( 1 ) HEARD learned counsel. This petition has been filed under articles 226 and 227of the Constitution of India to challenge the order of Presiding Officer, Labour Court, Nagpur dated 18. 8. 1997, which reads thus: the reference is answered in affirmative 2. Oral termination of the party No. 2 w. e. f. 20. 4. 1986 stand quashed and set aside being illegal and improper. 3. Party no. 1 is directed to reinstate the Party no. 2 in the post last held by him and pay him full full back-wages from 23. 10. 1989 when he has approached before the Conciliation Officer onwards till he is reinstated. 4. Copies of award be sent to Commissioner of Labour, Mumbai, through the Deputy Commissioner of Labour, Nagpur for information and necessary action. 5. Papers in conciliation proceedings be returned to Deputy Commissioner of Labour, Nagpur. 6. The parties bear their own cost. ( 2 ) RESPONDENT no. 1 was in service of the petitioner. He was working as Oilman / labour on Jam Warora Road w. e. f. 1. 11. 1983 on daily wages. It is alleged by the petitioners that he had himself absented from the work w. e. f. 7. 2. 1986, without any intimation. He did not resume the duties despite letters dated 21. 4. 1986 and 6. 5. 1986. According to petitioners, the respondent no. 1 did not pay any heed to these letters, nor resumed his duties for a pretty long time. However, later on, he issued demand notice on 14. 10. 1988 alleging that he was illegally terminated from the services without any notice w. e. f. 10. 4. 1986 and he should be allowed to resume his duties. He again sent second demand notice on 6. 10. 1989 with a similar request. As his request was not accepted, respondent no. 1 approached to the Conciliation Officer by preferring an application dated 23. 10. 1989 under section 2-A of the Industrial Disputes Act, 1947. Another such application raising same contention dated 3. 10. 1989 was filed raising same dispute. The matter was referred to the Labour Court bearing Reference No. IDA 77 of 1991. Petitioners filed their written statements to which respondent no. 1 had also filed rejoinder. The evidence led by parties was recorded and by the impugned order respondent no. Another such application raising same contention dated 3. 10. 1989 was filed raising same dispute. The matter was referred to the Labour Court bearing Reference No. IDA 77 of 1991. Petitioners filed their written statements to which respondent no. 1 had also filed rejoinder. The evidence led by parties was recorded and by the impugned order respondent no. 1 was directed to be reinstated on the post held by him with back wages from 23. 10. 1989. This order is challenged in this petition. ( 3 ) LEARNED A. G. P. has submitted that the impugned order is incorrect inasmuch as there no case was made out by the respondent no. 1. He had himself remained absent from the duties without any intimation and therefore, he had abandoned his services. According to him the letters of warning and asking him to resume services were issued on 21. 4. 1986 and 6. 5. 1986, but he did not join. Therefore, it has to be presumed that he had abandoned the services with requisite intention. According to him, the respondents notices of demand were just to make a show that he wanted to join, but petitioners did not allow him. He has contended that since respondent no. 1 abandoned the services there can not be any reinstatement, so also the back wages. ( 4 ) LEARNED counsel for the respondent no. 1, submitted that there was oral termination of respondent by the petitioners and therefore, there was no question of any abandonment of service. According to him, no letters were issued by the respondent no. 1. On the contrary when the notice was served on the petitioners, same was not replied. Meaning thereby the petitioner had accepted the fact that before the order of termination that there was no abandonment of service. The conciliation proceedings were initiated but did not yield any satisfactory result, so the dispute was referred to Labour Court, wherein impugned order was passed which is in accordance with law. According to him, respondent no. 1 is also entitled for the back wages in the circumstances of the case, inasmuch as there was no legal valid termination. ( 5 ) IT is necessary to note at this stage that this court on 19. 1. 1998 had passed the following order, to allow the payment of wages under section 17 (B) of the Industrial Disputes Act: respondent no. ( 5 ) IT is necessary to note at this stage that this court on 19. 1. 1998 had passed the following order, to allow the payment of wages under section 17 (B) of the Industrial Disputes Act: respondent no. 1 has filed the instant application claiming relief under section 17 (B) of the Industrial Disputes Act regarding a direction to the petitioners to make the payment of full wages last drawn by him since the petitioners employer have preferred these proceedings against the Aware of the Labour Court ordering reinstatement of respondent no. 1 with full back wages. Having heard learned counsel for both the sides, it appears that since the petitioner employer have initiated proceedings in this court on 18. 12. 1997 by filing instant petition as against the award of the Labour Court directing reinstatement of the respondent with full back wages, the respondent no. 1 is entitled to have the full wages last drawn by him under the provisions of section 17-B of th Industrial Disputes Act. The respondent no. 1 in his application has made a statement that he is not in gainful employment. Though, this is controverted, mere denial in this regard by the petitioner cannot be accepted, at this stage. it is in this backdrop the instant application is allowed and the petitioners are directed to pay the wages lastly drawn by the respondent no. 1 during the pendency of the petition. ( 6 ) IT is not disputed that respondent was in service of the petitioners at the relevant time. The crucial question is whether it is established that respondent no. 1 had abandoned the services and he did not resume the services despite letters issued by petitioner. In this regard it is necessary to see the contents of letters dated 21. 4. 1986 and 6. 5. 1986, same read thus: date:21. 4. 1986 shri Laxman Durga Labour, hinganghat, subject : In respect of continuously remaining absent from duty. You are informed by this letter that you are absent [from duty. since last 15 days without giving any intimation or application etc. Since last 2/4 months you have occasionally remained absent. This shows that you are not in need of a job. 4. 1986 shri Laxman Durga Labour, hinganghat, subject : In respect of continuously remaining absent from duty. You are informed by this letter that you are absent [from duty. since last 15 days without giving any intimation or application etc. Since last 2/4 months you have occasionally remained absent. This shows that you are not in need of a job. You are, therefore, called upon to submit your explanation within 3 days from the dat eof receipt of this letter stating therein as to why did you remain absent and also you are called upon to present yourself on duty, otherwise, you will have no right to attend the job. sd/- Branch Officer, P. W. D. Sub Division, Hinganghat copy to : Sub-Divisional Engineer, P. S. W. , Sub Division, Hinganghat for information. Shri Laxman Durga Labour be warned for remaining absent from duty. Orders of termination from duty be issued to him after giving him 30 days prior notice as per the provisions of rules. sd/- Sub Divisional Officer Date: 24. 4. 1986 0 0 0 0 0 0 office of the Sub-Divisional Engineer, P. W. D. Sub Division, Hinganghat No. 721/ 6. 5. 1986 to, shri Laxman Durga, daily Wage Labour, jam-Warora Road, Hinganghat through : Shri Raut, Junior Engineer Subject : Prior notice for termination of service. Reference: Letter dated 21. 4. 1986 from the Junior Engineer, Jam-Warora Road. From the letter under reference it has come to my notice that you have been absent from duty occasionally (but) continuously as a result of which you have been responsible for holding up Government work from time to time. Since you remain absent from duty, from your daily wages work, it appears that you are not in need of daily wages work. Hence, you are hereby given prior intimation cum notice. Please take note that after 31. 5. 1986 your services shall no longer be required by this office in Jamb0warora Section. Your services shall stand terminated with effect from 1. 6. 1986. Hence intimation (notice) has been given hereby. sd/- Sub Divisional Officer, P. W. D. Sub Division, Hinganghat, Copy forwarded for information to Shri Raut, junior Engineer, Jamb-Warora Road with reference to his letter, dated 21. 4. 1986. This prior intimation notice of termination of service with effect from 1. 6. 6. 1986. Hence intimation (notice) has been given hereby. sd/- Sub Divisional Officer, P. W. D. Sub Division, Hinganghat, Copy forwarded for information to Shri Raut, junior Engineer, Jamb-Warora Road with reference to his letter, dated 21. 4. 1986. This prior intimation notice of termination of service with effect from 1. 6. 1986 be issued to the concerned labour and acknowledgment thereof be sent to this office immediately. It would be seen that by the letter dated 21. 4. 1986, respondent no. 1 was called upon to join the duties, otherwise, it was informed that he would have no right to attend the job. Letter dated 6. 5. 1986 intimates that services of the respondent were no longer required , his services stood terminated w. e. f. 1. 6. 1986. In this regard, contention of the respondent no. 1 is that the said letters were not at all received by respondent no. 1 and therefore, there was only a show to create evidence that despite notices respondent did not join. Demand notices by respondent no. 1 on record they are dated 17. 10. 1988 and 6. 10. 1989, receipt of the same is not denied by the petitioners. ( 7 ) IT does not seem to be in dispute that the respondent no. 1 had not attended the duties since 1986. The oral termination even according to respondent is from 10. 5. 1986 vide demand notice dated 17. 10. 1988 no doubt the respondent no. 1 has alleged that he was making demand by writing applications to resume duties even prior to demand notice, but there is absolutely no evidence on record to suggest this. ( 8 ) VIS a vis this, the evidence of the respondent, needs to be seen. In examination in chief he has stated that his services were terminated by petitioner w. e. f. 20. 4. 1986. But on close perusal of examination in chief of the respondent no. 1 it would reveal that he has not stated anything about the representation made by him. In cross examination also he has stated that It is true that I had sent a demand notice to the party no. 1 dated 14. 10. 1988 in which I had made my date of termination as 10. 4. 1986. He also stated that It is true that, I had mentioned my date of termination in demand notice dated 6. 10. 1 dated 14. 10. 1988 in which I had made my date of termination as 10. 4. 1986. He also stated that It is true that, I had mentioned my date of termination in demand notice dated 6. 10. 1986 is as 20. 4. 1986. It thus, clearly appears that respondent no. 1 had not made any attempt from 8. 2. 1986 till the notice was sent to get himself on the job. It essentially shows that respondent no. 1 had not joined the duties and his absence was not bonafide i. e. the absence with a notice to the petitioners or for any specific reasons. There is nothing on record to suggest any possibility of respondent to join services. Indication is that he was not at all interested in the service. ( 9 ) IF the fact would have been otherwise i. e. had it been impossible for him to join the service, he would have produced such evidence on record that he was not in a position to join. In absence of such evidence, it is not possible to accept the case of the respondent that he was ready to resume the duties,but petitioner did not allow him. ( 10 ) LEARNED trial Judge has relied on the judgment reported in 1996 I CLR Page 172 Gangaram K. Medekar. . vs. . Zenit Cafe Manufacturing and 1996 I CLR 439 Dharamraj Vithoo Notekar. . vs. . Unique Industries and others, in order to get support for the impugned order. ( 11 ) THE facts of those cases are entirely different than the facts in the instant case. It would be seen that in that case (Ist case) the workman had immediately demanded that his services should be restored. The workman therein was not allowed to join the first week of May 1986, whereas he has raised the demand of reinstatement immediately on 22. 5. 1986. The other facts are also quite distinguishable from the facts of this case. ( 12 ) TURNING to the facts of the case in the judgment reported in 1996 I CLR Page 439 Dharamraj Vithoo Notekar. . vs. . Unique Industries and others, it would be seen that in that case the workman was absent from 7. 2. 1985 till 15. 6. 1985 and he did not attend office on 8. 2. ( 12 ) TURNING to the facts of the case in the judgment reported in 1996 I CLR Page 439 Dharamraj Vithoo Notekar. . vs. . Unique Industries and others, it would be seen that in that case the workman was absent from 7. 2. 1985 till 15. 6. 1985 and he did not attend office on 8. 2. 1985 for collecting the salary, he has produced medical certificate of Doctor from E. S. I. Hospital, seeking to explain his absence. He had again remained absent. he was admitted in the hospital for quite some time. This aspect distinguishes that case from this case. ( 13 ) HERE is the case where respondent no. 1 failed to make out any such case, therefore, in my opinion the authorities referred by the learned trial Judge for basing impugned order are not attracted at all. ( 14 ) LEARNED counsel for the respondent has relied on the judgment of the Apex Court reported in 2004 III CLR 557 Nicks (India) Tools. . vs. . Ram Surat and another and 2009 (4) SCALE 649 Hongkong and Shanghai Banking Corp. Ltd. . vs. . Government of India and another, to contend that there is no limitation period fixed for making demand of reinstatement. According to him, even if it is admitted for a moment, that first demand notice was sent some time in 1988, still respondent would only be denied back wages for the relevant period till his demand notice is made, but he can not be denied the claim of reinstatement. ( 15 ) HERE is the case where respondent is not shown to be a permanent employee. He has claimed to have worked for 240 days in the calender year for invoking section 25-F and 25-G of the Industrial Disputes Act. Even assuming for a moment that oral termination is not possible, it has to be held that such callus attitude in the employees cannot be held to be permissible. Needless to say that such attitude on the part of the employee definitely affects the public work. Absence from duty without any notice or without any sanction or intimation for long time has to be deprecated. ( 16 ) LEARNED A. G. P. for petitioner has relied on some authorities in support of his contention as regards the abandonment of service. Absence from duty without any notice or without any sanction or intimation for long time has to be deprecated. ( 16 ) LEARNED A. G. P. for petitioner has relied on some authorities in support of his contention as regards the abandonment of service. He has particularly relied on the judgment of this court in 2006 (5) Mh. L. J. 314 Bharat Sanchar Nigam Ltd Pune. . vs. . Balasaheb Maruti Poojari and another, wherein in paragraph 11 it has been observed that : 11. It is an admitted fact that in the instant case the respondent worker was working as a causal labourer or mazdoor. According to him, on 28. 2. 1985 Sub-Divisional Engineer one Mr. Deshpande told him that he should not come on duty. it is pertinent to note that the said worker has clearly admitted in cross-examination that he never made any complaint to any superior officer of Mr. Deshpande when he told him not to come on duty. Not only that but the respondent worker has also admitted that six years after 28. 2. 1985 for the first time, he approached conciliation officer and raised dispute by way of Reference, after nine years. In that also he had not specifically named Mr. Deshpande. He has also admitted that he never resumed duty after termination on 28. 2. 1985. So, this very conduct viz. keeping mum and not taking any action for a long period of about 9 years and not ventilating the grievance clearly indicates that respondent worker had at that time no intention to continue with the service and on the contrary he had an intention to abandon the service. Any worker who is interested in the job would not keep mum when he is simply asked by one officer that he should not join duty. He would definitely insist for some written order or would make grievance about the officer. However, no such thing has taken place in the instant case. This obviously shows that respondent worker must not be interested in the said job. He might have received some other job. Otherwise it is very difficult to believe that such person would keep mum for years together. So, the facts and circumstances of this case are in fact quite eloquent to establish the contention of the employer that respondent worker abandoned the services and they never terminated his service. He might have received some other job. Otherwise it is very difficult to believe that such person would keep mum for years together. So, the facts and circumstances of this case are in fact quite eloquent to establish the contention of the employer that respondent worker abandoned the services and they never terminated his service. However, unfortunately, the learned Labour Judge did not properly consider all the above mentioned facts and circumstances and as a result of the same reached to a wrong conclusion that the employer has failed to prove the case of abandonment. With respect, we are of the considered opinion that the learned Single Judge has also not dwelled on this point and has only accepted the finding recorded by the learned Labour Judge. So, in our considered view, Reference in question as well as writ petition filed by the worker are liable to be dismissed on th is ground alone. The judgment of this court in this case is by Division Bench. ( 17 ) NO doubt the intention of the employee has to be seen while considering the aspect of his abandonment of service. But then when there is nothing on record to suggest that the employee in the present case i. e. respondent no. 1 had made any attempt after 18. 4. 1986 to get himself reinstated by giving notice or giving application within sufficient time, it has to be held that his intention was obvious i. e. he did not want to join the duties or resume work. In this view of the matter therefore, even without referring to the other authorities cited by learned counsel it has to be held that the respondent without any justification has abandoned his services and therefore, he would not be entitled for reinstatement on the ground that his termination was not in accordance with the provisions of section 25-F of the Industrial Disputes act. ( 18 ) IN the result therefore, the petition succeeds. The impugned order is hereby quashed and set aside. ( 19 ) AS regards the recovery of back wages paid, in pursuance of the order dated 19. 1. 11998, it is submitted by learned counsel for the respondent that the same cannot be recovered in view of the judgment of the Apex Court in 1998 I CLR 191 Dena Bank. . vs. . Kiritkumar T. Patel. ( 19 ) AS regards the recovery of back wages paid, in pursuance of the order dated 19. 1. 11998, it is submitted by learned counsel for the respondent that the same cannot be recovered in view of the judgment of the Apex Court in 1998 I CLR 191 Dena Bank. . vs. . Kiritkumar T. Patel. Whereas the learned A. G. P. has submitted that the same can be ordered to be recovered in view of the judgment of this court reported in 2009 4 Mh. L. J. 620 State of Maharashtra. . vs. . Ratan Budha Alam and also in 2009 (4) SCALE 649 H. S. B. C. . . vs. . Govt. of India. However, it is also informed by learned A. G. P. that the matter has been referred to the Larger Bench of the Apex Court for consideration of the issue as regards refund of the amount paid under section 17 (B) of the Industrial Disputes Act to the employee. In this view of the matter therefore, I do not find that the amount paid in pursuance to order dated 19. 11. 1998 under section 17 (B) of the Industrial Disputes Act, should be ordered to be refunded at this stage. The same shall be in accordance with the orders of the Hon. Apex Court. Petition is therefore, allowed in above terms. Impugned order is hereby quashed and set aside. My services were terminated by the Party No. 1 w. e. f. 20. 4. 1986. No retrenchment compensation was given to me while terminating my services. I had sent a demand notice to the party No. 1 on dated 6. 10. 1989, but no reply was received by me from the Party No. 1. Junior employees namely Ramkrushna Moharle, Prabhakar Sathawane, Bansod were retained in the employment while terminating my services. The work which was done by me prior to my termination, is available with the respondent at present. I am unemployed at present after my termination. I want reinstatement with continuity in service and back wages. In cross examination he has stated thus: it is true that I had sent a demand notice to the party no. 1 dated 14. 10. 1988 in which I had made my date of termination as 10. 4. 1986. It is true that, I had mentioned my date of termination in demand notice dated 6. 10. In cross examination he has stated thus: it is true that I had sent a demand notice to the party no. 1 dated 14. 10. 1988 in which I had made my date of termination as 10. 4. 1986. It is true that, I had mentioned my date of termination in demand notice dated 6. 10. 1986 is as 20. 4. 1986. It is true that I was paid salary upto 7. 2. 1986. , It is true that I was paid arrears payment on 7. 3. 1986.