Voluntary Abandonment Of Employment Cannot Be Accepted If Notice For Resuming Duties Not Issued: Bombay High Court

A single judge bench of the Bombay High Court comprising of Justice Sandeep V. Marne while deciding a Civil Writ Petition in the case of M/s. Premsons Trading (P) Ltd vs Dinesh Chandeshwar Rai has held that voluntary abandonment of employment can only be proved if the employer had issued a notice to the workman directing him to resume his duties.

Background Facts

M/s. Premsons Trading (P) Ltd (Petitioner) was a private company engaged in the trading business. Dinesh Chandeshwar Rai (Respondent) was engaged as a counter-boy in a retail store of the Petitioner in 1988. In 2005, the Respondent was transferred to the warehouse of the Petitioner. However, in February 2013, the Respondent requested for a leave of 35 days to visit his native place and the same was sanctioned by Mr. Dheeraj Premji Gala who was one of the directors of the Petitioner. However, another director of the Petitioner, Mr. Bharatbhai Damaji Gala got annoyed due to the leave and orally communicated to the Respondent that his services were terminated.

The Respondent approached the Deputy Labour Commissioner and his dispute was admitted in conciliation. However, the Petitioner failed to show up before the Conciliation Officer. Thus, a reference was made by the appropriate government to the Second Labour Court regarding reinstatement of the Respondent along with back wages from the date of termination. After hearing the parties, the Second Labour Court delivered an award directing the reinstatement of the Respondent along with back wages. Thus, the aforesaid Civil Writ Petition was filed by the Petitioner against the award of the Second Labour Court.

It was contended by the Petitioner that the Respondent was not terminated from service but rather this was a case of voluntarily abandonment of employment. Since the Petitioner had expressed inability to sanction a long leave, the Respondent had absented himself from the duties.

On the other hand, it was contended by the Respondent that the defense of voluntary abandonment of employment is false and even in case of voluntary abandonment, there needs to be a notice calling the workmen to resume his duties.

Findings of the Court

The court observed that the Respondent had served a demand letter to the Respondent on the day of end of his leave but till the service of the demand letter, no notice was served by the Petitioner to call upon the Respondent to present himself for duty. Further in September 2014 the Respondent reported to resume his duty but he was not allowed to join duty by Mr. Dheeraj Premji Gala. It was only in October 2014 that the Respondent was offered to resume his duty which was clearly an afterthought.

The court further held that the plea of voluntary abandonment of employment cannot be accepted as the Petitioner failed to serve a notice on Respondent calling upon him to join his duties. It held that

“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”

The court however considered the unsavoury relationship between the parties and held that reinstatement would not be in the interest of the parties and thus modified the award to lumpsum compensation in lieu of reinstatement and back wages.

With the aforesaid observations, the Civil Writ Petition was partly allowed.

Case No.- WRIT PETITION NO. 4616 OF 2019

Case Name- M/s. Premsons Trading (P) Ltd vs Dinesh Chandeshwar

Counsel for the Petitioner- Mr. Mayuresh D. Nagle

Counsel for Respondent- Ms. Seema Chopda a/w Mr. T. R. Yadav

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