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2021 DIGILAW 1267 (BOM)

Rajkumar S/o Sukhdeo Mohod. v. Manager/Executive Officer, Goenka Vineer Pvt. Ltd.

2021-09-30

A.S.CHANDURKAR, PUSHPA V.GANEDIWALA

body2021
JUDGMENT : A.S. Chandurkar, J. The order passed by learned Single Judge on 09/02/2012 in Writ Petition No.376/2012 dismissing the said writ petition preferred by the appellant is the subject matter of challenge in this Letters Patent Appeal filed under Clause-15 of the Letters Patent. 2. The facts in brief giving rise to the present proceedings as can be gathered from the averments of the respective parties are as under : It is the case of the appellant-complainant that he was working on the establishment that was being run by the respondent No.1-employer as a machine operator since 1994. He was getting wages of Rs.53/- per day and had completed continuous service of 240 days in each calender year. On 30/08/1998 when the complainant reported for duty he was informed that his services were not required and that another person had been appointed in his place. The complainant therefore on 09/09/1998 and 14/09/1998 issued notices to the employer to reinstate him on his original post with continuity in service. Despite receiving these notices there was no reply to the same. Thus according to the complainant by failing to comply with the mandatory provisions of Sections 25-F and 25-G of the Industrial Disputes Act, 1947 (for short, the Act of 1947) the employer had committed an unfair labour practice. It was also pleaded that juniors to the complainant were retained in service. He also pleaded that the employer instead of complying with the two notices issued by him raised various pleas by its letter dated 15/09/1998 that the complainant was remaining absent from duty. On the aforesaid premise, the complainant on 15/10/1998 filed the complaint under Section 28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short, the Act of 1971). Along with the complaint an application seeking grant of interim relief under provisions of Section 30(2) of the Act of 1971 was also filed. In reply thereto the employer took the stand that on 23/07/1998, 04/08/1998 and 15/09/1998 notices were issued to the complainant in view of his continuous absence from duty from 17/07/1998. It was denied that services of the complainant were terminated. Pursuant to the order passed below Exhibit-30 on 21/01/2006 the employer filed its written statement at Exhibit-33. It was not disputed therein that the complainant was a regular worker having completed 240 days of continuous service. It was denied that services of the complainant were terminated. Pursuant to the order passed below Exhibit-30 on 21/01/2006 the employer filed its written statement at Exhibit-33. It was not disputed therein that the complainant was a regular worker having completed 240 days of continuous service. It was denied that the services of the complainant were terminated without any notice from 30/08/1998. It was reiterated that it was the complainant who was remaining absent from duty despite being served with various notices by the employer. It was specifically pleaded that if the complainant was desirous of discharging duty he ought to have prosecuted his application for interim relief which was not done. He ought to have prayed for directions to the Court to resume duties. It was thus prayed that the complaint was liable to be dismissed. 3. The complainant examined himself below Exhibit-12 and reiterated the stand taken in the complaint. In his cross-examination he denied that on 11/08/1998 he had picked up a quarrel with the Manager and had left the premises. He denied service of the show cause notice dated 21/08/1998 or that from that date he was absent from duties. He admitted receipt of the letter dated 15/09/1998 issued by the employer. He asserted that after filing the complaint he had approached the employer to join duties and denied the suggestion that he never approached the employer for joining duties after filing the complaint. The complainant examined another witness Damodar Kadu in support of his case. This witness was working as a Chowkidar with the employer till 1999 and he stated that the employer had not permitted the complainant to join his duties. It was the employer who had ordered him not to allow the complainant to enter the premises. This witness was cross-examined by the employer. The employer did not lead any evidence whatsoever in the complaint and filed pursis to that effect on 12/04/2007 below Exhibit-43. 4. The learned Judge of the Labour Court after considering the material on record observed that while on duty the complainant met with an accident on 08/08/1997 and as a result the little finger of his left hand was required to be amputed. On this basis as it was being contended by the complainant that he had lost earning capacity to the extent of 100%, his case could not be believed. On this basis as it was being contended by the complainant that he had lost earning capacity to the extent of 100%, his case could not be believed. Moreover since the employer had issued a notice to the complainant on 15/09/1998 and the complainant did not seek to resume duty, it was concluded that the complainant had abandoned his services by not resuming his duties. On this premise the complaint came to be dismissed. In the revision application preferred by the complainant the Industrial Court observed that the complainant did not prosecute the application for grant of interim relief before the Labour Court nor did he claim that after filing the written statement he had made any attempt to resume duties with the employer. On this basis the Industrial Court agreed with the findings recorded by the Labour Court and dismissed the revision application. 5. The complainant being aggrieved challenged the aforesaid order in Writ Petition No.376/2012 under Articles 226 and 227 of the Constitution of India. He raised various grounds in the writ petition including the ground that the findings recorded by the Labour Court as affirmed by the Industrial Court were not supported either by the pleadings or evidence of the parties and hence the same were perverse and contrary to the material on record. The learned Single Judge on 09/02/2012 observed that as the employer by the communication dated 15/09/1998 at Exhibit-18 had called, upon the complainant to join duties but the complainant failed to do so the same was rightly taken as a reason for dismissal of the complaint and thereafter the revision application preferred by the complainant. The writ petition was accordingly dismissed in limine. Hence this appeal. 6. Shri S. A. Kalbande, learned counsel for the complainant submitted that the Courts misdirected themselves by failing to take into consideration the case as pleaded by the complainant. According to him it was the specific case pleaded by the complainant in his complaint that he was working in the establishment of the employer for a period of four years and had completed continuous service of 240 days in each year. By refusing to allow him to join duties on 30/08/1998 the employer had terminated his services without issuing any show cause notice and without complying with the provisions of Section 25-F and Section 25-G of the Act of 1947. By refusing to allow him to join duties on 30/08/1998 the employer had terminated his services without issuing any show cause notice and without complying with the provisions of Section 25-F and Section 25-G of the Act of 1947. A false plea was taken that the complainant was absent from duties on the basis of a letter dated 15/09/1998. According to the learned counsel the case as pleaded of having completed more than 240 days of continuous service in each calender year was admitted by the employer along with the fact that his services had never been terminated by the employer. It was thus submitted that in the light of this clear position on record the complaint ought to have been allowed and the complainant ought to have been permitted to discharge duties. However merely by referring to the communication at Exhibit-18 issued by the employer the Court proceeded to hold that it was the complainant who had abandoned his services which finding was a perverse finding. This was by ignoring the material on record that after filing the complaint on 15/10/1998 the complainant had attempted to re-join his duties but was prevented from doing so. The Courts having misdirected themselves while considering the complaint as filed, committed a serious error of jurisdiction by refusing to exercise the same though such jurisdiction was vested in them. He further submitted that the complainant had led his evidence and had brought on record sufficient material to indicate that he all along was pursuing his right to continue in employment. He had also examined his witness who was working as Chowkidar at the relevant time and he had deposed in clear terms that on the directions of the employer, the complainant was not permitted to enter the premises of the employer. On the other hand the employer did not lead any evidence whatsoever and sought to rely merely upon the cross-examination of the complainant and his witnesses. By raising a vague plea of absence from service without proving the same, the case of the employer have been accepted by the Courts below. The employer having failed to discharge the burden that was cast upon the employer in the light of the plea taken by it, the complaint ought to have been allowed in its entirety. 7. By raising a vague plea of absence from service without proving the same, the case of the employer have been accepted by the Courts below. The employer having failed to discharge the burden that was cast upon the employer in the light of the plea taken by it, the complaint ought to have been allowed in its entirety. 7. It was further submitted that since the employer had raised a defence that it was the complainant who had abandoned his services, the same was required to be proved by the employer by leading cogent evidence. This was not done and instead only on the basis of surmises and conjectures a finding had been recorded that it was the complainant who had abandoned his services. The findings recorded by the Labour Court and thereafter by the Industrial Court were clearly contrary to the legal position as laid down in Buckingham and Carnatic Co. Ltd. vs. Venkatiah and anr. AIR 1964 SC 1272 , G. T. Lad vs Chemicals & Fibres of India Ltd. AIR 1979 SC 582 , Mahamadsha Ganishah Patel and Anr. vs. Mastanbaug Consumers’ Co. Op. Wholesale and Retail Stores Ltd. & Anr. 1998 I CLR 1205, Gangaram K. Medekar vs. Zenith Safe Mfg. Co., & Ors. 1996 I CLR 172 and Nicks (India) Tools vs. Ram Surat and anr. 2004 III CLR 557. In the light of said legal position the learned Single Judge ought to have allowed the writ petition by setting aside those orders which were perverse in nature. It was thus submitted that the complainant was entitled for the relief as prayed for. 8. Per contra Shri A. J. Pathak, learned counsel for the employer supported the impugned judgment and urged that the conclusion drawn by the Court that it was the complainant who had abandoned his services is a correct finding not requiring any interference by this Court. Referring to the notice dated 15/09/1998 at Exhibit-18 issued by the employer it was submitted that by not responding to the same and by not taking steps to rejoin duties, the complainant was not entitled for any relief whatsoever. It was sought to be urged that the complainant had filed application under Section 30(2) of the Act of 1971 for grant of interim relief. The same ought to have been diligently prosecuted by the complainant. It was sought to be urged that the complainant had filed application under Section 30(2) of the Act of 1971 for grant of interim relief. The same ought to have been diligently prosecuted by the complainant. The same was not done and infact such application was not pressed which is further indicator of the fact that the complainant was not interested in discharging duties as machine operator. It was his submission that an offer having been made to the complainant to rejoin duties and such offer not having been accepted by him dis-entitled the complainant to the relief of reinstatement. To substantiate this aspect the learned counsel placed reliance on the decisions in Sonal Garments vs. Trimbak Shankar Karve 2002 III CLR 488 and Raju Sankar Poojary vs. Chembur Warehouse Company 2004 (1) Mh.L.J. 52 . It was thus submitted that the Courts having concurrently found that the complainant was not entitled for any relief whatsoever, no interference in the Letters Patent Appeal was called for. 9. We have heard the learned counsel for the parties at length and we have perused the records of the case. We have given due consideration to the respective contentions of the parties. At the outset we may note that in the writ petition filed by the complainant he had invoked Articles 226 and 227 of the Constitution of India. The adjudication by the Industrial Court was challenged therein by raising a specific ground that the findings recorded by the Labour Court and Industrial Court were not supported by the pleadings and evidence of the parties. The said findings therefore were perverse and contrary to the actual evidence on record. In our view when a ground is raised in a writ petition filed under Articles 226 and 227 of the Constitution of India that a finding of fact recorded is not supported by the material on record, the same would be a challenge based on perversity of the finding thus giving rise to an error of law enabling the writ Court to interfere. In this regard we may refer to a recent decision of the Honourable Supreme Court in General Manager, Electrical Rengali Hydro Electric Project, Orissa and ors. vs. Giridhari Sahu and ors. (2019) 10 SCC 695 wherein in paragraph 28 it has been observed as under : “28. …. In this regard we may refer to a recent decision of the Honourable Supreme Court in General Manager, Electrical Rengali Hydro Electric Project, Orissa and ors. vs. Giridhari Sahu and ors. (2019) 10 SCC 695 wherein in paragraph 28 it has been observed as under : “28. …. An error of law which becomes vulnerable to judicial scrutiny by way of certiorari must also be one which is apparent on the face of the record. As held by this Court in Hari Vishnu Kamath vs. Ahmad Ishaque AIR 1955 SC 233 , as to what constitutes an error apparent on the fact of the record, is a matter to be decided by the Court on the facts of each case. A finding of fact which is not supported by any evidence would be perverse and in fact would constitute an error of law enabling the writ Court to interfere. It is also to be noticed that if the overwhelming weight of the evidence does not support the finding, it would render the decision amenable to certiorari jurisdiction. This would be the same as a finding which is wholly unwarranted by the evidence which is what this Court has laid down in Parry & Co. Ltd. vs. P.C. Pal, AIR 1970 SC 1334 .” (emphasis supplied by us). On the aforesaid premise it will have to be examined as to whether the learned Single Judge was justified in refusing to exercise writ jurisdiction on the ground that the Courts had on a proper appreciation of a material on record arrived at a correct finding of fact. 10. Since the adjudication by the Industrial Court was challenged by the complainant raising a ground that the findings recorded by the Labour Court and the Industrial Court were not supported by the pleadings and evidence of the parties thus rendering them perverse, it would be necessary to notice the pleadings of the parties and the evidence led by them thereafter. In the complaint filed by the complainant it was pleaded that since four years prior to filing the complaint he was working on a roller machine as an operator on the establishment of the employer and was getting wages of Rs.53/- per day. During the course of employment the complainant suffered an injury to his little finger and was thus provided work of light nature. During the course of employment the complainant suffered an injury to his little finger and was thus provided work of light nature. On receiving lesser wages he raised an objection and when he reported for duty on 30/08/1998 the respondent No.1 refused to permit him to attend his duty. It was the case of the complainant having completed continuous service of more than 240 days, his services had been terminated without issuing any show case notice and without paying him any amount in that regard. It was further pleaded that there were various juniors than the complainant who were retained in employment and this was done without maintaining a seniority list. Breach of the provisions of Section 25-F and 25-G of the Act of 1947 was also pleaded. He referred to issuance of two notices through his counsel on 09/09/1998 and 14/09/1998 and thereafter stated that the employer had on 15/09/1998 served a letter on the complainant raising a false plea that the complainant was absent from duty. The complaint in question was filed on 15/10/1998 and along with the complaint an application seeking interim relief under Section 30(2) of the Act of 1947 was also filed. The employer filed its written statement on 07/01/2005 and admitted the engagement of the complainant as roller machine operator and the fact that he was paid Rs.53/- per day as wages. Completion of continuous service of 240 days was also admitted. It was denied that the services of the complainant had been terminated from 30/08/1998 without any notice. A stand was taken that the services of the complainant were never terminated and on the contrary it was the complainant who remained absent without intimation or prior permission. According to the employer it had served noticed dated 23/07/1998, 04/08/1998 and 15/09/1998 on the complainant but he failed to resume his duty. By stating that the complainant was not interested in discharging duties and as the complainant did not prosecute his application for interim relief, it was stated that the complainant was not entitled for any relief. 11. The complainant examined himself below Exhibit-12 and in his affidavit he deposed on the lines of the pleadings in the complaint. In his cross-examination he admitted that he had met with an accident on 08/08/1997 and that he had filed a claim for compensation. He admitted that he had joined his duties on 07/08/1998. 11. The complainant examined himself below Exhibit-12 and in his affidavit he deposed on the lines of the pleadings in the complaint. In his cross-examination he admitted that he had met with an accident on 08/08/1997 and that he had filed a claim for compensation. He admitted that he had joined his duties on 07/08/1998. He denied service of the show cause notice dated 21/08/1998 on him but admitted service of the letter dated 15/09/1998-Exhibit-18 issued by the employer. He categorically stated that after filing the complaint he had approached the employer to join duties. He also admitted that the application for interim relief was not pressed on 2002. The complainant examined the Chowkidar who was engaged with the employer till 1999. This witness stated that on the instructions of the employer he had not allowed the complainant to enter into the premises. In his cross-examination he stated that he had voluntarily left his job with the employer in 1999 and that he was deposing on the call of the complainant. The employer did not lead any evidence in support of the stand taken by it in the written statement. 12. From the aforesaid it becomes clear that while according to the complainant he was prevented from discharging duties by the employer on 30/08/1998 which amounted to otherwise termination of his services, the employer denied that it had ever terminated the services of the complainant. The fact that the complainant was engaged with the employer and he was getting wages of Rs.53/- per day coupled with the fact that he had completed continuous service of more than 240 days has been admitted by the employer. In the light of the stand taken by the employer that it had not otherwise terminated the services of the complainant, the Labour Court ought to have considered the stand taken by the employer that the complainant was called upon to resume duty as per notice dated 21/08/1998. As noted above in the cross-examination the receipt of this notice dated 21/08/1998 at Exhibit-17 has been denied by the complainant. On the contrary it was the complainant who issued notice to the employer on 09/09/1998-Exhibit-24 with receipt at Exhibit-25 as well as legal notice dated 14/09/1998-Exhibit-15 alongwith receipt at Exhibit-16 indicating all along his intention to permit him to join on duty. On the contrary it was the complainant who issued notice to the employer on 09/09/1998-Exhibit-24 with receipt at Exhibit-25 as well as legal notice dated 14/09/1998-Exhibit-15 alongwith receipt at Exhibit-16 indicating all along his intention to permit him to join on duty. The Labour Court has then observed that despite receiving notice dated 15/09/1998 at Exhibit-18, the complainant had not sought to rejoin his duty. He was not interested in serving with the employer. The service of the notice dated 15/09/1998 was admitted by the complainant and thereafter in his cross-examination he specifically stated that after filing the complaint he had approached the employer to join duties. It is clear from the record that the complaint was filed on 15/10/1998. It thus indicates that according to the complainant he had sought to resume duty after 15/10/1998. To overcome this stand taken by the complainant which was substantiated by examining the Chowkidar who was serving at the employer’s Unit and who stated that on the instructions of the employer he did not permit the complainant to enter the premises, there is no evidence in rebuttal placed on record by the employer. This material in the form of deposition of the complainant and his witness was available on record but the same was not accepted despite the fact that there was no counter evidence led by the employer. On the contrary the Labour Court has proceeded to refer to the application for grant of compensation that was filed by the complainant under provisions of the Employees Compensation Act, 1923 at Exhibit-38 and his evidence on affidavit in those proceedings Exhibit-39. This piece of evidence was hardly relevant while deciding the present proceedings especially when in clear terms the complainant had deposed that after filing complaint he had attempted to join duty but was prevented by the employer from doing so. No reason has been given for discarding the evidence of the Chowkidar of the employer’s Unit. The learned Judge of the Industrial Court merely by observing that after filing the complaint and thereafter the written statement by the employer as no attempt was made by the complainant to join duties, the order passed by the Labour Court did not require interference. The learned Judge of the Industrial Court merely by observing that after filing the complaint and thereafter the written statement by the employer as no attempt was made by the complainant to join duties, the order passed by the Labour Court did not require interference. The learned Single Judge by observing that since the findings recorded by the Labour Court and the Industrial Court were findings of fact based on proper appreciation of material on record, the same did not call for any interference proceeded to dismiss the writ petition. 13. Since the Labour Court and thereafter the Industrial Court has concluded that the complainant was not interested in discharging duties which thus amounted to abandonment of service it would be necessary to consider whether the conduct of the complainant as evident from the record can lead to the conclusion that the complainant was not interested in discharging his duties so as to hold that he had abandoned his service. In this regard reference can be made to the decision of the Honourable Supreme Court in Buckingham and Carnatic Co. Ltd. (supra). In paragraph 5 it was observed as under : “5. ……… It is true that under common law an inference that an employee has abandoned or relinquished service is not easily drawn unless from the length of absence and from other surrounding circumstances an inference to that effect can be legitimately drawn and it can be assumed that the employee intended to abandon service. Abandonment or relinquishment of service is always a question of intention, and, normally, such an intention cannot be attributed to an employee without adequate evidence in that behalf……….” 14. In G.T. Lad (supra) the Honourable Supreme Court considered the question as to the true meaning of the expression “abandonment of service” in the context of the provisions of the Act of 1947. While answering Question No.1 it has been observed as under : “ ……. In the Act, we do not find any definition of the expression ‘abandonment of service’. In the absence of any clue as to the meaning of the said expression we have to depend on meaning assigned to it in the dictionary of English language. In the unabridged edition of the Random House Dictionary, the word ‘abandon’ has been explained as meaning ‘ to leave completely and finally; forsake utterly; to relinquish, renounce; to give up all concern in something’. In the unabridged edition of the Random House Dictionary, the word ‘abandon’ has been explained as meaning ‘ to leave completely and finally; forsake utterly; to relinquish, renounce; to give up all concern in something’. According to the Dictionary of English Law by Earl Jowitt (1959 edition) ‘abandonment’ means ‘relinquishment of an interest or claim’. According to Blacks Law Dictionary ‘abandonment’ when used in relation to an office means ‘voluntary relinquishment’. It must be total and under such circumstances as clearly to indicate an absolute relinquishment. The failure to perform the duties pertaining to the office must be with actual or imputed intention, on the part of the officer to abandon and relinquish the office. The intention may be inferred from the Acts and conduct of the party, and in a question of fact temporary absence is not ordinarily sufficient to constitute an abandonment of office. From the connotations reproduced above it clearly follows that to constitute abandonment, there must be total or complete giving up of duties so as to indicate an intention not to resume the same. In Buckingham Co. Vs. Venkatiah and others (1), it was observed by this Court that under common law an inference that an employee has abandoned or relinquished service is not easily drawn unless from the length or absence and from other surrounding circumstances an inference to that effect can be legitimately drawn and it can be assumed that the employee intended to abandon service. Abandonment or relinquishment service is always a question of intention, and normally, such an intention cannot be attributed to an employee without adequate evidence in that behalf. Thus, whether there has been a voluntary abandonment of service or not is a question of fact which has to be determined in the light of the surrounding circumstances of each case. ” In Vijay S. Sathaye vs. Indian Airlines Limited and ors. (2013) 10 SCC 253 it was observed that absence from duty in the beginning may be a misconduct but when absence is for a very long period, it may amount to voluntary abandonment of service resulting in bonds of service coming to an end automatically. 15. In Nicks (India) Tools (supra) it was the case of the workman that he was in service of the management till his services were wrongfully terminated. 15. In Nicks (India) Tools (supra) it was the case of the workman that he was in service of the management till his services were wrongfully terminated. The employer took the stand that the workman had voluntarily left the service after receipt of the dues. In that context it was observed that as the workman was in service till the agreed date, the burden to prove that he had voluntarily left the services was on the management. In Mahamadsha Ganishah Patel and anr. (supra) the learned Single Judge (R. M. Lodha, J. as his Lordship then was) while considering the aspect of abandonment of service by an employee referred to the settled legal position that in the case of abandonment of service, the employer has to give a notice to the employee calling upon him to resume his duties. If the employee does not turn up despite such notice, the employer should hold an enquiry on that ground and then pass an appropriate order of termination. It was further observed that at a time when employment is scarce, ordinarily abandonment of service by employee cannot be presumed. It is always a matter of intention and such intention in the absence of supportable evidence cannot be attributed to the employee. The burden is on the employer to establish that the employee had abandoned service. 16. A somewhat similar view has been taken by another learned Single Judge (S. H. Kapadia, J. as his Lordship then was) in Gangaram K. Medekar (supra) wherein it has been observed that voluntary abandonment of service is a matter of intention. The employer unilaterally cannot say that the workman is not interested in employment and for this reason a domestic enquiry is required to be held. Before the Labour Court the employer is required to prove clearly by evidence that the workman had voluntarily abandoned his service. The primary onus to lead evidence to prove voluntary abandonment of service is on the employer. If the Labour Court finds there is no evidence led by the employer and that it is a case of word against word then the benefit goes to the workman and not the employer. The primary onus to lead evidence to prove voluntary abandonment of service is on the employer. If the Labour Court finds there is no evidence led by the employer and that it is a case of word against word then the benefit goes to the workman and not the employer. In the light of the aforesaid legal position it is clear that the employer cannot merely take a stand that the employee has abandoned his service and without bringing on record any supporting material cannot expect the Court to accept the same. When the material on record is considered in the light of the law as laid down it is clear that the complainant has proved that he had not abandoned his service. He was prevented from joining his duties which fact is corroborated by the evidence of his witness. The employer failed to rebut the evidence led by the complainant. The material available on record was not at all considered by the Labour Court as well as by the Industrial Court. The learned Single Judge committed a patent error in observing that the findings of the Courts were based on a proper appreciation of the material on record. The findings of the Courts having been recorded without any evidence were required to be corrected in exercise of certiorari jurisdiction. 17. Faced with this legal position the learned counsel for the employer sought to extricate himself from the same by seeking to rely upon the decision of the learned Single Judge in Sonal Garments (supra) for contending that the employer having offered to reinstate the workman during the pendency of the proceedings which offer was not accepted by the workman the same would disentitle him from succeeding in his claim for reinstatement. The facts in the case of Sonal Garments (supra) are required to be first noticed. It was the case of the employee therein that he was in employment since June 1990 and that his services were orally terminated on 23/04/1991. Since he was not paid any retrenchment compensation or wages in lieu of one months notice, he approached the Labour Court. The employer took the stand that the services of the employee were never terminated but that he remained absent from February 1991. Since he was not paid any retrenchment compensation or wages in lieu of one months notice, he approached the Labour Court. The employer took the stand that the services of the employee were never terminated but that he remained absent from February 1991. The employer filed its written statement on 10/01/1994 and pleaded that the services of the employee were never terminated and that he was welcome to join his duties. Both the parties led evidence in support of their pleadings and the Labour Court recorded a finding that on the date of termination of service the employee had completed continuous service of 240 days and hence he was entitled to the benefit of provisions of Section 25-F of the Act of 1947. The stand taken by the employer was not accepted. The learned Single Judge observed that the award of full back-wages was erroneous in view of the fact that the Labour Court had not considered the offer of the employer as made in the written statement that if the workman was interested in resuming duties he could do so. It was found that if the workman had reported for work after the written statement was filed he would have definitely stated so in his oral evidence that was recorded on 03/09/1994. However the workman was found to be absolutely silent on that point. Having found that the employee was not entitled for back-wages, the Court proceeded to consider the effect of the offer made by the employer to reinstate the employee. In that context it was observed in paragraph 4 as under : “4. … 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 back-wages 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. ….” 18. This decision of learned Single Judge has been followed in Raju Sankar Poojary (supra). The facts of this case indicate that it was the grievance of the employee that his services were legally terminated from 16/11/1995 orally. ….” 18. This decision of learned Single Judge has been followed in Raju Sankar Poojary (supra). The facts of this case indicate that it was the grievance of the employee that his services were legally terminated from 16/11/1995 orally. In the conciliation proceedings the employer took the stand that it was the employee who had abandoned the services from 17/11/1995 and that despite repeated requests the employee did not resume his duties. The Labour Court after considering the evidence of both the parties recorded a finding that the employee had not responded positively to the offer made at various stages by the employer to join the duties. However, since the undertaking had been closed down the employee was granted relief only under Section 25-FFF of the Act of 1947. The relief of reinstatement and back-wages was not granted. While considering challenge to the said award at the instance of the employee, the learned Single Judge noticed that in the written statement the employer had offered employment to the employee. The employee in his deposition was found to have admitted that though an offer of employment was made in the written statement, he had not reported on duty. Another admission found was that after 18/11/1995 the employee had not gone to the employer for duty. In the aforesaid backdrop a finding was recorded that it was the employee who had failed to join his duties from 19/11/1995 and it was not a case of termination of services or refusal on the part of the employer to allow the employee to join his duties. In this context the judgment of the learned Single Judge in Sonal Garments (supra) was relied and the learned Single Judge expressed agreement with the proposition of law as laid down therein which has been quoted herein above. On the aforesaid premise the award passed by the Labour Court was not interfered with and the writ petition was dismissed. 19. We find that in the facts of the cases in Sonal Garments and Raju Sankar Poojary (supra), a finding was recorded on the basis of the admissions of the employee and after considering the evidence led by the employer that the offer made to the employee to rejoin duties was not accepted by the employee therein. 19. We find that in the facts of the cases in Sonal Garments and Raju Sankar Poojary (supra), a finding was recorded on the basis of the admissions of the employee and after considering the evidence led by the employer that the offer made to the employee to rejoin duties was not accepted by the employee therein. On that premise it was held that the conduct of the employee itself supported the version of the employer that the employee had abandoned the employment and never reported for duties and that it was not a case of termination by the employer. In the present case it is to be noted that in the written statement there is no offer as such made to the employee to come and re-join his duties. What is pleaded in paragraph 13 is that the services of the employee were never terminated. If the complainant was in dire need of employment, he ought to have prayed that the Court ought to direct the employer to allow the complainant to resume duty. As the complainant did not argue the application for interim relief nor requested the Court to pass any order in view of the reply filed to the application for interim relief, the complainant was not entitled to any relief whatsoever. These averments cannot be held to be an offer by the employer to the employee to re-join his duties. At the highest, these pleadings could have bearing on the aspect of back-wages especially since the application for interim relief was not prosecuted. Moreover, it is only the employee who examined himself and his witness. In his cross-examination the employee has specifically stated that after filing the complaint he had approached the employer to join duties. He denied the suggestion that he never tried to resume his duties thereafter. Pertinently, the employer did not lead any evidence whatsoever to substantiate the stand taken in the written statement. Except bare pleadings in the written statement there is no material brought on record by the employer to substantiate its stand. In these facts therefore and in the absence of any clear unambiguous offer being made by the employer in its written statement calling upon the employee to re-join duties, the ratio of the decisions in aforesaid two cases is clearly distinguishable and hence not applicable. In these facts therefore and in the absence of any clear unambiguous offer being made by the employer in its written statement calling upon the employee to re-join duties, the ratio of the decisions in aforesaid two cases is clearly distinguishable and hence not applicable. In our view, the observations in Sonal Garments (supra) that ‘whenever the employer offers to reinstate the workman at any stage of the dispute or proceedings 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 back-wages from the date of such offer, conditional or unconditional. He must first accept the offer and get reinstated in employment and thereafter continue to contest for the relief of back-wages, if any ’, can be applied provided a clear and unambiguous offer is made by the employer at any stage of the proceedings. 20. From the material on record it thus becomes obvious that the complainant came to Court with the case that his services were otherwise terminated on 30/08/1998. This was denied by the employer by stating that the services of the complainant were never terminated. It was pleaded that by not seeking to join duties after issuance of notice dated 15/09/1998 the complainant had abandoned his service. The complainant having led evidence to indicate his efforts of joining service even after filing of the complaint by examining himself and his witness which evidence was neither countered by the employer nor displaced in any manner whatsoever, there is no room to draw any inference or presume that the complainant had infact abandoned his service. The Labour Court as well the Industrial Court completely misdirected themselves when they proceeded on the basis that since the complainant had failed to report on duty after issuance of notice dated 15/09/1998 it was presumed that the complainant had abandoned his service. The Courts completely lost sight of the glaring fact that the complaint itself was filed on 15/10/1998 and in cross-examination of the complainant it was suggested to him by the employer itself that after filing of the complaint the complainant had infact approached the employer for joining duties. The Courts completely lost sight of the glaring fact that the complaint itself was filed on 15/10/1998 and in cross-examination of the complainant it was suggested to him by the employer itself that after filing of the complaint the complainant had infact approached the employer for joining duties. In absence of any evidence whatsoever by the employer to prove its stand, it is clear that the findings recorded by the Court that the complainant had abandoned his service was a perverse finding not based on any material whatsoever. When it was the specific ground raised by the complainant in the writ petition that such finding recorded by the Court was perverse and against the settled law, a case for interference in exercise of certiorari jurisdiction was definitely made out. Having failed to exercise certiorari jurisdiction which was rightly invoked, we find that the learned Single Judge committed an error which is liable to be corrected in exercise of appellate jurisdiction. 21. Having found that there is no material on record to hold that the complainant had abandoned his services coupled with the fact that it is the stand of the employer that it had never terminated the services of the complainant, the relief to which the complainant is entitled would have to be considered. It is a fact true that though the complainant filed an application for grant of interim relief, he failed to prosecute the same for no justifiable reason. The employer is justified in relying upon this aspect. The facts indicate that since 30/08/1998 the complainant has been kept out of service. A period of more than twenty three years has since elapsed. It is also clear from the record that the complainant was engaged as a daily wager getting Rs.53/- per day and had served for more than four years at that time. Considering all these aspects and in view of the fact that the complainant was illegally kept out of service without complying with the provisions of Section 25-F and Section 25-G of the Act of 1947 we are of the view that interests of justice would be met by granting monetary compensation of Rs.75,000/- (Rupees Seventy Five Thousand) to the complainant in lieu of the relief of reinstatement. 22. 22. In the light of the above discussion, the following order is passed : (i) The judgment of the Labour Court in Complaint ULPA No.614 of 1998 and that of the Industrial Court in Revision (ULPN) No.230 of 2007 as affirmed in Writ Petition No.376/2012 are set aside. (ii) Complaint ULPA No.614 of 1998 is allowed by declaring that the employer by keeping the complainant out of employment has committed unfair labour practice. (iii) By way of monetary compensation it is directed that the employer shall pay an amount of Rs.75,000/- (Rupees Seventy Five Thousand) to the complainant within a period of four weeks from today. On failure to do so, the amount of compensation shall be payable thereafter with interest at the rate of 5% per annum till realisation. The Letters Patent Appeal is allowed in aforesaid terms with costs.