“Long Unauthorized Absence = Voluntary Abandonment” – Bombay High Court Redefines Retrenchment Threshold under the Industrial Disputes Act, 1947

1. Introduction

In a consolidated decision covering twelve connected writ petitions, the Nagpur Bench of the Bombay High Court (Anil L. Pansare, J.) has held that prolonged, un-explained absence of workmen—despite repeated employer notices and an interim Industrial Court order directing them to desist from an illegal strike—amounts to voluntary abandonment of service. Consequently, striking the employees’ names off the muster roll does not constitute “termination” or “retrenchment” under Section 2(oo) of the Industrial Disputes Act, 1947 (“ID Act”), and compliance with Sections 25-F and 25-G is unnecessary.

The ruling clarifies the interplay between employee obligations, employer prerogatives, and statutory protections when workmen remain absent for a substantially long period. It also harmonises precedent on the relevance of domestic enquiries and natural-justice requirements in abandonment scenarios.

Parties:

• Petitioner: Rashtrasant Tukdoji Maharaj Technical and Education Society, Nagpur (“Society”)
• Respondents: Twelve sets of employees holding various posts (Assistant Cook, Clerk, Accountant, Librarian, Caretaker, etc.) originally appointed in 1991-93.

2. Summary of the Judgment

The Court answered the primary question—whether deletion of the employees’ names from the muster roll amounted to termination/retrenchment—in the negative. Key holdings:

1. Employees had abandoned employment by staying away for nine months (Aug 1993 – Jun 1994) despite five written calls and an Industrial Court order restraining the strike.
2. Such abandonment is analogous to voluntary retirement, an exception under Section 2(oo), and therefore outside the concept of retrenchment.
3. No domestic enquiry was needed; the Society’s repeated notices satisfied fairness requirements.
4. Industrial and Labour Courts erred by failing to weigh evidence of abandonment and misconstruing the legal effect of striking off the muster roll.
5. Consequently, reinstatement and 50% back-wages ordered below were quashed; all ULP complaints dismissed.

3. Detailed Analysis

3.1 Precedents Cited & Their Influence

The Court drew heavily on three Supreme Court authorities espousing the doctrine that protracted, unexplained absence can be treated as voluntary departure:

• Punjab & Sind Bank v. Sakattar Singh, (2001) 1 SCC 214 – Recognised “deemed voluntary retirement” clauses and held that long absence with notice suffices; no inquiry required.
• Sukhdev Singh v. DDA, 2011 SCC OnLine Del 4680 – A Division Bench synthesising SC case law that prolonged absence may legally indicate intention not to work; employer can dispense with enquiry when action is fair and reasonable.
• Vijay S. Sathaye v. Indian Airlines, (2013) 10 SCC 253 – Clarified distinction between positive employer action (termination) and unilateral employee act (abandonment); latter is excluded from “retrenchment”.

Conversely, employees relied on twelve decisions (e.g., Shambhu Nath Mukherji, D.K. Yadav) where striking off names was treated as illegal retrenchment. The Court distinguished them on facts—there had been no persistent refusal to work or, crucially, employers had not issued repeated recall notices.

3.2 Court’s Legal Reasoning

1. Intention as the Keystone: Abandonment hinges on the employee’s intention. The Court inferred intent from (i) nine months’ absence; (ii) disregard of five notices; (iii) failure to comply with an Industrial Court order; and (iv) absence of credible evidence of attempted resumption.
2. Section 2(oo) Exceptions: “Voluntary retirement” is an express exception. Abandonment after due notice was analogised to voluntary retirement, thereby excluding the situation from “retrenchment”.
3. Fairness/Natural Justice: Where the employer’s notices and warnings are on record, a domestic enquiry would be an “empty formality.” Reliance placed on SC dictum that principles of natural justice cannot operate in vacuum irrespective of context (Sakattar Singh).
4. Burden of Proof Dynamics: Once long absence and notice are shown, the onus shifts to the workman to prove a genuine intention to return. Employees here produced neither letters nor dates of attempted reporting.
5. Consequential v. Positive Act: Striking off names was characterised as a consequence—not a “positive punitive act”—thereby bypassing Section 25-F/G mandates.

3.3 Likely Impact of the Decision

• Employer Playbook: Institutes a defensible protocol—multiple recall notices + documentary proof—before removing chronic absentees without retrenchment benefits.
• Industrial Adjudication: Reinforces that Labour/Industrial Courts must assess evidence of abandonment and cannot mechanically invoke Section 25-F merely because names were struck off.
• Collective Actions: Discourages employees from protracted illegal strikes; clarifies that protective labour legislation will not shield strategic absences after valid court orders.
• Educational & Social-Welfare Institutions: Provides relief to schools, hostels and charitable organisations where sudden mass absences can cripple vulnerable beneficiaries (here, physically challenged students).
• Balance of Rights: While upholding management’s right to treat abandonment as severance, the decision still obliges employers to act transparently and maintain evidence—ensuring Article 14 reasonableness.

4. Complex Concepts Simplified

• Muster Roll: An attendance register maintained by factories/establishments under labour laws.
• Retrenchment (S.2(oo), ID Act): Any termination by the employer for any reason whatsoever, except set-out exceptions (voluntary retirement, superannuation, expiry of contract, etc.).
• Voluntary Abandonment: Situation where employee’s conduct (e.g., long absence without leave) reasonably shows he/she has no intention to work. Courts can treat this as implicit resignation.
• Domestic Enquiry: An internal disciplinary proceeding conforming to natural justice before imposing major penalties. Not obligatory when service ends by employee’s own act.
• Unfair Labour Practice (ULP): Conduct listed in Schedule IV of the MRTU & PULP Act, 1971. Wrongful removal is Item 1; Court held it inapplicable here.

5. Conclusion

The Bombay High Court’s ruling establishes a pragmatic yardstick: absence + notice + continued non-response = legally inferred voluntary abandonment. By slotting such cases into the Section 2(oo)(a) exception, the Court recalibrates employer-employee equilibrium without diluting statutory safeguards for genuine retrenchment.

Key takeaways:

1. Prolonged unauthorized absence can legally equate to voluntary exit, extinguishing retrenchment benefits.
2. Employers must diligently issue and preserve recall notices; courts will scrutinise fairness.
3. Labour/Industrial Courts should test for “positive act” v. “consequence” before branding an action as retrenchment.
4. Employees, particularly in essential-service institutions, should heed judicial/interim directions promptly lest they forfeit statutory protection.

Overall, the decision fortifies jurisprudence on abandonment and offers a clear operational framework for both managements and labour across India.