Overview
An employee stops coming to work, without notice and without explanation, and days turn into weeks. The employer treats the relationship as over. The employee, when he resurfaces, says he was dismissed unfairly. The question before Courts in that moment is stark: did the employee walk away, or was this a dismissal in disguise? This is one of the most heavily litigated issues in Indian employment law, because the answer decides whether the employer must comply with retrenchment safeguards or whether the separation falls outside the statutory framework altogether. Courts have consistently held that the initial burden of proving abandonment lies on the employer, not the employee. The Supreme Court’s recent decision in M/s Rifilis Engineering Pvt. Ltd. v. Arjun Gupta.,1 (“Rifilis Engineering”) is the latest in a long line of cases that show how that burden operates, what evidence discharges it, and when it shifts back.
1. Introduction
Absconding sits at one of the most contested fault lines in Indian employment law. The same set of facts, an employee who has stopped attending work, is described in irreconcilable terms by each side. The employer treats the prolonged, unexplained absence as abandonment of service and insists the engagement has come to an end. The employee counters that the absence was preceded by an illegal, undocumented termination, and that what the employer calls “absconding” is really a cover for dismissal without due process. The term "absconding” is not independently defined in the Industrial Relations Code, 2020 (“IR Code”) or the erstwhile Industrial Disputes Act, 1947 (“ID Act”). However, it does carry a specific statutory consequence under the Model Standing Orders under both the IR Code and the legacy framework: absence without leave for more than ten consecutive days is listed as misconduct, and certified or model standing orders in establishments treat such absence as a trigger for disciplinary action which may include termination. The term is used in practice in two overlapping senses: as a description of unauthorised absence constituting misconduct, and as shorthand for abandonment of service.
In this regard, it is important to understand what constitutes abandonment of service. The Supreme Court directly tackles this in G.T. Lad and Ors. vs. Chemicals and Fibres India Ltd.,2 observing that in the absence of a statutory definition, courts must fall back on the ordinary meaning of "abandonment,"i.e., “to leave completely and finally, to relinquish or give up all concern in something.”
The doctrine has developed almost entirely through courts interpreting the definition of “retrenchment” and its scope under Section 2(oo) of the ID Act, and now under Section 2(zh) of the IR Code, which substantially reproduces that definition with effect from November 21, 2025. Therefore, Courts and labour tribunals consistently treat abandonment as a question of fact, to be determined after due process and supported by evidence.
What ultimately separates a genuine case of abandonment from a termination dressed up as one is not the label that either side chooses, but the burden of proof: who carries it, what discharges it, and when it shifts. This article traces how the burden operates across the case laws, examining how it is fixed on the employer at the outset, the evidence that discharges it, how courts read employee conduct and intention, when a presumption of abandonment arises, and the circumstances in which the burden shifts back against an employer who has failed to substantiate its case.
2. Genuine Abandonment Vs. Termination - Why is this classification relevant?
“Retrenchment” is defined as the termination of a workman’s service by the employer “for any reason whatsoever,” subject to specific exclusions: voluntary retirement, superannuation, non-renewal of a fixed-term contract, and termination on account of continued ill-health. Abandonment of service does not fall within these enumerated exclusions. It is excluded from the definition of retrenchment on a different basis altogether: abandonment is, by its nature, a unilateral act of the employee, not an act of the employer and therefore does not constitute “termination by the employer” in the first place. The Supreme Court affirmed this reasoning in Vijay S. Sathaye v. Indian Airlines Ltd.,3 (“Vijay S. Sathaye”) holding that “for the purpose of termination, there has to be positive action on the part of the employer while abandonment of service is a consequence of unilateral action on behalf of the employee and the employer has no role in it. Such an act cannot be termed as ‘retrenchment’ from service.”
This classification gives the doctrine its practical significance. If an absence is genuinely characterised as abandonment, the procedural safeguards attached to retrenchment, including notice, compensation, and compliance with Sections 70 and 71 of the IR Code (correspondingly Sections 25F and 25G of the ID Act), do not apply. If, however, what actually occurred was a termination that the employer has labelled as abandonment to avoid those safeguards, the termination is illegal. Because the consequences of the two characterisations diverge so sharply, courts have developed a heavy evidentiary standard, reluctant to allow either side’s version to prevail on assertion alone.
Rifilis Engineering illustrates this precisely. The length of the employee’s absence was never disputed by either side; the entire fourteen-year dispute turned on whether the employer had proven its version of why the employee stopped coming to work, and whether the employee had proven his.
3. The Doctrinal Starting Point: The Burden Lies on the Employer
Because an employer stands to benefit from characterising a separation as abandonment, courts have consistently placed the burden of proving it on the employer, not the employee. An employee’s silence, on its own, proves nothing; an employer’s bare assertion that a worker “stopped coming” does not discharge the burden either.
The principle finds clear articulation in Gaurishankar Vishwakarma v. Eagle Spring Industries Pvt. Ltd. and Ors.,4 (“Gaurishankar”) where the Bombay High Court set aside a Labour Court award that had accepted the employer’s abandonment defence on flimsy material. The employer had relied on a report of a Government Labour Officer, a document that was never shown to the workman, whose author was never examined, and whose contents remained uncorroborated. The Court held that it was for the employer to establish abandonment, and reasoned that the workman’s failure to issue a notice after his alleged removal could not, by itself, support an inference that he had refused to resume work.
The Delhi High Court, in Chandra Prabhu International Ltd. v. Shri Ram Avtar.,5 (“Chandra Prabhu”) applied the same standard in explicitly stricter terms. Citing the maxim ei incumbit probatio qui dicit, non qui negat (the burden of proof is on the one who asserts, not the one who denies), the Court held that mere accusation of abandonment is not enough and that the level of proof required is “rather strict.” The management in that case failed to meet that burden.6
Together, Gaurishankar Vishwakarma and Chandra Prabhu fix the baseline that every later case must be read against. The burden belongs to the employer, and it is not satisfied by unverified or second-hand material. Rifilis Engineering did not question this starting point. It examined in detail whether the employer had actually discharged the burden before considering whether the employee had rebutted it.
4. Discharging the Burden: The Procedural Backbone
Where an employer does succeed in establishing abandonment, the evidentiary record typically follows a recognisable pattern. Certain elements recur across cases in which employers have prevailed: notice, an opportunity to respond, and either an enquiry or, in its absence, sufficiently compelling evidence of the employee’s own conduct.
4.1 Notice
Notice is the first and most consistently emphasised requirement because nothing that follows can be evaluated without it. An employer seeking to rely on abandonment must be able to show that the employee was actually called upon, through a traceable and verifiable mode of communication, to explain the absence or resume duty.
In Rashtrasant Tukdoji Maharaj Technical and Education Society v. Indira Madhukar Muraskar7, (“Rashtrasant Tukdoji ”) the employer had issued five successive letters over nearly a year, followed by a final letter warning that continued absence would be treated as voluntary relinquishment. The final letter was sent by registered post with acknowledgment due, which the employee admitted receiving in cross-examination. The Bombay High Court held this sequence of repeated, correctly addressed, and acknowledged communications sufficient, notwithstanding the employees’ later denial of having received the earlier letters.
The notice requirement is therefore satisfied by good-faith, verifiable communication to the last-known address in the employer’s records, sent through a traceable mode. It is not defeated merely because the employee later claims non-receipt. Rifilis Engineering addresses a related, and practical problem: what happens when notice is sent to an address the employee has since left. The employer had dispatched a registered notice to the only address on record. The High Court below faulted the employer because the employee was, by then, residing elsewhere. The Supreme Court reversed this, holding that an employer can only be expected to communicate at the address the employee has provided, and that the obligation to update that address rests on the employee. Read together, these cases establish that notice is adequate once it is traceable, correctly addressed on the employer’s own records, and either repeated or explicit about consequences. Actual, guaranteed receipt is not a further burden the employer must satisfy. The takeaway for employers is straightforward: keep employee records current and use traceable communication, and that becomes the baseline defence against any future abandonment claim.
4.2 Employee Conduct
The second strand concerns how the employee behaved after notice was issued, and after the absence itself came to the employer’s attention. Courts consistently examine whether the employee made any documented attempt to resume duty, whether any written explanation was offered for the absence, and critically how promptly the employee raised a grievance once the employer treated the relationship as at an end.
Rifilis Engineering is instructive here precisely because the employee’s account was not implausible on its face: he claimed to have informed his superior verbally before leaving to attend to his mother’s illness, and to have later returned and attempted to rejoin duty. The Supreme Court rejected both claims for want of any supporting material, no letter, no written intimation, nothing beyond the employee’s own word at a point when a written explanation could easily have been sent. Rashtrasant Tukdoji adds the dimension of timing. The Court noted that the employees’ claimed contempt application, allegedly filed after being refused re-entry, could not be substantiated by any record. Several employees had approached the labour authorities well beyond ninety days after the disputed event, a delay the Court treated as bearing the character of an afterthought rather than a spontaneous grievance. Gaurishankar Vishwakarma shows the same logic producing the opposite result: there, the workman had approached the Government Labour Officer promptly after being refused work, and that promptness supported his version rather than the employer’s.
The pattern across these cases is clear: promptness and documentation are two blades of a scissor. An employee who protests quickly and can point to a paper trail strengthens a claim of illegal termination; an employee who relies only on delayed, undocumented, oral assertions strengthens the employer’s abandonment defence instead.
4.3 Enquiry or Its Substitute
The third element is the domestic enquiry or, if none was held, the evidence the employer is able to lead in its place. Older authority treated a formal enquiry as close to indispensable. Gaurishankar Vishwakarma also proceeds on this footing, holding that even a claim of abandonment must ordinarily be preceded by an opportunity for the employee to explain the absence.
In Rashtrasant Tukdoji, the Bombay High Court drew on the Supreme Court’s reasoning in Punjab & Sind Bank v. Sakattar Singh.,8 (“Punjab & Sind Bank”)and the Delhi High Court’s decision in Sukhdev Singh v. Delhi Development Authority<.9 In Punjab & Sind Bank, the Supreme Court upheld a clause in the Fourth Bipartite Settlement between the bank and its employees, which provided that an employee remaining absent from duty for ninety or more consecutive days beyond the period of leave granted would, after issuance of a thirty-day notice, be deemed to have voluntarily retired from service. The Court held that where such a deeming clause exists in a settlement or certified standing order, no separate domestic enquiry is required, since the clause records a factual consequence of the employee’s own conduct rather than imposing a punishment. Even outside the scope of such a clause, an employer may establish abandonment through evidence led directly before the adjudicating authority, without a prior formal enquiry.
Rifilis Engineering did not involve a domestic enquiry at all, and its absence did not weigh against the employer, the notice-and-conduct record itself supplied an adequate substitute. Where no such record exists and no deeming clause applies, the stricter standard from Gaurishankar Vishwakarma continues to govern. The practical implication is that while the recent case law expands the means by which the burden may be discharged, it does not lower the underlying standard.
5. The Presumption of Abandonment
Where notice, employee conduct, and (where required) an enquiry or its evidentiary substitute are all established, courts have been willing to draw an inference, sometimes described as a presumption, that the employee intended to abandon service. This inference is not automatic. It is the product of the cumulative facts, and it remains rebuttable.
The Supreme Court’s reasoning in Vijay S. Sathaye, reproduced at length in Rashtrasant Tukdoji, remains the clearest statement of the doctrine. The Court held that an employee has the right to abandon service at any time, whether by express resignation or by remaining absent for a sufficiently long period without explanation. When such absence is prolonged, it amounts to voluntary abandonment resulting in automatic cessation of service without requiring any further order from the employer. The Court distinguished abandonment from termination on the basis of who takes the positive act: “for the purpose of termination, there has to be positive action on the part of the employer while abandonment of service is a consequence of unilateral action on behalf of the employee and the employer has no role in it.” On this reasoning, striking an employee’s name off the muster roll following established abandonment is not itself an act of termination but merely a consequential step. The same judgment, drawing on Buckingham and Carnatic Co. Ltd. v. Venkatiah.,10 cautions that “abandonment or relinquishment of service is always a question of intention, and, normally, such an intention cannot be attributed to an employee without adequate evidence in that behalf.” Rifilis Engineering satisfies this qualification precisely. The Court did not infer abandonment from the length of the absence alone, but from the specific combination of adequate notice, a complete absence of any documented rebuttal, and intention inferred from an evidentiary gap. The practical rule that emerges is that long unauthorised absence, adequate notice, and no credible evidence of any attempt to resume duty, taken together, are sufficient to sustain the presumption.
6. When the Burden Shifts Back
The presumption of abandonment is not immune to being displaced by the employer’s own procedural failures. Where an employer has not issued adequate notice, has taken no disciplinary steps for a substantial period despite claiming the employee was absent, or otherwise behaves in a manner inconsistent with treating the relationship as genuinely at an end, courts have consistently declined to accept a belated abandonment defence.
M/s. Premsons Trading Pvt. Ltd. v. Hiraprasad Bindeshwar Yadav.,11 (“Premsons Trading”) illustrates this. The employer alleged that unauthorised absence in 2015 amounted to abandonment, but no show-cause notice or charge sheet had been issued at the time. The Bombay High Court found this gap significant: it was inconsistent with an employer that had genuinely treated the absence as abandonment when it occurred. The absence of any disciplinary step, combined with the employee’s demand notice alleging illegal termination shortly after the disputed period and his sustained pursuit of the matter before the labour authorities, was held more consistent with an employee asserting a continuing right to employment than one who had abandoned it. The Labour Court’s award of reinstatement with sixty percent back wages was upheld.
Premsons Trading and Rifilis Engineering are, in this sense, mirror images built on the same underlying test. In one, the employer’s contemporaneous record was clean and the employee’s was empty; in the other, the employer’s own record was found wanting. The distinguishing fact is never the plausibility of either side’s story in isolation, but which side actually built and preserved a documented record at the time. For employers, the lesson cuts both ways: inaction at the time of the absence, failing to issue notices, charge sheets, or take any disciplinary step, can end up more damaging than the absence itself.
7. Key Factors That Courts Weigh
Drawing together the strands of this jurisprudence, the following factors recur throughout case laws and were the particular tests applied in Rifilis Engineering:
- The form and sufficiency of the notice: a traceable communication to the employee’s last known or provided address clearly warning of the consequences of continued absence.
- Employee’s response or lack thereof: mere bare oral claims carry little weight without written explanation or evidence of attempts to return.
- Timing of the grievance: the sooner, the better for the claim of illegal termination; the later or the more it appears to be after the fact, the more it supports an inference of abandonment.
- Existence of a deeming clause: whether a certified standing order or settlement contains a provision that treats absence beyond a specified period (for instance, ninety consecutive days in the banking sector’s Bipartite Settlements) as deemed voluntary retirement. Where such a clause exists and the prescribed procedure has been followed, no separate domestic enquiry is required.
- The conduct of the employer at the time of the absence: whether disciplinary action was taken at the time of the absence or only once a dispute arose.
- The length of the absence: considered in conjunction with the above, and not by
- Prior disciplinary action: whether the employer had already imposed a punishment for the absence (such as a warning, suspension, or fine) before treating the same absence as abandonment. Where a punishment has already been imposed for the misconduct of absence, a subsequent administrative act treating the same absence as abandonment may be challenged as double jeopardy; conversely, where the employer’s only step is to strike the employee’s name off the rolls as a consequence of established abandonment, courts have held that this is not a fresh punishment but merely an administrative
8. Conclusion
There is no single fact that draws the line between absconding and disguised termination, and certainly not the label that either party puts on the separation. The employer bears the initial and primary burden to show genuine, traceable notice; a fair opportunity for the employee to respond; and, where no deeming clause dispenses with it, some form of enquiry or equivalent evidence. Discharging that burden allows a presumption of abandonment to arise, but the presumption remains porous. An employee who can point to prompt protest, documented attempts to resume duty, or contradictory conduct on the employer’s part can still displace it. Equally, an employer whose own procedural conduct is inconsistent with a genuine abandonment claim will find the burden shifting back, however long after the fact the defence is raised.
For employers, the message is that abandonment is not a label you can apply after the fact, it is a case you have to build in real time. A clean paper trail, built as the absence unfolds rather than reconstructed once a dispute lands, is what decides whether an employer walks away clean or ends up paying for a dismissal it never intended to be accused of.
What remains to be seen is how this evidentiary framework will operate under the IR Code as its provisions take full effect across states, and whether digital communication records, emails, messaging applications, and HR portal logs, will reshape the notice and documentation analysis that currently depends heavily on postal records and physical correspondence.
Footnotes
1 M/s Rifilis Engineering Pvt. Ltd. Versus Arjun Gupta, Special Leave to Appeal (Civil) 26434/2024.
2 G.T. Lad and Ors. vs. Chemicals and Fibres India Ltd. (06.12.1978 - SC) : MANU/SC/0543/1978.
3 Vijay S. Sathaye vs. Indian Airlines Ltd. and Ors. (06.09.2013 - SC) : MANU/SC/0923/2013.
4 Gaurishankar Vishwakarma Vs. Eagle Spring Industries Pvt. Ltd. and Ors (03.09.1987 - SC) MANU/SC/0543/1978.
5 Chandra Prabhu International Ltd. vs. Ram Avtar (21.02.2008 - DELHC) : MANU/DE/0310/2008.
7 Rashtrasant Tukdoji Maharaj Technical and Education Society Vs. Indira Madhukar Muraskar, (09.05.2025 BOMHC). MANU/MH/3059/2025
8 Punjab & Sind Bank v. Sakattar Singh, MANU/SC/0733/2000 : (2001) 1 SCC 214.
9 Sukhdev Singh vs. Delhi Development Authority (08.11.2011 - DELHC) : MANU/DE/4431/2011.
10The Buckingham and Carnatic Co.Ltd. vs. Venkatiah and Ors. (02.08.1963 - SC) : MANU/SC/0163/1963.
11 Premsons Trading Private Limited vs. Hiraprasad Bindeshwar Yadav (17.03.2026 - BOMHC) : MANU/MH/2611/2026.
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