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PETITIONER: G. T. LAD & ORS

       Vs.

RESPONDENT: CHEMICALS & FIBRES OF INDIA LTD.

DATE OF JUDGMENT06/12/1978

BENCH: SINGH, JASWANT BENCH: SINGH, JASWANT KRISHNAIYER, V.R. KOSHAL, A.D.

CITATION:  1979 AIR  582            1979 SCR  (2) 613  1979 SCC  (1) 590  CITATOR INFO :  RF         1980 SC1896  (150)

ACT:      Industrial Disputes  Act, 1947-Workmen went on peaceful strike-Did not Join duty to response to company’s notices-If amounts to  abandonment of  duty-Words  Phrases-Abandonment- Meaning of.

HEADNOTE:      In support of their demand for reinstatement of certain dismissed union  leaders a  number of workmen, including the appellants had  gone on  an indefinite  peaceful strike. The Company (respondent)  put up  a notice  that the  strike was illegal  and  that  the  striking  workmen  were  liable  to disciplinary  action  for  misconduct.  A  week  later,  the company issued  individual notices  to  the  appellants  and other workmen  calling upon them to report for duty, failing which  their   absence  would   be  construed  as  voluntary abandonment of  service and that their names would be struck off the  muster rolls. A few days later the company informed the workmen  concerned that  by not  reporting for duty they had confirmed  its presumption  that  they  were  no  longer interested to  continue in its service that they had totally abandoned its  service. The names of the appellants had been struck off  the rolls.  In final  settlement of the workers’ claims for  gratuity, leave  salary and  a month’s  salary a cheque  was   sent  to  each  of  the  appellants.  But  the appellants returned  the cheques to the company pointing out that they  were interested in the service of the company and that they  had neither voluntarily abandoned the service nor did they  wish to  do so and that they would report for work as soon  as the  strike was called off. Thereafter, although there were  prolonged negotiations between the union and the company, the company did not take them into its service.      Since  a  dispute  was  pending  before  an  Industrial Tribunal application was made under s. 33A of the Industrial Disputes Act,  1947.  The  Tribunal  rejected  the  workers’ demand for reinstatement.      In appeal  to this  Court it was contended on behalf of the appellants, that (i) removing their names from the rolls was illegal  and arbitrary;  (ii)  the  appellants  had  not

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voluntarily abandoned  the company’s service and (iii) since termination of  service could  only be  in  accordance  with standing orders,  and since the standing orders in this case did not provide for treating the workmen as having abandoned the service  in case  they were  absent in connection with a strike, the  company’s action in terminating the appellants’ services was illegal.      Allowing the appeal, ^      HELD: The  impugned action of the company and the award of the Tribunal were illegal. [619 E]      1. To  constitute abandonment  there must  be total  or complete giving  up of duties so as to indicate an intention not to resume the same. Failure to perform duties pertaining to an office must be with actual or imputed intention on 614 the part  of the  officer  to  abandon  and  relinquish  the office. The  intention may  be inferred  from the  acts  and conduct of  a party and is a question of fact which could be determined in the light of surrounding circumstances in each case. Temporary  absence is  not  ordinarily  sufficient  to constitute abandonment of office. [617 D-F]      Buckingham Co.  v. Venkatiah  & Ors., [1964] 4 SCR 265; referred to.      2.  The   absence  of  workmen  from  duty  was  purely temporary  and   cannot  be  construed  as  their  voluntary abandonment of  the company’s  service. There was nothing in the surrounding  circumstances or the conduct of the workmen indicating or  suggesting an  intention  on  their  part  to abandon  service.   To  abandon  service  means  to  detach, unfasten, undo or untie the binding knot or link which holds one to  the office  and obligations  and privileges  that go with it. [618 C-E]      In the  instant case  the workmen  went on  a  peaceful strike. By their letters they unequivocally intimated to the company that  they did  not intend  to abandon service. They had returned the cheques sent to them by the company.      Union of India v. Gopal Chandra Misra [1978] 2 SCC 301- [1978] 3 SCR 12 referred to.      3. Since  there  was  no  provision  in  the  certified standing orders,  by virtue  of which the company could have terminated the  services of the workmen, the impugned action amounted to  change in  the conditions  of  service  of  the workmen during  the pendency of the industrial dispute which adversely affected them. [619 A]      Express Newspapers  (P) Ltd.  v. Michael  Mark &  Anr., [1963] 3 SCR 405; applied.      4. In  cases where  reinstatement had  been directed by the Court  it is  the rule  that the  entire back wages must follow as  a matter  of course. In the special circumstances of this  case the  workmen are  entitled to wages at 75% for the entire  period from  the date  of termination  of  their services to the date of reinstatement. [619]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1188 of 1976.      Appeal by  special leave from the Award dated 27-2-1976 of the Industrial Tribunal, Maharashtra in Complaints (I.T.) Nos. 48-53  and 55-63 of 1973 in Ref. (I.T.) No. 375 of 1972 published in the Maharashtra Govt. Gazette part I-L dated 3- 6-1976.      M. K. Ramamurthi and Naunit Lal for the Appellant.

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    Sachin  Chaudhuri   and  B.   R.  Aggarwala   for   the Respondent.      The Judgment of the Court was delivered by      JASWANT SINGH,  J. This  appeal  by  special  leave  is directed against the common award dated February 27, 1976 of the Industrial Tribunal, 615 Maharashtra, Bombay rejecting as not maintainable complaints Nos. 48 of 1973 to 63 of 1973 made by the appellants against the respondent  (hereinafter referred to for brevity as ’the Company) under  s. 33(A)  of the  Industrial   Disputes Act, 1947 (hereinafter  called ’the  Act’) in  reference (IT) No. 336 of 1972.      The facts material for the purpose of this appeal are:      The appellants  (hereinafter  described  as  ’Workmen’) were employees  of the  Company. During  the pendency of the above mentioned  reference No. 336 of 1972 before the Second Labour Court,  Bombay for  adjudication of  a  dispute,  344 workmen of  the Company  including the appellants went on an indefinite peaceful strike with effect from August 30, 1972, pursuant to  the strike notice given to the Company by their registered  union   called  ’The   Association  of  Chemical Workers’ in  support of  its demand  for  re-instatement  of three of  the union  leaders who  had been  dismissed by the Company. On  the even date i.e. August 30, 1972, the Company put up a notice stating that the strike embarked upon by the workmen was  illegal and  those participating  in  the  said strike were  liable to disciplinary action for misconduct as per Company’s  certified  standing  orders  Nos.  22(b)  and 24(a). On  September 7,  1972, the Company issued notices to the appellants  and 10 others asking them to report for duty on or before September 18, 1972, failing which their absence would be  construed as  voluntary abandonment of service and their names would be struck off from the muster rolls of the Company. On  September 19,  1972, the  Company sent separate communications to  the appellants  and 10  others  informing them  that  since  "by  not  reporting  for  duty  they  had confirmed  its   presumption  that   they  were   no  longer interested to  continue in  service of  the Company  and had totally abandoned  the Company’s  service" their  names  had been struck  off from  the rolls  of the  Company from  that date. Along  with its  communication,  the  Company  sent  a cheque to  each one  of the appellants for the amount due to him on  account of  gratuity, leave  salary and  one month’s salary. On  September 26,  1972, the appellants wrote to the Company returning  the  cheques  sent  by  the  Company  and stating that  its letter  dated September  7, 1972 which had reached them  only on  September 20,  1972 had  already been replied by  letter dated  September 21, 1972, that they were interested in  the service  of the  Company and  had neither voluntarily abandoned  the service  of the  Company and  did they wish to do so, and that they would, report for work the moment the strike was called off 616 by their union. On October 23, 1972 the Company wrote to the appellants acknowledging  their letter  dated September  26, 1972 but  stating therein that it did not wish to revise its earlier decision under which their names had been struck off the rolls.  It is to be noted that in its letter the Company did not  refute the averment made by the appellants in their letter dated  September 26,  1972 that  the Company’s letter dated September  7, 1972  had reached them only on September 20, 1972.  On the  even date  i.e., September  26, 1972, the appellants’  union   wrote  to   the   Labour   Commissioner complaining about the arbitrary termination of service of 25

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workmen (including the appellants) and emphasising that they had  not   abandoned  service.   On  October  2,  1972,  the appellants and  other striking  workmen addressed letters to the Works  Manager of  the Company  protesting  against  the action of  the Company  in removing  them from  service  and asserting that  the said  action was by way of victimization for their  participation in  the strike.  On March 30, 1973, the union  made a  formal demand calling upon the Company to re-instate the  appellants and  others who  had been removed from service  on the  ground that  they had  abandoned their service. On  May 19, 1973, certain proposals for settlements were made  on behalf  of the  employees whose  services were terminated by the Company and requesting the Company for re- instatement of  the appellants and 10 other workmen. On July 5,  1973,   the  union  wrote  a  letter  to  the  Assistant Commissioner of Labour, Naupada, soliciting his intervention in the  dispute concerning  the  re-instatement  of  the  16 employees   including    the   appellants.   The   Assistant Commissioner thereupon  summoned the  parties for discussion on July  19, 1973  but his  attempts at conciliation did not bear  any   fruit.  Thereafter,   the  appellants  made  the aforesaid complaints before the Industrial Tribunal with the result as stated above.      Appearing in  support of  the appeal  Mr. Ramamurti has vehemently urged  that the action of the Company in removing the names  of the  appellants from its rolls was illegal and arbitrary,  that   the  appellants  had  not  abandoned  the Company’s service, that at any rate the termination of their services could  only be  in terms  of the Company’s standing orders and  since the  standing orders  did not  provide for treating the  workmen as  having abandoned  service in  case they were absent in connection with the notified strike, the Company’s action was manifestly illegal and invalid.           Three questions  arise for  consideration in  this      case, namely:           (1)  what is  the true  meaning of  the expression                ’abandonment of service’; 617           (2)  whether in  the circumstances  of the case it                could  be   said  that   the  appellants  had                voluntarily  abandoned  the  service  of  the                Company; and           (3)  whether the action of the Company in removing                the names of the appellants from its rolls on                the  presumption   that  they  had  abandoned                service would  constitute  a  change  in  the                conditions of service of the appellants ?      We will deal with these questions seriatim:      Re. Question  No. 1:  In the  Act, we  do not  find any definition of  the expression  ’abandonment of  service’. In the absence  of any  clue as  to the  meaning  of  the  said expression, we  have to  depend on meaning assigned to it in the  dictionary  of  English  language.  In  the  unabridged edition of  the Random  House Dictionary, the word ’abandon’ has been  explained as  meaning  ’to  leave  completely  and finally; for- sake utterly; to relinquish, renounce; to give up all concern in something’. According to the Dictionary of English Law  by Earl  Jowitt  (1959  edition)  ’abandonment’ means ’relinquishment of an interest or claim’. According to Blacks Law Dictionary ’abandonment’ when used in relation to an office  means ’voluntary relinquishment. It must be total and under  such circumstances  as  clearly  to  indicate  an absolute relinquishment.  The failure  to perform the duties pertaining to  the office  must be  with actual  or  imputed intention, on  the  part  of  the  officer  to  abandon  and

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relinquish the  office. The  intention may  be inferred from the acts  and conduct  of the  party, and  is a  question of fact. Temporary  absence is  not  ordinarily  sufficient  to constitute an abandonment of office’.      From  the  connotations  reproduced  above  it  clearly follows that  to constitute abandonment, there must be total or complete  giving up  of  duties  so  as  to  indicate  an intention not  to resume  the same.  In  Buckingham  Co.  v. Venkatiah &  Ors. it  was observed  by this Court that under common law  an inference  that an  employee has abandoned or relinquished service  is not  easily drawn  unless from  the length of  absence and  from other surrounding circumstances an inference to that effect can be legitimately drawn and it can  be  assumed  that  the  employee  intended  to  abandon service. Abandonment  or relinquishment of service is always a question  of intention,  and normally,  such an  intention cannot be attributed to an employee without adequate evi- 618 dence in  that  behalf.  Thus,  whether  there  has  been  a voluntary abandonment  of service  or not  is a  question of fact which  has  to  be  determined  in  the  light  of  the surrounding circumstances of each case.      Re.-Question No.  2: This takes us to the consideration of the second question, namely, whether in the circumstances of the  instant case,  it could  be said that the appellants had voluntarily abandoned the service of the Company. It may be recalled  that the  appellants had  along with  229 other workmen gone  on indefinite  and peaceful strike which ended on October  22, 1972) in response to the strike notice given by the  union to  the Company  to press  its demand  for re- instatement of  its three dismissed leaders and had not only by their  letters dated September 21, 1972 and September 26, 1972 unequivocally  intimated to  the Company  that they did not intend  to abandon the service but had also returned the cheques sent  to them  by the  Company on  account of  their leave salary  gratuity etc.  The appellants  stand that  the letter of  the Company  dated September 7, 1972 was received by them  on September  20, 1972  and not  earlier was  never denied or  refuted by the Company in the correspondence that passed between  the parties.  Thus, there was nothing in the surrounding circumstances  or the  conduct of the appellants indicating or  suggesting an  intention  on  their  part  to abandon service  which in view of the ratio of Gopal Chandra Misra’s case,  can be  legitimately said  to mean to detach, unfasten, undo or untie the binding knot or link which holds one to the office and the obligations and privileges that go with it  Their absence  from duty  was purely  temporary and could by no stretch of imagination be construed as voluntary abandonment by  them of  the Company’s  service. In  Express Newspaper (P) Limited v. Michael Mark & Anr.,(2) which is on all fours  with the  present case,  it was  held that if the employees absent  themselves from the work because of strike in enforcement of their demands, there can be no question of abandonment of  employment by them. In the present case also the appellant’s  absence from  duty  was  because  of  their peaceful strike to enforce their demand. Accordingly, we are of the  view that there was no abandonment of service on the part of the appellants.      Re-Question No.  3: Let  us now  advert to the last but the most crucial question, namely, whether the action of the Company in  removing the  names of  the appellants  from its rolls during  the pendency  of the  proceedings  before  the Labour Court  in respect  of the  industrial dispute  on the presumption that they had abandoned Company’s service 619

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constituted an  alteration  in  the  conditions  of  service applicable to  them   immediately before the commencement of the said  proceedings which  prejudiciously  affected  them. Although the  learned counsel  appearing on  behalf  of  the respondent has  taken  us  through  the  certified  standing orders as applicable to the appellants, he has not been able to point  out anything  therein to indicate that the company could terminate the services of the appellants on the ground of abandonment  of service  because of their going on strike in enforcement  of  their  demands.  Thus,  their  being  no provision in  the certified  standing orders  by  virtue  of which the  Company would have terminated the services of the appellants  in  the  aforesaid  circumstance,  the  impugned action on  the part  of the  Company clearly  amounted to  a change in  the condition of service of the appellants during the admitted  pendency of  the industrial dispute before the Labour Court  which adversely affected them and could not be countenanced. We are fortified in this view by the aforesaid decision of  this Court in Express Newspapers (P) Limited v. Michael Mark  & Anr.  (Supra) where  repelling an  identical contention to  the effect that the failure of the workmen to return  to   work  by   a  notified   date  clearly  implied abandonment of  their  employment,  it  was  held  that  the management cannot  by imposing  a  new  term  of  employment unilaterally convert the absence of work into abandonment of employment. It was further held in that decision that if the strike was  in  fact  illegal,  the  management  could  take disciplinary action against the employees under the standing orders and  dismiss them.  If that  were done,  the strikers would not  have been  entitled  to  any  compensation  under standing  orders  but  that  was  not  what  the  appellants purported  to   do  and  the  respondents  were,  therefore, entitled to relief.      For the  foregoing reasons, we are unable to uphold the impugned action  of the  Company and  the award under appeal which are  manifestly illegal.  In the  result, we allow the appeal, set  aside the  aforesaid award  of  the  Industrial Tribunal and direct the Company to reinstate the appellants. The appellants  shall also  be entitled  to the costs of the appeal.      A point  which requires  to be  clarified and  has been brought to  the notice  of the  Court after the judgment was delivered relates  to back wages from 19-9-72 to the date of reinstatement.  The   rule  in  such  cases  is  that  where reinstatement has  been directed  by the  Court, the  entire back wages  must follow  as a  matter of  course. Of  course there is  a discretion in the court having regard to special circumstances if  any to  modify this  normal rule.  In  the present case  the period  stretches over  six years and Shri Sachine Chaudhary brings to our notice the fact that 620 back wages  have to  be computed,  if ordered  in full, on a much higher  scale because  of two  settlements  which  have raised the  scales of wages substantially. While there is no case specifically  put forward  that the  workmen  concerned have been  employed elsewhere  during this  period, still we take a  total view  the whole  case and  direct that for the entire period from 1972 to the date of reinstatement, 75 per cent of  the wages will be paid to all the workmen concerned on the scales and revised scales as the case may be. P.B.R.                                       Appeal allowed. 621