MANAGEMENT OF M/S COLONEL SECURITY CHAMBERS vs SEEMA AND ANR

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on : 18th December, 2023
Pronounced on: 29th February, 2024

+ W.P.(C) 2281/2010

MANAGEMENT OF M/S COLONEL SECURITY CHAMBERS
….. Petitioner
Through: Mr.Sushant Kumar, Advocate
(Through VC)

versus

SEEMA ANDANR ….. Respondents
Through: Mr.Vinay Sabharwal, Advocate

CORAM:
HON’BLE MR. JUSTICE CHANDRA DHARI SINGH

J U D G M E N T

CHANDRA DHARI SINGH, J.
1. The instant writ petition under Articles 226 and Article 227 of the Constitution of India has been filed on behalf of petitioner seeking the following reliefs:
“a. Issue a writ of certiorari and/or any other appropriating writ, order, direction thereby to set aside the impugned award dated 02.01.2010 passed in ID no. 402/04 by the Learned Labour Court VI, Karkardooma, Delhi and/or
b. Summon the records of the Learned Labour Court and/or
c. Pass any such order (s) which this Hon’ble Court may deem fit and proper in the facts and circumstances of the case”

FACTUAL HISTORY
2. The respondent/workman was working with the petitioner corporation and she did not come to office for a few days and upon her returning on 28th April, 2004, her services with the petitioner corporation were terminated.
3. Thereafter, the respondent sent a legal notice dated 28th August, 2004 to the petitioner demanding reinstatement of her services with consequential reliefs which was denied by the petitioner vide its letter dated 30th September, 2004, stating therein that the respondent has herself abandoned her job, therefore, she cannot seek reinstatement.
4. Pursuant to which, the respondent initiated an industrial dispute against her alleged wrongful termination, and sought reinstatement along with consequential benefits. She further claimed that she had been employed with the petitioner as a ‘Lady Guard’ since 1st February, 1994, and was later promoted to the position of ‘Lady Supervisor’ and that her last drawn salary was Rs.5000/- per month.
5. Accordingly, the respondent filed her claim in ID No. 402/2004, wherein she denied any misconduct during her employment and refuted the allegations of abandoning the services. She also contended that her termination was wrongful and that the same violated various provisions of the Industrial Disputes Act, 1947 (hereinafter ‘the Act”) and other related rules thereby seeking reinstatement with continuity of service, full back wages, and other reliefs.
6. The petitioner countered the above said claim petition, stating that the respondent abandoned her duties intentionally, which caused financial loss to the petitioner. The petitioner denied the claims of promotion and higher wages asserting that she only worked as a peon/attendant at a lower pay.
7. During the proceedings before the learned Labour Court, both the parties presented their evidence by way of affidavits and cross-examination was conducted by both the parties. Thereafter, the impugned award was passed by the learned Labour Court on 2nd January, 2010 holding that the respondent was wrongfully terminated from her service and was also awarded a lumpsum compensation of Rs.1,20,000/-.
8. Aggrieved by the said impugned award, the petitioner has filed the instant petition.
PLEADINGS BEFORE THIS COURT
9. The petitioner had filed the instant writ petition on 6th April, 2010 and submitted the below stated arguments:
“…….ii. The Respondent in her claim petition claimed innocence and further claimed to have not committed any misconduct during her services and therein it was alleged that she had not left the services with the petitioner in any manner. The Respondent further claimed that she was victimized for raising of legitimate demands but the details of the said demands were not mentioned in her claim before the Learned Labour Court. The Respondent thus challenged her termination as having been in violation of Sections 9 A, 25 D, 25 F, 25 G, 25H,25N,25T and 25U of Industrial Disputes Act 1947 and Rule 76-78 of ID Rules 1947 and other such provisions mentioned in the Statement of Claim and prayed for reinstatement in the services along with continuity of services and all consequential relief monetary as well as non-monetary, full back wages etc. with interest @12% p.a. and Rs. 5500/- as cost/expenses. A copy of the Statement of Claim is annexed herewith as Annexure P3.

iii. That the Petitioner chose to defend the claim filed by the respondent and took the preliminary objection that the Respondent had suppressed the material facts and had raised false and frivolous claims and thus made herself liable to be prosecuted for perjury. On merits it was stated that the Respondent had intentionally and deliberately deserted her services and there by causing financial loss to the Petitioner. It was denied that the Respondent was appointed as Lady guard w.e.f. 01.02.1994 and it was also denied that she was promoted to the post of lady supervisor and that she was drawing wages of Rs. 5,000/-. It was denied therein that her main duties were distribution of uniform, clothes, batches etc to other guards. It was stated that the Respondent was working as Peon/attendant and her last drawn wages were Rs. 2,785/-. It was further stated that the Respondent was provided all lawful dues and there was no outstanding amount due to the Respondent of whatsoever nature. The Petitioner vehemently denied that the Respondent went to participate in the last rites of a relative and came back on 28.04.2004 and reported for joining on 29.04.2004. It was stated that Respondent had herself expressed her unwillingness to continue the services with the Management and left the services on 29.04.2004 after receiving all payment due to her. Thus as per the petitioner, the Respondent left services out of her own free will and volition and no termination was made and no unemployment was forced upon her. A copy of the written statement is annexed herewith as Annexure P4.

iv. That the Respondent chose not to file a rejoinder to the written statement of the petitioner, thus allowing the contentions raised by the petitioner in the written statement to remain unrebutted. Subsequently, both parties, the petitioner and the respondent, filed evidence in the form of affidavits and were subjected to cross-examination by each other. Copies of these documents are annexed herewith as Annexure P5(Colly)…..”

10. In response to the present petition, respondent no.1 filed her reply/counter affidavit on 22nd February, 2012, opposing the contentions advanced by the petitioner by submitting the following arguments:
“…1. That the termination of services of the Respondent no.1 have
been found to be illegal by the Ld. Labour Court. After appreciating the evidence on and material on record, the Ld. Labour Court has given a finding on facts that it cannot be said
to be a case of abandonment from service and that the services have been terminated illegally and unjustifiably.
2. It is a settled law that once a Labour Court has given a findings
on fact, the same are not subject to review in a writ jurisdiction. An Hon’ble High Court is not an appellate Court in writ jurisdiction. Hence it can re-appreciate the evidence and it cannot give its own findings on facts.
3. That in Sadhu Ram V/s Delhi Transport Corporation – AIR1984 SC 1407= 1983 SCR (3) 725, the Hon’ble Supreme Court has held as under:
“It is not for the High Court to constitute itself into an appellate Court over Tribunals constituted under special legislations to resolve the disputes of a kind qualitatively different from ordinary civil disputes and to readjudicate upon questions of fact decided by those Tribunals. That the questions decided pertain to jurisdictional facts does not entitle the High Court to interfere with the findings on jurisdictional facts which the Tribunal is well competent to
decide.”
4. The relevant judgment on the question of abandonment of service including G.T. Lad &Ors. V/s Chemicals & Fibres of India Ltd. – 1979 (1) SCC 590 have been duly referred to in the award. In the said judgment it was held as under:-
“whether there has been a voluntary abandonment of services or not is a question of fact which has to be determined in the light of surrounding circumstances of each case. It was further laid down 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 Anil Kumar V/s Presiding Officer, Labour Court No.II &
Anr., 82 (1999) DLT 958, where it was held that “temporary absence does not amount to abandonment of job. For abandonment, it must be proved that the workman has left the job with clear intention not to return on duty.”

5. The findings of facts have been given by the Tribunal which cannot be interfered with by this Hon’ble Court in writ jurisdiction Reg. W.P.(C) No.2252/2012
6. This writ petition has been filed by the workman in respect of the said award giving a limited challenge to the relief awarded. The workman had number of years to go before her retirement. All that needs to be compensated in view of the setting aside of the termination of services.
7. Thus, the compensation awarded should be equivalent to the full wages from the date of termination till the date of retirement i.e. the attainment of 60 years of age by her.
8. That in any event she is also entitled to interest on the amount awarded from the date of the award till the date of retirement alongwith costs of litigation. The award may be modified accordingly by way of an enhancement of the compensation in terms as above…..”

11. The petitioner has further filed rejoinder to the counter affidavit of the respondent no. 1 on 1st April, 2013. The relevant extract of the rejoinder is as follows:
“…2. That, the petitioner respectfully submits that the respondent No 1 has taken vague, evasive and contradictory response to the petition filed by the management. It is also pertinent to mention here that no substantive ground have been taken by the respondent No 1 for why this petition should not be allowed.
3. The petitioner further respectfully submits that the respondent No 1 has not only taken contradictory stands before the Ld. Labour Court but also before this Hon’bie Court. Respondent No 1 during its testimony categorically and specifically stated that she has filed the claim petition before the Ld. Labour Court only for money and not for reinstatement. The same will be evident from mere perusal of the evidence of respondent No 1 led before the Ld. Labour Court annexed with the main paper book at Page No 56. But the respondent No 1 at ground N of her counter affidavit stated that she has always been and is still ready to rejoin her services. Hence, the present petition deserves to be allowed on this ground alone.
4. The petitioner further respectfully submits that in response to the claim filed by the respondent No 1 before the Ld. Labour Court the petitioner has filed detailed written statement/reply to the same but the respondent No 1 failed to file replication to the said written statement/reply, hence admitting the stands of……”

SUBMISSIONS BEFORE THIS COURT
(on behalf of the petitioner)
12. Learned counsel for the petitioner submitted that the impugned award is legally flawed and unsustainable since it disregards essential documents and evidence on record. The relevant facts, records, and evidence presented by the petitioner were not considered.
13. It is submitted that the learned Labour Court failed to verify the respondent’s claim of obtaining verbal permission to attend a family event and no documentary evidence was provided to support her story. Hence, the learned Labour Court wrongly assumed that the respondent had obtained verbal permission without substantial evidence produced by the respondent in this regard.
14. It is submitted that the testimony regarding the respondent’s return to work and the petitioner’s denial was unsupported by documentary evidence or witnesses, thereby, lacking merit. The respondent’s claims lacked corroborative evidence, rendering them hypothetical and fabricated.
15. It is submitted that the learned Labour Court improperly framed issues, burdening the petitioner with proving the case instead of following the proper burden of proof as per the law laid down in Code of Civil Procedure, 1908.
16. It is further submitted that the learned Labour Court overlooked the respondent’s habitual absenteeism and failure to provide evidence regarding her unauthorized leave, which resulted in abandonment of the job.
17. It is submitted that the lack of evidence regarding verbal permission and the petitioner’s refusal to allow the respondent to return to her work suggests she was absent without permission, amounting to abandonment of her job.
18. It is submitted that the learned Labour Court failed to distinguish between termination and abandonment of services. The respondent’s actions constitute abandonment as she didn’t report for duty or express a desire to resume work. The petitioner denied the respondent’s claim, presenting evidence that she voluntarily left the job, indicating abandonment.
19. It is submitted that the learned Court overlooked the respondent’s statement restricting her claim to compensation, not reinstatement, indicating her lack of intention to work and suggesting a fabricated case for wrongful gain. Moreover, evidence placed on record by the petitioner indicates that the respondent left the job voluntarily, hence the petitioner did not terminate respondent’s employment unilaterally.
20. It is submitted that unauthorized leave constitutes misconduct, and the Courts shall deter such behavior to prevent harassment of the management. Unauthorized absence and non-reporting for work amounts to service abandonment, thereby, disqualifying the respondent from benefiting from the impugned award.
21. It is further submitted that the awarded payment lacks basis in any formula or principle, constituting a hypothetical assessment unsubstantiated by the settled law and facts of the instant case.
22. It is submitted that the respondent’s admission in cross-examination regarding disinterest in the job implies that her motive was monetary gain, undermining her claim. The respondent’s claim is deemed ill-motivated and malicious, warranting dismissal. Overall, the petitioner contends that the evidence proves that the respondent voluntarily abandoned her job, and the learned Court’s finding is erroneous in not recognizing this fact.
23. It is submitted that respondent No. 1’s failure to file a rejoinder to the petitioner’s written statement before the learned Labour Court amounts to admission of the petitioner’s stance.
24. In view of the submissions made above, it is submitted that the instant petition has merit and the same may be allowed by this Court.
(on behalf of the respondent)
25. Per Contra, learned counsel for the respondent vehemently opposed the submissions of the petitioner and submitted that the learned Labour Court held the termination of respondent No. 1’s services to be illegal, hence, it was not abandonment of service by the respondent but unjustified termination of respondent’s service by the petitioner.
26. It is submitted that it is a settled position of law that in writ jurisdiction, writ courts cannot review findings of fact made by a Labour Courts since, they are not appellate courts. The learned counsel for the respondent placed reliance on the judgment of Sadhu Ram v Delhi Transport Corporation1 wherein it was held by the Hon’ble Supreme Court that High Courts under its writ jurisdiction in Article 226 of the Constitution of India shouldn’t interfere with jurisdictional facts decided by specialized tribunals.
27. It is submitted that the learned Labour Court’s findings of facts cannot be challenged in writ jurisdiction by the petitioner and the grounds of challenge in the writ petition must be confined to certain errors on facts or law or any illegality in the award which is apparent of the face of the impugned award. Moreover, the writ Court does not appreciate the evidence produced on record.
28. It is submitted that the respondent had several years left before her retirement, and compensation shall indemnify the respondent for the losses suffered by her as a consequence of illegal termination.
29. It is further submitted that the amount of compensation awarded to the respondent worker is decided by the learned Labour Court as per the discretion vested in the learned Court to adjudicate upon the quantum of compensation payable to workers in accordance with the peculiar facts of the case.
30. It is further submitted that the workman is entitled to interest on the awarded amount from the date of the impugned award till retirement, along with litigation costs. Hence, the impugned award should be modified to enhance compensation accordingly.
31. In view of the aforesaid submissions, the learned counsel appearing on behalf of the respondent submitted that instant writ is without any merit and is liable to be dismissed.
ANALYSIS AND FINDINGS
32. The matter was heard at length with arguments advanced by the learned counsels on bothsides. This Court has also perused the entire material on record. This Court has duly considered the factual scenario of the matter, judicial pronouncements relied upon by the parties and pleadings presented by the learned counsel for the parties.
33. It is the case of the petitioner that the respondent stopped coming to work in March, 2004 thereby, abandoning her services. Pursuant to which, her abandonment of service was treated as misconduct and the services of the respondent were terminated. It is contended that the impugned award has wrongly held that the respondent’s employment was unilaterally terminated by the petitioner, despite the fact that there was no evidence on record produced by the respondent in this regard.
34. It is the case of the respondent that she went to her hometown on bereavement of her relative and in the meanwhile, her services were terminated by the petitioner without following the various provisions as enshrined under the Act. It is further contended by the respondent that she did not abandon her services and after coming back from her hometown she tried to join her services, however, the petitioner did not permit/allow the respondent to join back.
35. As per settled law, the term “abandonment of service” refers to an act of an employee who voluntarily leaves the job and such leaving of the job shall be of permanent nature. Moreover, another key element which constitutes as abandonment of service is that the facts and the circumstances of the case should be such that there is a clear intention of the workman to not return back on duty.
36. It is a well- settled position of law that mere allegation that the worker has abandoned her job does not suffice and the same should be proved by the management/ employee. Moreover, the said abandonment shall be coupled with the actual imputed intention on the part of the worker to abandon and relinquish her service. A temporary absence for certain period of time does not constitute as “abandonment of service”.
37. Hence, the abandonment of service is a question/dispute regarding the intention of the employee and the Court has to adjudicate upon the fact whether an inference can be drawn that the employee intended to relinquish her/his service permanently.
38. The Apex Court in the judgment of Vijay S. Sathaye v. Indian Airlines Ltd. & Others2 held that where an employee does not join back his duty after leave and remains absent for long period of time, then such absence should be treated as misconduct. The relevant extract of the judgment has been reproduced herein below:
“12. It is a settled law that an employee cannot be termed as a slave, he has a right to abandon the service any time voluntarily by submitting his resignation and alternatively, not joining the duty and remaining absent for long. Absence from duty in the beginning may be a misconduct but when absence is for a very long period, it may amount to voluntarily abandonment of service and in that eventuality, the bonds of service come to an end automatically without requiring any order to be passed by the employer.
13. In Jeewanlal (1929) Ltd. v. Its Workmen: AIR 1961 SC 1567, this Court held as under: (AIR p.1570, para 6) “6. …there would be the class of cases where long unauthorised absence may reasonably give rise to an inference that such service is intended to be abandoned by the employee.” (See also Shahoodul Haque v. Registrar, Coop. Societies: AIR 1974 SC 1896.)
14. For the purpose of termination, there has to be positive action on the part of the employer while abandonment of service is a consequence of unilateral action on behalf of the employee and the employer has no role in it. Such an act cannot be termed as “retrenchment” from service. (See State of Haryana v. Om Parkash: (1998) 8 SCC 733).
15. In Buckingham and Carnatic Co. Ltd. v. Venkatiah: AIR 1964 SC 1272, while dealing with a similar case, this Court observed: (AIR p.1275, para 5) “5. …Abandonment or relinquishment of service is always a question of intention, and normally, such an intention cannot be attributed to an employee without adequate evidence in that behalf.” A similar view has been reiterated in G.T. Lad v. Chemical and Fibres of India Ltd. : AIR 1979 SC 582.
16. In Syndicate Bank v. Staff Assn.: (2000) 5 SCC 65 and Aligarh Muslim University v. Mansoor Ali Khan : AIR 2000 SC 2783 this Court ruled that if a person is absent beyond the prescribed period for which leave of any kind can be granted, he should be treated to have resigned and ceases to be in service. In such a case, there is no need to hold an enquiry or to give any notice as it would amount to useless formalities. A similar view has been reiterated in Banaras Hindu University v. Shrikant: (2006) 11 SCC 42, Chief Engineer (Construction) v. Keshava Rao: (2005) 11 SCC 229 and Bank of Baroda v. Anita Nandrajog : (2009) 9 SCC 462.”
39. The Division Bench of the Bombay High Court has further enunciated the concept of abandonment of services in the judgment of Gaurishanker Vishwakarma v. Eagle Spring Industries Pvt. Ltd.3 observed thus:
“…….. It is now well settled that even in the case of the abandonment of service, the employer has to give a notice to the workman calling upon him to resume his duty and also to hold an enquiry before terminating his service on that ground. In the present case the employer has done neither. It was for the employer to prove that the workman had abandoned the service. …………It is therefore difficult to believe that the workman who had worked continuously for six to seven years, would abandon his service for no rhyme or reason. It has also to be remembered that it was the workman who had approached the Government Labour Officer with a specific grievance that he was not allowed to join his duty. It was also his grievance that although he had approached the company for work from time to time, and the company’s partner Anand had kept on promising him that he would be taken in service, he was not given work and hence he was forced to approach the Government Labour Officer. In the circumstances, it is difficult to believe that he would refuse the offer of work when it was given to him before the Labour Officer……”

40. Before adverting to adjudicate the instant petition on merits, the relevant extract of the impugned award has been reproduced herein below for reference:
“1. Workman has raised an Industrial Dispute against her illegal termination from the services and prayed for reinstatement with consequential benefits.
2. It is, inter alia, stated in the statement of claim that the Workman was appointed as “Lady Guard” with the Management w.e.f. 01/02/1994 and subsequently promoted as ‘Lady Supervisor. Her last drawn wages were Rs.5000/- per month, but was being paid much below that. Her signatures were obtained on blankpapers/vouchers/registers. Her main duties were distribution of uniforms, badges and batons etc. to other guards. She had been working with the Management devotionally and honestly without any complaint. She was not paid Gratuity, Bonus, Leave Encashment and other leave as per entitlement. She was also not paid salary of Rs.5000/- as promised.
3. In the month of March, her Bhabhi expired and she had to go to village Faizabad, Lucknow after taking leave verbally from the Management. When she came back on 28.4.2004 and reported for duty on the next day le 29.4.2004, her services were terminated verbally. She was denied entrance in Management premises and her earned wages of March, 2004 were not paid. Thereafter, she approached the Management many times and demanded her duties and outstanding dues, but she was denied entry. However, Shri Greesh Verma assured her that she would be taken back in June, 2004. When she approached the Management on 11.6.2004, he misbehaved with her and threatened her. The Workman served a legal demand notice dated 28.8.2004 to the Management, which was replied by the Management alleging that the Workman had abandoned the services. The Workman was not taken back on duty nor her dues were cleared. Hence, the claim.
4. In the Written Statement, the Management has taken various pleas. The Workman has abandoned the services of the Management. They have stated that Workman was appointed as peon/attendant w.e.f. 1995 and her last drawn salary was Rs.2785/-. They have denied of all the pleas of the Workman parawise and reiterated that she abandoned the services of the Management on her own.
5. No replication was filed by the Workman. On the pleadings of the parties, following issues were framed:
I Whether the Workman abandoned her job?
II Whether the Workman is entitled to reinstatement with consequential benefits?
III Relief.
6. I have heard Ld. Authorised Representatives (A.Rs) for the parties and have also perused the material placed on record. My findings on the above issues are as follows:
ISSUE No.1
7. The onus to prove this issue lies upon the parties. In support of this, the Workman has examined herself as WW.1. She has deposed on affidavit ExWW.1/A and reiterated all her pleas taken in the statement of claim. She has got exhibited documents from Ex WW.1/1 to WW 1/3 i.e. reply of demand notice, identity card and ESIC.
8. In defence the Management has examined Shri Subhash as MW.1. He has also deposed on affidavit Ex.MW.1/A. He has stated in the testimony that Workman herself intentionally abandoned her job and put the Management to financial loss. He has further stated that the Workman joined the Management as Peon/Attendant w.e.f. 1995 and her last drawn salary was Rs. 2785/- per month. She was irregular and used to remain absent during the tenure of her service. She left the job on 29.4.2004 after getting the payment on the pleas that she had got a better job at Mehrauli near her residence.
9. It has been argued on behalf of the Management that the Workman had abandoned the job on her own. On the other hand, Ld. A.R for the Management has argued that the Workman did not abandon the job on her own, but her services have been terminated by the Management. In support of his arguments Ld. A.R for the Workman has placed reliance on a judgment of Hon’ble Supreme Court in G.T. Lad &Others Vs. Chemicals and Fibres India Ltd, AIR 1979 SC 582, where it has been laid down whether there has been a voluntary abandonment of services or not is a question of fact which has to be determined in the light of surrounding circumstances of each case. It was further laid down 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 Anil Kumar vs. Presiding Officer, Labour Court No.II & Anr., 82 (1999) DLT 958, where it was held that temporary absence does not amount to abandonment of job. For abandonment, it must be proved that the Workman has left the job with clear intention not to return on duty.
10. To appreciate the arguments of Ld. A.Rs for the parties, a look has to be made to the testimony of Workman Smt. Seema, WW.1 as well as Shri Subhash MW.1.
11. Before coming to the testimony of these two witnesses, it would not be out of place to have a look to term “Abandonment”.
12. The Hon’ble Supreme Court in Buckingham Co. Vs. Venkatiah (1964) 4 SCR 265, AIR 1964 SC 1272, held 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 the 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 evidence 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.
13. Again in G.T. Lad & Others (supra) it has been laid down that to constitute abandonment, there must a total or complete giving up of duties so as to indicate an intention not resume the same.
14. In the light of these judgments, it has to be seen whether from the evidence on record, it can be inferred that the Workman intended to leave the job or not. If the cross-examination of Smt. Seema, WW.1 is looked into, she has stated in her cross-examination that she lastly worked with Management till 28.4.2004, after that she did not visit the Management for services. She has denied the suggestion that she herself abandoned the services. Except this there is nothing on record in respect of her abandonment of job.
15. Shri Subhash, MW.1 has stated in his cross- examination that the Workman was at her ancestral place. He has further admitted that the Workman informed them that her Bhabhi expired and she was going to attend her last rites. It has also been admitted that she left for village after talking to Col. Girish Verma. To quote from his testimony:
“The Workman proceeded on leave after talking to Col. Girish Verma, who used to sit upstairs.”
16. It has also been admitted that her services were terminated in March2004. Not only this, it has also come on record that her name was also struck off from the ESI, PF and attendance register.
17. From these facts, it is gathered that Smt. Seema went to her village in March, 2004, to attend the last rites of her Bhabhi who expired. She proceeded on leave after taking permission from the Management. However, her services have been terminated by the Management in April-2004. It has also come in the cross-examination of Shri Subhash, MW.1 that prior to March, 2004, they did not give any memo, warning or chargesheet etc. No enquiry was ever conducted against the Workman. The fact that her name has been struck off from rolls of Management without serving any chargesheet or enquiry, the plea of the Management that the Workman abandoned her job cannot be accepted. On the contrary, it is the case of the Workman that she attended the Management on 28.4.2004 and after that she was not permitted to enter the premises of the Management. Thus, from the evidence on record, it cannot be said that there was total or complete giving up of duties by the Workman to indicate her intention so as not to resume her duties. Even it is not a case of temporary absence from her job as she got the permission to attend the last rites of her Bhabhi. Therefore, it is concluded that the Workman had not abandoned her services, rather her services were terminated by the Management. Therefore, this issue goes against the Management and in favour of the Workman.
ISSUE No.2
18 Since the findings on Issue No.1 have gone against the Management and in favour of the Workman, the Workman is entitled to the relief.
RELIEF.
19 In view of the above, I am of the opinion that the Workman has succeeded in proving her case. Though she has stated her salary to be Rs.5000/- in her statement of claim, but she has admitted to be Rs.3000/-in her cross-examination. Thus, taking into consideration the totality of the circumstances, I think that a lump sum amount of Rs. 1,20,000/- towards her all claims will meet the ends of justice. Therefore, an award for an amount of Rs.1,20,000/- is passed in favour of the Workman and against the Management which be paid by the management within a period of one month of the publication of the award, failing which interest at the rate of 9% p.a. (nine percent) would be payable by the management to the workman. As far as the prayer with regard to reinstatement of the Workman is concerned, since she has herself admitted in her cross- examination that she was not interested in reinstatement and filed the case for compensation, there is no order as to reinstatement.
20. Award is passed in the above terms. Six copies of the award be sent to the appropriate government.
File be consigned to record room…”

41. Upon perusal of the aforesaid impugned award, the learned Labour Court stated that the statement of claim filed by the respondent outlines a series of grievances and events leading up to the termination of the respondent’s employment. It commences by enunciating that the respondent’s initial appointment as a “Lady Guard” and subsequent promotion to the position of “Lady Supervisor” with the petitioner management. Despite her official salary being recorded as Rs.5000/- per month, the respondent alleges that she was consistently paid less than this amount. Additionally, she alleged that the promised salary of Rs.5000/- per month was not honored. Furthermore, she asserts that she was forced to sign various documents, including blank papers, vouchers, and registers, which could be used by the petitioner to prove any misconduct or exploitation of her signature.
42. It was noted by the learned Court below that the respondent’s main duties were distributing uniforms, badges, and batons to other guards. It is further asserted by her that despite her diligent and complaint-free work ethic, the management failed to provide her with entitled benefits such as gratuity, bonus, and leave encashment.
43. The situation worsened when the respondent’s sister-in-law passed away in March, 2004 prompting her to take leave and attend the funeral at her hometown. Upon her return on 28thApril 2004, the respondent asserts that her services were terminated verbally the next day. Despite her attempts to resolve the matter with the management, including receiving assurances of reinstatement from one individual namely Shri Greesh Verma, she claims to have been mistreated and threatened when she approached the management again on 11th June, 2004. In response to her grievances, the respondent sent a legal demand notice dated 28th August, 2004 to the management, which was countered by the management’s assertion that she had abandoned her services.
44. The petitioner management, in its defence, contests the respondent’s version of events. It is contended by the petitioner that the respondent was employed as a peon/attendant from the year 1995 and her last drawn salary was Rs. 2785/- per month. The petitioner management denies the respondent’s allegations and asserts that the respondent voluntarily abandoned her job, citing irregular attendance and her absence during her tenure. They claim that the respondent left her job after securing alternative employment closer to her residence.
45. Hence, the argument presented on behalf of the petitioner management is that the worker voluntarily abandoned her job, whereas the workman argues that the termination was done by the management itself and placed reliance on the judgment of Supreme Court of G.T. Lad & Others vs. Chemicals and Fibres India Ltd4 wherein, it was held that determining whether an employee has voluntarily abandoned their job involves examining the surrounding circumstances of each case. It also emphasizes that for abandonment to be established, there must be a clear intention not to resume duties, necessitating a total or complete giving up of responsibilities.
46. The learned Labour Court has further examined the testimony of both, i.e., the worker, Smt. Seema (WW1), and the management’s witness, Shri Subhash (MW1). Upon examining of the same, the learned Court was of the view that Smt. Seema, i.e., the respondent herein, denied abandoning her job and states that she continued working until 28thApril, 2004. Post 28thApril, 2004, the respondent was denied entry into the premises. On the other hand, Shri Subhash admits that the worker went to her ancestral village to attend her sister-in-law’s last rites in March, 2004, with her leave approved by the management. It is also acknowledged that her services were terminated in March, 2004, and her name was removed from registers.
47. Based on these facts, the learned Labour Court held that the worker’s absence from work to attend her sister-in-law’s last rites was with the management’s permission, and her subsequent termination without due process indicates that she did not voluntarily abandon her job. Therefore, the issue was decided in favor of the workman.
48. Consequently, as the findings favored the respondent workman, therefore, the learned Labour Court held that she is entitled to the reliefs. Considering the aforesaid circumstances, a lump sum amount of Rs.1,20,000/- was awarded in favour of the workman.
49. The learned Labour Court further opined that the respondent initially claimed a higher salary, during cross-examination and it was clarified that her actual salary was Rs. 3000/- per month.
50. Accordingly, the learned Labour Court directed the petitioner management to pay the said amount within one month of the award’s publication, failing which interest @ 9% per annum was payable to the workman. Furthermore, since the respondent workman herself expressed no interest in reinstatement during cross-examination, no order for reinstatement was issued.
51. In light of the instant factual matrix, the fact that the respondent did not abandon her service, she just went to her hometown due to bereavement in her family is admitted by Shri Subhash (MW1). It is pertinent to note that Shri Subhash (MW1) admits that the respondent workman went to her ancestral village to attend her sister-in-law’s last rites in March, 2004, with her leave approved by the petitioner’s management. The relevant portion of the cross-examination of Shri Subhash (MW1) is reproduced herein below:
“..The Workman proceeded on leave after talking to Col. Girish Verma, who need to sit upstairs…”

52. This Court opines that the petitioner has not been able to produce any evidence on record to substantiate its contention that the respondent abandoned her job. Moreover, the authorised representative of the petitioner has admitted the factum that the respondent has taken prior permission from one Col. Girish Verma working in the petitioner’s organisation.
53. It is further admitted by Sh. Subhash (MW1) that services of the respondent were terminated in March, 2004, and her name was removed from various registers maintained by the petitioner pertaining to her salary, ESI and PF etc.
“…Mr. Pabala struck off the name of Workman from the register of attendance, salary, ESI and PFbeing maintained by the Management…”

54. The legal position pertaining to ‘abandonment or relinquishment of service’ is settled as per which the abandonment or relinquishment of service is always a question of intention of the said employee which is usually deduced from the facts and circumstances of the case. This is a question of fact which is to be determined in the light of peculiar facts of each case.
55. Moreover, it is well settled position of law that even in the case of abandonment of service, unless the service conditions make special provisions to the contrary, employer has to give notice to the workman calling upon him to resume duties and where he fails to resume duties, to hold an enquiry before terminating services on such ground
56. In view of the aforesaid findings, this Court is of the view that in order to constitute abandonment of service there must be an intention attributed to an employee that he voluntarily wants to leave his service on permanent basis. In the present petition, the respondent temporarily went to her hometown due to bereavement in her family, with prior information to the concerned official of the petition. Therefore, as per the facts and circumstances of the instant case, it cannot be deduced that the respondent intended on voluntarily abandoning her services.
CONCLUSION
57. The High Court cannot exercise the powers of an appellate court under Article 226 by re-appreciating the evidence, which has been led before the learned Labour Court.
58. The writ jurisdiction is supervisory and the Court exercising it is not to act as an appellate Court. It is well settled that the writ court would not re-appreciate the evidence and substitute its own conclusion of fact for that recorded by the adjudicating body, be it a court or a tribunal. A finding of fact, howsoever erroneous, recorded by a court or a tribunal cannot be challenged in proceedings for certiorari on the ground that the relevant and material evidence adduced before the court or the tribunal was insufficient or inadequate to sustain the impugned finding.
59. The writ of certiorari cannot be issued in the present matter since for the issuance of such a writ, there should be an error apparent on the face of it or goes to the root of the matter. However, no such circumstances are present in the instant petition.
60. The instant petition is an appeal in the garb of a writ petition. The petitioner is seeking a review of the findings of the learned Court below despite the fact that there are no such special circumstances that require the interference of this Court.The petitioner is not aggrieved by any such violation of the rights of the petitioner, which merits intervention of this Court with the impugned award.
61. In light of the aforesaid submissions, this Court is of the view that the impugned award does not suffer from any illegality and does not warrant any intervention of this Court by way of issuance of any writ. The petitioner has not been able to make out a case in its favour.
62. Accordingly, this Court upholds the impugned award dated 2nd January, 2010 in ID no. 402/04 by the learned Labour Court VI, Karkardooma, Delhi and the instant petition stands dismissed. Pending applications, if any, also stands dismissed.
63. The judgment be uploaded on the website forthwith.

(CHANDRA DHARI SINGH)
JUDGE
FEBRUARY 29 , 2024
sv/db/ryp
1AIR 1984 SC 1467

2 (2013) 10 SCC 253
3(1987) 55 FLR 689
4 AIR 1979 SC 582
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