1. The petitioner was employed with Arpee Electricals (Private), Ltd. (who are the first respondents), as a winding wire inspector since 1 August 1974. The first respondent-company is carrying on business of manufacture of winding wire. It has a factory at Bombay and another at Bangalore. In 1974 the petitioner was appointed in first respondent's factory at Bombay. In December 1978, he was transferred to the first respondent's factory at Bangalore.
2. It is the case of the petitioner that on or about 20 July 1979, he applied for leave for 8 days form 22 to 30 July, 1979 for personal work. This leave was sanctioned. He returned to duty on 1 August 1979. The petitioner contends that when he reported for duty he was told that the managing director of the first respondents had left instructions not to permit the petitioner to resume duty. He states that a letter, dated 1 August 1979, to this effect was handed over to him signed by the manager. The petitioner waited for a few days at Bangalore, awaiting arrival of the managing director of the first respondents. Since the managing director did not visit Bangalore the petitioner returned to Bombay. He wrote a letter, dated 20 August 1979, setting out the above facts and claiming that his services were terminated wrongfully. Thereafter the dispute was admitted in conciliation. Conciliation talks failed. By an order of reference, dated 3 May 1980, the dispute was referred for adjudication. The reference was registered as Reference No. 284 of 1980. The second respondent by his award, dated 13 May 1986, has rejected the contentions of the petitioner and has held that the petitioner voluntarily left service. He has rejected the reference. The present petition challenges the award of 13 May 1986.
3. There is considerable substance in the petitioner's contention that the award is based on a total non-appreciation of the material before the Labour Court and the findings of the Labour Court are perverse.
4. The petitioner had produced before the Labour Court a carbon copy of the leave application which he had submitted to the Bangalore office. This carbon copy also bore the remark “OK” and initials of the manager of the Bangalore factory. These were also carbon copies. It seems that the original application was submitted by the petitioner to the manager of the Bangalore factory and the manager put his approval and initials on the original. The Labour Court has come to a conclusion that the carbon copy which is produced by the petitioner is forged because the signature of the manager is also a carbon copy. There is no basis at all for arriving at this conclusion. There was no evidence before the Labour Court to come to a conclusion that the person whose initials were claimed as being on the application for leave were forged, nor was there any evidence before the Labour Court to the effect that the initials were not in the hand writing of the person whose initials they were alleged to be To say that the initials are forged, simply because they are carbon copies indicates total lack of appreciation of evidence which was before the Labour Court. The Labour Court has also held that the letter of 1 August, 1979 was never issued by the first respondents. Once again this conclusion has been drawn simply because the first respondents did not admit the letter of 1 August 1979. There is no evidence before the Labour Court regarding the signature of the manager which is appended to this letter. The manager also did not give any evidence to deny the letter or his signature on the letter.
5. The first respondent had also not given any notice to the workman to resume work or had held any enquiry after giving notice to the workman. The workman, on the other hand, has written a letter, dated 20 August 1979, setting out his case and asking for reinstatement. In these circumstances the finding that the workman had voluntarily left service must be considered as perverse, especially in view of the evidence of the workman to the effect that he had gone on leave only for 8 days and that too with the permission of the manager of the Bangalore factory.
6. In the case of Lad (G.T) v. Chemicals and Fibres of India, Ltd. [1979-I L.L.N 331], at page 334, the Supreme Court considered what is a voluntary abandonment of service. It has held that to constitute abandonment there must be total giving up of duties so as to indicate an intention not to resume the same. There is no evidence in the present case which would lead to such a conclusion. In the case of Gaurishankar Vishwakarma v. Eagle Spring Industries (Private), Ltd. [1988- I L.L.N 259], a Division Bench of this Court has held as well settled that in the case of abandonment of service the employer has to give a notice to the workman calling upon him to resume his duties and also to hold an enquiry before terminating his services on that ground. The Court said that it was for the employer to prove that the petitioner-workman had abandoned service. In the present case no such notice was given to the petitioner nor was any enquiry held by the respondents. Abandonment or relinquishment of service is a question of intention and normally such an intention cannot be attributed to an employee without adequate evidence in that behalf.
7. The petition, therefore, succeeds. The award of 13 May, 1986 of the Labour Court is set aside. The petitioner is directed to be reinstated with continuity of service. The petitioner has asked for full back-wages. The Labour Court, however, has given a finding that the petitioner was earning around Rs. 7 to 10 per day by working outside the Bhandup post office as against his earning of Rs. 13 per day with the first respondent. Looking to the irregular nature of the work which the petitioner has been compelled to do on account of his being thrown out by the first respondents this is a fit case where the petitioner should be paid 75 per cent of the full back-wages. Initially, the petitioner to report to the Saki Naka factory at Bombay of the first respondents. After his claim for back-wages is settled the petitioner to report for work at such place of the first respondent as he may be directed by the first respondent.
8. The rule is made absolute accordingly.
9. The first respondent to pay to the petitioner costs of the petition.
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