Bombay High Court: Prolonged Unauthorised Absence Implies Voluntary Retirement — “Striking Off Name from Muster Roll Not Termination, Such Absence Has an Element of Voluntary Resignation” — Sets Aside Labour and Industrial Court Orders Directing Reinstatement

Court’s Decision

The Bombay High Court allowed the writ petitions filed by the employer institution, setting aside the judgments of the Labour Court and the Industrial Court. The Court held that the striking off of employees’ names from the muster roll due to their prolonged unauthorised absence did not amount to termination or retrenchment. Instead, the conduct of the employees demonstrated voluntary abandonment of service, which amounted to voluntary retirement.

“Such absence amounts to abandonment of services and has an element of voluntary resignation,” the Court observed, adding that the removal from the muster roll “was a consequence invited by the employees.”

Facts

The dispute arose between an educational society and several employees who were appointed between 1991 and 1993 in various roles such as assistant cook, clerk, accountant, librarian, and caretaker. In August 1993, the employees issued a strike notice, claiming that they were underpaid and had paid bribes to obtain employment. Despite an interim order by the Industrial Court on 12/11/1993 declaring the strike illegal and directing them to desist, the employees failed to resume duties.

The employer issued multiple letters (September 1993 to June 1994) calling upon the employees to report to duty, eventually warning them that continued absence would be presumed as voluntary abandonment of service. Upon non-response, their names were removed from the muster roll.

The Labour Court ruled in favour of the employees, holding that this amounted to illegal termination for non-compliance with Sections 25F and 25G of the Industrial Disputes Act, 1947, and directed reinstatement with 50% back wages. This was upheld in revision by the Industrial Court.

Issues

1. Whether the act of removing the employees’ names from the muster roll amounted to termination or retrenchment under the Industrial Disputes Act?
2. Whether the employer was required to conduct a domestic enquiry before removing the employees?
3. Whether prolonged unauthorised absence constituted voluntary abandonment of service?

Petitioner’s Arguments

• The employees went on an illegal strike despite an adverse order from the Industrial Court.
• Repeated efforts were made to request them to resume duty.
• The prolonged absence for nearly nine months indicated abandonment of service.
• Since it was a case of voluntary abandonment, there was no need for a domestic enquiry.
• The Labour Court failed to appreciate the presumption of service of notices sent via UPC and RPAD.

Respondent’s Arguments

• Removal from the muster roll constituted termination within the meaning of Section 2(oo) of the Industrial Disputes Act.
• The termination was effected without compliance with Section 25F and 25G.
• Cited twelve judgments supporting the proposition that deletion from muster roll amounts to retrenchment.
• Claimed they attempted to resume work but were denied.

Analysis of the Law

The Court extensively analysed the distinction between termination and voluntary abandonment. It clarified:

• Under Section 2(oo) of the Industrial Disputes Act, retrenchment excludes voluntary retirement.
• Voluntary retirement can be gathered not only through written resignation but also by conduct.
• Repeated unauthorised absence after fair notice, especially in the face of binding industrial orders, constituted such conduct.
• Relying on Vijay Sathaye v. Indian Airlines Ltd. and Punjab & Sind Bank v. Sakattar Singh, the Court affirmed that abandonment can be inferred from prolonged absence and failure to respond to employer communications.

Precedent Analysis

The Court relied on:

• Punjab & Sind Bank v. Sakattar Singh: Absence for 190 days despite reminders led to valid inference of abandonment.
• Vijay Sathaye v. Indian Airlines Ltd.: Long absence without explanation amounts to voluntary retirement.
• Sukhdev Singh v. DDA: Domestic enquiry not required when action is fair and unauthorised absence is prolonged.
• Banaras Hindu University v. Shrikant: Enquiry not necessary when long absence amounts to resignation.
• The Court distinguished the facts of the twelve judgments cited by the employees, including Delhi Cloth Mills v. Shambhu Nath, on the basis that those involved positive acts of termination unlike the present case.

Court’s Reasoning

• The employees disobeyed a lawful order of the Industrial Court and remained absent for 9 months.
• Repeated letters by the employer were proven to be served.
• Employees failed to provide credible evidence of their efforts to resume duty.
• There was no positive act of termination by the employer; the conduct of the employees invited removal from muster roll.
• The Labour and Industrial Courts failed to assess the evidence of misconduct and misapplied the legal principles.

Conclusion

The Court quashed the impugned judgments of the Labour and Industrial Courts and dismissed the employees’ complaints. It found the employer’s action justified and not in violation of the Industrial Disputes Act.

Implications

This judgment reinforces the legal position that long and unexplained unauthorised absence, even after due notices, can amount to voluntary abandonment of service. It also establishes that in such cases, striking off names from muster roll is not termination, and domestic enquiries are not obligatory when the facts clearly demonstrate abandonment.

The decision provides clarity to employers in educational and welfare sectors where staff absence critically affects operations, especially in institutions for physically challenged students.

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