ORDER
S.H. Kapadia, J.
1. This writ petition involves question of interpretation of section 25-F of the Industrial Disputes Act, 1947 (hereinafter referred to, for the sake of brevity, as “the said Act, 1947”) as applicable to the facts of the present case.
2. The facts giving rise to the writ petition, briefly are as follows :
(a) Nafisa Shabbir Hussain (hereinafter referred to as “Nafisa” for the sake of brevity) was appointed by the Company as Accounts Assistant on probation vide Order dated 6th March 1982.
(b) She was confirmed as Accounts Assistant on probation vide Order dated 15th September 1982 with effect from 8th September 1982.
(c) On 24th April 1984, she applied for privilege leave with effect from 26th April 1984 upto 25th July 1984 for a period of three (3) months on the ground that she would like to join her husband, who was doing his Ph.D. in Nether lands. Even before this application, she had already enjoyed privilege leave for 21 days for the period 1st January 1984 upto 21st January 1984 and under the Service Rules, she had to her credit only eight (8) days privilege leave as on the date of her application dated 24th April 1984. By letter dated 25th April 1984, she once again requested the Management to grant her leave for three (3) months from 26th April 1984 upto 26th July 1984. However, since there was no privilege leave to her credit for three months, the Management did not agree to grant the said leave except on her giving an assurance to the Management that under no circumstances, the said leave will be extended beyond 27th July 1984 and accordingly, she gave an undertaking to the Management. In the above circumstances, she further agreed that if she did not turn up after 27th July 1984, the Company was free to take appropriate action including termination. The above two letters clearly indicate that Nafisa had applied for extraordinary leave and the same was granted on the express understanding that if she did not resume on 27th July 1984, the Management was free to terminate her services.
(d) On 17th July 1984, i.e. prior to 27th July 1984, Nafisa addresses a letter from Netherlands to the Management stating that due to circumstances beyond her control, she would not be in a position to report for work on 27th July 1984 as originally intended and that she will be returning to India by 30th September 1984. She accordingly requested the Management to extend her leave by couple of months in which case, it was stated that she would be happy to resume her work on her returning to India. By the said letter, she called upon the Management to inform her as to whether the Management was prepared to extend her leave by a couple of months. It is interesting to note at this stage that Nafisa did not contact the Management on
phone in India. She knew well that it will take number of days for her application to reach the Management and it is for this reason that she applied to the Management by stating that the Management should inform her as to whether the Management was ready and willing to extend her leave.
(e) By letter dated 18th July 1984 addressed by Smt. Lakhwala (mother of Nafisa), to the Management, she stated that her daughter was keenly interested in continuing her employment and accordingly, the Management was requested to grant appropriate leave to Nafisa. In the said letter, mother of Nafisa has recorded that the Management had tried to contact on telephone, Smt. Lakhwala (mother of Nafisa), enquiring as to whether Nafisa was to resume on 27th July 1984 and it is in response to the said telephonic enquiry that Smt. Lakhwala addressed a letter to the Management requesting for extension of leave on the ground that Nafisa was keen on resuming her duty, after the leave is extended by a couple of months. This letter indicates that the employer is required to run after its employee and request its employee to resume duties.
(f) By letter dated July 30, 1984, the Management informed Nafisa that despite her promise to resume her duties on 27th July, 1984, she had not reported for duty till 30th July 1984 and the Company had also not received any communication in that regard. However, by letter dated 30th July 1984, the Company requested Nafisa to inform the Company as to when she would be joining her duties.
(g) On 6th August 1984, the Company informed Nafisa that extension of leave cannot be granted and she was requested to resume duties immediately failing which, appropriate action will be taken. This letter was required to be addressed by the Company to Nafisa at her address at Netherlands because in her original application for leave for three (3) months, Nafisa had requested the Company to address all letters in future to her address in Netherlands.
(h) Despite opportunity being given by the Company to Nafisa to resume her duties on 6th August 1984, Nafisa did not resume duties till 4th September 1984 when the Company informed Smt. Nafisa Shabbir Hussain that as she had failed to report for duty on 26th July 1984, her services stand terminated with effect from 26th July 1984. She was asked to collect her dues from the Accounts Department.
(i) Despite the said letter dated 4th September 1984 from the Management, Nafisa did not take any action in furtherance of the said letter dated 4th September 1984 till 14th December 1984.
(j) In the meantime, on 2nd October 1984, she came down to Bombay, but surprisingly upto 14th December 1984, she did not even care to reply to the letter of the Management dated 4th September 1984 and no steps were taken by her in respect of the said letter of the Management upto 14th December 1984.
(k) On 14th December 1984, Nafisa informs the Management that she has not been given any opportunity of being heard, prior to termination of her services allegedly vide letter dated 4th September 1984. By letter dated 14th December 1984, she contended that her services were terminated illegally. By the said letter, she contended that her services were terminated in breach of the rules of natural justice. By the said letter dated 14th December 1984, she further contended that her services cannot be terminated retrospectively from 26th July 1984 and since the Management had terminated her services retrospectively from 26th July 1984, the said termination was arbitrary, illegal and bad in law. She further contended that her services have been terminated without complying with the provisions of section 25-F of the Industrial Disputes Act, 1947 and in the circumstances, she contended that the Management was in error in terminating her services. Even in the said letter dated 14th December 1984, no explanation has been given by Nafisa as to when she came back to Bombay and what were the reasons which compelled her not to resume her duties from 2nd October 1984. Even in the letter dated 14th December 1984, Nafisa did not offer herself for resumption, although she contended that her services were unilaterally and illegally terminated.
(I) Ultimately, Nafisa raised the dispute which came to be referred by the appropriate Government to the Labour Court vide Reference (IDA) No. 885 of 1987. In her statement of claim, Nafisa alleged that she got married on 3rd January 1984; that her husband was studying for his Ph.D. in Netherlands at the time of her marriage; that she was desirous of joining her husband who was to return to India only on completion of his research work; that the Company had sanctioned her privileged leave from 26th April 1984 upto 26th July 1984, but due to unforeseen circumstances, her husband could not complete his assignment by 26th July 1984 and, therefore, she could” not resume her duties on 26th July 1984. She has further stated that on 10th July 1984, the Management had made telephonic enquires with her mother regarding the probable date by which Nafisa would be able to resume her work and that on 18th July 1984 her mother informed the Management that she would not be able to resume on 26th July 1984 and that the Management was requested to extend her leave as her husband was unable to complete his research assignment. According to her statement of claim, since she had expressed her intention to resume her duties vide letter dated 18th July 1984, referred to above, and since in the said letter she had requested for extension of her leave, the Company was not entitled to terminate her services. In her statement of claim, she has further stated that she had also addressed a letter to the Management from Netherlands on 17th July 1984, requesting the Management to extend her leave upto 30th September 1984 and in response to the said letter dated 17th July 1984, the Company had written a letter dated 6th August 1984 wherein the Company declined extension of leave and directed her to resume her duties immediately failing which the Company would be taking appropriate action. In her statement of claim, Nafisa has alleged that since the Company did not give reasons for not extending her leave upto 30th September 1984, the Company was not entitled to terminate her services. In her statement of claim, she has further contended that since she was not informed about the reasons for not extending her leave and since the only reasons advanced for termination of service was her failure to report for work on expiry of the sanctioned leave, the termination was bad in law and in breach of section 25-F of the Industrial Disputes Act. In her statement of claim, she has further stated vide Para 9 that she returned to India on 2nd October 1984, but as she was busy with certain family matters, she could not contest the Company’s action, of terminating her services, upto 14th December, 1984. At this stage, it is important to note that in Para 12 of the said statement of claim, Nafisa has further alleged that she was not keeping well and she was under treatment of a Gynaecologist Dr. (Mrs.) Tahera Khalil with effect from 3rd October, 1984. She has relied upon Medical Certificate dated 17th April 1985. However, it is important to note that in the letter dated 14th December 1984, addressed by Nafisa to the Management, referred to hereinabove, no such explanations have been given by Nafisa to the Management. The said explanations finds place only subsequently when the dispute is sought to be raised in 1986 – 1987. In her statement of claim, she has further alleged that she was not charge-sheeted and the termination was in breach of the rules of natural justice because no Domestic Enquiry was held into her alleged misconduct. She has further claimed breach of section 25-F of the Act. She has also claimed breach of Standing Orders inasmuch as Domestic Enquiry has not been held and she has further alleged that the entire action of the Company in allegedly terminating her services was mala fide and colourable exercise of power and it was in order to victimize her, that the action was taken by the Management as alleged. In the circumstances, she claimed full back wages for the above period. Thereafter, the Company filed its Written Statement in the said Reference. In the Written Statement, the Company pleaded that the workman had put in only one and half years service and, therefore, when she applied for leave for three months, the Management was not inclined to sanction her leave for three months. In the Written Statement, it is also stated that the Company would be put to great inconvenience if leave for three months is sanctioned. In the Written Statement, it is further stated that the Company apprehended that since Nafisa wanted to join her husband at Holland, she may not rejoin after three months and in the event of her not returning to India, the Company would be put to great inconvenience and in the circumstances, a meeting was held with the employee when she gave an undertaking to the Company that in no circumstances, she would apply for extension of leave beyond 26th July 1984 and in case she failed to turn up by 26th July 1984, the Company may take appropriate action including termination. According to the Written Statement, in view of the said undertaking and assurance and in view of Nafisa expressing her clear intention, to come down to India by 26th July 1984 and in view of her authorizing the Company to terminate her services if she did not report for work on the appointed date, the Management decided to sanction her leave on the footing that she would be receiving salary only for eight days leave which was due to her credit and for the balance period, she would be on leave without pay. According to the Written Statement, in view of the above facts, the Company has contended that their apprehension of Nafisa in not joining her duties on the appointed date came to be true and when the Office enquired on telephone at her house a week prior to 27th July 1984, the Management was informed that Nafisa was trying to settle in Holland and the Management was also informed that she may not come back to India. According to the Management, the above telephonic conversation was followed by the above letter dated 18th July 1984 from Smt. Lakhwala, the mother of Nafisa, stating that her stay in Holland is likely to be extended. According to the Written Statement, since there was no communication from Nafisa in her personal capacity, the Company took the view
that she was not interested in resuming her work. By the Written Statement, the Company has further stated that the letter dated 17th July 1984 addressed by Nafisa to the Company seeking extension of time was also received by the Company on July 30, 1984 i.e. after 27th July 1984 being the cut off date. It is in the above circumstances that the Company, vide letter dated 6th August, 1984, informed the workman that if she failed to immediately rejoin, appropriate action will be taken. However, no further reply was received by the Company and in the circumstances, the Company acted upon the undertaking given by Nafisa, by putting an end to the Contract of employment in view of her conduct of not reporting for work on 27th July 1984. According to the Written Statement, the implementation of the decision of the Company to act upon the undertaking given by Nafisa was communicated on 4th September 1984 by which letter, the Management informed Nafisa that her services stood terminated from 26th July 1984. In other words, it is a case of the Company in their Written Statement that they decided to act upon the undertaking given by Nafisa in April 1984, which decision of the Management was communicated to Nafisa vide letter dated 4th September 1984, the Company was entitled to terminate her services. In the Written Statement, the Company further alleged that the Company was not even aware as to whether Nafisa had returned to India on 2nd October 1984 as there was no intimation to that effect till letter dated 14th December 1984. According to the Written Statement the Company was not even aware as to whether after receipt of the Company’s letter dated 4th September 1984, Nafisa was preparing for returning to India as contended and that the Company was not aware as to whether she was busy with her family matters. According to the Written Statement filed by the Company, the above facts indicate that Nafisa had no intention to either resume her duties on expiry of leave nor was she interested in employment and that she was trying to take undue advantage of the leniency shown by the Company.
(m) On the basis of the above pleadings, the matter came before the Labour Court. By way of evidence, Nafisa fifed her Affidavit before the Labour Court which was treated as her examination – in – chief by the Labour Court. Thereafter, she was cross-examined. In her cross-examination, Nafisa testified that her husband had a contract for research in Holland which was completed by 31st July 1984. In her cross-examination, Nafisa has admitted that she was fully aware of the consequences of her not resuming her duty by 26th/27th July 1984. In her cross-examination she has further stated that her husband’s contract was extended by two months. In her cross-examination she has further testified that she received letter dated 4th September 1984 within five days of the receipt of the Company’s letter dated 6th August 1984. In her cross examination, she was admitted that till 2nd October 1984, she could not communicate with the Company, but while addressing her letter dated 14th December 1984 she has aware that she was under treatment of Dr. (Mrs.) Tahera Khalil and yet she did not-communicate that explanation to the Management on 14th December 1984. At this stage it may be mentioned that according to Nafisa, the above under taking was taken by the Management through its Officer – Shri Narayan who insisted on Nafisa giving an undertaking that she would resume her duties by 26th/27th July 1984 failing which the Company would be entitled to take appropriate action including termination of service. According to
Nafisa, Shri Narayan coerced her to give the above undertaking. However, in her cross-examination, she has further deposed that she had never complained about Narayan exercising undue influence on her which pursuaded her to give the above undertaking. In her cross-examination, Nafisa admitted that it was possible for her to return to India even before 26th July 1984 and to join the Company. At this stage, it needs to be mentioned that the last admission of Nafisa clearly indicates that although it was possible for her to return to India by 26th July 1984 and to report for work, she did not choose to do so and this admission also indicates that her letter to the Company, seeking extension of time dated 17th July 1984, in which she sought extension on the ground that it was not possible for her to resume due to circumstances beyond her control, was a total falsehood. If Nafisa was not prevented from returning to India before 26th July 1984, as per the undertaking, then one fails to understand as to on what basis she had addressed a letter on 17th July 1984 that she was not able to resume her duties due to circumstances, beyond her control. In the circumstances, letter dated 17th July 1984 is required to be discounted as sheer falsehood.
(n) On the basis of the above evidence, the impugned Award came to be delivered by the Labour Court. By the impugned Award, the Labour Court found that Nafisa had remained absent, without giving bona fide reasons. According to the Labour Court, there was no evidence to show that Narayan, the Officer of the Company, had exercised undue influence and that Nafisa had executed the above undertaking due to undue influence. To this extent, the finding is in favour of the Company. According to the Labour Court, Nafisa had given the above undertaking voluntarily. According to the Labour Court, Nafisa had not disclosed any particulars regarding family matters which prevented her from challenging the alleged letter of termination after 2nd October 1984 when she returned to India. According to the Labour Court, Nafisa has not proved the name of the disease from which she was suffering. According to the Labour Court, Nafisa did not prove the contents of the Medical Certificate given by Dr. (Mrs.) Tahera Khalil. According to the Labour Court, no reasons have been given by Nafisa for not challenging the termination letter dated 4th September 1984 for three months. According to the Labour Court, it was clear that Nafisa had remained absent without leave after 26th July 1984 without any bona fide reasons. According to the Labour Court, Nafisa had come to Court with unclean hands. However, the Labour Court came to the conclusion that in the present matter, the Labour Court was constrained to grant reinstatement to Nafisa because the Company had not complied with section 25-F of the Industrial Disputes Act. The Labour Court, however, refused to award back wages, particularly in view of the above facts. The Labour Court concluded that Nafisa remained absent after 26th July 1984, without any kind of leave and without giving bona fide reasons and she had come to the Labour Court with unclean hands and on perusal of her evidence, it was clear that she was guilty of misconduct. In the above circumstances, the Labour Court directed the Company to reinstate Nafisa from 14th December 1984. She challenged the Order of termination dated 4th September 1984. However, the Labour Court refused to grant back wages and accordingly, the Reference came to be partly allowed. The impugned Award was given by the Labour Court on 19th March, 1993.
(o) Being aggrieved by the said impugned Award, the Company has filed Writ Petition No. 830 of 1994 by which they have challenged the Order of reinstatement. Nafisa has filed Conjoint Writ Petition No. 763 of 1994 by which she has claimed back wages for the entire period. The said amount of back wages till today, as claimed by Nafisa, comes to about Rs. 10 lakhs which, of course, the Company disputes.
3. Shri Naik, learned Counsel appearing for the Company contends that on the facts of the above case, in view of the undertaking given by Nafisa in April 1984, the Company was authorised to terminate her services on 26th July 1984 when she did not report for work as per her undertaking. According to Shri Naik, the above facts clearly indicate that -Nafisa had relinquished her right to employment. According to Shri Naik the Company had acted on the basis of the said undertaking after giving full opportunity to Nafisa. According to Shri Naik the alleged letter of termination cannot be construed to be an overt act of termination on the part of the employer. According to Shri Naik, the letter dated 4th September 1984 only intimated to Nafisa that in view of the above facts, the Company was entitled to act upon the undertaking given by her in April 1984. According to Shri Naik, on facts and circumstances of the present case, to which I have referred to hereinabove in detail, the present matter involves a case of relinquishment and in the circumstances, the provisions of section 25-F of the said Act, 1947 is not attracted and the Labour Court erred in granting reinstatement on the ground that the Company was guilty of breach of section 25-F of the said Act, 1947. Shri Naik, however, conceded that -time to report for work stood extended upto 30th July 1984 because the letter addressed to the Company from Netherlands by Nafisa on 17th July 1984 was received by the Management only on 30th July 1984. In this connection, Shri Naik placed reliance on Para 3 of the Written Statement filed by the Company before the Labour Court. In the alternative, he contended that in any event, the Labour Court came to the conclusion that Nafisa was guilty of misconduct. He contended that in view of the said finding, section 25-F was not attracted. He further contended that in any event, every breach of section 25-F of the said Act does not necessarily warrant reinstatement and in appropriate cases, the Labour Court is entitled to refuse reinstatement even though it finds that the Company has committed breach of section 25-F of the said Act, 1947.
4. Shri Cama, learned Counsel appearing on behalf of the workman contended that in view of the concession made by Shri Naik in the alternative argument, time stood extended upto 30th July 1984, the Company had given up its right to enforce the undertaking given by Nafisa in April 1984. Shri Cama contended that in view of the above concession made by the learned Counsel that time stood extended upto 30th July 1984, the undertaking given by the employee was not in force as it came to an end on 27th July 1984 and, therefore, it was not in force as on 30th July 1984. According to the learned Counsel, under the above circumstances and in view of the above concession, the undertaking given by Nafisa stood withdrawn ipso facto on 27th July 1984 by the Company. The learned Counsel for the workman further contended that in the present matter, the termination of employment by the Company on 4th September 1984 had no connection with the undertaking given in April 1984, particularly because the undertaking stood withdrawn by implication in view of the above concession made by Shri Naik. He further contended that Nafisa had applied for extension upto end of September 1984 vide her letter dated 17th July 1984 and since the said letter was received by the Company only on July 30, 1984, time to report for work automatically stood extended upto July 30, 1984 and in the circumstances, it was not open to the Company to enforce the said undertaking given by Nafisa in April 1984. Accordingly, he contended that the Order of termination dated 4th September 1984 was bad in law. Shri Cama further contended that it is
true that the Labour Court has come to the conclusion that Nafisa had committed breach of Contract of employment and that she had come to the Labour Court with unclean hands. However, he contends that the finding of the Labour Court on the position of misconduct by Nafisa relates to events after the cut off date and in the above circumstances, one has to read the Labour Court in the context of misconduct being committed by Nafisa ex post facto. Shri Cama contends that since the alleged misconduct on the part of the employee, as found by the Labour Court, pertains to the period after 4th September 1984, the provisions of section 25-F of the Industrial Disputes Act, 1947 would still apply. Shri Cama contends that in the present case, once section 25-F stands attracted, then the Company was duty bound to follow the conditions prescribed by the statute and since the Company has failed to comply with the provisions of section 25-F of the said Act, 1947, Nafisa was entitled to be reinstated with back wages and the Labour Court was wrong in not granting back wages to the employee. Shri Cama contended that as a general rule, an employee is entitled to full back wages when the Labour Court holds that the termination was in breach of section 25-F of the Industrial Disputes Act. Shri Cama contends that the workman cannot be denied of the entire back wages, which according to him comes to Rs. 10 lakhs till today, particularly when the Labour Court has found breach of section 25-F of the said Act, 1947. Shri Cama conceded that there are cases in which the Supreme Court and the High Courts have taken the view that the workman should not be reinstated, notwithstanding the breach committed by the Company of section 25-F of the said Act., 1947. Shri Cama, however, contended that in the present matter, none of those judgments would apply. In the above circumstances, he has claimed the entire back wages. In the alternative, he has contended that in respect of the period when Nafisa did not report for work upto 14th December 1984, at the highest, Nafisa may be debarred from claiming wages, but thereafter, she is certainly entitled to full back wages till today. In the circumstances, Shri Cama has contended that the writ petition filed by the Nafisa being Writ Petition No. 763 of 1994 be allowed, with costs.
5. When the above Writ Petition came for admission on 18th March 1994 before the learned Single Judge (Dhanuka, J., as he then was), the petitions were admitted. However, stay was granted in favour of the Company only on the question of back wages and no stay was granted in favour of the Company by the learned Single Judge with regard to reinstatement as a result of which, Nafisa stood reinstated on and from 18th March 1994 and from that day, she is working in the Company. Basically, therefore, the present dispute today is regarding the back wages of Rs. 10 lakhs as claimed by Nafisa, which the Company disputes.
6. The first point which arises for consideration in the present matter is : whether the services of Nafisa could be said to have been terminated by the Company. In the present matter, the Labour Court, after appreciating the evidence on record, has rightly found that Nafisa has entered into the above understanding with full knowledge that extraordinary leave was being sanctioned to her on a specific understanding that she would report for work on 27th July 1984. The Labour Court has come to the conclusion that there was no evidence on record to show that the said undertaking given by Nafisa stood vitiated on account of coercion. The plea of coercion was ill founded. In the present matter, the facts clearly indicate that the Management was not prepared to sanction her extraordinary leave because Nafisa had worked only for one and half years prior to her proceeding to Netherlands. There was no leave to her credit beyond 8 days. The Management was fully justified in apprehending that Nafisa may not come back to Bombay and that she will settle in Holland with her husband. Under the above circumstances, the Management was right in insisting upon Nafisa giving an undertaking which empowered the Management to terminate her services if she did not resume work on 27th July 1984.
The Labour Court was right, under the above circumstances, in coming to the conclusion that the undertaking was given by Nafisa voluntarily. It is interesting to note that Nafisa insisted that the Company should contact her at Holland, if need be. Although Nafisa has stated in her cross examination that it was possible for her to coming back to Bombay before 26th July 1984, she did not come back to Bombay, but she addressed a letter on 17th July 1984 to the Company seeking extension of time. Even on 17th July 1984, she could have made a telephonic call to the Company, but Nafisa knew very well that if she was to apply in writing, it would take some time for the letter to reach Bombay, This letter was received on July 30, 1984. In fact, her letter dated 17th July 1984 itself indicate that Nafisa was aware that the Company was trying to contact her to ascertain as to whether she is interested in reporting for work on 26th July 1984. Even the letter addressed by her mother clearly indicates that the Company was trying to contact Nafisa to ascertain as to whether she was going to report for work on 26th July 1984. Even by the letter dated 17th July 1984, Nafisa seeks an advise from the Company as to whether they would be extending her leave. This was because she was aware that she had given an undertaking to come back to work and she was aware of the consequences of her loosing the lien if she failed to report for work on 26th July 1984. The letter dated 17th July 1984 was received by the Company only on 30th July 1984 and, therefore, by letter dated 6th August 1984, the Company informed Nafisa that if she did not immediately join the Company would be entitled to take further steps in the matter. In the circumstances, opportunity was given to Nafisa to report for work vide letter dated 6th August 1984. Ultimately by letter dated 4th September 1984, the Company enforced the undertaking given by Nafisa. Nafisa came back to Bombay only on 2nd October 1984. The Labour Court has correctly recorded a finding of fact that even after 2nd October 1984 till 14th December 1984, Nafisa did not take steps to challenge the termination dated 4th September 1984, The Labour Court found that the Certificate produced by Nafisa, of Dr. Tahera Khalil, is of February 1985. The Labour Court also found that the contents of the said Certificate are not proved and the Labour Court also found rightly that there was no evidence to show that Nafisa was facing family problems after she came back to Bombay. In the above circumstances, there is no merit in the contention of Shri Cama on behalf of the employee that the Order dated 4th September 1984 amounts to retrospective termination of services of the employee. In the present matter, the Company has only enforced the undertaking given by Nafisa in April 1984. In the above circumstances, there is no termination by the Company. In the circumstances, the Company has not terminated the services of Nafisa by taking the help of Standing Orders. In the above circumstances, the facts clearly show that the present matter is a case of relinquishment of service by the workman who has lost her lien to the job by not reporting for work on 26th July 1984. By reason of the said undertaking, Nafisa modified her initial contract of employment. By reason of the said undertaking, she agreed that if she failed to report for work on 26th July 1984, she would loose her right to retain her job. No reason admissible in law or on the basis of justifiability has been given by Nafisa for not reporting for work on 26th / 27th July 1984. Even the concession given by Shri Naik, at the highest, provided opportunity to Nafisa to report for work by 30th July, 1984. However, on 6th August 1984, the Company once again informed her to immediately report for work and thereby the company gave opportunity to the workman to report for work, but even after 6th August 1984, she did not report for work and as stated hereinabove, there is nothing to show that for some good justified reason, she could not report for work till 4th September 1984, particularly when in her evidence she has stated that she was in a position to come back from Netherlands. Even in the letter of 14th December 1984, she has not pleaded that she was prevented by reason of family problems from reporting for work.
Even in the said letter she has not alleged that she was sick and she was not in a position to report for work. In the circumstances, the Labour Court was right in coming to the conclusion that the above excuses are trotted out as an after thought. In the above circumstances, there was no termination by the Company by any overt act and the present matter is a case of relinquishment of service. Therefore, I find merit in the very first contention of Shri Naik that the present matter involves relinquishment of service by the employee. In the case of Buckingham Carnatak v. Venkat, , the Apex Court has laid down that an inference of relinquishment of service can be drawn from various circumstances, one of them being length of the period of absence. Relinquishment of service is a question of intention. In the said judgment, it is further laid down that relinquishment can be inferred on the basis of the evidence on record and similarly, it can be inferred from the terms of a contract of employment between the parties. In cases where termination follows automatically from the term of contract of employment by virtue of the employee remaining absent or in cases where termination follows on account of stipulation in the contract, and not on the basis of the Company enforcing the Standing Orders against the workman, then it is a case of relinquishment and not a case of termination. In the above circumstances, the Supreme Court came to the conclusion that where termination follows relinquishment, it is a case of automatic / deemed termination and, therefore, the provisions of section 25-F are not attracted. There is one more way of looking at the above problem. On 18th August 1984, the Legislature amended section 2(oo) of the Industrial Disputes Act by introducing an exception to section 2(oo) of the said Act by inserting a new sub-section. Accordingly, the law has been amended. Under section 2(oo)(bb) there is no retrenchment if retrenchment is on account of stipulation in the Contract. Dy. Director of Health Services, Nasik Mandal v. Latabai Ray, 1996(1) C.L.R. 328. In the present case, Shri Cama has contended that the Order of termination is dated 4th September 1984. Even if the said Order is treated as an Order of termination as contended on behalf of the employee, in view of section 2(oo)(bb) the said termination, on facts, will not attract section 25-F of the Industrial Dispute Act. The undertaking given by Nafisa modified her contract of employment. Shri Cama has placed heavy reliance on the Judgment of this Court reported in Shripat Vishram Angre v. Phoenix Mills Ltd., 1993(2) C.L.R. 518. On facts, the said case has no application to the present case. In that matter, the workman worked for 22 years. On 5th June 1982, he was charge-sheeted by the Company expressly for misconduct on the ground of remaining absent without leave. He was given the above charge-sheet, but the Company thereafter, did not take any steps to proceed with the Domestic Enquiry and suddenly the Company terminated the services of the workman on the ground that he had abandoned his service by not reporting for work for two and half years. In that case, there was no undertaking given by the workman. There was no modification or adding a stipulation in the Contract of employment as in our case. In the circumstances on facts, the judgment reported in 1993(2) C.L.R. Page 518 has no application to the present case. In the present matter, as stated hereinabove, there is no termination on the ground of misconduct. In the present case, the Company has proved relinquishment of services. In the circumstances, the above judgment has no application to the facts of this case.
7. As stated hereinabove, Shri Cama has contended vehemently that in view of the concession made by Shri Naik on behalf of the Company, time stood extended beyond 26th / 27th July 1984 and in the circumstances, the undertaking stood ipso facto withdrawn. I do not find any merit in the above contention. Shri Naik has fairly stated that because the Company received the letter from Nafisa dated 17th July 1984 only on 30th July 1984, time to report for work stood extended. In the above circumstances, it cannot
be said that the Company has lost its right to enforce the undertaking which the Company did vide letter dated 4th September 1984. Moreover, the Company gave an opportunity to Nafisa even by letter dated 6th August 1984 to report for work immediately. As stated hereinabove, even in her evidence she has further stated that it was possible for her to come back from Holland by 26th / 27th July 1984. In the above circumstances, there is no reason given by Nafisa for not reporting for work by the stipulated period.
8. Shri Cama has contended that in the present case, the Labour Court has given a finding of fact that Nafisa was guilty of misconduct, but according to the learned Counsel, the said finding of misconduct is ex post facto because the Labour Court has given” its findings with regard to events after 4th September 1984. In a matter of this type, we have to see the entire conduct of both the parties and it is not possible to divide the evidence into pre 4th September 1984 and post September 4, 1984. In any event, as stated hereinabove, the evidence on record clearly indicates that Nafisa was in a position to come back before the appointed date from Holland and yet in her letter dated 17th July 1984, she has expressed her inability to report for work by the due date. In the above circumstances, it is clear that although Nafisa was given extraordinary leave on a specific understanding that she would come back to work by 26th / 27th July 1984 and although it was possible for her to report for work as stated in her cross-examination, she did not report for work and she forwarded a letter at the last minute on 17th July 1984 under a false pretext that she could not rejoin on the appointed date for circumstances beyond her control. Her letter dated 17th July 1984 was, therefore, a clear indication of falsehood to which she had resorted to and in the circumstances, misconduct stood proved even prior to 4th September 1984. In the circumstances, there is no merit in the contention of Shri Cama that the misconduct found by the Labour Court was only with regard to ex post facto i.e. in respect of the events after 4th September 1984. In the above circumstances, the Company was right in challenging the Order of reinstatement granted by the Labour Court. Before concluding, there is one more point which is required to be mentioned. It is now well settled by various judgments of this Court that in certain cases, notwithstanding violation of section 25-F of the Industrial Disputes Act, the Industrial Tribunal may refuse reinstatement and may award only compensation for breach of section 25-F of the said Act on the ground that the action of the Company, though illegal, was justified [See 1961 Factory Law Reports, Page 180; 1995(1) C.L.R. Page 598 and Vishwas Dhumal v. Kopargaon Nagarpalika, decided on 22nd April 1988 in Writ Petition No. 1642 of 1986. In my view, the above principle of law will also apply to the facts of this case. In this case, the Labour Court has found that the employee was guilty of misconduct. In this case, the Labour Court has found that she had come to Court with unclean hands. In this case, however, the Labour Court came to the conclusion erroneously that there was breach of section 25-F of the Industrial Disputes Act. On facts of this case, even assuming that section 25-F of the Industrial Disputes Act was breached, the employee was not entitled to be reinstated. In this country, where millions are unemployed and where deserving persons do not get employment on account of economic forces at work, it would not be fair to reinstate an undeserving employee who has no intention of rejoining at the appointed date and who has not given any admissible reasons for not reporting to work and who sits quiet for almost six months, cannot be given the benefit of reinstatement only on the ground of the alleged breach of section 25-F of the Industrial Disputes Act. The facts of the present case clearly indicate that reinstatement was riot warranted, particularly when the Labour Court has found that Nafisa has come to Court with unclean hands. In the present case, it is ironical that the workman not only seeks reinstatement, but she claims wages which, according to her, comes to Rs. 10 lakhs only on the ground that the Company has breached section 25-F of the Industrial Disputes Act. For the reasons given hereinbove, section 25-F is not attracted. For the reasons given hereinabove, the employee was not entitled to be reinstated and in the circumstances, accordingly, Writ Petition bearing No. 830 of 1994 filed by the Company is allowed and Writ Petition bearing No. 763 of 1994 filed by the workman is rejected.
9. However, in the present matter, at the time of admission of the writ petition, the learned Single Judge (Dhanuka, J., as he then was) refused to stay the Order of reinstatement granted by the Labour Court. Therefore, accordingly, Nafisa came to be reinstated from 18th March 1994 and she has been working in the Company from that date. In her Petition No. 763 of 1994, she has claimed back wages for the above period which, according to her, is about ten lakhs. As held by me, Nafisa was not entitled to even reinstatement, but since she has been reinstated from 18th March 1994 and since she has been working in the Company from that date, this Court does not wish to disturb the status quo. Shri Naik also fairly states that Nafisa, who was reinstated by the Company on 18th March 1994, though under protest, will not be disturbed and she will continue to be in the employment of the Company. Shri Naik further states that she will be fitted in the step in the Pay Scale applicable to Accounts Assistant – Grade II as prevalent on 18th March 1994 till today on the basis of the said fitment. Shri Naik states that if any amount is payable on the above basis, the Company will pay the said amount within two (2) months from the receipt of the above judgment and Order.
10. Subject to the above, Rule is made absolute in Writ Petition No. 830 of 1994 and Rule is discharged in Writ Petition No. 763 of 1994. Accordingly, both the above Writ Petitions are disposed of. However, in view of the above facts and circumstances, there will be no order as to costs.
11. Order accordingly.