JUDGMENT : 1. In present petition the petitioner company has challenged award dated 31.12.2005 passed by learned Labour Court, Bharuch in Reference (LCB) No. 141 of 1998 whereby the learned labour Court directed the petitioner company to reinstate the respondent on his original post and to pay backwages @ 50%. Feeling aggrieved by the said award and direction the company has taken out present petition. 2. So as to consider and appreciate the dispute and controversy in the matter, it is necessary to take into consideration the factual background involved in present case. 2.1 The petitioner is a private limited company engaged in construction activity. The petitioner company undertakes contracts for construction of building, factory etc. at different locations in different part of the Country. The petitioner has claimed that at the relevant time the petitioner was awarded construction contract by a company named Sarle India Limited and that therefore it had undertaken the construction work at Bharuch. At that time, the petitioner appointed present respondent as Junior Engineer by virtue of appointment order dated 16.8.1995. One of the conditions of the respondent's appointment was that his job would be transferable anywhere i.e. wherever the company undertakes contract of construction work. The appointment letter also prescribed that initially the respondent will be appointed on probation for 6 months and if the company found his progress satisfactory he will be confirmed as permanent employee and that during probation his service can be terminated by verbal or written notice of 24 hours. The respondent accepted all terms and conditions mentioned in the appointment letter and joined the service with the petitioner. 2.2 Subsequently, the respondent raised industrial dispute on the allegation that the petitioner company had illegally, arbitrarily and abruptly terminated his service without following any procedure prescribed by law. 2.3 The said dispute could not be settled and therefore appropriate government passed order of reference and referred the dispute for adjudication to labour Court, Bharuch. 2.4 During the proceedings filed statement of claim before learned labour Court wherein the respondent alleged that:- “3. The first party paid me monthly increment of Rs.700/- for the period March, 1996 to February, 1997 and Rs.800/- per month from March 1997 onwards as against the increment of Rs.1,000/- per month paid to my fellow employees Mr. Thakker, who was junior to me in seniority. The first party paid me monthly increment of Rs.700/- for the period March, 1996 to February, 1997 and Rs.800/- per month from March 1997 onwards as against the increment of Rs.1,000/- per month paid to my fellow employees Mr. Thakker, who was junior to me in seniority. I had made a written representation to the first party on this issue on 26.12.1997. The last verbal representation on the issues (confirmation and increment) were made by me on 31.12.1997 and my services were terminated on the same day by verbal orders of Mr. Hohar Saheb, the Project Manager at Panoli site without assigning any reason and/or without paying my wages, legal dues, notice pay, retrenchment compensation etc. on the date of termination I was drawing gross of Rs.3170/- p.m. 4. My routine duty including clerical work like preparation of wage bills, preparation of bills, taking measurements of jobs done and operation of cement-concrete mixing machine etc.” 2.5 The petitioner company opposed the reference on the ground of maintainability and claimed that the respondent was working in supervisory category and that therefore he was not a “workman” as defined under Section 2(S) of I.D. Act and consequently the reference was not maintainable. The petitioner also denied the allegations by the respondent workman and the petitioner company alleged that since the work at the site where the respondent was engaged (i.e. Bharuch) was to come to an end, the respondent was transferred to Pune site however the respondent refused to report at Pune site and he claimed that unless he was granted higher salary on par with another employee viz. Mr. Thakkar he would not go to Pune site. The petitioner also alleged that after having made such demand, which was not accepted by the petitioner company, the respondent did not report for duty at Pune site and voluntarily abandoned the service. The petitioner company claimed that it had not terminated service of the respondent. 2.6 In its reply the petitioner company stated, inter alia, that:- “The first party is pleased to bring the real facts into notice of Honourable Court that it is true that first party has given Rs.800/- as an increment, but it is not true that Rs.800/- as an increment given to the second party, as against Rs.1000/-. This contents and averments are made in order to mislead the Honourable Court. This contents and averments are made in order to mislead the Honourable Court. The second party cannot claim an increment as a matter of right as it is absolutely depending upon the performance of second party. The performance is always taken into the consideration while deciding the quantum of the increments. Therefore, second party cannot claim increments as equal to other fellows. It is also true that second party has made verbal representation for conformation and increments on 31.12.1997. It is also not true that services of the second party is terminated on 31.12.1997 by the first party, without assigning any reasons and / or without paying wages, legal dues compensation etc. The first party has not terminated services of the second party, in any manner, but it is pertinent to note that second party is transferred at Poona site except the site of his choice. It is a part of contractual obligation with second party that second party's job is purely a transferable job and same has been contracted by the second party as accepted and according to the terms of contract of employment mutually agree upon. The second party is not willing to work at Poona site. Therefore, he has fabricated the whole story, with a view to blackmail the management and also a pressure tactics. After transferring the second party at Poona. He has not reported for duties at Poona till now and he remains absent without leave being sanctioned. This is a grave misconduct on the part of the second party.” 3. During the proceedings before learned labour Court the respondent examined himself and his evidence was recorded at exhibit-8 whereas the petitioner company examined one Mr. K.D. Shah as its witness whose evidence was recorded at exhibit-17. 3.1 Upon conclusion of the evidence learned advocates representing the contesting parties put forward their submissions. The learned labour Court after considering the evidence on record and the submissions reached to the conclusion that the petitioner company had failed to establish that it had transferred the respondent to Pune site or that the respondent had voluntarily abandoned the service. The learned labour Court having reached such conclusion passed award dated 31.12.2005 and directed the petitioner to reinstate the respondent and pay backwages @ 50%. The said award is under challenge in present petition. 4. Mr. Rishin Patel, learned advocate for Mr. The learned labour Court having reached such conclusion passed award dated 31.12.2005 and directed the petitioner to reinstate the respondent and pay backwages @ 50%. The said award is under challenge in present petition. 4. Mr. Rishin Patel, learned advocate for Mr. K.M. Patel, learned Senior Counsel for the petitioner submitted that the petitioner company had not terminated service of the respondent but the petitioner company had merely transferred the respondent to its Pune site however, the respondent had refused to report for duty at Pune site unless he was granted higher salary on par with other employee Mr. Thakkar and then he did not report at Pune site. So as to support the said submission learned advocate for the petitioner relied on a document dated 20.12.1997 i.e. letter written by the respondent. Learned advocate for the petitioner submitted that having made said demand the respondent did not report for duty at Pune site and voluntarily abandoned the service and thereafter as an afterthought he raised industrial dispute. Learned advocate for the petitioner also claimed that the respondent had never shown readiness to report for duty at Pune. According to learned advocate for the petitioner the learned labour Court has failed to appreciate the fact that it was the respondent who voluntarily stopped reporting for duty and thereby abandoned the service. According to learned advocate for the petitioner under the facts and circumstances of the case learned labour Court ought to have rejected the reference and ought not have passed impugned direction and the direction obliging the petitioner to reinstate the respondent as well as the direction to pay backwages @ 50% are unjust and arbitrary and may be set aside. 5. Per contra Mr. Pathak, learned advocate for the respondent submitted that the learned labour Court has not committed any error in recording conclusion that the petitioner company failed to establish that the respondent had voluntarily abandoned the service. Mr. Pathak, learned advocate for the respondent submitted that there is no material on record to support the contention that the respondent was transferred at Pune site and that respondent had put the condition of revision of his salary and had conveyed that unless his salary was revised he would not report for duty at Pune site. Mr. Pathak, learned advocate for the respondent submitted that there is no material on record to support the contention that the respondent was transferred at Pune site and that respondent had put the condition of revision of his salary and had conveyed that unless his salary was revised he would not report for duty at Pune site. Learned advocate for the respondent submitted that in the communication dated 28.12.1997 the respondent had no where mentioned that unless his salary is revised he will not report for duty at Pune site. Learned advocate for the respondent submitted that the respondent was performing duty of clerical and technical nature and that therefore he was workman and his probation period had already expired when the petitioner terminated his service. Learned advocate for the respondent submitted that the service of the respondent was not terminated after following procedure prescribed in law inasmuch as neither any notice was issued nor compensation was paid. According to learned advocate for the respondent labour Court has not committed error in passing award which is impugned in this petition. Mr. Pathak, learned advocate for the respondent submitted that the petition may be rejected. 6. I have heard Mr. Rishin R. Patel, learned advocate for Mr. K.M. Patel, learned Senior Counsel for the petitioner and Mr. P.H. Pathak, learned advocate for the respondent and also considered material on record. 7. So as to consider the controversy involved in present petition it is necessary and appropriate to keep in focus some of the terms and conditions of respondent's appointment. The appointment letter dated 16.8.1995 recites, inter alia, below mentioned condition as terms of the appointment:- “You will be on Probation for 6 months. If during this period, your progress is satisfactory, you will be confirmed as Permanent Employee, by a confirm nary letter, you will then be entitled to take benefits from date of confirmation, as per Company's rules and practice. If during probation, we find you unsuitable, service can be terminated by 24 hours notice-verbal / written. Your would not be entitled to any claim. Your Gross Salary shall be Rs.1800/- months – Rs.700/- month Food Allowance. Job is Transferable anywhere where company takes it to work and you are bound to work at any site/office intimated to you. If during probation, we find you unsuitable, service can be terminated by 24 hours notice-verbal / written. Your would not be entitled to any claim. Your Gross Salary shall be Rs.1800/- months – Rs.700/- month Food Allowance. Job is Transferable anywhere where company takes it to work and you are bound to work at any site/office intimated to you. Also your services can be loaned/transferred to our sister concerns for which you cannot object.” 7.1 Thus, it is not in dispute that the respondent came to be appointed in August 1995 as Junior Engineer and that the service of the respondent was transferable wherever the company would undertake execution of construction work. It is also not in dispute that the respondent was appointed on probation for period of six months. It is also not in dispute that the respondent had accepted all terms and conditions mentioned in the appointment letter and resumed the duty with the petitioner at Bharuch. 7.2 At this stage it is relevant to note that the petitioner company has claimed that it is the respondent who voluntarily abandoned service by abstaining from reporting for duty at place where he was transferred. 7.3 On the other hand the respondent claimed that there was no order of transferring him to Pune site and his service was abruptly and orally terminated. 7.4 In view of such conflicting claims by the contesting parties, it is necessary to ascertain as to whether any order transferring the respondent was passed by the petitioner company or his authorized officer or not. 7.5 From the above quoted statement by the petitioner in his written statement it comes out that the petitioner company maintained that the respondent was transferred at Pune site. Even in present petition the company had maintained said stand i.e. that it had transferred service of the respondent at Pune site however, what is pertinent is the fact that the petitioner company has not placed any order or intimation on record which would give out that any authorized officer or competent officer of the petitioner, or for that matter any one had passed order transferring the respondent to Pune site and served such order to the respondent. 7.6 When the appointment order contains a clause which makes the service of the respondent transferable, then appropriate written order by the authorized officer or competent authority instructing respondent that he is transferred to particular place would be passed. 7.7 In present case not only the petitioner company has not placed copy of such order /intimation on record before the labour Court (or even before this Court) but also it has not even mentioned date or period when the respondent was informed and instructed that his service is transferred to Pune site. 7.8 The petitioner has also not mentioned that which officer had informed the respondent about his alleged transfer. 7.9 There is no material on record to indicate that the petitioner had taken any decision to transfer the service of the respondent to Pune and such decision was conveyed to the respondent by appropriate order by competent authority. Neither the date nor period when service of the respondent was transferred nor name of the authority who had allegedly informed the respondent of his transfer to Pune is mentioned by the petitioner in the statement of claim or during oral evidence (deposition) by petitioner's witness. The claim that the service of the respondent was transferred is as vague as it could be. 8. Instead of establishing its contention that the service of the respondent was transferred to Pune by any independent document or any other cogent evidence from its side, the petitioner company surprisingly, completely relied on some letter said to have been addressed by the respondent to the petitioner. 8.1 Upon reading letter dated 28.12.1997 it emerges that in the said letter the respondent mentioned that if his salary was revised and difference was paid to him then he was ready to go at Pune. From the said one statement by the respondent in the letter dated 28.12.1997 the petitioner has tried to build a structure and claimed that when the respondent was informed that he was transferred to Pune he had addressed said letter. 8.2 On examination of the letter dated 28.12.1997 it comes out that there is no reference of any order or instruction received by him to report for duty at Pune. There is no reference of any transfer or any communication by any officer. 8.2 On examination of the letter dated 28.12.1997 it comes out that there is no reference of any order or instruction received by him to report for duty at Pune. There is no reference of any transfer or any communication by any officer. Under the circumstances it is difficult to digest the contention that before the letter dated 28.12.1997 was submitted by the respondent, his service was transferred to Pune site by an authorized or competent officer of the petitioner company. 8.3 Under the circumstances, even if it is assumed that the petitioner company had conveyed to the respondent that his service is transferred to Pune site and even if it is assumed that any written order or instruction transferring the respondent from Bharuch to Pune was not necessary and his service could have been transferred by oral intimation, then also, merely on the strength of letter dated 28.12.1997 it cannot be concluded that after having addressed said letter dated 28.12.1997 the respondent did not report for duty and he had voluntarily stopped reporting for work. 8.4 It is pertinent that (a) the alleged action of the respondent of (allegedly) putting a condition to go to Pune site is neither declined (there is nothing on record to prove the said aspect and it is not even properly pleaded) and refusal was not conveyed (again nothing on record) nor the said refusal was treated as misconduct; (b) even after said letter by the respondent any written order/direction asking the respondent to go to Pune and intimating him in writing that he stands transferred to Pune, was not issued; (c) any other intimation asking him to report at Pune and/or his action of not reporting at Pune site will be deemed to be misconduct and/or abandonment of service was also not issued. 8.5 These facts are neither pleaded nor proved. Moreover there is nothing on record which would suggest or permit the petitioner to jump to presumption that the respondent had voluntarily abandoned his service. 8.6 Any communication or intimation informing the last date by which the respondent had to report at Pune is not brought on record and there is no material on record to establish that before such last date (and after his letter dated 20.12.1997) the respondent was not reporting for work at Bharuch site. 8.6 Any communication or intimation informing the last date by which the respondent had to report at Pune is not brought on record and there is no material on record to establish that before such last date (and after his letter dated 20.12.1997) the respondent was not reporting for work at Bharuch site. 8.7 Any record about number of days for which the respondent did not report for work and remained absent without leave (before the petitioner presumed that he had voluntarily abandoned the service) is not on record. 8.8 Thus, there is nothing on record to justify such presumption. 9. In present case, the employer has, by presuming that the workman voluntarily abandoned the service, removed his name from the roster of the workmen and thereby terminated his service. 9.1 The action is taken on the presumption that since the workman was not reporting for duty, he had voluntarily left and abandoned the service. 9.2 Ordinarily when a workman overstays the period of leave which he had applied for and which was sanctioned; or when a workman suddenly (i.e. without prior intimation or permission) remains absent from his duty, such conduct on the part of the workman is considered and treated as misconduct. 9.3 In some cases there may be provision under applicable Service Conditions/Rules or Standing orders which would provide that if a workman overstays the sanctioned leave and/or if he remains absent without leave, then his lien on the post will be lost. 9.4 When the employer considers it appropriate and necessary to terminate the service of an employee on account of remaining absent without leave, then the employer cannot conveniently take a short-cut by resorting to the remedy of striking out the name on the ground that the workman has voluntarily abandoned the service but opportunity of hearing should be granted to the workman by calling for his explanation as to the reasons for absence and after considering the reasons and explanations offered by the workman, the employer may take action if the explanation is not found satisfactory and the workman fails to justify his absence. 9.5 However, if such opportunity is not granted, then it would amount to denial of reasonable and sufficient opportunity of hearing to the concerned workman and it would result into violation of principles of natural justice. 9.5 However, if such opportunity is not granted, then it would amount to denial of reasonable and sufficient opportunity of hearing to the concerned workman and it would result into violation of principles of natural justice. 9.6 When employer notices that a workman is absent from duty consecutively for long period, then the employer cannot immediately jump to the conclusion that the workman has voluntarily left the job. 9.7 Before reaching to such conclusion, opportunity of hearing, after calling for concerned workman’s explanation, is required to be granted so as to ascertain the circumstances on account of which the workman did not or could not report for duty. 9.8 Though, in all cases, a full-fledged inquiry/proceedings may not be necessary, principles of natural justice should be adhered to. In the case of Viveka Nand Sethi vs. Chairman, J&K Bank Ltd. [ (2005) 5 SCC 337 ], Hon’ble Apex Court observed, inter alia, that:- “20. It may be true that in a case of this nature, the principles of natural justice were required to be complied with but the same would not mean that a full-fledged departmental proceeding was required to be initiated. A limited enquiry as to whether the employee concerned had sufficient explanation for not reporting to duties after the period of leave had expired or failure on his part on being asked so to do, in our considered view, amounts to sufficient compliance of the requirements of the principles of natural justice.” 9.9 When the employer resorts to the conclusion or inference that the workman has voluntarily abandoned the service, the said conclusion or inference by the employer results into not only civil consequences but dire consequences for the concerned employee inasmuch as he stands to lose his service, his livelihood. 9.10 Therefore, such inference or conclusion and action based thereon ought not to be taken lightly or casually and certainly not in violation of principles of natural justice. 9.11 Besides this, if compliance with principles of natural justice are allowed to be sacrificed in such cases, then it would become very easy and convenient for any employer to orally terminate workman’s service or to stop the workman from entering the premises or to restrain him from marking his attendance for few days and then to raise the plea that the workman stopped reporting for duty voluntarily and abandoned the service. 9.12 When the employer raises the plea of voluntary abandonment of service by the workman, the employer’s conduct should support and justify the inference and such inference can be justified by employer only by demonstrating the steps taken by him to ascertain as to whether the workman had actually abandoned the service or for some circumstances he was unable to report for duty. In such circumstances, the employer would, ordinarily, give an intimation to the workman calling him to report for work or he would intimate the workman that his conduct of remaining absent without permission amounts to misconduct and will entail appropriate action or he would give an intimation to the workman that if the workman did not immediately resume his duty, then he will be deemed to have abandoned the service. 9.13 In the decision in the case of D.K. Yadav vs. JMA Industries Limited [ (1993) 3 SCC 259 ], Hon’ble Apex Court observed, inter alia, that:- “9. It is a fundamental rule of law that no decision must be taken which will affect the right of any person without first being informed of the case and be given him/her an opportunity of putting forward his/her case. An order involving civil consequences must be made consistently with the rules of natural justice. In Mohinder Singh Gill & Anr. v. The Chief Election Commissioner & Ors. [1978] 2 SCR 272 at 308F the Constitution Bench held that 'civil consequence' covers infraction of not merely property or personal right but of civil liberties, material deprivations and non-pecuniary damages. In its comprehensive connotation every thing that affects a citizen in his civil life inflicts a civil consequence. Black's Law Dictionary, 4th Edition, page 1487 defined civil rights are such as belong to every citizen of the state or country they include rights capable of being enforced or redressed in a civil action. In State of Orissa v. Dr. (Miss) Binapani Dei & Ors., this court held that even an administrative order which involves civil consequences must be made consistently with the rules of natural justice. The person concerned must be informed of the case, the evidence in support thereof supplied and must be given a fair opportunity to meet the case before an adverse decision is taken. Since no such opportunity was given it was held that superannuation was in violation of principles of natural justice. 11. The person concerned must be informed of the case, the evidence in support thereof supplied and must be given a fair opportunity to meet the case before an adverse decision is taken. Since no such opportunity was given it was held that superannuation was in violation of principles of natural justice. 11. The law must therefore be now taken to be wellsettled that procedure prescribed for depriving a person of livelihood must meet the challenge of Art. 14 and such law would be liable to be tested on the anvil of Art. 14 and the procedure prescribed by a statute or statutory rule or rules or orders effecting the civil rights or result in civil consequences would have to answer the requirement of Art.14. So it must be right, just and fair and not arbitrary, fanciful or oppressive. There can be no distinction between a quasi-judicial function and an administrative function for the purpose of principles of natural justice. The aim of both administrative. inquiry as well as the quasi-.judicial enquiry is to arrive at a just decision and if a rule of natural justice is calculated to secure justice or to put it negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable only to quasi-judicial enquiry and not to administrative enquiry. It must logically apply to both.” 9.14 When an employer does not treat the workman’s absence from duty as misconduct but treats workman’s absence from duty as act of voluntary abandonment of service without complying the principles of natural justice, then his decision and action would, in light of the law laid down by the Hon’ble Apex Court in the case of Punjab Land Development and Reclamation Corporation Limited vs. Presiding Officer as well as the law laid down by the decision in the case of State Bank of India vs. N. Sundermani, amount to and fall within the purview of ‘retrenchment’. 9.15 This would entail obligation to comply the requirement prescribed under section 25F of the Industrial Disputes Act, 1947. 9.16 In the cases where the employer raises defence and plea of abandonment of service and fails to establish that either of the above mentioned procedure, i.e. he complied principles of natural justice or the requirement under section 25F was followed, such action and plea or defence would not be sustainable. 9.16 In the cases where the employer raises defence and plea of abandonment of service and fails to establish that either of the above mentioned procedure, i.e. he complied principles of natural justice or the requirement under section 25F was followed, such action and plea or defence would not be sustainable. 9.17 In this context, reference may be made to the observations by the Hon’ble Apex Court in paras 6 and 7 of the decision in the case of D.K. Yadav (supra):- “6. His contention that expiry of eight days' absence from duty brings about automatic loss of lien on the post and nothing more need be done by the management to pass an order terminating the service and per force termination is automatic, bears no substance. The constitution bench specifically held that the right of the employer given under the standing Orders gets effected by statutory operation. In Robert D'Souza's case (supra) in para 7, this court rejected the contention that on expiry of leave the termination of service is automatic and nothing further could be done. It was further held that striking of the name from the rolls for unauthorised absence from duty amounted to termination of service and absence from duty for 8 consecutive days amounts to misconduct and termination of service on such grounds without complying with minimum principles of natural justice would not be justified. In Shambhunath's case three Judges bench held that striking of the name of the workman for absence of leave itself amounted to retrenchment. In H.D. Singh v. Reserve Bank of India & Ors. (supra), this court held that striking of the name from the rolls amounts to an arbitrary action. In State Bank of India v. Workmen of State Bank of India and Anr., [1991] 1 SCC 13, a two judge bench of this court to which one of us, K.R.S.J. Was a member was to consider the effect of discharge on one month's notice or pay in lieu thereof. It was held that it was not a discharge simplicitor or a simple termination of service but one camouflaged for serious misconduct. This court lifted the veil and looked beyond the apparent tenor of the order and its effect. It was held that the action was not valid in law. 7. The principle question is whether the impugned action is violative of principles of natural justice. This court lifted the veil and looked beyond the apparent tenor of the order and its effect. It was held that the action was not valid in law. 7. The principle question is whether the impugned action is violative of principles of natural justice. In A.K. Kriapak and Ors. v. Union of India & Ors., [1969] 2 SCC 262 a Constitution bench of this court held that the distinction between quasi judicial and administrative order has gradually become thin. Now it is totally clipsed and obliterated. The aim of the rule of the natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules operate in the area not covered by law validly made or expressly excluded as held in Col. J.N. Sinha v. Union of India & Anr., [1971] 1 SCR 791. It is settled law that certified standing orders have statutory force which do not expressly exclude the application of the principles of natural justice. Conversely the Act made exceptions for the application of principles of natural justice necessary implication from specific provisions in the Act like Ss.25F; 25FF; 25FFF; etc, the need for temporary hands to cope with sudden and temporary spurt of work demands appointment temporarily to a service of such temporary workmen to meet such exigencies and as soon as the work or service are completed, the need to dispense with the services may arise. In that situation, on compliance of the provisions of s. 25F resort could be had to retrench the employees in conformity therewith particular statute or statutory rules or orders having statutory flavour may also exclude the application of the principles of natural justice expressly or by necessary implication. In other respects the principles of natural justice would apply unless the employer should justify its exclusion on given special and exceptional exigencies.” 9.18 In present case, it has emerged from the material on record that the petitioner neither complied principles of natural justice nor the procedure under section 25F. 9.19 Undisputedly, any opportunity of hearing after calling for explanation was not granted and any inquiry worth its name was not conducted. 9.19 Undisputedly, any opportunity of hearing after calling for explanation was not granted and any inquiry worth its name was not conducted. 9.20 Similarly, undisputedly, retrenchment compensation was not paid though the respondent workman fulfilled the conditions required for attracting provision of section 25F inasmuch as before relevant date, he was employed for not less than 12 months and during 12 months preceding the relevant date he had worked for not less than 240 days. 9.21 On this count, the learned Labour Court has recorded finding of fact and there is no material on record of this petition to disagree with the said finding of fact by the learned Labour Court. 9.22 In this view of the matter, the petitioner’s action is found to be unsustainable and the defence raised by the petitioner on ground of voluntary abandonment of service by the respondent is not acceptable. The decision of the learned Labour Court rejecting the said plea cannot be faulted. 10. The petitioner has built its defence on strength of assumptions and conjectures. 11. Though it is difficult to believe and conclude that the service of the respondent was officially transferred by the competent authority and intimation of such transfer was conveyed to the respondent and therefore the respondent had addressed a letter dated 28.12.1997, even if, for sake of considering the case of the petitioner, such contention is assumed to be true, then even after such assumption it is not possible to reach to the conclusion that after having addressed letter dated 28.12.1997, the respondent stopped reporting for duty and voluntarily abandoned service. 11.1 At this stage it is pertinent and necessary to mention that the petitioner company has not placed on record any document or any material which would establish that the petitioner company had informed the respondent to report for duty at Pune and/or that the petitioner company had conveyed to the respondent that if he did not report for duty at Pune then his action of not reporting for duty would be treated as abandonment of service or that his action of abstaining from duty would be considered misconduct. Any intimation to any effect was not issued by the petitioner company. Any intimation to any effect was not issued by the petitioner company. 11.2 If the petitioner company had not terminated the service of the respondent and if the respondent, as claimed by the petitioner, was voluntarily not reporting for duty after 28.12.1997, then even in ordinary course the company would have addressed appropriate intimation or notice to the respondent either asking him to report for duty or intimating him that action of abstaining duty will be treated as misconduct or as abandonment of service. 11.3 Complete inaction on part of the petitioner neither can be appreciated nor can be digested. 12. In this background and in absence of any action by the petitioner company of giving even a single intimation to the respondent, it is not possible to find fault with the conclusion recorded by labour Court that the petitioner failed to establish that the respondent had voluntarily abandoned service. 12.1 The said conclusion by the labour Court is, in the facts and circumstances of the case, justified and does not warrant any interference by the Court. 12.2 The petitioner has failed to place any material on record which would convince the Court to believe that the petitioner had issued instruction transferring the respondent to Pune and that because of such transfer and on account of his objection with regard to his salary the respondent had voluntarily stopped for reporting duty. 12.3 Such claim of the petitioner company is not established and therefore the contention raised by the petitioner company that labour Court failed to appreciate the said aspect deserves to be rejected and accordingly rejected. 13. At this stage it is appropriate to take into account the petitioner's objection with regard to the direction by the learned labour Court. 13.1 When it is found that the petitioner company failed to establish that the respondent had voluntarily abandoned the service then corollary would be the direction to allow the respondent to report for duty. 13.2 It has emerged from the record that the petitioner company had neither taken a stand before conciliation officer and/or in the written statement or at the time of evidence that it was the respondent who voluntarily stopped reporting and that if he so desires he may report for work but the petitioner did not make offer to the respondent to report for duty at either of the said 3 stages. This aspect also belies the stand of the petitioner company. Ordinarily when, according to its own case, the petitioner had not terminated the service of the respondent then the petitioner should allow the respondent to resume his duty. Under the circumstances the direction by the learned labour Court obliging the petitioner to reinstate the respondent cannot be faulted. 13.3 Thus, when the defence on ground that respondent voluntarily abandoned the service is not proved, it means that his service was terminated by the petitioner. 13.4 it is not in dispute that the petitioner had not followed the procedure under Section 25-F of the Act and/or had not conducted domestic inquiry and any opportunity of hearing was not granted. The termination was not effected in accordance with law. Therefore also, the direction to the petitioner to reinstate the respondent cannot be faulted. 14. This leaves behind the direction to pay backwages to the respondent. 15. Learned labour Court directed the petitioner to pay backwages @ 50%. It is the case of the petitioner that the respondent was gainfully employed. In this context it is relevant to note that after the award was challenged by the petitioner in writ petition i.e. Special Civil Application No. 5506 of 2006, the respondent had taken out Civil Application seeking payment of last drawn wages in accordance with section 17(b) of the Act. 15.1 In the said Civil Application No. 14078 of 2006 the respondent had filed affidavit opposing the application. In the affidavit present petitioner i.e. opponent in the civil application mentioned that:- “2(ii) The applicant is also not entitled to wages under section 17-B in view of the fact that he is gainfully employed in his own business of civil work contract. I say that the applicant is having PAN No. ANKP5009E. He is taking up civil work contracts from various companies/organizations. I state on information that during the year 2001-2002 he had contact of excavation work for Reliance Infocom and was paid Rs.1,80,000/- by Ahsapuri Enterprise through whom he appears to have got excavation work contract for Reliance Infocom. I therefore call upon the applicant to produce income tax returns for the last 5 years which will show that the applicant is gainfully engaged in his own business. It may be stated that the applicant is a qualified Civil Engineer and cannot be believed that he will remain idle and unemployed. I therefore call upon the applicant to produce income tax returns for the last 5 years which will show that the applicant is gainfully engaged in his own business. It may be stated that the applicant is a qualified Civil Engineer and cannot be believed that he will remain idle and unemployed. On this ground also the applicant is not entitled to wage under Section 17-B. 7. With reference to paragraph-4, it is denied that the opponent is under obligation to pay wages under Section 17-B. For the reason stated at the outset, the applicant is not entitled to wages under Section 17-B. It is denied that the applicant was willing to resume duties as per the award of the Labour Court. I categorically say that after the award the applicant has never approached the opponent for resuming duty. In fact, the applicant doe not want to go to Pune and therefore, he is coming out with all sorts of excuses for getting idle wages under Section 17-B. It is denied that offer of wages as per communication dated 14.11.2006 is malafide. It is also denied that the applicant cannot survive on the wages offered.” 15.2 In the said Civil Application No. 14078 of 2006 the Court, after considering the case of the applicant (i.e. present respondent) and the opponent (i.e. present petitioner) passed order dated 13.2.2007 and rejected the application. In the said order the Court observed, inter alia, that:- “Mr. Patel has submitted that the word establishment appearing in Section 17-B of the Act does not mean an industrial establishment and the remuneration does not mean the wages paid. He has submitted that if the workman is self-employed and earns sufficient income he would not be entitled to the last wages drawn as envisaged by Section 17-B of the Act. He has submitted that the purpose for which the said Section 17-B has been enacted is to provide subsistence to the workman who has succeeded before the lower Court during the pendency of the proceedings before the higher fora. In support of his submission Mr. Patel has relied upon the judgments in the matters of Kamala Nehru Memorial Hospital v. Vinod Kumar [2006 Supreme Court Cases (L&S) 154] and of North East Karnataka Road Transport Corporation v. M.Nagangouda [2007 (1) Scale 125]. In support of his submission Mr. Patel has relied upon the judgments in the matters of Kamala Nehru Memorial Hospital v. Vinod Kumar [2006 Supreme Court Cases (L&S) 154] and of North East Karnataka Road Transport Corporation v. M.Nagangouda [2007 (1) Scale 125]. He has relied upon the counter affidavit and has submitted that the applicant is a qualified engineer and he is not unemployed as averred. He has submitted that the applicant is a Civil Work Contractor. He is earning adequate income to sustain himself. He is also a tax payer and owns a permanent account number. The opponent has also offered employment to the applicant at its construction site near Pune. The applicant, however, is not willing to accept the said offer. Therefore also, the applicant is not entitled to the wages as envisaged by Section 17-B of the Act. It should be noted that in the present application the applicant has been articulate in saying that the applicant is not gainfully employed in any 'industrial establishment'. He is tacitly silent about his occupation and the source of his income. I am of the prima facie view that the words employment in any establishment appearing in Section 17-B of the Act do not mean that such establishment should be an industry within the meaning of the Act. Besides, the word remuneration is a wider term than the word wage or wages. To remunerate means reward or pay for the services rendered. In the instant case, the applicant is self-employed as alleged. He undoubtedly renderes service to his clients for which he is paid remuneration by his clients/customers. The applicant therefore, cannot be said to be not gainfully employed within the meaning of Section 17-B of the Act.” 15.3 Thus, the Court did not accept the respondent workman's claim that he is not gainfully employed. 15.4 Besides this, it is also noticed that in the award the labour Court has not recorded any reason or justification for granting 50% backwages. 15.5 The said direction is not supported by any reason or justification. 15.6 It is also noticed by the Court that right from date when the respondent raised dispute, the respondent never offered his service and had never shown readiness to report for duty with the petitioner. 16. Thus, on overall consideration of facts and circumstances of the case, there is no justification to grant back wages. 15.6 It is also noticed by the Court that right from date when the respondent raised dispute, the respondent never offered his service and had never shown readiness to report for duty with the petitioner. 16. Thus, on overall consideration of facts and circumstances of the case, there is no justification to grant back wages. The said direction is unjustified and without any reason to support the said direction and the said direction deserves to be set aside. 16.1 The impugned award dated 31.12.2005 passed by learned Labour Court, Bharuch in Reference (LCB) No. 141 of 1998 does not contain any reason to support the direction to pay backwages @ 50% to the respondent and therefore said direction cannot be sustained. Under the circumstances the direction to pay backwages @ 50% and consequential benefit is set aside. Consequently the award dated 31.12.2005 passed by learned Labour Court, Bharuch in Reference (LCB) No. 141 of 1998 is modified and thereby it stands partly set aside to the extent that the direction to the petitioner to reinstate the respondent is not disturbed and is hereby confirmed. However, the direction obliging the petitioner to pay backwages is set side. The petitioner will take necessary steps to reinstate the respondent without any further delay. The petition is party allowed. Rule is made absolute to the aforesaid extent. Orders accordingly. Petition partly allowed.