JUDGMENT : M.K. THAKKER, J. 1. Rule returnable forthwith in both petitions. Learned advocate Ms.Yogini Parikh waives service of Rule on behalf of respondent no.1 and learned advocate Mr.P.S.Gogia for respondent no.2 in SCA No.12586 of 2017 and Learned advocate Mr.Aditya Mistry waives service of Rule on behalf of respondent no.1 and learned advocate Mr.P.S.Gogia for respondent no.2 in SCA No.1750 of 2023. 2. With the consent of the parties, the matter was heard finally. 3. Both the petitions are filed challenging the award passed by the learned Presiding Officer learned Labour Court, Porbandar dated 06.02.2017 by which the workman was granted the lump sum compensation of Rs.21,000/- in lieu of reinstatement and back wages which was directed to be paid by the Contractor B.Panikar, who is the petitioner in SCA No.1750 of 2023. 4. The case of the workman as mentioned in the statement of claim is that workman was working since 24.04.1992 as a clerk with respondent no.2 i.e Saurashtra Cement Ltd, Ranavav. Without following due procedure under the I.D.Act and service came to be terminated from 01.05.1999 and therefore, dispute was raised before the learned Labour Court. The contractor namely B.Panikar appeared before the learned Labour Court and submitted that no termination, as alleged by the workman, had ever taken place however, the workman used to remain on unauthorized leave and though, he was informed to resume the duty vide communication dated 18.12.1999 and instead of resuming the duty the dispute was raised before the Conciliation Officer also the work was offered vide communication dated 01.04.2000 and it was informed that as there is no work available for respondent no.2 at Ranavav he shall resume duty at Baroda office or at Surat office. 4.1. It is contended in the written statement that workman has abandoned the work and therefore, there is no breach of section 25F as alleged and as workman was working under the Contractor B.Panikar it is his duty to resume the work as and when the work is offered and at the place where work is available. Learned Labour Court, after recording the oral evidence of the witness of both the parties and considering the documentary evidence, has come to the conclusion that there was no notice, inquiry or any disciplinary proceedings initiated for taking unauthorised leave and therefore, there is breach of section 25F. Learned Labour Court, after recording the oral evidence of the witness of both the parties and considering the documentary evidence, has come to the conclusion that there was no notice, inquiry or any disciplinary proceedings initiated for taking unauthorised leave and therefore, there is breach of section 25F. Considering the conduct of the workman, that despite he was informed to resume the duty he did not remain present, the lump sump compensation of Rs. 21,000/- was awarded. The workman has filed petition being SCA No.12586 of 2017 seeking enhancement of compensation however, the Contractor has filed the petition being SCA No. 1750 of 2023 seeking quashment of impugned award. During the pendency of the petition, this Court, vide order dated 05.01.2024, has directed the Contractor to pay amount of Rs.21,000/- which has been awarded to the workman which was paid by the contractor. 5. Heard learned advocate Mr.Aditya Mistry for the workman and learned advocate Ms.Yogini Parikh for the Contractor namely B.Panikar and learned advocate Mr.Gogia for Saurashtra Cement Ltd, Ranavav. 5.1. Learned advocate Mr.Aditya Mistry submits that learned Labour Court has committed error in disbelieving the case of the present workman that he was working since 1992. Learned advocate Mr.Aditya Mistry submits that documentary evidence to establish that he has worked since 1992 was disbelieved by the learned Labour Court. Learned advocate Mr.Aditya Mistry relied on the communication dated 03.12.1993 which was produced below Exh.22 wherein, it was informed to one M/s Agrawal Printers that draft of Rs.27,000/- was sent with Mr.Falgun Kanakia who is the workman. Relying on the said communication, it was submitted that this evidence suggests that respondent was an employee since 1992 onwards as claimed however, learned Labour Court has relied on the cross examination of the workman wherein, he had admitted that prior to 1994 for seven years he worked with advocate Mr.Lakhani and he has been paid wages of Rs.1,200/-. Learned advocate Mr.Aditya Mistry submits that infact respondent no.1 has also admitted that workman has worked from 24.04.1992 to 01.05.1999. Learned advocate Mr.Aditya Mistry submits that undue weightage was given on the admission of the present wokrman during the cross-examination and the learned Labour Court has considered the work of the workman from 1994 onwards. Learned advocate Mr.Aditya Mistry submits that infact respondent no.1 has also admitted that workman has worked from 24.04.1992 to 01.05.1999. Learned advocate Mr.Aditya Mistry submits that undue weightage was given on the admission of the present wokrman during the cross-examination and the learned Labour Court has considered the work of the workman from 1994 onwards. Learned advocate Mr.Aditya Mistry submits that even if 1994 onwards work is considered then also it transpires that workman has worked for five years however, meagre amount of Rs.21,000/- was awarded towards lump sum compensation. Learned advocate Mr.Aditya Mistry submits that as he was working with the respondent no.2 at Ranavav he has shown unwillingness to work at different place. Learned advocate Mr.Aditya Mistry submits that on the decision rendered by the Apex Court in the case of Deepali Gundu Surwase versus Kranti Junior Adhyapak Mahavidyalaya (D.ED) and Others, 2013 10 SCC 324 and submitted that as per the ratio laid down by the Apex Court, when the management choses to reinstate any of the workman such reinstatement can only be at the place of the concerned workman of his original employment. Learned advocate Mr.Aditya Mistry submits that as the work was offered at different place therefore, the workers would have the right to deny the work and for that reason also the impugned award deserves to be set aside. 5.2. Learned advocate Mr.Aditya Mistry submits that as per the admission of the Contractor, made in written statement that there is master and servant relation between the workman and the Contractor and therefore, the learned Labour Court has rightly held that reference against respondent no.2 i.e Contractor whereby, directions were issued to pay lump sum compensation of Rs.21,000/-. Learned advocate Mr.Aditya Mistry submits that as there was no infirmity in the impugned order qua the directions issued to the respondent Contractor therefore, petition filed by the Contractor being SCA No. 1750 of 2023 deserves to be dismissed and petition filed by the workman being SCA No. 12586 of 2017 requires to be allowed. 6. Per contra, learned advocate Ms.Yogini Parikh for the Contractor submitted that in the statement of claim, no averments were made that who has terminated the service of the petitioner. Learned advocate Ms.Yogini Parikh submits that as respondent was continuously remaining absent therefore, he was informed to resume the duty vide communication dated 18.12.1999. 6. Per contra, learned advocate Ms.Yogini Parikh for the Contractor submitted that in the statement of claim, no averments were made that who has terminated the service of the petitioner. Learned advocate Ms.Yogini Parikh submits that as respondent was continuously remaining absent therefore, he was informed to resume the duty vide communication dated 18.12.1999. Learned advocate Ms.Yogini Parikh has referred the communication dated 15.03.2000 and submitted that before the Assistant Labour Commissioner also the work was offered and the workman was informed to resume the duty from 01.04.2000 at Surat. Learned advocate Ms.Yogini Parikh submits that even during the pendency of the petition before this Court also work was offered. However, respondent has denied the same and submitted that as he has reached the age of 50 years therefore, he is not ready to resume the duty. Learned advocate Ms.Yogini Parikh submits that conduct and the behaviour of the petitioner shows that he is not interested in the work and there is no retrenchment, as alleged by the workman and therefore, the impugned award directing the workman to pay lump sum compensation deserves to be quashed and petition being SCA No. 1750 of 2023 requires to be allowed. 6.1. Learned advocate Ms.Yogini Parikh submits that during the cross-examiantion of the workman, he has stated that against the communication to resume the duty at Surat he cannot produce any communication to show that he has shown willingness to resume duty. Learned advocate Ms.Yogini Parikh submits that during the cross-examination it is admitted that he did not apply for any other job except with the respondent no.2 which suggests that he is interested to work with respondent no.2 i.e Saurashtra Cement Ltd. at Ranavav. Learned advocate Ms.Yogini Parikh submits that as there is no work available with respondent no.2 at Ranavav therefore, offer was given to work at different place. Learned advocate Ms.Yogini Parikh further submits that employer being a Contractor and the workman being a contractual employee is bound to resume duty wherever the Contractor offers work however, in denying the same, no relief can be granted to the petitioner and therefore, petition filed by the workman being SCA No.12586 of 2017 is required to be dismissed. 7. Learned advocate Ms.Yogini Parikh further submits that employer being a Contractor and the workman being a contractual employee is bound to resume duty wherever the Contractor offers work however, in denying the same, no relief can be granted to the petitioner and therefore, petition filed by the workman being SCA No.12586 of 2017 is required to be dismissed. 7. Considering the submissions made by the learned advocate for the parties and the evidence adduced suggests that the workman was employee of the Contractor and the Contractor i.e B.Panicher was used to pay wages to the workman. As per the admission made by the Contractor in paragraph 6 of the written statement, the Contractor was having control and supervsion over the work of the workman. The workman has claimed that he was working since 1992. This Court has referred the cross-examination of the workman wherein, he admits that prior to 1994 for seven yearshe worked with advocate Mr.Lakhani and was getting the wages of Rs.1200/-. Reliance which was placed by the workman of the communication dated 03.12.1993 if one would perused then it reveals that one draft was sent with workman which to be delivered to one M/s Agarwal Painters. The communication itself would not be conclusive evidence to show that workman was an employee before 03.12.1993, more particularly, when workman himself has admitted in his cross-examination that he was working prior to 1994 somewhere else. As it was assertion of the workman that he worked since 1992 onwards it is duty cast on him to prove the same. In absence of any other communication which clearly suggests the work which was done by the petitioner from 1992 onwards the learned reference court has rightly concluded that petitioner has not worked as alleged from 1992 but has worked from 1994. 7.1. As it is established that petitioner was working for respondent no.2 the next question arising for consideration is that whether any termination, as alleged, by the Contractor has ever taken place. This Court has perused the communcation dated 18.12.1999 wherein the Contractor has informed to the workman that “as per our records you are absent in yourself without leave. 7.1. As it is established that petitioner was working for respondent no.2 the next question arising for consideration is that whether any termination, as alleged, by the Contractor has ever taken place. This Court has perused the communcation dated 18.12.1999 wherein the Contractor has informed to the workman that “as per our records you are absent in yourself without leave. You are requested to report to this office on or before 29.12.1999 to enable us to protect job” as against the aforesaid communication, workman has informed to the Contractor on 28.12.1999 that he did not remain absent without leave and he resumed the duty at 8-o-clock and if he would not be permitted to resume duty at Porbandar then he would take legal action against the Contractor. This communication suggests that some proceeding has been initiated under the I.D.Act. Thereafter, another communication was produced by the Contractor below Exh.21 informing to resume duty at Surat as there is no requirement at Saurashtra Cement Ltd, Ranavav. He was also given an option to resume duty at Baroda office however, thereafter, he did not resume duty neither any evidence was adduced that he went to resume duty but was not permitted. 7.2. In addition to that, during the pendency of the proceedings before the Conciliation Officer he was offered to resume the duty however, he insisted to resume the duty at Saurashtra Cement Ltd., Ranavav who is respondent no.2 as per the admission made by the workman during the cross-examination. As the workman was working under the Contractor, the Contractor would have right to ask the workman to do work at available place. The workman would not have any right for resistence of doing work at a particular place. Even during the pendency of the petition, the work was offered by the Contractor however, learned advocate for the workman has submitted that as he reached to the age of 50 years therefore, he is not interested to do any work. The act and conduct of the workman suggests that he is only having the interest in compensation and not in the work. So far as the retrenchment is concerned, this Court is of the view that workman fails to establish that he was terminated from the service, as per the communication dated 18.12.1999 workman himself has abandoned work and thereafter, did not resume the duty despite work was offered. So far as the retrenchment is concerned, this Court is of the view that workman fails to establish that he was terminated from the service, as per the communication dated 18.12.1999 workman himself has abandoned work and thereafter, did not resume the duty despite work was offered. In the opinion of this Court if the workman is not ready to do work, he would not be entitled to any relief as claimed in the petition. 7.3. It transpires that the offer of reinstatement to the workman was not accepted and in that scenario he is not entitled to any relief or any back wages. This conduct of the workman supports the version of the employer that the workman has abandoned the work and never reported back to his duty and it was clearly not a case of termination by the employer. Whenever an 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. The workman must first accept the offer of such reinstatetment in employment and thereafter continue to contest for the relief of back wages, if any. In the instant case, the employer has made offer of employment to the workman but it was not accepted by the workman and in that background, this Court is of the considerable opinion that the workman is not entitled to get any relief or back wages at all. 8. In view thereof, the petition being SCA No. 12586 of 2017 filed by the workman is dismissed. Rule is discharged. The petition being SCA No.1750 of 2023 filed by the Contractor is hereby allowed Rule made absolute. 8.1. The impugned award passed by the learned Presiding Officer learned Labour Court, Porbandar dated 06.02.2017 directing to pay lump sum compensation of Rs.21,000/- is also set aside. The amount paid to the workman pursuant to the order dated 05.01.2024 is directed to be returned to the Contractor within a period of 4 weeks from the date of receipt of this order.