Voluntarily Abandoning Service Is Not Retrenchment: Bombay HC
Bombay High Court: A single judge bench consisting of Justice Anil L. Pansare set aside multiple Industrial Court orders that had directed the reinstatement and back wages of several employees. These employees were absent from duty without notice. The court held 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.
Background
Rashtrasant Tukdoji Maharaj Technical and Education Society ran a residential school for differently-abled children. However, the employees (cook, caretaker, librarian, etc) went on a strike in 1993 arguing that there were irregularities in their appointment and pay. The society challenged this before the Industrial court. In 1993, the court held that the strike amounted to unfair labour practice, and directed the employees to desist.
Despite this, the employees never returned to duty. The employer wrote repeated letters through 1993-1994, to no avail. Finally, a warning letter was sent stating that their continued absence would be treated as voluntary abandonment of service.
When the employees still did not return, their names were taken off the muster roll. 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.
Arguments
The employees argued that removing their names from the muster roll amounted to termination of their services. They argued that under Section 2(oo) of the Industrial Disputes Act, 1947, that amounts to ‘retrenchment’. Further, they submitted that the employer did not comply with the mandatory provisions of Sections 25F and 25G of the Act, which apply to all retrenchments. They argued that since no enquiry was conducted by the employer before termination, they were entitled to reinstatement with back wages.
The employer argued that the employees were absent for over none months, even with repeated reminders and letters. This, they argued, amounts to abandonment of service. Relying on Sukhdev Singh v. DDA, LPA 913/2011, they argued that no enquiry was necessary when the facts clearly show that the workers had voluntarily chosen to leave work.
Court’s Reasoning
Firstly, the court noted that the employees had received many letters asking them to resume duty. The court also noted that there is no proof that the employees tried to report to duty. The court explained that the employees were part of a residential school for handicapped children, and their long absence disrupted essential services at the school. Further, the court noted that despite multiple calls, the employees refused to rejoin. This, the court ruled, clearly amounts to abandonment of service.
Secondly, 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.
Thirdly, the court cited Vijay Sathaye v. Indian Airlines (SLP. No. 24220-24221 of 2007). The court held that an employee has the right to abandon his employment, and that in such cases, absence can lead to automatic cessation of service. Thus, the court held, that no enquiry or notice is required in such cases.
Thus, the court allowed the writ petitions and set aside the orders of the Industrial Court. The court confirmed that the removal of names from the muster roll did not amount to termination.
Decided on: 09-05-2025
Neutral Citation: 2025:BHC-NAG:5139
Counsel for the Petitioner: Mr. A.D. Mohgaonkar
Counsel for Respondent No.1: Mr. H.V. Thakur
Counsel for Respondent Nos. 2 to 4: Mr. S.B. Bissa, A.G.P
