1 IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE BEFORE: THE HON’BLE JUSTICE SHAMPA DUTT (PAUL) WPA 898 of 2026 M/s. Kelvin Jute Limited Vs. Ashma Khatun & Ors. For the Petitioner : Mr. Soumya Majumder, Sr. Adv. Mr. Bikash Shaw, Adv. Mr. Sk. Saad Islam, Adv. For the Respondent : Mr. Lakshman Ch. Hadler, Adv. Nos. 1, 2 and 3 Judgment reserved on : 24.08.2026 Judgment delivered on : 28.09.2026 SHAMPA DUTT (PAUL), J.:- 1. The present writ application has been preferred challenging an award dated 28th November, 2022 passed by the learned 1st Industrial Tribunal in Case No. VIII-36/2013. 2. Vide the impugned order the tribunal directed as follows:- “That the instant case being No. VIII-36/2013 be and the same is allowed on contest with cost of Rs. 10,000/-(Rupees ten thousand) only. The petitioners, substituted heirs of the workman are entitled to full back wages along with other consequential benefits from the date of termination i.e. on and from 03.07.2007 to the date of the death of the workman i.e. 26.11.2020 and the present petitioners i.e. 1,00,000/- (Rupees 2 one lakh) only for facing mental agony, unnecessary harassment and facing acute financial crisis.” 3. It is the case of the petitioner that the respondent/workman stopped reporting for work since August, 2006 and as such there was no case of refusal of employment with effect from July, 2007 as noted in the reference. 4. It is the case of the respondent/workman (now his legal heirs) that he was under treatment from March, 2007 to July 2007 and he produced a fit certificate before the petitioner/company at the time of joining. 5. It is the case of the respondent/workman that the management was ready to permit the workman to join his service, on half pay, which the workman refused. There is no evidence produced before the tribunal that the respondent/workman was asked to join on “half pay”. 6. On hearing Mr. Majumder, learned senior counsel appearing for the petitioner, it appears that admittedly the respondent/workman was issued a salary certificate relating to the wages paid. 7. As such the respondent being aware of such mode of payment made to him by way of a salary statement, was free to join his service, and then the respondent/workman would have been in a position to prove that he was granted only “half pay” in case he had joined his service. 8. The fact that the respondent/workman being aware that he was paid wages as per the salary statement, did not join his service from July, 2007, on producing only a fitness certificate from an empanelled ESI doctor, goes to prima facie show that the respondent/workman’s 3 statement that he was asked to join only on “half pay” is prima facie not acceptable as the case of half pay could have been easily established and proved on the basis of the salary statement of wages. 9. Admittedly, it is the respondent/workman’s statement that he was refused employment from July, 2007, but he has not placed anything before the tribunal to show or prove as to why he raised a dispute only in the year 2011 i.e., after almost 5 years. 10. One of the contentions of the respondent/workman in support of his argument on “half day” pay wages is that the management had stated that he would be paid on voucher payment system. Even that would have helped him prove his case. 11. The petitioner’s case is that the respondent/workman was a casual badli worker and was also sent a letter as well as a notice dated 14.08.2007 by registered post AD to report for duty but in spite of receiving the same the workman remaining absent. 12. This Court is of the view that in case he was paid by voucher payment system, the same would have supported his statement and admittedly the workman did not join and waited for five years to raise an industrial dispute. 13. Parties have exchanged affidavits in the present case. In its affidavit in opposition the respondent no.1, 2 and 3 have stated that the respondent/ deceased father was a permanent employee working since 26.12.1980 having E.B. No.7021 as Weaver in Weaving Section of the 4 writ petitioner jute mill, who was under medical treatment of E.S.I panel Doctor from 31.03.2007 and after recovery he went to join his duties on 03.07.2007 with fit certificate issued by the ESI panel Doctor and management allowed to join with half pay on voucher which their father protested. 14. The management sent a letter alleging unauthorized absence from August, 2006 and their father immediately met the Manager, who advised their father that there is no necessity to reply and directed him to work with half pay on voucher. Their father did not agree and protested such action as their father was a permanent worker getting regular salary on signing register. Though my father joined on 26.12.1980, the management enrolled my father on and from 26.12.1986 as a member of Provident Fund Organisation. 15. The respondent being legal heirs of the deceased employee have stated that the management of the petitioner did not comply with the provisions of the Standing Order and CW2 admitted during cross examination on 17.12.2018 that …….. “in the standing order of Mill (Exbt.B) there is mention about post of Casual Badli” ….. “Md. Azam falls within the category of Casual Badli of the Mill”. 16. The respondents have denied that their father prior to 1986 was a casual badly. It is stated that the deceased workman is a permanent workman and as such the respondents on behalf of the legal heirs demand 5 payment of monetary benefits in terms of the award and also the gratuity amount. 17. Written notes have been filed by the parties and the parties have argued at length. The petitioner company submits that the award passed by the tribunal wrongly held that the termination of service of the workman, Md. Azam by way of refusal of employment with effect from July 2007 was illegal and unjustified, and awarded full back wages from the date of termination till the date of death of the workman (26.11.2020), together with a compensation of Rs.1,00,000/-. 18. It is the contention of the petitioner that the deceased workman was always a casual Badly worker and he remained unauthorisedly absent from duty since 2006 without intimation or sanction of leave, in spite of notice being sent to him and also received by him. The employee neither reported for duty nor furnished any explanation for his continued absence resulting in his name being struck off the Badli roll. The workman raised a dispute, after almost 5 years from the date he stopped attending the factory. It is further stated that the workman could not produce any document to prove that he was a permanent employee. All the document produced by him are evidenced that he has a Badly worker. 19. The petitioner has relied upon the judgment in Nagar Parishad Bilaspur v. Bone Ram and Another, (2005) II LLJ 123, wherein it was held that where a workman remains absent from work for more than two 6 years without leave or any communication to the employer, such conduct amounts to abandonment of service, and the service stands automatically terminated in law, not falling within the definition of retrenchment at all. In the present case, where the workman remained absent for a substantially long, unexplained period before raising any dispute. It is settled principal of law, wherein it has been held that a workman cannot automatically be granted back wages, and that the onus to establish continuous unemployment and entitlement thereto lies upon the workman. 20. The respondent by way of his written notes has reiterated his case as made out in his affidavit in opposition and has relied upon the judgment of the Hon’ble Supreme Court in Raghubir Singh v. General Manager, Haryana Roadways reported in 2014-IV-LLJ-171(SC) in support of his case. 21. The issues decided by the 1st Labour Court are as follows:- “ISSUES 1) Whether the termination of service of Md. Azam by the management of M/s Kelvin Jute Mills by way of refusal of employment w.e.f. July 2007 is justified? 2) If not, what relief he is entitled to?” 22. The company to prove abandonment of service by the workman has proved the following documents:- “2) The photocopy of letter of the Company dated 14.08.2007 addressed to the Workman. Marked as Exhibit-A. 3) AD Cared of the said letter. Marked as Exhibit-A/1. 4) Photocopy (appears to be illegible) of certified standing order. Marked as Exhibit-B.” 7 23. In spite of receiving the letter/notice (admitted on dock) (Exbt A & A/1), the workman did not join and took the plea that as he was asked to join on half pay wages, which he refused. But as he did not join, he could not prove the same, as discussed earlier in this order, his statement thus cannot be accepted as not supported by any evidence either oral or documentary. 24. The fact that exhibit A and A/1 proves that the workman was asked to join and he received the letter, but did not join, prima facie proves that “there was no refusal of employment”. 25. No evidence is also on record to prove that the workman was a permanent employee. Thus it is on record that he remained a Badli from 1980 to 2007. 26. Considering the admitted case of the respondent/workman that he received the notice to join (thus no refusal of employment) but that he did not join, claiming that he was offered only half pay wages, (not proved), goes to clearly prove abandonment of service. 27. The impugned award/order dated 28th November, 2022 passed by the learned 1st Industrial Tribunal in Case No. VIII-36/2013, being not on proper appreciation of evidence on record, is perverse, erroneous and thus bad in law. 28. The award dated 28th November, 2022 passed by the learned 1st Industrial Tribunal in Case No. VIII-36/2013, is thus quashed set aside. 8 29. The deceased/workman be paid benefits/dues as entitled for the period from 1980 to 2007 as a Badli worker, within three months from the date of this order. 30. WPA 898 of 2026 is allowed. 31. Applications, if any, connected thereto stand disposed of consequently. 32. Interim order, if any, stands vacated. 33. Photostat certified copy of this Judgment, if applied for, be given to the parties on priority basis upon compliance of all formalities. (Shampa Dutt (Paul), J.)