Abandonment Of Service Needs To Be Established By Conduction Of Enquiry: Bombay High Court

A single judge bench of the Bombay High Court comprising of Justice Sandeep V. Marne while deciding a Writ Petition in the case of Bhushan Industries vs Lohasingh Ramavadh Yadav has held that abandonment of service is a question of fact that needs to be established by conduction of an enquiry.

Background Facts

Bhushan Industries (Petitioner) was a partnership engaged in business of manufacturing of harpins. Lohasingh Ramavadh Yadav (Respondent) was appointed at the post of a painter in the establishment of the Petitioner. On 08.04.2013, the Respondent requested to borrow Rs. 2000 from one of the partners of the Petitioner but his request was denied. On 09.04.2013, the partner of the Petitioner did not let the Respondent join his services. The Respondent wrote a letter on 13.04.2013 requesting permission to resume his duties but the Petitioner replied to this letter by accusing the Respondent of not reporting for duty.

Reference was made by the Appropriate Government to the Labour Court in respect of the termination of services of the Respondent. The Labour Court answered the reference in affirmative and directed the Petitioner to reinstate the Respondent with continuity of service and full backwages from 09.04.2013. Thus, the Writ Petition was filed challenging the award of the Labour Court

It was contended by the Petitioner that the Respondent was never interested in working with the Petitioner as repeated offers were given by the Petitioner to the Respondent to join his duties but he failed to do so. Further, since the establishment of the Petitioners has been closed since 20.03.2020, there is no question of reinstating the Respondent.

On the other hand, it was contended by the Respondent that the Writ Petition deserves to be dismissed on grounds of delay as the Petitioner did not challenge the award for almost 1 year. Further, the Respondent approached the Petitioner repeatedly for permission to join his services but he was not permitted to resume his duties. It was further submitted that abandonment of service is a question of fact which can only be determined after conduction of an enquiry.

Findings of the Court

The court observed that considering the sequence of events and the correspondences between the Respondent and the Petitioner, it cannot be said that the Respondent refused to report for duty. The Petitioner never wanted the Respondent to join his duties.

The court further observed that abandonment of service is a question of fact that needs to be established by conduction of an enquiry. If the Petitioner actually believed that the Respondent has abandoned his services, at least a show cause notice ought to have been issued to the Respondent. Since correspondence was on going between the Petitioner and the Respondent, it was possible for the Petitioner to conduct an enquiry accusing the Respondent of absconding from his duties.

It was further held by the court that the establishment of the Petitioner is closed and the closure took place with effect from 20.03.2020, thus the Respondent cannot be granted backwages after 20.03.2020. Further, there is no question of granting reinstatement to the Respondent due to closure of the establishment of the Petitioner.

With the aforesaid observations, the Writ Petition was party allowed.

Case No.- Writ Petition NO. 1025 OF 2024Case Name- Bhushan Industries vs Lohasingh Ramavadh Yadav

Counsel for the Petitioner- Mr. Mahesh Shukla a/w Mr. Niraj Prajapati

Counsel for Respondent- Mr. Jane Cox i/b Mr. Ghanashyam R.

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