Case Note & Summary
The petitioner, M/s. Empire Dyeing, a textile processing company, filed a writ petition under Article 226 of the Constitution of India challenging a common judgment dated 2nd February 2002 passed by the Labour Court in Application (BIR) Nos.81 of 1995 and 82 of 1995, and the judgment and order dated 9th February 2004 passed by the Industrial Court in Appeal (IC) 50 of 2002. The respondent employees, Sandesh Vasudeo Kusam and Rajaram Ramchandra Rode, were employed as permanent workers by the petitioner. They alleged that they were illegally terminated from service without any notice or inquiry. The employer contended that the employees had voluntarily abandoned service by remaining absent without authorization. The Labour Court held that the employer failed to prove voluntary abandonment and ordered reinstatement with full back wages. The Industrial Court upheld the finding of illegal termination but modified the back wages order, denying back wages for the period during which the employees were gainfully employed. The petitioner challenged these orders, arguing that the Labour Court and Industrial Court erred in their findings. The High Court examined the evidence and found that the employer did not issue any termination order and failed to prove that the employees intended to abandon service. The court held that mere absence does not constitute abandonment and that the burden of proof lies on the employer. The court also noted that the employees had reported for duty and were not allowed to work. The High Court dismissed the petition, upholding the orders of the Labour Court and Industrial Court, and confirmed the reinstatement of the employees with continuity of service and back wages as modified.
Headnote
A) Industrial Law - Voluntary Abandonment of Service - Burden of Proof - Bombay Industrial Relations Act, 1946, Sections 78, 79 - The employer must prove that the employee voluntarily abandoned service with intention to leave employment; mere absence or failure to report duty does not constitute abandonment unless coupled with evidence of intention to quit. Held that the Labour Court correctly placed burden on employer and found no evidence of abandonment (Paras 10-15). B) Industrial Law - Termination of Service - Requirement of Specific Order - Bombay Industrial Relations Act, 1946, Section 78 - Termination of service of a permanent employee requires a specific order of termination or dismissal; treating absence as abandonment without such order is illegal. Held that the employer's failure to issue any termination order rendered the action invalid (Paras 16-20). C) Industrial Law - Reinstatement and Back Wages - Discretion of Labour Court - Bombay Industrial Relations Act, 1946, Section 78 - Labour Court has discretion to award reinstatement with full back wages if termination is found illegal; however, back wages may be denied if employee was gainfully employed. Held that the Industrial Court correctly modified the Labour Court's order to deny back wages for period of gainful employment (Paras 25-30).
Issue of Consideration
Whether the Labour Court and Industrial Court erred in holding that the employer failed to prove voluntary abandonment of service by the employees and in ordering reinstatement with back wages.
Final Decision
The High Court dismissed the writ petition and upheld the orders of the Labour Court and Industrial Court, confirming the reinstatement of the employees with continuity of service and back wages as modified by the Industrial Court.
Law Points
- burden of proof on employer to establish voluntary abandonment
- distinction between abandonment and termination
- requirement of specific order under Section 78 of BIR Act
- applicability of Section 25F of Industrial Disputes Act to BIR Act proceedings
- principles of natural justice in domestic inquiry
