NARESH PRASADI PRASAD Vs. SAURASHTRA INDUSTRIES

JUDGEMENT

(1.) The petitioner workman who was working with the respondent has filed this special civil application challenging the award of the Labour Court, Ahmedabad, dated 18th March, 1985. The petitioner had raised industrial dispute that his services were terminated by the respondent on 12-4-1979. The dispute was referred by the Government to the Labour Court. Under the impugned award the labour court held that it is not the case of termination of service of the petitioner, but a case where he himself had abandoned the employment.

(2.) The facts relevant for the decision of this case, briefly stated are that the petitioner has gone on leave from 1-4-1979 to 11-4-1979 due to his illness. On 12-4-1979 he had presented himself at the place of his work, and he had also produced certificate of his illness and the treatment taken by him from private doctor. The respondents has refused to accept the certificate on the ground that the petitioner was covered by ESI scheme and he ought to have produced certificate from ESI panel doctor. Secondly, the respondent demanded from the petitioner apology for having quarreled with his co-worker, but he refused to tender such apology. Consequently his services were terminated on the said date at about 4.00 p.m. The respondent contested the dispute raised by the petitioner on the ground that he voluntarily abandoned the service of respondent. He was getting Rs. 8 per day as wages while he has working with the respondent, where as he has got employment elsewhere for much higher daily wage. That defence of the respondent found favour with the Labour Court. Hence this special civil application.

(3.) Learned counsel for the petitioner contended that the finding of the Labour Court that the petitioner has voluntarily abandoned the service is wholly perverse. The Labour Court has not considered that the petitioner was not in employment elsewhere till June, 1980. Whatever evidence which has been produced by the respondent about the gainful employment of the petitioner on better wages is only from June, 1980. No workman, particularly a workman of the category of very lowly paid, can survive without getting some employment for such long period. It has next been contended that the petitioner had made representation immediately after termination of his services to the Conciliation Officer. This representation has been made on 16th April, 1979. In case it would have been a case of voluntary abandonment of service then the petitioner could not have proceeded so expeditiously. Relying on the decision of the Hon'ble Supreme Court in the case of G.T. Lad vs. Chemicals and Fibres India Ltd., reported in 1979 LAB IC 290, the counsel for the petitioner contended that to constitute abandonment of service there must be total or complete giving up of duties so as to indicate an intention not to resume. The burden heavily lies on the respondent employer to prove total abandonment of duties by the petitioner and whatever circumstances which has been brought on the record are highly insufficient to constitute abandonment of the service. It is true that the petitioner was a member of the ESI scheme, but even if he has not taken treatment from ESI hospital and has taken treatment from private doctor it cannot be said that he was not sick. Though the respondents have tried, to get sympathy of the court by passing pursis before the Labour Court that still they are ready to take back the petitioner in service, but from the first pursis filed in the month of February, 1982 the petitioner was called upon to apologise for the quarrel which has taken place with his co- worker, it shall be taken to be a fresh appointment and the petitioner has to repay the advance said to be made to him. So it was not a bonafide offer. The second time unconditional pursis has been passed, but the respondents made it difficult for the petitioner to work. On the other hand, Shri H.K. Rathod, learned counsel for the respondent .employer submitted that the labour court has recorded the finding of fact that the petitioner has abandoned the service of the respondent and as such this court sitting under Art. 227 of the Constitution of India may not interfere. It has next been contended that from the conduct of the petitioner that he has not submitted any application for leave and he made out false case of sickness which is apparent from the fact that he has produced medical certificate from a private doctor. The respondent had brought evidence on record of the employer with whom the petitioner was working on much higher wages than what he was getting at the establishment of the respondent. It has further been contended by the counsel for the respondents that the petitioner has not produced any independent evidence in support of his case that he was sick. Evidence produced by his co-worker was not relied upon by the Labour Court, and rightly so. Whether it is a case of termination of service of the petitioner or a case of abandonment of service by the petitioner is a question to be decided by leading evidence. This court silting under Art. 226/227 of the Constitution of India may not interfere with the view taken by the Labour Court which could have been taken on the basis of the said evidence.