M/S. SUTTATTI ENTERPRISES LTD.versusMRS. MANDABAI DATTATRAYA GARAD

2026:BHC-AS:38005
             k                              1/14                      WP 5508 of 2021




                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                CIVIL APPELLATE JURISDICTION

                                 WRIT PETITION NO.5508 OF 2021

             M/s. Suttatti Enterprises Limited                          ....Petitioner
                   V/S
             Mandabai Dattatraya Garad                                  ....Respondent
                                              _________

             Mr. Nitin A. Kulkarni for the Petitioner.
             Mr. A.S. Peerzada i/b Mr. Iqbal Shaikh for the Respondent.
                                             __________


                                       CORAM : SANDEEP V. MARNE, J.
                                       RESERVED ON : 3 SEPTEMBER 2026.
                                       PRONOUNCED ON : 17 SEPTEMBER 2026.

             J U D G M E N T:


             1.       The Petitioner-Employer has filed this Petition challenging the
             Award dated 30 January 2020 passed by the learned Presiding Officer,
             Labour Court No. 4, Pune answering Reference (IDA) No.92 of 2011 in
             the affirmative and directing reinstatement of the Respondent alongwith
             continuity and full back wages from 5 September 2010.


             2.       Petitioner operates a factory at Hadapsar, Pune. Respondent was
             engaged as a Peon by the Petitioner. According to Respondent, her initial
             engagement was with effect from 24 April 1998, whereas, according to
             Petitioner, her initial engagement was from 1 July 2007. According to the
             Respondent, on 5 September 2010, Mr. Vijay Suttatti of Petitioner


             katkam                                Page No. 1 of 14
k                                2/14                      WP 5508 of 2021




directed her not to report for work and that someone else was appointed
in her place. According to her, she approached the factory on 6
September 2010, when the security guard informed her that she was
terminated, and therefore she need not come for work. Respondent
submitted letter dated 20 September 2010 demanding reinstatement.
She approached Labour Commissioner on 27 December 2010. After the
conciliation failed, Reference was made to Labour Court, Pune which was
registered as Reference (IDA) No.92 of 2011. Respondent filed her
Statement of Claim, which was resisted by the Petitioner by filing a
Written Statement. In its Written Statement, Petitioner contended that
the Respondent was never terminated from service and that she
remained unauthorizedly absent from 5 September 2010 and abandoned
the services. Based on the pleadings, Labour Court framed issues.
Respondent examined herself. On behalf of the Petitioner, two witnesses,
Mr. Mukund Laxman Lonkar and Mr. Vijay Suttatti were examined. After
considering the pleadings and evidence on record, the Labour Court
proceeded to answer the Reference in the affirmative by Award dated 30
January 2020. The Labour Court has directed reinstatement of the
Respondent with full backwages and continuity with effect from 5
September 2010. Aggrieved by the Award dated 30 January 2020,
Petitioner has filed the present Petition.


3.       Mr. Kulkarni, the learned counsel appearing for Petitioner, submits
that the Labour Court has grossly erred in answering the Reference in
affirmative. That Respondent was never terminated from service. That
there is no evidence of any such termination. That Respondent remained

katkam                                  Page No. 2 of 14
k                               3/14                      WP 5508 of 2021




absent from service and had abandoned her job. She has no interest in
joining the services. That despite repeatedly giving opportunities to
rejoin the services, Respondent refused to do so. He takes me through
cross-examination of the Respondent in support of his contention that
she had no interest in joining the services. That there is express
admission on failure to make any correspondence after alleged
termination. That Petitioner had deputed HR Manager for contacting the
Respondent and for requesting her to rejoin the duties. That Petitioner
has made all efforts for reinstatement of the Respondent. He relies on
judgments of Delhi High Court in Diamond Toys Co. (P) Ltd. vs. Toofani
Ram and Ors.1, Chunmun Stores (P) Ltd. vs. Gaurav Chauhan 2 and of
this Court in Sonal Garments vs. Trimbak Shankar Karve3 in support of
his contention that once the employee refuses to join despite offer of
reinstatement, Labour Court cannot award backwages.


4.       Mr. Kulkarni further submits that the Labour Court has misread
the evidence of Petitioner’s witness Mr. Mukund Lonkar. He never gave
admission about security guard refusing to let the Respondent from
entering the factory premises. Mr. Kulkarni further submits that the
Reference was dismissed for default on 6 May 2016 and was restored on 8
February 2018. However, Labour Court has still awarded backwages to
the Respondent. On the above broad submissions, Mr. Kulkarni prays for
setting aside the impugned Award.




1    MANU/DE/7157/2007
2    2021 SCC OnLine Del 4510
3    2003 (1) L.L.N. 91
katkam                                 Page No. 3 of 14
k                                         4/14                      WP 5508 of 2021




5.       Mr. Peerzada, the learned counsel appearing for the Respondent,
opposes the Petition, submitting that the Labour Court has rightly
directed reinstatement with full backwages in the facts of the present
case. That the Petitioner could not prove the defence of abandonment.
That Petitioner never issued any letter to the Respondent alleging
unauthorized absence or for calling her for duties. That Petitioner only
created a false offer of reinstatement in affidavit of evidence. He takes
me through admissions given by Petitioner’s witness about security
guard directing Respondent not to report for duties. That the theory of
deputation of HR Manager to call back Respondent for duties is
impossible to believe. That there was no offer for reinstatement in the
Written Statement. That the Petition is filed after delay of 16 months.
That the Respondent led evidence of absence of gainful employment.
That therefore award of reinstatement with full backwages does not
warrant any interference by this Court. In support of his contentions Mr.
Peerzada relies on judgments in D.K. Yadav vs. J.M.A. Industries
Limited4, Gaurishankar Vishwakarma vs. Eagle Spring Industries Pvt.
Ltd.5, Noble Paints Private Limited vs. Ashok Tukaram Shinde 6 and
Bhushan Industries vs. Lohasingh Ramavadh Yadav7. He accordingly
prays for dismissal of the Petition.


6.       Rival contentions urged on behalf of the parties now fall for my
consideration.



4    (1993) 3 SCC 259
5    1994 (3) LLJ 689
6    2004 (2) CLR 318
7    Writ Petition No.1025 of 2024 decided on 20 March 2024
katkam                                           Page No. 4 of 14
k                              5/14                      WP 5508 of 2021




7.       Respondent came up with a case before the Labour Court that she
was terminated with effect from 5 September 2010 when Mr. Vijay
Suttatti told her not to come for duties. She further pleaded that on 6
September 2010, the security guard refused to let her inside the factory
premises. On the other hand, the Petitioner filed Written Statement
disputing the claim of termination and pleaded that she remained
absent from duty from 5 September 2010 and abandoned the job.


8.       Thus, the main issue before the Labour Court was whether
Respondent was terminated from service or whether she voluntarily
abandoned the job. In her Statement of Claim itself, Respondent pleaded
that she had sent letter dated 20 October 2010 to the Petitioner
demanding reinstatement. Petitioner admitted receipt of letter dated 20
October 2010 in paragraph 10 of the Written Statement. Letter dated 20
October 2010 clearly indicates two factors. It firstly indicates that the
Respondent was firm on her stand right since 20 October 2010 that she
was terminated. The termination is said to have occurred on 5
September 2010 and within a month, Respondent wrote a letter to the
Petitioner complaining of termination. On the other hand, Petitioner did
not respond to the letter dated 20 October 2010. This conduct on the
part of the Petitioner belies its theory that Respondent had voluntarily
abandoned the services. If there was abandonment, Petitioner would
have responded to the letter dated 20 October 2010 and disputed the
theory of termination. Petitioner, however, maintained silence and did
not dispute the allegation of termination levelled in the letter dated 20
October 2010. Thus, from the letter dated 20 October 2010, the theory of

katkam                                Page No. 5 of 14
k                                         6/14                            WP 5508 of 2021




Respondent about termination appears to be more believable than the
defence of the Petitioner of voluntary abandonment of job.


9.       If any doubt remained about termination of the Respondent, the
same got resolved on account of evidence of Petitioner’s witness Mr.
Mukund Lonkar who gave following admissions in his cross-
examination:

         दिनांक ०५/०९/२०१० रोजी श्री. विजय सुताटी यांनी द्वितीय पक्षकार यांना 'कामावर येवु नका', असे
         सांगितले होते, याबद्दल मला काहीही माहित नाही. तसेच, दिनांक ०६/०९/२०१० रोजी द्वितीय
         पक्षकार ह्या कामावर आल्या होत्या परंतु गेटवरील वॉचमनने त्यांना आत येण्यास मनाई केली, याबद्दल
         मला वैयक्तिक माहिती आहे. दिनांक ०६/०९/२०१० रोजी द्वितीय पक्षकार जेंव्हा कामावर आल्या
         होत्या तेव्हा मी गेटवरच होतो, हे म्हणणे बरोबर ठरेल.

10.      Thus, the Petitioner’s own witness Mr. Mukund Lonkar deposed
that though he did not have personal knowledge about Mr. Vijay Suttatti
informing the Respondent on 5 September 2010 not to report for work,
he admitted that on 6 September 2010, Respondent had reported for
work, but the Watchman did not allow her to enter the gate. The witness
has personal knowledge about the incident of 6 September 2010. He
further admitted that on 6 September 2010, when the incident occurred,
he was at the gate. Thus, there is emphatic admission by Petitioner’s
witness about Respondent reporting for duties on 6 September 2010 and
security guard not letting her inside the factory premises. This
deposition destroys the defence of voluntary abandonment of job. If
Respondent had abandoned the job, she would not have reported for
duties on 6 September 2010. The witness gave further admissions as
under:
         हे म्हणणे खरे नाही की, श्री. विजय सुताटी यांनी दिनांक ०५/०९/२०१० रोजी द्वितीय पक्षकार यांना
         असे सांगितले की, तुम्ही कामावर येवु नका, त्यानंतर दिनांक ०६/०९/२०१० रोजी जेंव्हा द्वितीय
katkam                                           Page No. 6 of 14
k                                        7/14                          WP 5508 of 2021




         पक्षकार कामावर येण्यासाठी गेटवर आल्या असता त्यांना गेटवरील वॉचमनने आत येण्यास मनाई केली,
         त्यामुळे द्वितीय पक्षकार हे दिनांक ०६/०९/२०१० पासून कामावर येत नाहीत.

11.      According to Mr. Kulkarni, the above deposition of the witness Mr.
Mukund Lonkar is misread by the Labour Court. He submits that there is
denial in respect of incidents of 5 September 2010 as well as 6 September
2010 in the above quoted deposition of the witness. No doubt, he denied
suggestion of the Respondent in respect of incident dated 5 September
2010. However, in respect of incident of 6 September 2010, he did not say
"हे म्हणणे खरे नाही की". When this deposition is read in conjunction with the
earlier quoted deposition, it would leave no manner of doubt that the
witness admitted the incident of 6 September 2010 when the
Respondent had approached the factory premises and was prevented
from entering the same by the security guard.


12.      Thus, evidence of the witness Mr. Mukund Lonkar completely
destroys the theory of voluntary abandonment of service sought to be
raised by the Petitioner. Thus, the Labour Court has rightly held that the
Respondent was terminated from service. The appreciation of evidence
by the Labour Court and findings recorded by it about nature of cessation
of services of the Respondent cannot be termed as perverse by any
stretch of imagination. On the other hand, I am fully convinced that the
only conclusion one can ever draw on the basis of conduct of the
Petitioner after receipt of letter dated 20 October 2010 as well as from
the deposition of the witness Mr. Mukund Lonkar is that the theory of
voluntary retirement is totally false and what was effected was
termination of services of the Respondent.

katkam                                          Page No. 7 of 14
k                                     8/14                       WP 5508 of 2021




13.      Mr. Peerzada has rightly relied on judgment of the Apex Court in
D.K. Yadav (supra) in which in similar circumstances, when the
employee was prevented from reporting for duty, the Apex Court set
aside termination with 50% backwages. In Gaurishankar Vishwakarma
(supra), this Court has held that the burden of proving abandonment is
on the Management. In the present case, the Management has
thoroughly failed to prove abandonment of services by the Respondent
and on the contrary, its witness has given specific admission of
Respondent being prevented from entering the factory premises by the
security guard on 6 September 2010. Reliance by Mr. Peerzada on
judgment of this Court in Noble Paints Private Limited (supra) is also
apposite wherein similar circumstances were involved and this Court
held in paragraphs 9 and 10 of the judgment as under:
         9. Insofar as the question of abandonment is concerned, in view of the well
         settled position in law, abandonment or relinquishment of service, is a
         question of intention. Whether there has been a voluntary abandonment of
         service is a question of fact which has to be determined in the light of the
         surrounding circumstances of each case. In G.T. Lad v. Chemicals & Fibres of
         India, (1979) Vol. 1 L.L.J. Page 258 a Bench of three learned Judges of the
         Supreme Court, while laying down these principles, also held that normally
         such an intention cannot be attributed to an employee without adequate
         evidence in that behalf. Insofar as this Court is concerned, in Gaurishankar
         Vishwakarma v. Eagle Spring Industries Private Limited, (1988) 1 C.L.R. Page 38,
         a Division Bench held that it is well settled that even in a case of abandonment
         of service, the employer has to give a notice to the workman calling upon him
         to resume his duty and must hold an enquiry before terminating his service on
         that ground. In Abdul Rashid v. Indian Sailors Home Society, (1988) 1 L.L.N.
         Page 120, the Division Bench, in a case where the employer had raised the
         defence of abandonment of service, noted that if it was a case of voluntary
         abandonment, the employer would have communicated with the workman and
         asked him to report for duty. That was not done.

         10. In the present case, the contention of the respondent, which has been
         accepted by the Labour Court, is that on 1st July 1997 when he reported for
         work, he was prevented from entering the premises by the Security Guard. The
         respondent has expressly stated so in the course of his cross-examination. On
katkam                                       Page No. 8 of 14
k                                     9/14                        WP 5508 of 2021




         17th July 1997, a letter of demand was addressed to the employer on behalf of
         the workman. The absence of an immediate response from the employer is
         significant, because if this was a case of abandonment, the employer, in the
         normal course, would have immediately responded to the letter of the
         workman. It was only belatedly on 5th September 1997 that the employer
         contended that the respondent had unauthorizedly remained absent and had
         abandoned the contract of employment as a result of which the employment
         stood terminated. If there was unauthorized absence on the part of the
         respondent, it was the obligation of the employer to hold a disciplinary
         enquiry if he chose to proceed against the employee. No disciplinary enquiry
         was held. Thereafter, before the Conciliation officer, the employer chose to
         remain absent. The Labour Court has, in these circumstances, quite correctly
         come to the conclusion that there was no abandonment of service, the
         employee had at all material times remained ready and willing to join the
         duties which he was prevented from rendering.

14.      The judgment in Noble Paints Private Limited (supra) is followed
by me in Bhushan Industries (supra), in which it is held in paragraph 15
as under:

         15) The Petitioner has taken a plea of abandonment of employment by
         Respondent. It has been repeatedly held by this Court that abandonment of
         service is a question of fact that needs to be established by conduct of enquiry.
         In this regard reliance by Ms. Cox on judgment of this Court in Noble Paints
         Private Limited, Gangaram K. Medekar and Gaurishankar Vishvkarma (supra)
         is apposite. If indeed Petitioner believed that Respondent had abandoned the
         service, atleast a show cause notice ought to have been issued to him. It is only
         after Respondent raised the issue of termination that Petitioner levelled
         allegations against him. Since correspondence was going on between the
         parties, Petitioner could have conducted domestic enquiry by accusing
         Respondent of absconding from duties. This is not a case where the
         whereabouts of Respondent was unknown to Petitioner. Therefore, conduct of
         domestic enquiry was possible in the facts and circumstance of the present
         case. I am therefore of the view that the plea of abandonment of employment
         cannot be accepted in the facts and circumstances of the present case.

15.      There is no dispute to the position that no procedure was followed
at the time of termination of services of the Respondent. She claims to
be in service from 24 April 1998 whereas Petitioner claims that she was
appointed only on 1 July 2007. Even if Petitioner’s version is accepted,

katkam                                       Page No. 9 of 14
k                                10/14                       WP 5508 of 2021




Respondent had rendered about three years of service. Since she had
completed 240 days of service in the preceding year, provisions of
Section 25F of the Industrial Disputes Act, 1947 (ID Act) ought to have
been followed by issuing notice / paying notice pay and by paying
retrenchment compensation to the Respondent. Since provisions of
Section 25F of the ID Act are violated with impunity while terminating
the services of the Respondent, the termination is clearly rendered
illegal.


16.      I am therefore in full agreement with the conclusion arrived at by
the Labour Court that the termination is bad in law.


17.      Coming to the nature of relief to be granted to the Respondent
after termination is found to be illegal, Mr. Kulkarni has raised two
contentions for opposing relief of reinstatement and backwages. He has
submitted that the Respondent was given offer for reinstatement, which
she failed to avail. He has invited the attention of the Court to the
evidence of Petitioner's witnesses Mr. Mukund Lonkar and Mr. Vijay
Suttatti in support of his contention that Petitioner had deputed a
person at the residence of the Respondent for calling her back for work,
but she did not show any interest on the pretext that her husband was
unwell. However, the evidence of Mr. Vijay Suttatti is filed on 7 August
2019. As against this, the Written Statement was filed on 6 October 2012,
which did not contain any averment about offer for reinstatement. In
paragraph 10 of the Written Statement, it was vaguely pleaded that a
message was sent to another peon about absence of the Respondent and

katkam                                   Page No. 10 of 14
k                                11/14                          WP 5508 of 2021




asking her to report for duty. However, there is variance in the story put
forth by the Petitioner. While conducting the cross-examination, a
suggestion was given that Mr. Mukund Lonkar, HR Officer, was deputed
to visit Respondent in connection with reinstatement, whereas
paragraph 10 of the Written Statement contains averment about sending
of message through another peon. Mr. Vijay Suttatti was also not very
clear as to which of the persons, Mr. Santosh Sakhare or Mr. Mukund
Lonkar,     had   approached    the      Respondent          with   the   offer   for
reinstatement. It therefore becomes difficult to believe Petitioner's story
that Respondent did not show any interest in reinstatement despite
being called back for duties. Therefore, it is not necessary to discuss the
ratio of judgments relied upon by Mr. Kulkarni in Diamond Toys,
Chunmun Stores and Sonal Garments (supra).


18.      The second point sought to be urged by Mr. Kulkarni is with regard
to the aspect of backwages. He has submitted that the Reference was
dismissed for non-prosecution on 6 May 2016 and was restored on 8
February 2018, and that in such circumstances, the Labour Court could
not have rewarded Respondent with backwages in respect of the period
when she was negligent in prosecuting the Reference. In my view, this
factor can be kept in mind while deciding the nature of relief to be
granted in favour of the Respondent. However, it also needs to be borne
in mind that Petitioner is also slightly late in filing the present Petition.
The Award was made on 30 January 2020, whereas the present Petition is
filed on 29 July 2021. In the meantime, Respondent was required to file
proceedings for execution of the Award. She filed Complaint (ULP)

katkam                                   Page No. 11 of 14
k                                         12/14                           WP 5508 of 2021




No.175 of 2020 for implementation of the Award dated 30 January 2020.
Petitioner failed to appear in the Complaint and the same was allowed ex
parte on 10 March 2021, directing the Petitioner to implement the Award
dated 30 January 2020 within one month. Thus, Petitioner also needs to
share the blame in not timely raising the challenge to the impugned
Award. Though the reason of COVID-19 pandemic cannot altogether be
discarded, at the same time, delay on the part of Petitioner also needs to
be borne in mind while considering Petitioner's allegation about
Respondent being negligent in prosecuting the Reference.


19.       Mr. Kulkarni has also relied on judgment of Division Bench of this
Court       in    Prabhakar        Mahadu          Salve        vs. Divisional     Controller,
Maharashtra State Road Transport Corporation, Buldana 8 in support
of his contention that the negligent manner in which Respondent
prosecuted the Reference needs to be borne in mind. In case before the
Division Bench in Prabhakar Mahadu Salve (supra), there was a delay of
three years in filing Writ Petition challenging the order of Industrial
Court and this aspect is kept in mind while considering the nature of
relief to be granted in favour of the Appellant therein. In the present
case as well, this Court is keeping in mind the fact that the Reference
remained under dismissal from 6 May 2016 to 8 February 2018.


20.       Coming back to the issue of nature of relief, it appears that date of
birth of Respondent is 28 May 1965. This would mean that she has
crossed the age of retirement of 58 years on 28 May 2023. Therefore,

8     Letters Patent Appeal No.25 of 2013 decided on 17 November 2021 (Nagpur Bench)
katkam                                            Page No. 12 of 14
k                                13/14                       WP 5508 of 2021




there is no question of her reinstatement at this point of time.
Therefore, the only issue for consideration is whether the order for
backwages from the date of termination, i.e., 5 September 2010 till 28
May 2023 can sustain or not. In my view, since Respondent failed to
prove rendering of services from 24 April 1998 and possibly was
appointed on 1 July 2007 coupled with the fact that the Reference
remained dismissed from 6 May 2016 till its restoration on 8 February
2018, it would be appropriate to award lump sum compensation to the
Respondent in lieu of reinstatement and backwages. Respondent was
drawing salary of Rs.4,750/- at the time of her termination as admitted
by her in her cross-examination. If she was continued in service, her
monthly wages would have increased with inflation and experirnce.
Considering this position, ends of justice would meet if Respondent is
awarded lump sum compensation of Rs.6,00,000/-.


21.      I accordingly proceed to pass the following order:


         i)    Award dated 30 January 2020 passed by Labour Court in
         Reference (IDA) No.92 of 2011 is modified by directing that
         Petitioner shall pay to the Respondent lumpsum compensation of
         Rs.6,00,000/- in lieu of reinstatement, continuity and backwages
         towards full and final settlement;


         ii)   Beyond the lumpsum compensation of Rs.6,00,000/-
         Respondent shall not be entitled to any other service-related
         benefits;

katkam                                   Page No. 13 of 14
                         k                                14/14                             WP 5508 of 2021




                                  iii)   The awarded compensation shall be paid by Petitioner to
                                  Respondent within a period of six weeks, failing which interest at
                                  the rate of 8% per annum shall be payable on the awarded sum of
                                  compensation from the date of expiry of period of six weeks.


                         22.      With the above directions, Writ Petition is partly allowed and
                         disposed of. There shall be no order as to costs.




                                                                                      (SANDEEP V. MARNE, J.)




                          katkam
Signed by: Sudarshan R. Katkam                                    Page No. 14 of 14
Designation: PS To Honourable Judge
Date: 17/09/2026 18:40:26