JUDGMENT : K.M. Thaker, J. 1. In present petition the petitioner has challenged the award dated 27.7.2010 passed by learned Labour Court at Amreli in Reference (LCA) No. 8 of 2004 whereby learned Labour Court directed the petitioner panchayat to reinstate the respondent on his original post with continuity of service and to pay full backwages and consequential benefits for intervening period. 2. So far as factual background is concerned, it has emerged from the record that on the allegation that his service was illegally terminated on 6.8.2003, the workman raised industrial dispute which was referred by appropriate government vide order dated 31.1.2004. The reference came to be registered as Reference (LCA) No. 8 of 2004. 2.1 The workman filed his statement of claim at exh. 4 wherein he claimed had alleged that he was working as 'Safai Kamdar' with the panchayat since last 14 years and at the relevant time he was paid salary @ Rs. 1800/-. The claimant also alleged that his service came to be terminated by oral order without following any procedure prescribed by law. He also alleged that while his service was terminated persons junior to him were continued in the employment. He alleged that the panchayat did not pay retrenchment compensation or did not serve any notice. He also alleged that any opportunity of hearing was not granted and his service was arbitrarily terminated on 6.8.2003. 2.2 The reference was opposed by the panchayat who filed written statement at exh. 10. In the reply the panchayat denied the allegations by the claimant. The panchayat also mentioned in the written statement that the claimant used to frequently remain absent from duty and he was not regular in attending and performing his job. The panchayat also mentioned in the reply that the claimant had voluntarily stopped reporting for work from 27.7.2003 along with other two workmen. It was also claimed that 3 workmen had stopped reporting for duty w.e.f. 27.7.2003. The panchayat claimed that till 29.7.2003 the claimant (along with other workmen) did not report for duty therefore, Notice-cum-Memo was issued on 29.7.2003 and explanation as to why the claimant did not remain present and did not report for duty from 27.7.2003 to 29.7.2003 was called for. It was also claimed that the claimant did not give any explanation in response to the said Notice-cum-Memo dated 29.7.2003. It was also claimed that the claimant did not give any explanation in response to the said Notice-cum-Memo dated 29.7.2003. It was however claimed that though any reply in response to the notices was not given, with a view to granting opportunity to the claimant, another letter/notice dated 5.8.2003 seeking explanation for absence from duty was called for. It was claimed that the said letter/notice was forwarded to the workman under postal certificate (UPC). The panchayat claimed that the claimant did not give any reply to the notice and he neither reported for duty. The panchayat also claimed that since the workmen were not reporting for work, the villagers had made complaint and since claimant continued to remain absence even after notice, the panchayat was compelled to award cleaning job on contract basis. It was claimed that after having stopped from reporting work from 27.7.2003 the claimant did not report for work and that, therefore, the petitioner panchayat passed resolution on 14.8.2003 and awarded the cleaning job on contract basis w.e.f. 1.9.2003. It is relevant to mention that in the written statement the petitioner panchayat also claimed that if in the facts of the case the Court comes to the conclusion that it was necessary to hold enquiry then opportunity to prove misconduct may be granted. It was also claimed by the panchayat that the claimant was gainfully employed. 3. From the record it appears that during the proceedings before learned Labour Court the claimant placed on record at exh. 14 the demand notice dated 13.11.2003 which was issued asking the panchayat to reinstate him. Any other document was not placed on record by the claimant. On the other hand the panchayat filed below mentioned documents under list of documents (exh. 22) which was taken on record. 1. Copy of complaint made by Devpari Mangalpari of 29.07.2003 2. Copy of panch rojkam dated 29.7.2003. 3. Copy of letter addressed to the T.D.O. dated 29.7.2003. 4. Copy of notice issued to workman of 29.7.2003. 5. Copy of notice dated 1.8.2003. 6. Copy of certificate of posting. 7. Copy of notice of 1.9.2003. 8. Copy of UPC of 1.9.2003 sent to Manubhai Prabhaben and Bhikhabhai 4. Copy of panch rojkam dated 29.7.2003. 3. Copy of letter addressed to the T.D.O. dated 29.7.2003. 4. Copy of notice issued to workman of 29.7.2003. 5. Copy of notice dated 1.8.2003. 6. Copy of certificate of posting. 7. Copy of notice of 1.9.2003. 8. Copy of UPC of 1.9.2003 sent to Manubhai Prabhaben and Bhikhabhai 4. The learned Labour Court has recorded in the award that at the stage of argument the petitioner panchayat had reiterated its request for opportunity to prove misconduct and in response to the said request permission was granted and the petitioner panchayat had filed affidavits of Devpari Mangalpari, Jivraj Naranbhai, Hasmukh Virjibhai and Keshubhai Dedabhai at exh. 31, 32, 33 and 34 respectively. 5. After the stage of evidence was concluded learned advocate for the workman and the panchayat made their respective submissions. After considering the material on record and submissions by learned advocates the learned Labour Court passed impugned award with above mentioned directions. 6. Mr. Joshi, learned advocate for the petitioner assailed the award and submitted that the claimant had stopped reporting for duty from 27.7.2003. He also claimed that the claimant had joined hands with other 2 workman and they were not reporting for duty. Therefore, notices were issued on 29.7.2003, 5.8.2003 and 1.9.2003 however claimant did not give any reply in response to the notices nor did the claimant report for duty. He also submitted that since the panchayat received complaints from the villagers the panchayat was left with no alternative and therefore after passing resolution panchayat awarded the cleaning/safai work on contract basis. 7. Mr. Joshi, learned advocate for the petitioner further submitted the panchayat had never terminated the service of the claimant. Any order terminating service of any claimant was not passed and actually it was the claimant who remained continuously absent from duty and despite notice he did not report for duty. Mr.Joshi, learned advocate for the petitioner panchayat referred to paragraph No. 3.6 of the affidavit, wherein the petitioner panchayat has averred that: "3.6 The Learned Presiding Officer ought to have appreciated that the petitioner has not terminated the service of the respondent and that fact was evident from the record produced by the petitioner. In such circumstances the finding of the Learned Presiding Officer that no notice was given to the respondent does not get any legal support. In such circumstances the finding of the Learned Presiding Officer that no notice was given to the respondent does not get any legal support. The impugned Award based on such findings and conclusions is liable to be quashed and set aside." 8. Per contra Mr. Parikh, learned advocate for the respondent submitted that the service of the respondent was terminated without following any procedure. He also submitted that the respondent was terminated in violation of principles of natural justice and in violation of section 25F and 25G. He submitted that after the termination the petitioner had engaged other persons for carrying out the cleaning/safai job, however, the respondent - claimant was not called for work. It is submitted that the notices said to have been issued by the petitioner panchayat are not proved. He also submitted that the learned Labour Court has recorded that the respondent was terminated by way of victimization and that, therefore, the direction passed by the learned Labour Court is just and proper and does not warrant any interference. 9. I have considered the submissions by learned advocates for the petitioner and the respondent. I have also considered the award and the material on record. 10. At the outset, it is relevant to mention that any termination order ending the respondent's service is not placed on record to establish that the petitioner panchayat terminated the service of the respondent. 11. It is pertinent to note that in his cross-examination, the claimant admitted that there is no material with him to establish that he was appointed before 15 years and he had worked with the petitioner panchayat for 15 years. 11.1 It is also pertinent to note that the respondent - claimant also admitted in his deposition that he did not remember the date and month when his service was terminated. 11.2 The details of the claimant's deposition are recorded by the learned Labour Court in paragraph No. 17 of the award, which reads thus: "17. The workman has stated during his cross examination that he did not remember as to when he had joined the service. He has stated that he served for 15 years. That he was terminated in 2003, he did not remember date and month of termination. That it was not true that they did not go to request the opponent to reinstate them. He has stated that he served for 15 years. That he was terminated in 2003, he did not remember date and month of termination. That it was not true that they did not go to request the opponent to reinstate them. It is denied that all of them quite the job joining hands. He has also denied that the opponent did not terminate him. It is further denied that the opponent had written letters to report for duties. It appears from the evidence of the workman that there is only a suggestion that the opponent did not terminate service of the workman. However, such suggestion has been denied. Moreover, only such suggestions cannot be said evidence. The opponent has not replied the demand notice sent by the workman. Had it not terminated service of the workman, it would have certainly replied the fact of not terminating service of the workman as alleged. Considering deposition of the workman, it further emerges that there is not challenged for the opponent regarding employing Ramjibhai Kalabhai, Chandubhai Bhikhabhai, Lilaben, Tarlaben, and Ujiben. The evidence regarding this fact of engaging new workmen after termination of the workman has remained unchallenged. It is not the case of the opponent that the workman was offered employment while engaging above named workmen. Therefore, this fact clearly establishes breach of mandatory provision of Section 25-H of the Industrial Dispute Act, 1947. … … …" 11.3 As mentioned earlier, the learned Labour Court has also noted that the claimant accepted that he did not remember the date and month when his service came to be terminated. In that context, it is relevant to note that learned advocate for the petitioner panchayat contended that there is no basis for the workman to allege that his service was terminated with effect from 6.8.2003. 11.4 It is pertinent to note that any evidence to establish that the service of the claimant was terminated on and from 6.8.2003 is not available on record and even the alleged date of termination is not proved. 11.4 It is pertinent to note that any evidence to establish that the service of the claimant was terminated on and from 6.8.2003 is not available on record and even the alleged date of termination is not proved. 11.5 This aspect is relevant in view of the fact that the petitioner has claimed that it never terminated service of the respondent but it was the respondent who stopped reporting for work and since the safaikam was not being carried out, it had passed resolution on 14.8.2003 i.e. about 20 days after the respondent, with other workmen, stopped reporting for duty. 11.6 It is also claimed by the petitioner that after passing resolution on 14.8.2003, the safai work/cleaning job was awarded on contract basis and at that time also notice dated 1.9.2003 calling for explanation from the respondent was issued. 12. In this view of the matter, it was necessary for the respondent workman to prove that his service was terminated with effect from 6.8.2003. 12.1 However, the workman neither placed any termination order on record nor did he lead any evidence to establish that his service was terminated with effect from 6.8.2003. 12.2 On the contrary, in his deposition, the workman admitted that he did not remember the date and month of termination. 12.3 On this count it is also necessary to note that according to the petitioner panchayat the respondent - claimant and other workmen had, in the concerted action, stopped reporting from 27.7.2003 and then continued to remain absent from duty and therefore, the notice dated 29.7.2003 was issued to the workman. 12.4 It is pertinent to note that in his examination-in-chief, the respondent - workman has not denied the panchayat's claim that he was not reporting for work from 27.7.2003 and had not reported for work on 28.7.2003 and 29.7.2003 also. 13. The workman has claimed that he had served demand notice dated 13.11.2003 asking the panchayat to reinstate him. 14. Thus, according to his own claim, the respondent did not take any action until 13.11.2003 with regard to his alleged termination (though, his service, according to his allegation, was terminated on 6.8.2003). 14.1 The said aspect is not taken into account by the learned Labour Court while passing the impugned award. 15. 14. Thus, according to his own claim, the respondent did not take any action until 13.11.2003 with regard to his alleged termination (though, his service, according to his allegation, was terminated on 6.8.2003). 14.1 The said aspect is not taken into account by the learned Labour Court while passing the impugned award. 15. The petitioner panchayat has further claimed that since the respondent along with other workmen stopped reporting for work, it was compelled to pass resolution and award the work on contract basis. The petitioner panchayat has also not denied the fact that the respondent - claimant had issued notice dated 13.11.2003. The petitioner panchayat has also not denied the fact that it had not given any reply in response to the notice dated 13.11.2003. 16. Besides this, in paragraph No. 3.6 of the petition, the petitioner panchayat has claimed that after calling upon the respondent to report for duty, since the respondent did not report for duty, the petitioner concluded that the respondent had abandoned the service and therefore, the work was awarded on contract basis and subsequently, the contract was also terminated and other family member of the respondent was engaged. 17. In this background, the learned Labour Court's finding that the respondent's service was terminated by way of victimization, is required to be examined. 17.1 As mentioned earlier, the fact that the respondent was not reporting for work from 27.7.2003, is not in dispute. It is not the case of the claimant that he had reported for duty on 27.7.2003 or 28.7.2003 and/or 29.7.2003 but he was not allowed to resume his duty. 17.2 When the claim that the respondent had stopped reporting for duty with other workmen is not disputed and having regard to the fact that the petitioner had written letters/issued notices dated 29.7.2003, 5.8.2003 and 1.9.2003 and when even in the statement of claim, the respondent did not plead and allege victimization, there was no justification or basis for the learned Labour Court to hold that service of the respondent was terminated by way of victimization. The said observations by the learned Labour Court are mere surmises and conjectures which are not supported by cogent evidence. In absence of any evidence, the learned Labour Court had no basis or justification to record such observation. 18. It has emerged from the record that the petitioner had placed on record evidence of Mr. The said observations by the learned Labour Court are mere surmises and conjectures which are not supported by cogent evidence. In absence of any evidence, the learned Labour Court had no basis or justification to record such observation. 18. It has emerged from the record that the petitioner had placed on record evidence of Mr. Devpari Mangalpari, Mr. Jivrajbhai Naranbhai, Mr. Hasmukhbhai Virjibhai and Mr. Keshubhai Dedabhai. The witness Mr. Devpari Mangalpari stated in his evidence that the workman had stopped reporting for work on and from 27.7.2003. He also mentioned in the evidence that the sarpanch was informed that the respondent along with other workmen did not report for duty on 27.7.2003, 28.7.2003 and 29.7.2003. He also mentioned in his evidence that the panchayat has issued notices dated 1.8.2003, 5.8.2003 and 1.9.2003. The assertions by Mr. Devpari Mangalpari are not controverted by any other witness or other cogent and independent evidence or during his cross-examination. 19. Another witness of the panchayat mentioned in his evidence that along with the respondent other workmen viz. Mr. Ramjibhai Kalabhai, Mr. Chandubhai Bhikhabhai, Ms. Lilaben, Ms. Tarlaben and Ms. Ujiben had, in concerted action, stopped reporting for duty from 27.7.2003. He also mentioned in his affidavit that one of the employees of the panchayat Mr. Devpari Mangalpari had made complaint that the said workmen were not reporting for duty from 27.7.2003. He also mentioned in his affidavit that the petitioner panchayat had issued notices dated 1.8.2003, 5.8.2003 and 1.9.2003. However, the respondent did not give any reply and did not report for duty and that, therefore, ultimately, considering the fact that the work was public utility, the panchayat was compelled to award contract for getting the cleaning/safai work done. In his affidavit, the said witness also mentioned that the public notice for awarding contract was issued and resolution dated 14.8.2003 was also passed. 20. The learned Labour Court has, while taking note of the evidence by Mr. Jivrajbhai Naranbhai, recorded, at length, details of the cross-examination, however, the details mentioned by the said witness in his affidavit are not taken into account and the learned Labour Court has concentrated only on cross-examination of said Mr. Jivrajbhai and various aspects not controverted during cross-examination are not considered by the learned Labour Court. 21. Jivrajbhai Naranbhai, recorded, at length, details of the cross-examination, however, the details mentioned by the said witness in his affidavit are not taken into account and the learned Labour Court has concentrated only on cross-examination of said Mr. Jivrajbhai and various aspects not controverted during cross-examination are not considered by the learned Labour Court. 21. The learned Labour Court has, on the premise that the petitioner had awarded contract for getting the work done, assumed and inferred that there was breach of section 25-H. However, the learned Labour Court has lost sight of the fact that the panchayat had to resort to the alternative of awarding contract was on account of the acts of the respondent (and other workmen) who stopped reporting for work from 27.7.2003 and that but for the said concerted action of the respondent, the petitioner would not have been compelled to award contract for getting the cleaning (safai) job done on contract basis. 22. While concentrating on the fact that the petitioner awarded the contract for the said work, the learned Labour Court lost sight of and ignored vital fact viz. need for such action arose on account of the action of the respondent and that even at that stage the panchayat had not passed any resolution - order terminating service of the respondent and the fact that the respondent was not appointed as regular and permanent employee after following procedure for selection and recruitment and he was working as a daily wager. 23. It is pertinent to note that the respondent stopped reporting for duty on 27.7.2003 and thereafter it was as on 13.11.2003, the respondent issued demand notice seeking reinstatement. 23.1 The said aspect cannot be overlooked and/or cannot be lost sight of. 23.2 If the respondent's allegation that his service was terminated w.e.f. 6.8.2003 was true and if the respondent's denial as regards the petitioner's assertion that he had stopped reporting for duty w.e.f. 27.7.2003 and did not resume duty despite notices dated 1.8.2003, 5.8.2003 and 1.9.2003 is also true then the respondent would not have waited, without taking any action, until 13.11.2003 i.e. for almost 3 months and he would have immediately taken action to seek reinstatement but the fact viz. he remained idle, stares in his face, more so because he has not offered any explanation for such inaction. he remained idle, stares in his face, more so because he has not offered any explanation for such inaction. It cannot be ignored that absence from duty w.e.f. 27.7.2003 coupled with inaction until 13.11.2003 prompted the petitioner to assume that he had left/abandoned the service. 23.3 While taking into account the fact that the petitioner treated the action of the respondent as abandonment of service the said aspect must be taken into account and it cannot be ignored. 23.4 However, it is also pertinent that the assumption with regard to abandonment of service must be preceded by opportunity of hearing i.e. compliance of principles of natural justice. 23.5 Without granting opportunity of hearing and without calling for explanation in respect of the conduct of abstaining from duty, the employer cannot jump to the conclusion that the workman has abandoned the service. 24. In present case, notices dated 1.8.2003, 5.8.2003 and 1.9.2003 issued by the petitioner panchayat are not placed on record of present petition, though the said notices form part of the record before the learned Labour Court. The learned Labour Court has, while referring to cross-examination of Mr. Jivrajbhai Naranbhai, observed that the workmen were not asked to give explanation in writing. The said witness has expressly, in his affidavit, mentioned that by issuing notices the explanation of the respondent was called for. However, in the award, the learned Labour Court has observed that in his cross-examination, the said witness stated that the respondent was not informed to give explanation in writing. 24.1 In the award, the learned Labour Court has referred to three notices issued by the petitioner panchayat. The learned Labour Court examined the notices and their contents and after examining the said notices, learned Labour Court has also observed in the award that in the notices, the petitioner has not mentioned that the workman should report for duty and that the said notices merely asked the workman whether he wants to continue to do safai work/cleaning work or not. The notices, as observed by learned Labour Court, sought reply from the workman within 2 days. 25. In this context, it is relevant and necessary to keep in focus that the concerned respondent is not a regular and permanent employee of the petitioner panchayat. The notices, as observed by learned Labour Court, sought reply from the workman within 2 days. 25. In this context, it is relevant and necessary to keep in focus that the concerned respondent is not a regular and permanent employee of the petitioner panchayat. He was engaged as, and he was working as, daily wager and the said daily wager along with other similarly placed workmen had stopped reporting for work from 27.7.2003. The petitioner panchayat had issued intimations dated 1.8.2003, 5.8.2003 and 1.9.2003. 25.1 It is undisputed fact that the concerned workman did not submit any reply/explanation in response to the notices and he did not report for duty. 25.2 It was after about 2½ months i.e. on 13.11.2013 that the workman issued demand notice. 25.3 Until then, any action or steps were not taken by the concerned workman to resume duties. 25.4 As mentioned earlier, it was not the case even of the workman that during the period in question i.e. from 27.7.2003 he was reporting for work but he was not allowed to report for work. 25.5 This aspect cannot be overlooked or ignored while accepting the fact that the petitioner did not conduct any inquiry and/or formal or even informal procedure of calling explanation and granting opportunity of hearing to the workman was not granted. 26. The observations in paragraph No. 25 of the award is also equally misconceived, inasmuch as the learned Labour Court has observed that there is no mention of any workman in the said letters. 26.1 When the notices/letters are issued individually in name of the concerned workman, then, merely because any name is not mentioned in the text of the letter, that would not make the intimation/notices worthless and it cannot be assumed that the said letter/notices was not addressed to or was not meant for the concerned workman. 26.2 Only on the ground that in the text of the letter name of the concerned workman was not mentioned, the notices/letters issued by the panchayat could not have been ignored or brushed aside, more so when all witnesses of the petitioner panchayat consistently maintained in their respective affidavits i.e. three notices i.e. notices/intimation dated 1.8.2003, 5.8.2003 and 1.9.2003 were issued to the concerned workman. 27. Similarly, learned Labour Court has also brushed aside the petitioner panchayat's claim that it had received complaint from the residents of the village. 27. Similarly, learned Labour Court has also brushed aside the petitioner panchayat's claim that it had received complaint from the residents of the village. 27.1 The said submission is rejected or ignored and disregarded only on the ground that during the proceedings of the reference, the petitioner panchayat placed only one complaint on record. 27.2 Merely because the panchayat placed copy of only one notice on record, it does not mean that the claim of the petitioner panchayat that on account of the conduct of the respondents of not reporting for duty, the residents of the village had not made complaint to the panchayat/sarpanch. The case of panchayat that the residents had lodged complaint that the cleaning/safai work was not being attended to could not have been rejected only on the said ground. Actually, even one complaint would suffice and support the panchayat's claim that the residents of the village had submitted complaint since the concerned workman along with other workmen abstained from work from 27.7.2003. 28. The foregoing discussion demonstrates that the impugned award, on one hand, overlooks and ignores relevant and important aspects emerging from the material on record and the impugned award is also based on misconstruction of documents and/or oral evidence and/or is based on partial reading of the deposition of the witnesses examined by the petitioner panchayat or arbitrarily disregarded and ignored oral and documentary evidence and that too in absence of any contrary or counter evidence. Actually, in view of the manner in which the learned Labour Court has read and construed or overlooked the evidence and has made observations in the award, which are more in nature of surmises or conjunctures rather than finding of fact and conclusions based on evidence, the reference deserves to be remanded to the learned Labour Court for fresh consideration so that entire evidence which may be available on record may be examined and considered and appreciated in right and proper manner and perspective. 29. 29. However, having regard to the fact that almost 12 years have passed since the dispute arose between the petitioner panchayat and the respondent workman and also having regard to the fact that even if other defects in the proceedings and the award are taken into account, one aspect namely that the petitioner panchayat did not grant proper opportunity of hearing and defence to the concerned workman before assuming that the respondent had abandoned the service the said action is vitiated on account of violation of principles of natural justice and also having regard to the fact that the concerned workman is already reinstated in service by the petitioner panchayat this Court is not inclined to remand the proceedings after 12 years. Instead, having regard to the fact that the panchayat's action is vitiated on account of violation of principles of natural justice and at the same time also having regard to the fact that the respondent was engaged as and was working as daily wager and he was engaged without following procedure for selection and recruitment and without any vacancy on permanent and sanctioned post/establishment, the Court is of the view that interest of justice can be served if the direction to reinstate the workman is not disturbed, but the direction qua backwages and continuity of service is set aside. Therefore, in light of the forgoing discussion, following order is passed:- [a] The order directing the petitioner to reinstate the respondent is not disturbed and the said direction is maintained. [b] So far as the order granting continuity of service is concerned, the said direction/order is set aside for all purposes except for the purpose of gratuity and it is clarified that the continuity of service will be taken into account only for the purpose of gratuity i.e. only for the purpose of determining eligibility/entitlement for gratuity and for calculating length of service for computing gratuity and not for any other purpose. [c] So far as the order directing payment of full backwages is concerned, the said direction is set aside and modified by awarding lump sum compensation to the tune of Rs. 10,000/-. With aforesaid clarifications, directions and modification, the petition is partly allowed. Rule is made absolute to the aforesaid extent.