JUDGMENT : K.M. Thaker, J. 1. Heard Mr. Gogia, learned advocate for the petitioner and Mr. Vyas, learned advocate for the respondent. 2. In present petition the petitioner has challenged award dated 31.12.2007 passed by the learned labour Court at Rajkot in Reference (LCR) No. 83 of 2001 whereby the learned Labaour Court has directed the petitioner to reinstate the respondent in service on her original post with 25% backwages. 3. So far as relevant facts are concerned it has emerged from the record and from the submissions by learned advocates for the contesting parties that the respondent herein had raised industrial dispute with the allegation that the petitioner terminated her service illegally and arbitrarily without complying procedure prescribed by law. The appropriate Government referred the said dispute for adjudication to learned Labour Court at Rajkot. The said reference came to be registered as Reference (LCR) No. 83 of 2001. The learned Labour Court rejected the said reference vide order dated 31.12.2007. 4. In her statement of claim the respondent herein alleged that she was working with the opponent employer since July 1993 and she was employed for cleaning and packing the bearings and other ancillary work. She also alleged that she was permanent workman and her salary was Rs. 74.40 per day. She also alleged that she worked with the employer continuously since 1994 however without any fault on her part the opponent employer terminated her service w.e.f. 1.10.2000 by oral order. She alleged that the petitioner did not pay retrenchment compensation and had also not issued any notice or intimation before terminating her service and opportunity of hearing was also not granted. 5. The opponent employer i.e. present petitioner opposed the reference by filing written statement. The employer claimed that the service of the claimant was not terminated and in fact it was the claimant who had voluntarily stopped reporting for duty from 1.10.2000 and abandoned her service. The opponent employer also mentioned - at initial stage i.e. in the written statement - that if the claimant was interested in her service then she may immediately report for duty. The opponent employer also claimed in the written statement that the claimant is already engaged/employed in some other establishment where she is earning better salary and therefore she is not interested in her service. The opponent employer also claimed in the written statement that the claimant is already engaged/employed in some other establishment where she is earning better salary and therefore she is not interested in her service. The opponent employer also claimed that after withdrawing the salary for September 2000 the claimant stopped reporting for duty. The opponent employer also claimed that even during conciliation proceedings this aspect was clarified during the meeting held on 5th January 2001 however the claimant preferred not to resume her duty. 5.1 After the pleadings were concluded the deposition of the claimant was recorded at exh. 14. The deposition of the Manager of the opponent employer was recorded at exh. 35. Both the sides placed various documents on record. After stage of evidence was concluded learned Labour Court heard the submissions by learned advocate for the contesting parties. Thereafter considering rival submissions and the evidence on record learned Labour Court passed the award with abovementioned directions. 6. Mr. Gogia, learned advocate for the petitioner, while assailing the award, submitted that the learned Labour Court failed to appreciate that it was the respondent - claimant who had voluntarily abandoned the service and stopped reporting for work despite repeated intimations by the company. He also submitted that the intimation was forwarded to the claimant on 16.10.2000 intimating her to report for duty immediately and she was also informed that if she did not report for duty then it will be presumed that she has voluntarily left the service. Mr. Gogia, learned advocate for the petitioner claimed that despite said intimation the respondent did not report for work. Mr. Gogia, learned advocate for the petitioner further submitted that even during the conciliation proceedings the petitioner had reiterated its stand and stated that if the claimant wants to resume her duty she may immediately report for duty and at that stage also the respondent did not report for duty. According to Mr. Gogia, learned advocate for the petitioner same submission was repeated by the petitioner in the written statement as well as during the deposition however, the respondent did not pay any heed to the request and she never reported for duty after having voluntarily left the service from 1.10.2000. Mr. According to Mr. Gogia, learned advocate for the petitioner same submission was repeated by the petitioner in the written statement as well as during the deposition however, the respondent did not pay any heed to the request and she never reported for duty after having voluntarily left the service from 1.10.2000. Mr. Gogia, learned advocate for the petitioner submitted that even during the pendency of the petition the petitioner intimated the claimant to report for duty and also informed the Court that if the respondent is willing to report for duty she may do so however, the respondent never reported for work and the petitioner has been paying last drawn wages to the respondent since 2008. 7. Per contra Mr. Vyas, learned advocate for the opponent made only one submission. He submitted that the petitioner employer had orally informed the respondent that her service is not required and she should not report for work and accordingly her service was orally terminated and that learned Labour Court has also, after examining the evidence, found that the service of the respondent was terminated by the petitioner. According to learned advocate for the respondent there is no error in the award and therefore it may not be interfered with. 8. I have considered the submissions by learned advocates for the petitioner employer and I have also examined material on record as well as award impugned in present petition. 8.1 It is not in dispute that the respondent was employed by the petitioner herein. Of course there is dispute with regard to date on which the claimant joined service with the petitioner. The fact that the respondent claimant had worked for more than 12 months before claimant's service was allegedly terminated is not in dispute. The claimant alleged that before she was relieved she had worked with the petitioner employer since July 1993 whereas the petitioner employer claimed that she was appointed as labourer - helper in November 1995. The rate of salary is not in dispute. While the workman alleged that her service was orally terminated w.e.f. 1.10.2000 the petitioner employer claimed that the respondent the claimant voluntarily stopped reporting for duty and she voluntarily abandoned the service. According to the claimant she had issued notice demanding that she should be reinstated in service and the employer had not given any reply. While the workman alleged that her service was orally terminated w.e.f. 1.10.2000 the petitioner employer claimed that the respondent the claimant voluntarily stopped reporting for duty and she voluntarily abandoned the service. According to the claimant she had issued notice demanding that she should be reinstated in service and the employer had not given any reply. Whereas the petitioner employer claimed that it had issued notice dated 16.10.2000 by registered post asking the respondent to resume duty otherwise it would be presumed that she voluntarily abandoned the service. 8.2 This is the factual background of the dispute and the main dispute between the parties revolves around the issue as to whether the respondent had voluntarily left the service or the petitioner had terminated her service w.e.f. 1.10.2000. 8.3 From the award it appear that the learned Labour Court has recorded findings which slide from one end to other inasmuch as the learned Labour Court has, on one hand, observed and recorded that the petitioner employer has not come out with complete facts and that it appeared from the notice/intimation dated 16.10.2000 that the said intimation was actually forwarded by the employer after receiving the notice form the workman. 8.4 On the other hand learned Labour Court has also observed and recorded that the employer had asked the claimant to report for resume her duty and the learned Court has also observed that the claimant should have accepted the said offer and she should have resumed her duty, however the claimant did not accept the offer of the respondent. 9. From the record it has emerged that the employer had, passed an order dated 3.11.2000 whereby the respondent's service was terminated. 9.1 In this view of the matter, the controversy as to whether the service of the respondent was terminated by the petitioner or the respondent had voluntarily abandoned the service would not survive except for the period from 1.10.2000 to 3.11.2000 inasmuch as undisputedly the petitioner passed an order on 3.11.2000 treating the respondent out of employment on the ground (of abandonment of service). 9.2 In view of the fact that before 3.11.2000 the respondent had, undisputedly, worked for more than 12 months and she had undisputedly worked for 240 days in preceding 12 months (actually there is no dispute with regard to the date of the employment and/or as to the total number of days for which the respondent had worked) and that therefore the obligation to pay retrenchment compensation had arisen. 9.3 It is undisputed position that at the time when the petitioner passed order dated 3.11.2000 it had not paid retrenchment compensation to the claimant respondent and before terminating her service the employer had not conducted domestic inquiry and had not granted opportunity of hearing or defence to the respondent. 9.4 All these aspects would ordinarily arise and the consequence would visit the employer. 9.5 However, in present case relevant aspect is that the petitioner - employer had, during the conciliation proceedings i.e. at first available opportunity taken stand that the respondent may resume duty. 9.6 It is undisputed fact that despite such stand of the petitioner during the conciliation proceedings the respondent did not report for duty. 9.7 Thereafter when the petitioner filed its written statement before learned Labour Court the petitioner again reiterated (in paragraph No. 6 of the written statement) the same stand and specifically mentioned in the written statement that if the respondent desired to resume her duty she may report for duty. 9.8 Despite the said specific intimation and offer in the written statement the respondent - claimant did not report for duty. 9.9 Thereafter, even during stage of evidence i.e. when the deposition of the petitioner's witness was recorded, said witness repeated the same stand of the petitioner - employer that the respondent, if she so desires may report for and resume her duty. The said statement and submission of the petitioner's witness is recorded in paragraph Nos. 11 of his deposition. 9.10 It is also relevant to note that even the learned Labour Court has, in paragraph No. 17 and 18 of the award taken note of the fact that almost at every available stage the petitioner employer had mentioned that the respondent claimant may report for duty, however, it was the claimant who had not accepted the said offer and did not resume for duty. 9.11 Even learned Labour Court has observed that the respondent should have and ought to have reported for resuming her duty keeping her objection and contention open however the claimant did not report for duty. 10. In this view of the matter it emerges that right from the stage of conciliation until stage of evidence the petitioner employer consistently maintained its stand that if the claimant so desires then she may report for and resume duty. 11. Learned advocate for the petitioner has claimed that even during pendency of the petition the respondent was asked report for duty however, respondent did not report for duty and the petitioner has continued to pay last drawn wages under Section 17B of the Act to the respondent claimant. 11.1 From the order dated 11.5.2009 it also appears that the petitioner had offered lump sum amount of Rs. 40,000/- in May 2009 to the workman - claimant by way of full and final settlement however that offer was also not accepted by the respondent. 12. From the foregoing discussion it comes out that even after the claimant's allegation that her service was terminated is believed and order dated 3.11.2000 is taken into account the dispute regarding non employment would be restricted to the period from 1.10.2000 to 5.1.2001 and after 5.1.2001 until the date when written statement was filed in Labour Court i.e. when the petitioner repeated the submission and stand (in the written statement as well as during deposition). 12.1 The learned Labour Court itself has taken note of the said fact in paragraph No. 17 and 18 of the award and observed that the respondent should have reported for and resumed her duty after petitioner's offer. 12.2 From that stage the petitioner's obligation to shoulder any burden of wages had come to an end. 13. Despite such fact learned Labour Court has awarded 25% backwages. 14. Learned Labour Court itself has recorded that the respondent did not accept the said offer of the employer. In this view of the matter, there was no justification in awarding 25% backwages to the respondent. The said direction of the learned Labour Court in the award dated 31.12.2007 is not sustainable. In this context it is appropriate to take into account the observations in case of Sonal Garments v. Trimbak Shankar Karve where the Bombay High Court has observed inter alia that:- "3. The said direction of the learned Labour Court in the award dated 31.12.2007 is not sustainable. In this context it is appropriate to take into account the observations in case of Sonal Garments v. Trimbak Shankar Karve where the Bombay High Court has observed inter alia that:- "3. The Award of full backwages, however, is totally erroneous. The Labour Court has not at all considered the offer of the petitioner employer in the written statement that the respondent workman, if really, interested to resume duties, could do so. In my opinion, the respondent workman will not be entitled to get the backwages from the date of the written statement as it appears that there was no response from the respondent workman and that he did not report for work at all. Had he reported for work after the written statement was filed, he would have definitely stated so in his oral evidence which was recorded on 3rd September, 1994 to say that he had reported for work but he was not taken back as stated in the written statement. The respondent workman is absolutely silent on that point. It is, therefore, clear that the respondent workman did not accept the offer of reinstatement given by the petitioner employer in his written statement. At the time of admission of the petition, this Court had granted rule only to the extent of backwages. There was no rule on the reinstatement. 4. However, as the offer of petitioner to reinstate the respondent was not accepted, he is not entitled to the relief of reinstatement and any backwages at all. His conduct lends support to the version of the employer that he had abandoned the employment and that he never came back to report for duty and that it was not a case of termination by the petitioner employer. Whenever the employer offers to reinstate the workman at any stage of the dispute or proceeding and if the workman does not accept the offer even without prejudice to his rights and contentions he will not be entitled to continue his claim for reinstatement in the proceedings and he will also be not entitled to claim any backwages from the date of such offer, conditional or unconditional. He must first accept the offer and get reinstated in employment and therefore continue to contest for the relief of back wages, if any. He must first accept the offer and get reinstated in employment and therefore continue to contest for the relief of back wages, if any. In the present case there was an unconditional offer of reinstatement made by the employer in the written statement itself but it was not accepted by the workman. Therefore, as stated by me hereinbefore, he is not entitled to get reinstatement with full back wages at all." 14.1 At the same time the employer, who, consistently and continuously claimed that the respondent - claimant may resume her duty, at this stage the petitioner cannot deviate or back out from the said stand. 15. In view of the foregoing discussion and in light of the above discussed reasons, it has emerged that the order directing the petitioner to pay 25% backwages cannot be sustained. 15.1 It has also emerged that so far as order directing the petitioner to reinstate the claimant - respondent is concerned the said direction does not warrant interference and is required to be confirmed. 16. Therefore, if the respondent is desirous to continue in service with the petitioner then she may report for and resume her duty with the petitioner employer. It is clarified that the order directing the petitioner to reinstate the respondent is not disturbed and the said direction is confirmed. 16.1 However, the direction awarding 25% backwages is set aside. Accordingly, the petition is partly allowed. Rule is made absolute to the aforesaid extent. Orders accordingly.