D.S.Sinha - (1.) HEARD Sri Devendra Pratap Singh, holding brief of Shri L P. Naithani, learned Senior Advocate appearing for the petitioner, Sri Sudhir Agarwal, learned counsel representing the contesting respondent no. 3, and Sri Shakti Dhar Dubey, learned Standing Counsel appearing for the respondents no. 1 and 2.
(2.) THE award of the labour court, Gorakhpur dated 31st May, 1982, rendered in Adjudication Case No. 74 of 1977 relating to dispute between M/s Kumaon Motor Owners' Union Limited, Kathgodam, Nainital, the employer-petitioner and Shri Jai Dutt Chandola, the workman-respondent no. 3, referred under Section 10 (1) (c) of the Industrial Disputes Act, 1947, holding the order dated 26th November, 1975 terminating the services of the workman to be illegal and unjustified, is under challenge in this petition under Article 226 of the Constitution of India. The relevant part of the order of termination dated 26th November, 1975 reads thus : "From the above it appears that you are not interested in joining the duty in the Company and since you have not done any work in the Company from 19-10-70 upto this date, your services are, therefore, terminated with effect from 19-10-1970 and you are not entitled for any salary as you have not done any work from 19-10-1970 and your salary has already been paid upto 18-11-1970, which please note." From the relevant part of the order of termination extracted above, it is clear that the services of the workman were terminated on 26th November, 1975 with effect from 19th October, 1970. Obviously, the order of termination of the services of the workman purports to operate retrospectively, which is not permissible in law. The order of termination of services of a workman operates prospectively from the date on which it is passed. The labour court has very rightly held the order of termination of the services of the workman to be illegal and unjustified on the ground that the services of the workman could not be terminated from back date. Learned counsel for the petitioner has not been able to demonstrate that the view taken by the labour court is erroneous in any manner.
(3.) A perusal of the impugned award indicates that the order of termination of the services of the workman was sought to be justified on the ground that there was abandonment on the part of the workman. The question of abandonment, which is fundamentally a question of fact, has got to be decided on the basis of the intention of a workman to be culled out from the surrounding facts and circumstances of the case, pleaded and proved. The labour court, after considering the material produced before it, has recorded a finding of fact that the workman never intended to abandon the service of the employer, and there was no abandonment. Indeed, the employer treated the workman to be continuing in service till 26th November, 1975, the date on which it passed the order terminating services of the workman Passing of the order of termination of services necessarily implied the continuance of the employment of the workman with the employer and the plea of abandonment is incompatible therewith.;