Prolonged absence from service leads to voluntary abandonment of service and not termination: Court Order

The Bombay High Court has said that prolonged absence despite repeated calls amounted to voluntary abandonment of service, and not termination. Thus, the court held that retrenchment procedure under the Industrial Disputes Act was not applicable.

Rashtrasant Tukdoji Maharaj Technical and Education Society ran a residential school for differently-abled children. The employees were appointed as Assistant Cook, Clerk, Accountant, Librarian, Caretaker, etc. during the period from the year 1991-1993 by following due process of law. These employees issued strike out notice in August, 1993.

The petitioner challenged the notice before the Industrial Court, and vide order dated 12/11/1993, interim relief was granted. The strikeout notice was treated unfair practice and employees were directed to desist from the same. The employees, however, did not resume services. The petitioner then issued letter to the employees requesting them to resume services.

The letters were so issued on 15/09/1993, 26/11/1993, 05/01/1994, 15/03/1994 and 02/04/1994 (Exh.58/1 to Exh.58/5). Since, the employees did not resume services, the petitioner on 01/06/1994 (Exh.60) informed them that from August, 1993, they remained absent without notice and have not resumed services despite request letters issued by the petitioner and issued clear warning that if they fail to resume services, it will be presumed that they have voluntarily relieved themselves from the services.

They were called upon to show cause why should they be not relieved from services, but they chose to give no cause nor to resume duty. Accordingly, the petitioner presumed that the employees have voluntarily relieved themselves with effect from 01/06/1994 and consequently their names were deleted from the muster.

However, when they later returned, they claimed that they were not being allowed to return to duty. Following this, they also filed multiple complaints before the labour court. The labour court ruled in their favour, holding that the employer had committed unfair labour practice by terminating employees without due process. Aggrieved, the employer filed a writ petition challenging the labour court’s ruling.

The court held that the removal of their names from the muster roll was not an act of dismissal. Instead, the court found that it was a necessary consequence of the employee’s actions. Citing Punjab & Sind Bank v. Sakattar Singh, Appeal (civil) 12795 1996, the court held that if unauthorised absence is for a prolonged duration, the employer can treat it as voluntary retirement. This, the court held, does not amount to ‘termination’ or ‘retrenchment’ under the Industrial Disputes Act.

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