with the present case it was held that if the employees absent themselves from the work because of strike in enforcement of their demands there can be no question of abandonment of employment by them
In the present case also the appellant s absence from duty was because of their peaceful strike to enforce their demand
Accordingly we are of the view that there was no abandonment of service on the part of the appellants
Re Question No 3 Let us now advert to the last but the most crucial question namely whether the action of the Company in removing the names of the appellants from its rolls during the pendency of the proceedings before the Labour Court in respect of the industrial dispute on the presumption that they had abandoned Company s service 619 constituted an alteration in the conditions of service applicable to them immediately before the commencement of the said proceedings which prejudiciously affected them
Although the learned counsel appearing on behalf of the respondent has taken us through the certified standing orders as applicable to the appellants he has not been able to point out anything therein to indicate that the company could terminate the services of the appellants on the ground of abandonment of service because of their going on strike in enforcement of their demands
Thus their being no provision in the certified standing orders by virtue of which the Company would have terminated the services of the appellants in the aforesaid circumstance the impugned action on the part of the Company clearly amounted to a change in the condition of service of the appellants during the admitted pendency of the industrial dispute before the Labour Court which adversely affected them and could not be countenanced
We are fortified in this view by the aforesaid decision of this Court in Express Newspapers P Limited vs Michael Mark  Anr
Supra where repelling an identical contention to the effect that the failure of the workmen to return to work by a notified date clearly implied abandonment of their employment it was held that the management cannot by imposing a new term of employment unilaterally convert the absence of work into abandonment of employment
It was further held in that decision that if the strike was in fact illegal the management could take disciplinary action against the employees under the standing orders and dismiss them
If that were done the strikers would not have been entitled to any compensation under standing orders but that was not what the appellants purported to do and the respondents were therefore entitled to relief
For the foregoing reasons we are unable to uphold the impugned action of the Company and the award under appeal which are manifestly illegal
In the result we allow the appeal set aside the aforesaid award of the Industrial Tribunal and direct the Company to reinstate the appellants
The appellants shall also be entitled to the costs of the appeal
A point which requires to be clarified and has been brought to the notice of the Court after the judgment was delivered relates to back wages from 19 9 72 to the date of reinstatement
The rule in such cases is that where reinstatement has been directed by the Court the entire back wages must follow as a matter of course
Of course there is a discretion in the court having regard to special circumstances if any to modify this normal rule
In the present case the period stretches over six years and Shri Sachine Chaudhary brings to our notice the fact that 620 back wages have to be computed if ordered in full on a much higher scale because of two settlements which have raised the scales of wages substantially
While there is no case specifically put forward that the workmen concerned have been employed elsewhere during this period still we take a total view the whole case and direct that for the entire period from 1972 to the date of reinstatement 75 per cent of the wages will be paid to all the workmen concerned on the scales and revised scales as the case may be
PBR Appeal allowed


Summary:
In support of their demand for reinstatement of certain dismissed union leaders a number of workmen including the appellants had gone on an indefinite peaceful strike
The Company respondent put up a notice that the strike was illegal and that the striking workmen were liable to disciplinary action for misconduct
A week later the company issued individual notices to the appellants and other workmen calling upon them to report for duty failing which their absence would be construed as voluntary abandonment of service and that their names would be struck off the muster rolls
A few days later the company informed the workmen concerned that by not reporting for duty they had confirmed its presumption that they were no longer interested to continue in its service that they had totally abandoned its service
The names of the appellants had been struck off the rolls
In final settlement of the workers  claims for gratuity leave salary and a month s salary a cheque was sent to each of the appellants
But the appellants returned the cheques to the company pointing out that they were interested in the service of the company and that they had neither voluntarily abandoned the service nor did they wish to do so and that they would report for work as soon as the strike was called off
Thereafter although there were prolonged negotiations between the union and the company the company did not take them into its service
Since a dispute was pending before an Industrial Tribunal application was made under section 33A of the 
The Tribunal rejected the workers  demand for reinstatement
In appeal to this Court it was contended on behalf of the appellants that i removing their names from the rolls was illegal and arbitrary ii the appellants had not voluntarily abandoned the company s service and iii since termination of service could only be in accordance with standing orders and since the standing orders in this case did not provide for treating the workmen as having abandoned the service in case they were absent in connection with a strike the company s action in terminating the appellants  services was illegal
Allowing the appeal  HELD The impugned action of the company and the award of the Tribunal were illegal
619 E 1
To constitute abandonment there must be total or complete giving up of duties so as to indicate an intention not to resume the same
Failure to perform duties pertaining to an office must be with actual or imputed intention on 614 the part of the officer to abandon and relinquish the office
The intention may be inferred from the acts and conduct of a party and is a question of fact which could be determined in the light of surrounding circumstances in each case
Temporary absence is not ordinarily sufficient to constitute abandonment of office
617 D F Buckingham Co vs Venkatiah  Ors   referred to
The absence of workmen from duty was purely temporary and cannot be construed as their voluntary abandonment of the company s service
There was nothing in the surrounding circumstances or the conduct of the workmen indicating or suggesting an intention on their part to abandon service
To abandon service means to detach unfasten undo or untie the binding knot or link which holds one to the office and obligations and privileges that go with it
618 C E In the instant case the workmen went on a peaceful strike
By their letters they unequivocally intimated to the company that they did not intend to abandon service
They had returned the cheques sent to them by the company
Union of India vs Gopal Chandra Misra  referred to
Since there was no provision in the certified standing orders by virtue of which the company could have terminated the services of the workmen the impugned action amounted to change in the conditions of service of the workmen during the pendency of the industrial dispute which adversely affected them
619 A Express Newspapers P Ltd vs Michael Mark  Anr  applied
In cases where reinstatement had been directed by the Court it is the rule that the entire back wages must follow as a matter of course
In the special circumstances of this case the workmen are entitled to wages at 75 for the entire period from the date of termination of their services to the date of reinstatement