JUDGMENT Rakesh Tiwari, J.
1. Heard counsel for the parties and perused the record.
2. The brief facts of the case are that Moolchand and Vyapari Ram were working in the Factory M/s leather Goods Factory, Dayalbagh, Agra as finishers for the last about 30 years and 45 years respectively on piece rate i.e. about 200/- per mensem. They were working on daily wages. There was no certified standing order in Factory.
3. It is alleged that the factory was employing about 40/50 workmen and was reportedly registered under the factories Act. Yet during their entire tenure, the said workmen and other workmen were never supplied with leave form No. 15 as required Under Rule 103 of the U.P. Factories Rules 1950. However, the payment of wages for annual leave with the wages, was adjusted each year in February on the basis of rates not based on actual earnings.
4. It is further stated that even the statutory minimum bonus was not paid to the said workmen according to their yearly earning. The last payment of bonus for the year 1978 being Rs. 121 Rs. 122/- respectively was paid to the said workmen on 30.9.1979 after adjusting outstanding advance against them.
5. It is submitted that from 14 October 1978 the said workmen were refused to be given any work at all despite their daily visiting the factory till 26.10.1978. After 14.10.1978 till Dec 26 1978 when the said workmen had to launch a formal case before the R.C.O. Agra through the union of which the said workmen along with other workmen had been members for a number of years. However, after the said workmen were illegally refused employment against which the6 initiated the said C.B. proceedings.
6. It is further alleged that the said workmen were not given any retrenchment notice on 14.10.1978 nor they were paid any wages. Similarly no compensation for the service period of the said workmen was paid to them or either on the day of refusal of employment or thereafter thus causing breach of Section 25F of I.D. Act 1947 or its counter part in U.P. The conciliation proceedings having failed the matter was referred to the Labour Court, Agra where it was registered as adjudication case no. 211 of 1979. The case of the employer before the Labour Court was that the names of the employees having been scored off from the Muster Roll on account of their absence from the Industrial Establishment w.e.f. 13.10.1978 to 31.12.1978 it amounts to automatic abandonment of employment by the employee concerned and therefore the reference is bad in law. There is neither termination of service of employment by the employer nor did it ending relationship of master and servant.
7. The Labour Court after considering the evidence and pleadings of parties held that the workman had no intention of returning to work in the factory therefore they sought employment elsewhere and worked in Wazeer Footwear Factory and that since the original dispute was for retrenchment compensation only the demand for reinstatement was invalid. The Labour Court held that in the original demand the workmen had neither alleged termination of service nor claimed reinstatement or back wages. It has been held in the case of Kamalauddin v. New Victoria Mills (1952 LAC-139) that employment in another company while on leave or absence in itself a proof of abandonment. The Labour Court took the view that the workmen are not entitled to claim of reinstatement. The plea of victimization by the employers could not be established. Since the workmen had themselves abandoned their job it was not necessary for employers to or start disciplinary action against them.
8. Sri K.P. Agarwal learned senior counsel has placed reliance on prayer of the workmen, which is as under:
"It is humbly prayed that in view of the illegality of the refusal of employment in the above circumstances the relief of reinstatement should be given to the workmen along with back wages for the said period of forced workless ness till the decision of the Honourable Court."
9. It is further submitted that the worker had in fact made a prayer of reinstatement hence the findings of the Labour Court are perverse. However, in the present case after his long services Moolchand has died and his heirs are entitled to retrenchment compensation. The Labor Court directed that voluntary abandonment would not debar them from their right to receive retrenchment compensation, which must be paid to them by the employers forthwith.
10. It appears from the record that the Labour Court from the statement of Vyapari Ram and Moolchand (annexure 6&7) to the writ petition came to the conclusion that the workman had claimed only retrenchment compensation in his written statement. Perusal of the cross examination of Sri Vyapari Ram it appears that he had worked in M/s Wazeer Footwear Factory for about 1-1/2 years. He admitted in his evidence that no proof whatsoever is available that he has worked in M/s Leather Goods Factory. In his evidence he also admitted that there was no sufficient work for him in M/s Leather Goods Factory and as such he did not go for work. The evidence of Vyapari Ram and Moolchand clearly indicates that there was no sufficient work in the respondents factory and they were not satisfied with total earnings of piece rate as such they had join other factory. In these circumstances even if they had made a prayer for reinstatement, it was only formal prayer. The Labour Court has given categorical findings that they are only entitled to retrenchment compensation. If an employer leaves the employment and joints another factory it would certainly weigh in ordering reinstatement. Therefore the Labour Court has rightly allowed compensation. Taking the facts of this case into circumstances the view taken by the Labour Court cannot be said to be perverse or arbitrary. This writ is not set as appellate Court and cannot interfere under Article 226 of the Constitution of India.
11. For these reasons, the petition is dismissed. No order as to costs.