Case: G. T. Lad and Ors Vs. Chemical and Fibres of India Ltd

2. 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, i.e. 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 companys certified Standing Orders Nos. 22(b) and 24(a). 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 constituted 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 companys 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 months 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 nor did they wish to do so, and that they would report for work the moment the strike was called off 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 with 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 companys letter dated September 7, 1972 had reached them only on September 20, 1972. On the even date, i.e. 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.

Reasoning:
5. We will deal with these question seriatim :Re; Question No. 1 : In the Act, we do not find any definition of the expression "abandonment of service".6. 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.or relinquishment of service is always a question of intention, and normally, such an intention cannot be attributed to an employee without adequate evidence 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 light of the surrounding circumstances of each case.Re. - Question No. 2may 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 intended 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 Misras case, (1978) 2 S.C.C. 301, 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 not be stretch of imagination be construed as voluntary abandonment by them of the companys service. In Express Newspapers (P) Limited v. Michael Mark and another, (1963) 3 S.C.R. 405, 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 appellants absence from duty was because of their peaceful strike to enforce their demands. Accordingly, we are of the view that there was no abandonment of service on the part of the appellants.Re. - Question No. 3the 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 abandonments of service because of their going on strike in enforcement of their demands. Thus, there being no provision in the certified standing orders by virtue of which the company could have terminated the services of the appellants in the aforesaid circumstances, the impugned action on the part of the company clearly amounted to a change in the conditions 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) Ltd. v. Michael Mark and another, 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 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.7. For the foregoing reasons, we are unable to uphold the impungned action of the company and the award under appeal which are manifestly illegal.