Gujarat High Court
State Of Gujarat vs Mansukhbhai Purshottambhai Vaghela on 16 June, 2025
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
C/SCA/5468/2015 CAV JUDGMENT DATED: 16/06/2025
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Reserved On 08/05/2025
Pronounced On : 16/06/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5468 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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Approved for Reporting Yes No
√
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STATE OF GUJARAT
Versus
MANSUKHBHAI PURSHOTTAMBHAI VAGHELA & ANR.
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Appearance:
MR PARTH PATEL AGP for the Petitioner(s) No. 1
MR. VISHAL P THAKKER(7079) for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
CAV JUDGMENT
1. The petitioner R&B Division through Executive Engineer
has challenged the judgment and award dated 16.10.2014
passed in Reference (LCB) No.105 of 2005 by the Labour
Court, Bhavnagar, whereby the reference instituted by the
respondent – workman was partly allowed and the present
petitioner was ordered to reinstate the respondent-workman
without back wages along with continuity of service.
2. It has been stated that the respondent-workman got
engaged with the petitioner department on 01.05.1991 as a
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daily wager and was assigned work of a sweeper. The
respondent-workman claims to be on fix pay wages having
worked with petitioner department from 01.05.1991 to
25.08.2004. Since the respondent-workman had made
complaint to the Assistant Labour Commissioner, Bhavnagar
asking for reinstatement with back wages, the reference to
the dispute was referred to the Labour Court.
3. The facts, as noted in the impugned judgment signifies
that when the dispute was raised before the Assistant Labour
Commissioner Bhavnagar, the settlement failed and therefore,
the reference was handed over to the Labour Court on
26.05.2005. Thereafter, the respondent-workman produced
his statement of claim at Exh.5 with the facts that he was
working on fix pay. He was appointed by the petitioner
department by an office communication dated 13.08.1991 in
accordance with the Government Resolutions dated
17.10.1988, dated 17.05.1991 as a sweeper from 01.05.1991,
and was placed on the scale of fix pay at serial No.12.
3.1 The respondent-workman contended before the Labour
Court that owing to his illness, by letter dated 28.10.1993 and
by other letters, he was put to clarification by the petitioner
department and thereafter, on 29.06.1994, he gave an
undertaking assuring his regular presence. The petitioner
department communicated with him on 03.05.1994 and
25.05.1995 and the undertaking was sought from him. It was
contended by the respondent-workman that often he had
requested to allow him to join the service however, by a letter
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dated 25.08.2004, he was denied to join the service.
3.2 The respondent-workman thereafter, through the Union
had sent a Demand Notice. The respondent-workman stated
that there was no departmental investigation or inquiry for
terminating his service and notice pay, retrenchment
compensation, gratuity and other rights were never paid to
him, and that the junior employees still continued in the job.
The petitioner department had not released any seniority list.
It is stated that because of his and his family members illness,
he was illegally removed from the service, therefore, had
asked the relief of reinstatement.
3.3 The present petitioner department filed their reply
before the Labour Court vide Exh.7 contending that there was
continuous absence of the workman from the year 1993; he
has not followed the rules for the leave and has not attended
the job. As per the petitioner department, the respondent-
workman on his own has abandoned the service and
therefore, was not entitled for any consequential benefits and
since on his own stopped coming to service, it was prayed to
reject the reference.
3.4 During the course of the trial, the workman-
Mansukhbhai Purshottambhai Vaghela filed his affidavit at
Exh.9 and had produced vide Exh.40 the office order dated
13.08.1991, pathology report Exh.41, Neurosurgery
Department New Civil Hospital case at Exh.42, C.T. Scan
Report at Exh.43, Leprosy Center Bhavnagar case referred
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form Exh.44, K.G. Mehta T.B. Hospital Songarh report Exh.45,
K.G. Mehta T.B Hospital Songarh discharge report at Exh.46
were produced by the workman to substantiate his case of
illness.
3.5 While petitioner department as respondent before the
Labour Court produced the registered A.D. Cover dated
10.11.1993, Exh.17 R.P.A.D. dated 25.01.1994, Exh.18
registered A.D. return cover issued from Ramnagar Head
Office, Exh.19 is a letter dated 08.04.1994 by the workman to
the petitioner department, Exh.20 dated 08.04.1994 a report
by way of communication of respondent-workman informing
that his parents are ill, Exh.21 is an Javak Number No.386
dated 03.05.1994 informing the respondent-workman to
report on duty (registered A.D. post cover), Exh.22 a letter
dated 23.05.2004 requesting to reinstate him in the
establishment as a sweeper, Exh.23 office Javak No.AB207
dated 18.08.2004, whereby the petitioner department has
asked for legal advice from the Advocate, Exh.24 registered
A.D. Acknowledgment of the letter dated 25.08.2004, Exh.26
Javak No.EB864 dated 23.07.1996 addressed to the workman
(R.P.A.D Cover), Exh.27 salary-slips of March, April, May
1995. On behalf of the petitioner department, Yogendra
Kishorilal Sarvaiya examined himself at Exh.37 and Exh.38 is
the closing pursis.
4. Learned AGP Mr. Parth Patel submitted that on
29.06.1994, the respondent-workman had filed an
undertaking assuring his regular presence for performing his
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duties. Workman had also agreed of any disciplinary action by
the office in case of any default. Workman stated that because
of his personal reason, he could not attain his duty.
4.1 Learned AGP Mr. Patel has submitted that the
respondent-workman had worked till the year 1993 and
thereafter till 2004, the workman was never present before
the authority to resume his duty. In spite of various
communications from the year 1993, the respondent-workman
failed to resume duty and had not taken care to reply to the
authority. Mr. Patel submitted that as per the affidavit filed by
Executive Engineer, R & B Division Bhavnagar, the
respondent-workman had neither tried to come with an
explanation, nor had presented any medical certificate
regarding his absence, which proves that the respondent-
workman was an irresponsible person. Mr. Patel stated that
the endorsement on the postal cover reflects that the
respondent-workman had refused to accept the letter sent by
the authority. The facts are clear on record that the
respondent-workman was absent from the year 1993 to 2004.
4.2 Learned AGP has relied on the judgment of Vijay
S.Sathaye Vs. Indian Airlines Limited, reported in 2013
(10) SCC 253, to submit that the absence for a very long
period, may amount to voluntarily abandonment of service
and in that eventuality, the service comes to an end
automatically without requiring any order to be passed by the
employer, and such an act cannot be termed retrenchment
from service. Learned AGP has also placed reliance on the
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observation made by the Division Bench in case of
Omkarsinh Forensinh Thakur Vs. Manager, Parasnath
Chemicals, rendered in Letters Patent Appeal No.133 of
2024 and allied matters dated 13.03.2024, through which
reliance has been placed on the judgment of Prabhakar Vs.
Joint Director Sericulture Department & Anr., reported in
2015 (15) SCC 1, more specifically para 41 to 43, to submit
that delay on the part of the workman in failing to explain the
cause itself would amount to presumption of workman
accepting his termination and therefore, would have no right
to raise any dispute.
5. Per contra, learned advocate Mr. Vishal Thakker
appearing for the respondent-workman referred to the facts of
the case of the respondent-workman and the observation of
the Labour Court in the impugned judgment, to submit that
the workman’s deposition before the Labour Court has gone
unchallenged, since there was no cross-examination from the
side of the present petitioner. The whole evidence at Exh.9
has remained undisputed. The application at Exh.33 was
moved to reopen the stage of cross-examination and vide
Exh.28 the right to cross-examination, both came to be
rejected. The orders were never challenged before the higher
Court and therefore in that circumstances, there was no
cross-examination. Mr. Thakker stated that the Labour Court
thus, had no other reason to disbelieve the evidence of the
respondent-workman.
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5.1 Learned advocate Mr. Thakker referred to the deposition
of Yogendra Kishorilal Sarvaiya (Exh.37), wherein the witness
admitted that the respondent-workman was appointed by way
of legal resolution as a labourer; he had also accepted the fact
that he was on regular job, his appointment was regular and
that they had never terminated the respondent-workman, who
further stated that the respondent-workman had not resumed
his duty.
5.2 Advocate Mr. Thakker stated that the Demand Notice
was given by the respondent-workman in the year 2004. The
Assistant Labour commissioner had called petitioners for
reinstatement of the respondent-workman. Advocate Mr.
Thakker submitted that the witness had no knowledge
whether, in the year 2004 their higher office had undertaken
any inquiry for absenteeism of the respondent-workman. Mr.
Thakker stated that the witness had also affirmed, that the
letter which they had addressed to the respondent-workman
after the reference to take him in the service, has not been
placed on record.
5.3 Learned advocate Mr. Thakker submitted that the long
period of absence was because of medical reason. The
respondent-workman was suffering from T.B. and had brain
injury, he had taken treatment from various Hospitals as well
as from Civil Hospital Ahmedabad and had undergone
operation, for that necessary documents were produced on
record from Exh.41 to 46 to prove his illness. Mr. Thakker
submitted that there is no legal inquiry against the
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respondent-workman to prove any misconduct and vide letter
at Exh.22, the workman had proved that from 1991 to 1996,
he was on duty and thereafter, because of T.B. and brain
injury he could not join the service. Mr. Thakker stated that
the respondent-workman had even given an undertaking
before the respondent department stating that he would not
ask for any salary from the year 1996 to 2004 and would
waive his seniority, further submitted that though the letter
communicated to the respondent-workman states of legal
proceedings to be initiated, but without any such inquiry, he
has been removed from the service and thus, it is not a case of
any abandonment since, the respondent-workman after his
treatment of the brain injury had informed the respondent
department to take him back in service. Mr. Thakker
submitted that without any legal inquiry any retrenchment
would be illegal and in spite of the Demand Notice, he was not
allowed to resume the work and was victimized.
5.4 Learned advocate Mr. Thakker has relied on the
judgment of K.K. Velusamy Vs. N. Palanisamy, reported in
(2011) 11 SCC 275, to contend that to reopen the stage of
evidence is the discretionary power of the Court and cannot
be claimed as a right. Mr. Thakker further relied on the
judgments of Syed Yakoob Vs. K.S. Radhakrishnan,
reported in AIR 1964 SC 477 and Harjinder Singh Vs.
Punjab State Warehousing Corp., reported in (2010) 3
SCC 192, to submit that the High Court should be slow in
interfering with the awards of Labour Courts based on equity
and justice and that the High Court does not sit in appeal over
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finding of facts unless perverse or illegal.
5.5 Advocate Mr. Thakker by placing reliance on the
judgment of Ajaib Singh Vs. Sirhind Coop. Marketing-
cum-Processing Service Society Ltd., reported in (1999) 6
SCC 82, submitted that delay in raising the dispute does not
bar relief under the Industrial Disputes Act unless it is shown
that the employer suffered real prejudice. Advocate Mr.
Thakker stated that the Industrial Disputes has no fixed
limitation period unless prescribed under the statute.
Reinstatement still can be granted even if there is delay,
especially where termination was without enquiry and violates
natural justice. Further, placing reliance in the case of
Bharat Sanchar Nigam Ltd. Vs. Bhurumal, reported in
(2014) 7 SCC 177, Mr. Thakker submitted that the Courts
may consider the delay in seeking relief, but it must be
weighed against the illegality of termination. Relief of back
wages may be reduced or denied in case of long delay, but
reinstatement may still be ordered.
6. Heard learned AGP Mr. Parth Patel appearing for the
petitioner department and learned advocate Mr. Vishal
P.Thakker for the respondent-workman and perused the
record and proceedings. Learned AGP has placed much
reliance on the document Exh.24, which was addressed by the
petitioner department to the respondent-workman. The
communication is dated 25.08.2004, which is in connection
with the letter of respondent-workman dated 23.05.2004. The
subject in context was reinstatement in service.
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7. The petitioner contention is that the respondent-
workman has remained absent without any permission from
August, 1993 and for that purpose there were five registered
post communications and lastly on 23.07.1996 a notice was
issued, in spite of that workman did not resume duty.
Assistant Labour Commissioner was also informed about the
last notice however, the respondent-workman failed to mark
on his duty and accordingly, from October, 1993 he has
abandoned the job, thus, that would amount to end of the
service, and since the abandonment from the service is for a
very long time, it would not require any order of termination
from the employer, and that the abandonment of the service is
a consequence of unilateral action on behalf of the employee
and the employer has no role in it, and such act cannot be
termed as retrenchment from service.
8. Two letters dated 08.04.1994, were received and in one
of the letter respondent-workman has referred to the illness of
his younger brother and in another even dated letter he has
referred to the illness of his wife. Thereafter, as per the
petitioner vide a letter dated 26.09.1994, the respondent
workman accepted his abandonment and had asked for
forgiveness in spite of that, neither he remained present on
the job nor had he informed in writing seeking any permission
and thus, continuous absence for a long time amounts to
voluntarily abandonment of service.
9. On 23.05.2004, the respondent-workman had sent two
medical reports of the year 2003, while no report from
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October 1993, till the certificates, as received, were ever sent
to the petitioner department hence, in that circumstances the
prayer to give medical leave and leave without pay from 1996
to 2004 was not allowed observing that his absence was from
October, 1993 hence, his request was not granted, clearly
stating in Exh.24 that he has voluntarily left his job in the year
1993.
10. The facts pleaded were required to be proved before the
Labour Court. The documents, which had been produced on
record, by the respondent-workman had not been challenged,
workman was not examined on this aspect. The workman had
stated in the examination-in-chief that he was suffering from
tuberculosis and therefore, in the initial time, he had no other
option, but to take intermediate leaves and in case of
necessity had to go for a longer leave. The workman had
produced on record medical evidence to show his brain injury;
he had taken treatment from neurosurgery department New
Civil Hospital Ahmedabad. The cause for absence was
informed to the petitioner-department.
11. On perusal of the Judgment of the Labour Court, it
appears that the Labour Court has taken into consideration
the evidence of the witnesses, observing that the evidence of
the respondent-workman has not been challenged in the
cross-examination and the same has remained unchallenged.
The evidence of Yogendra Kishorilal Sarvaiya (Exh.37) from
the side of the petitioner-department was referred, who had
accepted that the respondent-workman was legally appointed
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by resolution and has been made permanent, the witness
affirmed that the respondent-workman had not been released
from the job, but has stated that he had not remained present
in service. He had admitted that in the year 2004 a Demand
Notice was given. The witness stated that he has no personal
information about the matter and therefore, he has no
personal knowledge about the illness of the respondent-
workman. The Labour Court thus, undisputedly concluded
that the appointment was under legal resolution and he was a
permanent employee. The illness of the respondent-workman
is observed to be proved by documents (Exh.41 to 46). The
learned Judge has observed that there has been no legal
inquiry with regard to his absence. By Exh.22, which is a
letter dated 23.05.2004, the respondent-workman had
informed that he had continuously served from 1991 to 1996
and thereafter, because of his ill-health and brain injury, he
had taken medical treatment from Ahmedabad Civil Hospital,
where he had undergone operation and urged to consider the
year 1996 to 2004 as of medical leave; he had also assured
that he would not ask for seniority nor any compensation or
the salary for that period.
12. The Labour Court observed that the documents (Exh.24
and 26) can be considered as a letter, which is in the form of
notice, where the petitioner-department had informed that
they would start proceedings to terminate him, the Labour
Court observed that however there is nothing on record to
prove that he had been terminated from service after
initiating proceedings or by any written order. The Labour
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Court observed that it has not occurred that the respondent-
workman was released after any disciplinary action or inquiry
by the appointing or inquiry officer, therefore, concluded that
the respondent-workman was not permitted to join service
and was victimized and was illegally terminated.
13. Perusal of Exh.40 suggests that prior to his regular
appointment, the respondent-workman had worked for about
five complete years and after the completion of five years as a
daily wager, he was put on fixed salary in connection with the
Government Resolutions dated 17.10.1988 and 17.05.1991.
The office order shows the responded-workman at the status
of sweeper from 01.05.1991.
14. By the communication dated 23.05.2004, the
respondent-workman has stated that he had worked from
01.05.1986 to 15.05.1991 regularly as a daily wager and
thereafter, on being appointed as fixed salaried worker, he
had performed his duties as a sweeper from 01.05.1991 to
30.08.1996. Exh.22 has been observed by the Labour Court,
whereby the respondent-workman has waived his right to
demand salary from the year 1996 to 2004 and has urged to
consider it as medical leave, but the same came to be rejected
by the communication (Exh.24), the respondent-workman was
informed by the communication dated 25.08.2004. Though,
the cause arose to the petitioner-department to initiate
inquiry and departmental action to consider as a misconduct
for remaining on leave without any prior sanction, however,
nothing was done.
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15. The document dated 23.07.1996 would clarify that Office
Letter Nos.809 dated 28.10.1993, 842 dated 10.11.1993, 68
dated 25.01.1994, 386 dated 03.05.1994 and 468 dated
25.05.1994, were communicated by Registered Post A.D. to
the respondent-workman and was lastly instructed to appear
on the job within four day and in failure it was to be
considered that he was not in need of job and thereby, the
petitioner-department would initiate proceedings to remove
him from the job. Till 2004, workman did not appear on the
job and thereafter, on 23.05.2004, workman wrote a letter to
the Deputy Executive Engineer to reinstate him as a sweeper
stating that, from 01.05.1986 to 15.05.1991, he was working
as a daily wager and performing his duties as a sweeper; he
was appointed on fixed salary by letter No.K.E. CB(2) 836
dated 05.08.1991. The respondent-workman had informed in
the letter that from 01.05.1991 to 30.08.1996, he had
performed his duties, thereafter, because of brain injury, he
was under medical treatment and during this period he had
taken treatment from various hospitals as well as Ahmedabad
Civil Hospital and after undergoing operation, on
recuperation, urged to consider his economic weak condition
and to allow him medical leave from 1996 to 2004. He had
also undertaken to waive his seniority and has also given up
salary or compensation for the period he remained absent.
16. It is contended by the petitioner that the respondent-
workman has failed to explain his absence from the year 1993
to 2004. In the case of Vijay S.Sathaye (supra) relied upon
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by learned AGP, it has been observed in paras 8 and 9 as
under:
“8. Even otherwise, the petitioner was asked to continue in service
till the decision is taken on his application. However, he did not
attend the office of the respondents after 12.11.1994. In view of
the above, as the petitioner had voluntarily abandoned the services
of the respondents, there was no requirement on the part of the
respondents to pass any order whatsoever on his application and it
is a clear cut case of voluntary abandonment of service and the
petitions are liable to be dismissed.
9. It is a settled law that an employee cannot be termed as a slave,
he has a right to abandon the service any time voluntarily by
submitting his resignation and alternatively, not joining the duty
and remaining absent for long. Absence from duty in the beginning
may be a misconduct but when absence is for a very long period, it
may amount to voluntarily abandonment of service and in that
eventuality, the bonds of service come to an end automatically
without requiring any order to be passed by the employer.”
17. The facts of the case as was noted in Vijay S.Sathaye
(supra), was that the petitioner joined the service of the
erstwhile Indian Airlines Limited as First Officer and he
acquired license for becoming a Pilot, thereafter was
promoted as Captain and then as a Commander. The Indian
Airlines came with the Voluntary Retirement Scheme for its
employees in 1989. The petitioner submitted an application
dated 07.11.1994 seeking VRS vide effect from 12.11.1994.
The petitioner was informed vide letter dated 11.11.1994 that
he should continue in service till the time decision is taken.
However, the petitioner did not attend the duty after
12.11.1994; he joined the services of Blue Dart Ltd. and he
did not go the Indian Airlines to work from 12.11.1994. There
was no response from the Indian Airlines, so the petitioner
filed a writ petition for issuance of writ of mandamus directing
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Indian Airlines to accept his VRS. It was in these facts of the
case noted that the petitioner did not ensure compliance of
Regulation 12(b) of the Service Regulation, which required
three months notice as a condition for applying for VRS.
18. Learned AGP has also referred to Para-13 of Vijay
S.Sathaye (supra), wherein the case of Syndicate Bank Vs.
General Secretary, Syndicate bank Staff Association &
Anr. (AIR 2000 SC 582) has been relied, reads thus:
“13. In Syndicate Bank v. General Secretary, Syndicate Bank Staff
Association & Anr., AIR 2000 SC 2198; and Aligarh Muslim
University & Ors. v. Mansoor Ali Khan, AIR 2000 SC 2783, this
Court ruled that if a person is absent beyond the prescribed period
for which leave of any kind can be granted, he should be treated to
have resigned and ceases to be in service. In such a case, there is
no need to hold an enquiry or to give any notice as it would amount
to useless formalities..”
18.1 It is required to be noted that the application (Exh.22) of
the respondent-workman for medical leave was rejected by
communication dated 25.08.2004. Thereafter, the respondent-
workman immediately, sent a Demand Notice through the
Union. The respondent-workman has stated that without any
departmental investigation or inquiry, he has been removed
from the job without any notice pay or retrenchment
compensation, gratuity and other benefits. Since before the
Assistant Labour Commissioner, the petitioner-department
denied to take the respondent-workman on job, the reference
was filed on 28.04.2005. Judgment relied upon by learned
AGP Mr. Patel in case of Prabhakar (supra) would not be
applicable, as there was no delay in raising the dispute. The
Hon’ble Supreme Court in para-42 of Prabhakar (supra) has
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held as under:
“42. To summarise, although there is no limitation prescribed
under the Act for making a reference under Section 10(1) of the
Act, yet it is for the ‘appropriate Government’ to consider whether
it is expedient or not to make the reference. The words ‘at any
time’ used in Section 10(1) do not admit of any limitation in making
an order of reference and laws of limitation are not applicable to
proceedings under the Act. However, the policy of industrial
adjudication is that very stale claims should not be generally
encouraged or allowed inasmuch as unless there is satisfactory
explanation for delay as, apart from the obvious risk to industrial
peace from the entertainment of claims after long lapse of time, it
is necessary also to take into account the unsettling effect which it
is likely to have on the employers’ financial arrangement and to
avoid dislocation of an industry.
18.2 In case of Ajaib Singh (supra), the respondent
management was shown not to have taken any plea regarding
delay. Had this plea been raised, the workman would have
been in a position to show the circumstances which prevented
him in approaching the Court at an earlier stage or even to
satisfy the court that such a plea was not sustainable after the
reference was made by the government. It was observed that
the High Court was, therefore, not justified in holding that the
workman had not given any explanation as to why the demand
notice had been issued after a long period. It was also
observed that the High Court went wrong in observing in this
regard that the courts were bound to render an even-handed
justice by keeping balance between the two different parties.
The workman is justified in complaining that in the absence of
any plea on behalf of the management and any evidence,
regarding delay, he could not be deprived of the benefits
under the Act merely on the technicalities of law. The High
Court appears to have substituted its opinion for the opinionPage 17 of 27
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of the labour court which was not permissible in proceedings
under Articles 226/227 of the Constitution.
19. In the present matter, there is no case of termination of
service. The cause, as could be noted vide Exh.24, was
rejection of the prayer for medical leave. There is no
termination of service of respondent-workman by any order
nor any departmental inquiry has been conducted alleging
misconduct on the ground of long absenteeism proving
continued ill-health. The continuous communications between
the petitioner-department and the respondent-workman from
the year 1993 to 2004 appears to be informing each other
asking the respondent-workman to join the service and the
respondent-workman informing the petitioner-department
about the illness of his family and his own personal ailment.
Learned AGP Mr. Patel has submitted that the respondent-
workman has failed to produce any medical documents from
the period October 1993 to 2004. It is required to be noted
though, examination-in-chief of the respondent-workman was
on record, but was not cross-examined by the petitioner
department. The facts, as were stated by the respondent-
workman had not been controverted by the petitioner-
department. The respondent-workman could have produced
necessary documents in rebuttal, had he been called upon to
produce such documents during the trial. The Labour Court
has believed the medical documents produced by the
respondent-workman from Exh.41 to 46. The respondent-
workman has stated in his deposition that in the initial period,
he was suffering from tuberculosis and therefore, he hadPage 18 of 27
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taken few leaves in the beginning, this fact has not been
opposed by way of cross-examination. The respondent-
workman had produced the medical evidence before the
petitioner-department with regard to his treatment of brain
injury.
20. The Labour Court had ordered for reinstatement with
continuity of service without back wage. In case Bharat
Sanchar Nigam Ltd. (supra), the Hon’ble Supreme Court
has dealt with the circumstances under which grant of
reinstatement with full back wages can be granted and has
held in Para 33 to 35 as under:
“33. It is clear from the reading of the aforesaid judgments that
the ordinary principle of grant of reinstatement with full back
wages, when the termination is found to be illegal is not applied
mechanically in all cases. While that may be a position where
services of a regular/permanent workman are terminated illegally
and/or malafide and/or by way of victimization, unfair labour
practice etc. However, when it comes to the case of termination of
a daily wage worker and where the termination is found illegal
because of procedural defect, namely in violation of Section 25-F
of the Industrial Disputes Act, this Court is consistent in taking
the view in such cases reinstatement with back wages is not
automatic and instead the workman should be given monetary
compensation which will meet the ends of justice. Rationale for
shifting in this direction is obvious.
“34. Reasons for denying the relief of reinstatement in such cases
are obvious. It is trite law that when the termination is found to be
illegal because of non-payment of retrenchment compensation and
notice pay as mandatorily required under Section 25-F of the
Industrial Disputes Act, even after reinstatement, it is always open
to the management to terminate the services of that employee by
paying him the retrenchment compensation. Since such a workman
was working on daily wage basis and even after he is reinstated,
he has no right to seek regularization (See: State of Karnataka vs.
Uma Devi (2006) 4 SCC 1). Thus when he cannot claim
regularization and he has no right to continue even as a daily wage
worker, no useful purpose is going to be served in reinstating such
a workman and he can be given monetary compensation by the
Court itself inasmuch as if he is terminated again afterPage 19 of 27
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reinstatement, he would receive monetary compensation only in
the form of retrenchment compensation and notice pay. In such a
situation, giving the relief of reinstatement, that too after a long
gap, would not serve any purpose.
35. We would, however, like to add a caveat here. There may be
cases where termination of a daily wage worker is found to be
illegal on the ground it was resorted to as unfair labour practice or
in violation of the principle of last come first go viz. while
retrenching such a worker daily wage juniors to him were
retained. There may also be a situation that persons junior to him
were regularized under some policy but the concerned workman
terminated. In such circumstances, the terminated worker should
not be denied reinstatement unless there are some other weighty
reasons for adopting the course of grant of compensation instead
of reinstatement. In such cases, reinstatement should be the rule
and only in exceptional cases for the reasons stated to be in
writing, such a relief can be denied.”
21. Exh.24 is the letter dated 25.08.2004 by the petitioner in
response to the letter of the respondent workman dated
23.05.2004 asking for reinstatement in service. The
communication Exh.24 notes that the respondent workman
had not performed his duty from 01.05.1991 to 30.08.1996.
Since August, 1993 had remained absent without any
permission, and for that purpose registered letters dated
20.10.1993, 10.11.1995, 25.01.1994, 03.05.1994 and
25.05.1994 and lastly on 23.07.1996 notice was issued. The
respondent-workman was informed that in spite of the
communication and the notice he had not resumed duties.
Exh.24 discloses that the copy of the last notice was given to
Assistant Labour Commissioner, in spite of that respondent-
workman had not joined the duties. So according to the
petitioner-department, the respondent-workman has
voluntarily abandoned the job.
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22. Section 2(oo) of the Industrial Disputes Act, 1947 defines
‘retrenchment’; under clause (c), termination of the service of
a workman on the ground of continued ill-health has been
excluded to be considered as retrenchment. Section 2(oo)
reads as under:
“Section 2(oo) – “retrenchment” means the termination by the
employer of the service of a workman for any reason whatsoever,
otherwise than as a punishment inflicted by way of disciplinary
action but does not include – [Inserted by Act 43 of 1953, Section 2
(w.e.f. 24.10.1953)]
(a)voluntary retirement of the workman; or
(b)retirement of the workman on reaching the age of
superannuation if the contract of employment between the
employer and the workman concerned contains a stipulation in
that behalf; or]
[(bb) termination of the service of the workman as a result of the
on-renewal of the contract of employment between the employer
and the workman concerned on its expiry or of such contract being
terminated under a stipulation in that behalf contained therein; or]
(c) termination of the service of a workman on the ground of
continued ill-health;”
23. The decision to terminate the service of the employee
owing to continued ill-health would be of the employer. This
decision to end the service would be based on the employee’s
inability to perform duties due to a persistent health
condition. The term ‘continued ill-health’ implies a long term
condition not a temporary ailment, that prevents the employee
from fulfilling his duties. Employer need to present medical
evidence to support the claim of “continued ill-health”, which
potentially includes medical reports and evaluations.
Employee would have the right to challenge the termination
proving that the illness was not continuous, making it
responsible for him to perform his duties. Here, the present
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respondent-workman is on the post of sweeper. The petitioner
department failed to question the respondent-workman before
the Labour Court by way of cross-examination, nor the
petitioner department with appropriate notice and procedure
thought it fit to terminate the respondent-workman’s service.
Exh.24 is neither a termination notice nor a termination order.
Medical illness of the respondent-workman was referred and
prayer for medical leave was rejected. The workman’s
absence was considered as voluntary abandonment. The
definition of retrenchment under Section 2(oo) does not
specifically includes voluntarily abandonment of service as
one of the ground to be excluded from the definition of
retrenchment.
24. The fact to be noticed is that the workman service was
made regular by an order dated 05.08.1991, after having
considered his previous continued service from 01.05.1986 to
15.05.1991 as daily-wager. Under policy notification dated
17.10.1988 and 17.05.1991, the order of regularization was
issued. Thereafter too, from 01.05.1991, the respondent-
workman continued his work, which according to respondent-
workman was upto 1996; while for the petitioner department
the year is 1993. The undertaking to continuously work was
given on 29.06.1994. The record of workman’s attendance by
way of muster-roll, or other relevant documents could have
been produced. The respondent-workman has very
emphatically stated in his letter dated 23.05.2004, that he had
worked from 01.05.1991 to 30.08.1996 as regular worker.
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25. In case of Anand Bihari and Ors. Vs. Rajasthan State
Road Corporation, reported in 1991 (1) GLR 525, the
Hon’ble Supreme Court has explained the expression ill-health
used under Section 2(oo) sub-clause (c) and has held as
under:
“The expression “ill-health” used in sub-clause (c) of Section 2(00)
of the Industrial Disputes Act, 1947 has to be construed relatively
and in its context. It must have a bearing on the normal discharge
of duties. It is not any illness but that which interferes with the
usual orderly functioning of the duties of the post which would be
attracted by the sub-clause. Conversely, even if the illness does
not affect general health or general capacity and is restricted only
to a particular limb or organ but affects the efficient working of the
work entrusted it will be covered by the phrase. For it is not the
capacity in general but that which is necessary to perform the duty
for which the workman is engaged which is relevant and material
and should be considered for the purpose. Therefore, any disorder
in health which incapacitates an individual from discharging the
duties entrusted to him or affects his work adversely or comes in
the way of his normal and effective functioning can be covered by
the said phrase. The phrase has also to be construed from the
point of view of the consumers of the concerned products and
services. If on account of a workman’s disease or incapacity or
debility in functioning, the resultant product or the service is likely
to be affected in any way or to become a risk to the health, life or
property of the consumer, the disease or incapacity has to be
categorised as ill-health for the purpose of the sub-clause,
otherwise, the purpose of production for which the services of the
workman are engaged will be frustrated and worse still in cases
such as the present one they will endanger the lives and the
property of the consumers. Hence the Court should place a
realistic and not a technical or pedantic meaning on the said
phrase. Therefore, the said phrase would include cases of drivers
such as the present ones who have developed a defective or sub-
normal vision or eye-sight which is bound to interfere with their
normal working as drivers. Accordingly the termination of the
services of the drivers in the present case being covered by sub-
clause (c) of Section 2(00) would not amount to retrenchment
within the meaning of Section 2(00) of the Act. Hence the
termination per se is not illegal because the provisions of Section
25-F have not been followed while effecting it.”
26. The expression “continued ill-health” in sub-clause (c) of
Section 2(oo) has been explained, as it does not mean
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uninterrupted continued ill-health, but what it means is ill-
health for considerable period and long duration affecting
normal duties. Unfortunately, the petitioner-department failed
to prove such a condition of the respondent-workman before
the Labour Court. The workman’s absence was not challenged
and the witness, who was examined for the petitioner
department had no personal knowledge. Though it was open
for the petitioner department to establish before the Labour
Court ‘continued ill-health’ not permitting the respondent-
workman to work, but failed to do so. While proving that,
petitioner could terminate the workman’s service without
violating Section 25-F. What is ‘continued ill-health’ would
depend on the facts and circumstances of each case, since
legislature has not prescribed any direction of the period of
ill-health under the exception to Section 2(oo) of the Act.
Enquiry was necessary to prove that the employee had
continued to be in ill-health. The termination could not have
been effected on the basis of some mere presumption.
27. Abandonment of service generally refers to the
voluntarily relinquishment of an employment position, often
without proper notice or resignation. It can be inferred from
an employee’s prolonged absence from work, lack of
communication with their employer and an apparent lack of
intent to return. It is distinct from absenteeism, where
employees are absent but plan to return. It is considered a
voluntary act by the employees to end their employment, even
if, they have not formally resigned. The major indication is the
absence of communication with the employer regarding the
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employee’s absence and return date.
28. Absenteeism involves missed work with a planned
return, while abandonment suggests a permanent departure
from employment. The petitioner department failed to prove
abandonment of service by the respondent-workman. The
respondent-workman was informing the petitioner department
the cause of his absence. Illness of T.B. and brain injury and
ill-health of family members were put forwarded as ground for
absenteeism. The workman had also made a prayer to
consider his leave as medical leave. The termination could
have become valid, had the petitioner department proved
‘continued illness’ not allowing the workman to continue with
his normal duties.
29. The High Court of judicature at Bombay in the case of
M/s. Premsons Trading (P) Ltd. Vs. Shri Dinesh
Chandeshwar Rai C/o. Maharashtra Employees Union,
rendered in Writ Petition No.4616 of 2019, in paragraph
No.13 has held thus:
“13. Petitioner’s plea of voluntary abandonment of employment
cannot be accepted on account of failure on its part to serve a
notice on Respondent calling him upon to join duties. It is well
settled law that to prove voluntary abandonment, the employer
must issue a notice to the workmen directing him to resume duties
and in absence of such notice, voluntary abandonment of
employment cannot be accepted. In my view therefore no serious
fault can be found in Award of the Labour Court rejecting
Petitioner’s plea of voluntary abandonment of service. In absence
of any notice directing resumption of service and also in absence of
conduct of enquiry, the plea of abandonment has rightly been
rejected by the Labour Court.”
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30. Exhibit-24 was a reply by the petitioner-department to
the letter addressed by respondent-workman responding to a
prayer to take him back in service. The workman had made a
complaint before Assistant Labour Commissioner, Bhavnagar
for reinstatement, since settlement could not be arrived, there
was a reference. It is not the case that respondent-workman
had left the job with no intent to return. Continued ill-health
incapacitating the workman to do his normal duty, had not
been proved by the petitioner-department. Even the
petitioner-department had failed to prove any inquiry against
the respondent-workman, which can corroborate the say of
abandonment, much less only preliminary inquiry.
31. The reason given by the Labour Court for reinstating the
respondent- workman are on the basis of evidence on record.
The award is just and proper, which requires no interference
from this Court. In the result, the present petition is rejected.
(GITA GOPI,J)
Further Order
After the pronouncement of the judgment, learned AGP
Mr. Parth Patel submitted that the State proposes to
challenge the judgment and thus, has made prayer to stay the
present judgment.
Countering the same, learned advocate Mr. Vishal
Thakker appearing for the respondent-workman submitted
that the respondent-workman is now 65 years of age and has
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no means to even seek any legal advice, thus, Mr. Thakker
stated that legal dues are required to be paid so that, in his
old age, the respondent-workman can receive the benefits and
deal with his illness.
For the reasons given in the judgment and since now the
respondent-workman is struggling with his health and at the
age of 65 years and when by an order dated 15.07.2015 the
award was stayed and the petitioner was directed to pay the
respondent-workman as per Section 17-B of the Industrial
Disputes Act, there would not be any scope of reinstatement,
hence, taking into consideration the circumstances, the prayer
made by the learned AGP Mr. Patel for staying of the
judgment stands rejected.
(GITA GOPI,J)
Pankaj/1
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