S. K. KESHOTE, J. ( 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. 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 Honble 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. 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. ( 4 ) I have given my thoughtful consideration to the submissions made by the learned counsel for the parties. The petitioner was admittedly a member of the ESI Scheme. The petitioner has not submitted any application for leave from 1st April, 1979 to 11th April, 1979. The petitioner, though tried to make out a case before the Labour Court that he sent the application through his coworker, but he has not produced any evidence whatsoever on this question. The person who has been examined on behalf of the petitioner has also not supported him on this question. It is true that merely because the petitioner has taken treatment from private doctor and produced medical certificate there may not he a presumption of the fact that he was not sick, or that it is a case of procurable medical certificate. There may be cases where the workmen who are members of ESI scheme, but still they take treatment of private doctors. There may be cases where the workmen who are members of ESI scheme, but still they take treatment of private doctors. So it is correct to contend by the counsel for the petitioner that merely on this count no presumption could have been drawn to the fact that the petitioner was not sick. But at the same time it is a strong circumstance against the petitioner. Normally low paid employee who is covered under the ESI Scheme will prefer to go to the ESI hospital where he gets free treatment. To take treatment from private doctor would certainly cost him and he may not be in a position to bear the burden. To decide whether the petitioner was really sick or not, another important fact was that he has not submitted any application for leave. When the workman is sick, he should have sent the application for leave and in case the application has not been sent then there may be inference that he was not sick. It is not the case that the petitioner was suffering from such illness where he was not in a position even to move to the employers establishment and submit application, or he was not in a position to send the application by post or through a messenger. However, the petitioner has come up with the case that the application was sent through coworker but this fact has not been established by producing evidence. When this plea cannot be accepted, then it is a case where the petitioner has not sent the application for leave on ground of sickness. In this factual matrix the question of not taking treatment from ESI assumes importance. In case the petitioner would have taken treatment from ESI panel doctor, certainly it would have been a fact in his favour, and non submission of application for leave would not have been that serious. So the petitioner has failed to establish that he was sick during the period from 1-4-1979 to 11- 4-1979. Reference has been made on the question whether the petitioners services were terminated on 2-4-1979. As held by the Supreme Court in the case of G. T. Lad (supra) to constitute abandonment of service there must be total or complete giving up of duties so as to indicate an intention not to resume duty. Reference has been made on the question whether the petitioners services were terminated on 2-4-1979. As held by the Supreme Court in the case of G. T. Lad (supra) to constitute abandonment of service there must be total or complete giving up of duties so as to indicate an intention not to resume duty. The Supreme Court held that whether there has been 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. So the overall surrounding circumstances have to be considered in the matter with reference to the evidence produced by the parties. ( 5 ) THE first circumstance which goes against the petitioner is that the petitioner has produced certificate of a private doctor. But that may not be a sufficient evidence in the facts of this case because the petitioner has not submitted application for leave and he has not taken treatment from ESI doctor. So to prove that he was really sick, he has to produce some material and cogent evidence. The petitioner has produced evidence of one of his coworker to prove this fact. But that evidence has rightly been not relied upon by the Labour Court. That coworker has stated that he has no personel knowledge of the sickness of the petitioner. So the plea of the petitioner of his sickness not based on facts. This is the first circumstance which goes against the petitioner. ( 6 ) IT is an admitted fact that the petitioner was receiving Rs. 8/- per day as wages while working with the respondent. The petitioner had engaged himself with Sankara industry where he was getting wages at the rates of Rs. 14. 60 ps per day. Certificate of his employment with the said firm has been produced and it has been proved by one of the partners of the said firm. It is true that there is a gap of about one year or more in between his date of abandonment of service and employment with Sankara Industry. But Mr. Patel of Sankara Industries made categorical statement that before joining service with them, the petitioner was working with the Parshwanath Fabricators, which is a subsidiary concern of Shankara Industry. Further statement has been made by Shri Patel that the petitioner was also working in Desh Seva Krushi Udyog, Odhav. But Mr. Patel of Sankara Industries made categorical statement that before joining service with them, the petitioner was working with the Parshwanath Fabricators, which is a subsidiary concern of Shankara Industry. Further statement has been made by Shri Patel that the petitioner was also working in Desh Seva Krushi Udyog, Odhav. So, there is sufficient evidence on record that after leaving the respondents, the petitioner has been engaged elsewhere. Securing job at a higher rate of wage is certainly a circumstance which supports the case of the respondent that the petitioner had abandoned the service. I find sufficient justification in the contention of the counsel for the respondent that to take better service the petitioner had left the service. The conduct of the petitioner further that even after giving the offer by the respondent during the pendency of the reference, he has hardly worked for three days with the respondent establishment, goes to show that naturally the petitioner was getting much higher wages elsewhere than that he was getting at the respondents establishment, and since working with respondents was not profitable, the petitioner has not continued there. The counsel for the petitioner has tried to justify this act of the petitioner by making reference to the fact that onerous conditions had been imposed, making it impossible for the petitioner to work with respondents. However, the fact is that the petitioner could not have continued to work with the respondents establishment when he was getting sufficiently good higher amount of wages from other employer. ( 7 ) ON the basis of the evidence which has been produced on record, the view taken by the Labour Court could have been taken, and even if there may be some justification to take another view on the evidence before it, I find sufficient merit in the contention of the learned counsel for the respondent that this court may not interfere in the matter. The view taken by the Labour Court cannot be interfered with by this court sitting under Art. 227 of the Constitution of India. Powers of this Court under Art. 227 of the Constitution can only be exercised where this Court finds that the judgment of the labour is on the face of it is based on no evidence or where the labour court has completely misinterpreted as the evidence. Powers of this Court under Art. 227 of the Constitution can only be exercised where this Court finds that the judgment of the labour is on the face of it is based on no evidence or where the labour court has completely misinterpreted as the evidence. On the basis of the evidence produced on record, the view taken by the Labour Court could have been taken. The counsel for the petitioner is unable to make out any case to take a contrary view by this Court. ( 8 ) IN the result this special civil application fails and the same is dismissed. Rule discharged. No order as to costs. .