bsb IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 5056 OF 1997 PETITION NO. 5056 OF 1997 PETITION NO. 5056 OF 1997 Shri Gajuddin Akbar Shaikh ... Petitioner v/s 1. M/s.Nisaka Engineering P. Ltd. 2. Mr.S.N.Karyekarte, Presiding Officer, Labour Court, Satara. ... Respondents Mr.Burhan V. Bukhari i/by Mr.A.V.Bukhari for the petitioner. Mr.Rahul Nerlekar for the respondent No.1. CORAM: CORAM: CORAM: SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. DATED: DATED: DATED: 24TH SEPTEMBER, 2008 24TH SEPTEMBER, 2008 24TH SEPTEMBER, 2008 ORAL ORAL ORAL JUDGMENT JUDGMENT JUDGMENT: 1. The petition challenges the award passed by the Labour Court in Reference (IDA) No.12 of 1988. By this award, the Labour Court has rejected the reference by concluding that the petitioner had resigned on 6.7.1987. The Labour Court, therefore, refused to grant reinstatement with continuity of service and full back wages. 2. The facts giving rise to the present petition are as follows:- 2 . The petitioner was employed on 1.6.1985 with the respondent No.1. According to the petitioner, he was appointed as a Skilled Miller. The petitioner contends that his services were orally terminated on 6.7.1987. A demand was raised by him on 27.10.1987 for reinstatement with continuity of service and full back wages. This dispute was referred for adjudication in the year 1988 in Reference (IDA) No. 12 of 1988. The petitioner contends in his statement of claim that his services have been illegally terminated by the respondent No.1. It was pleaded that it was an oral termination of service and that his legal dues were not paid prior to termination of his service. 3. The reference was opposed by the respondent No.1. In its written statement, the respondent No.1 contended that the petitioner had resigned from service w.e.f. 5.8.1987. The respondent No.1 contended that the petitioner had wanted to open his own workshop and had also applied for a loan under the Educated Employment Scheme. 4. The petitioner examined himself before the Labour Court in order to establish that his services had been wrongly and illegally terminated on and from 6.12.1987. 3 5. The respondent No.1 Company examined several witnesses. The first witness examined by the Company was one of its Directors. This witness deposed that the petitioner had resigned from service as he wished to start his own business. A service certificate was issued to him at his request and the respondent Company recommended his name for the bank loan. However, apparently because the Bank had not approved of the loan, the petitioner did not start his own business. The Director has also stated in his deposition that the petitioner worked elsewhere after employment with the respondent No.1 Company. Besides this witness, the respondent Company examined one of the co-workers of the petitioner. He has also spoken about the petitioner wanting to run an independent workshop and that the petitioner had approached the District Industries Centre in order to set up his business. Besides these two witnesses, the respondent No.1 examined another witness who deposed that the petitioner was working with them from 3.6.1993 to 8.9.1993. The last witness examined on behalf of the respondent No.1 was the Police Patil of Village Kidgaon to depose to the fact that the petitioner was a permanent resident of the village and that he had shifted to Satara much later. The Labour Court, on assessing the evidence on record has held that 4 the petitioner was not terminated from service but instead he had submitted his resignation. 6. The learned advocate for the petitioner submits that the Labour Court has erred in casting the onus of the petitioner to prove that he had not abandoned the services with the respondent No.1. He submits by relying on the judgment in the case of G.T.Lad v/s G.T.Lad v/s G.T.Lad v/s Chemicals Chemicals Chemicals & Fibres of India Ltd., reported in 1979 (38) & Fibres of India Ltd., reported in 1979 (38) & Fibres of India Ltd., reported in 1979 (38) F.L.R. F.L.R. F.L.R. 95 95 95, that abandonment of service can be inferred only from the intentions of the parties. According to him, unless the resignation is voluntary and unequivocal, the Labour Court cannot assume that the petitioner had abandoned services. He submits that, in fact, the services of the petitioner were terminated on 6.7.1987 and the petitioner raised an industrial dispute in October, 1987. The learned advocate contends, therefore, that the award must be set aside as the Labour Court has not appreciated the evidence on record and while doing so has caused a miscarriage of justice. 7. Mr.Nerlekar for the respondent No.1 contends that the Labour Court held on the basis of the evidence on record that the petitioner had resigned from service. He submits that the presumption of abandonment of service would arise only if the workman is absent for 5 some length of time and does not report for work despite the management calling upon him to do so. He points out that in the present case, there was no need for the management to call upon the petitioner to report for duty when the petitioner himself had resigned on 6.7.1987. 8. Although it is not necessary for this Court to scan the evidence led before the Labour Court, Mr.Bukhari for the petitioner has taken me through the evidence led before the Labour Court in support of his case. His contention is that from 6.7.1987, the petitioner was not permitted to report for duty. The petitioner continued to attend the factory gate thereafter however he was not assigned any job. It is in these circumstances, submits the learned counsel, that the Labour Court ought to have held that the petitioner has been terminated from service. If this proposition is to be accepted, the petitioner ought to have established through cogent evidence that he did report for work even after 6.7.1987 and was not permitted to enter the factory premises. There is no evidence on record indicating this fact. Therefore, the Labour Court, in my opinion, has rightly drawn the inference that there is no termination from service on 6.7.1987. 6 9. As regards the resignation and the service certificate, Mr.Bukhari submits that the service certificate was furnished to the petitioner in October, 1987, three months after he was refused work. He submits that, it was only after the service certificate was issued that the petitioner realised that his services had been terminated on 6.7.1987. The submission of the learned advocate is without merits. The Labour Court has observed that the service certificate was issued because the petitioner desired to start his independent business. It has been established through cogent evidence that he had applied for the bank loan and had also approached the District Industries Centre for aid and assistance in setting up the business. The Labour Court has rightly accepted this fact. Taking into consideration the surrounding circumstances, the Labour Court has held that the service certificate was issued only because the petitioner desired to comply with the requisite terms for setting up his establishment and for obtaining a bank loan. The Labour Court has, therefore, justifiably concluded that the petitioner had resigned from service. There is no doubt that the petitioner had worked for about two years with the respondent No.1. However, there is sufficient material on record to indicate that he had resigned from service and had sought employment 7 elsewhere, besides trying to set up his own business. This finding of the Labour Court cannot be called perverse or erroneous. 10. Mr.Bukhari has relied on the judgment of the Supreme Court in the case of G.T.Lad v/s Chemicals & G.T.Lad v/s Chemicals & G.T.Lad v/s Chemicals & Fibres Fibres Fibres of India Ltd. of India Ltd. of India Ltd. (supra). It has been held that as the Industrial Disputes Act does not define the expression "abandonment of service", the meaning assigned to it in common parlance must be considered. The Court has held that whether there has been a voluntary abandonment is a question of fact which has to be determined from the surrounding circumstances. The Court has described voluntary abandonment as "the total or complete giving up of duties so as to indicate an intention not to resume the same." In my view, in the present case it has been sufficiently proved from the surrounding circumstances that the petitioner had no desire or intention to resume duties after he resigned on 5.8.1987. 11. The next judgment relied on by the learned advocate is that of the Division Bench of this Court in the case of Gaurishankar Vishwakarma v/s Eagle Spring Industries Gaurishankar Vishwakarma v/s Eagle Spring Industries Gaurishankar Vishwakarma v/s Eagle Spring Industries Pvt. Pvt. Pvt. Ltd. & ors. in Writ Petition No.2904 of 1983. Ltd. & ors. in Writ Petition No.2904 of 1983. Ltd. & ors. in Writ Petition No.2904 of 1983. It has been held that the employer must prove 8 abandonment of service when the workman alleges that his services were terminated. In the present case, the letter of resignation, the application for the bank loan and other surrounding circumstances amply prove that the relinquishment of the employment by the petitioner was absolute. 12. In the case of Gangaram K. Medekar v/s Zenith Safe Gangaram K. Medekar v/s Zenith Safe Gangaram K. Medekar v/s Zenith Safe Mfg.Co. Mfg.Co. Mfg.Co. & ors., reported in 1996 I C.L.R. 172, & ors., reported in 1996 I C.L.R. 172, & ors., reported in 1996 I C.L.R. 172, a learned Single Judge of this Court has taken the view that an employer cannot unilaterally say that a workman is not interested in employment and, therefore, a domestic enquiry must be held for reaching such a conslusion. However, in the present case, the petitioner by his overt act of tendering a resignation has brought to an end the relationship of master and servant between the respondent No.1 and himself. In such a case, in my opinion, there is no need to hold a domestic enquiry. Had the respondent No.1 terminated the services of the petitioner, he would not have waited for three months to raise an industrial dispute. 13. In the case of Dharmaraj Vithoba Natekar v/s Unique Dharmaraj Vithoba Natekar v/s Unique Dharmaraj Vithoba Natekar v/s Unique Industries Industries Industries & ors., reported in 1996 I C.L.R. 439, & ors., reported in 1996 I C.L.R. 439, & ors., reported in 1996 I C.L.R. 439, a learned Single Judge of this Court has held that "abandonment of service" is an inference which can be 9 drawn after the Court is clearly satisfied that the circumstances indicate that the workman was not interested in continuing with his service. In my opinion, having regard to the surrounding circumstance, viz., that the petitioner tendered his resignation; that he approached the District Industries Centre for assistance for setting up his own workshop; that he applied for a Bank loan and that he asked for a service certificate, the petitioner had no intention of remaining in service with respondent No.1. 11. The petition, therefore, is dismissed. Rule discharge. No order as to costs.