GUPTA, J. - (1.) THIS appeal has been filed by the unsuccessful employer, seeking to assail the judgment of the learned Single Judge dated 10. 1. 2008, dismissing the writ petition, whereby the appellant had challenged the award of the learned Labour Court, Udaipur dated 17. 9. 1992, whereby respondent No. 2, hereafter referred to as the workman, was ordered to be reinstated, by finding his termination to be violative of the provisions of Section 25f of the Industrial Disputes Act, and also held the workman entitled to 50% of the basic pay and allowance, to be paid within 3 months, failing which the amount will carry interest @ 12%, and also directing, that for the purpose of future service, promotion, and other benefits, the workman shall be treated to be in continuous service, and also awarded Rs. 500/- as litigation expenses.
(2.) THE necessary facts, as appearing from award, produced as Annexure N are, that vide order dt. 6. 7. 1990 the reference was made by the appropriate Government to the Labour Court, for deciding the question, as to whether the termination of the workman Vinod Kumar resident of Udaipur is valid and proper, and if not, what relief the workman is entitled to? On receipt of the reference, the workman filed the claim alleging interalia, that he was initially appointed by the employer in 1975, and appointed in A Division Dual Extruder, as Mill Man, and was being paid Rs. 1100/- per month. He continued to serve regularly till 3. 7. 1985, from which date he fell ill, and got treated in E. S. I. Hospital, wherefrom he was advised bed rest from 4. 7. 1985 to 20. 7. 1985. Accordingly, the workman applied for leave with medical certificate. After completion of leave, on 21. 7. 1985, when he reported on duty, he was not allowed to join the duty, i. e. he was not taken back. Of course, leave for the said period from 4. 7. 1985 t0 20. 7. 1985 was sanctioned. The case of the workman further is, that even thereafter he regularly went on meeting the officers of the Personnel Department, but he was not even allowed to enter the factory premises, and on meeting outside, he was regularly assured to be taken back. It was also contended that no disciplinary enquiry was conducted against him, nor any charge was framed, and no notice, or one months pay, was given to him, the employer did not publish any seniority list, and persons junior to him are still serving. Thus it was claimed, that his termination is bad, and he was required to be treated to be in continuous service, and was required to be reinstated, with all consequential benefits. The employer contested the claim, by pleading interalia, that the workman was appointed since 17. 11. 1976, on the post of Mill Man, and did work till termination, but during this period he never served satisfactorily. It was pleaded, that he was not appointed on monthly basis, but he was appointed on basic salary of Rs. 26. 62 per day, apart from other allowances, like D. A. , Conveyance, House rent etc. , which was payable for the days he actually works. The employer pleaded, that earlier, on account of unauthorised absence, the services were terminated on 20. 2. 1982. However, before the Conciliation Officer compromise was arrived at on 10. 10. 1982, and pursuant thereto, he was taken back on job, but the workman did not improve. Then, in para-2 of the reply, details of his absence during the period of service have been given, and that does show, that after 10. 10. 1982 also, in 1983 he remained unauthorisedly absent for 88 days, while in 1984 his absence was as high as 129 days, and in 1985 even till 20. 7. 1985 unauthorised absence was at a level of 117 days. It was also pleaded, that the workman discharged duties last on 26. 6. 1985, and thereafter applied for medical leave, and casual leave for two days, sent medical upto 19. 7. 1985, and application for leave was sent on 20. 7. 1985, and even thereafter, without any information, or getting the leave sanctioned, he remained absent. Then it is pleaded, that it was on 22. 7. 1985, that workman sent application for leave in prescribed proforma, enclosing therewith an application dt. 8. 7. 1985, and medical certificate for sickness of the workman from 4. 7. 1985 to 19. 7. 1985 was sent. The certificate is from Kamla Nehru Hospital, Kankroli, and the signature and seal of medical officer E. S. I. Hospital is only to forward. Thus, it does not show that the workman took treatment in E. S. I. Hospital. However, this application was accepted on 22. 7. 1985 itself. Then, the allegation about workman meeting the officers of the Personnel Department, inside or outside factory premises, was denied. Likewise, allegation of giving any assurance was also denied, and it was pleaded, that after remaining unauthorisedly absent, he kept silent for two years, and it was for the first time in August, 1988, that he submitted an application before the Assistant Regional Labour Commissioner, and with view to fill up the long gap, workman has leveled false allegations. The case of the employer further is, that according to Clause 24 (e) of the Standing Orders, it is deemed that the workman abandoned services. Apart from the fact that he remains absent unauthorisedly, which is established from the charge sheets served earlier, and the apologies submitted by him. It was contended, that it was not necessary to initiate departmental proceedings. It was also pleaded, that the charge sheet was sent to the workman on 30. 9. 1985 on the permanent address available on service record, but it returned un-served, which shows, that the workman had changed his address without information. Likewise it was contended, that looking to the earlier departmental proceedings, the service record of the workman was so bad, that it was not necessary to hold departmental enquiry over again, and he was discharged in accordance with Clause 24 (e) of the Standing Orders, as he had abandoned the service. The allegation about his reporting on duty was denied. Applicability of Section 25f was also denied. It was pleaded that in accordance with the service contract dt. 27. 8. 1977, the workman had been discharged, which does not amount to retrenchment, within the meaning of Section 2 (oo) (bb ). It was also pleaded, that according to Conditions No. 8 and 12 of the appointment order, read with Standing Order 24 (e), if workman voluntarily absented for six days or more, it will be deemed that he has abandoned the job. It was alternatively pleaded, that if the Tribunal feels, that enquiry was required to be conducted against the workman, then the employer is ready to hold departmental enquiry against him. During trial workman filed his own affidavit, while on behalf of employer, affidavit of Bhupendra Narain Sharma was filed. In documentary evidence, case history, letter dt. 3. 2. 87, sent to the workman to collect his account being Annexure M-1 was filed. Then, the letter dt. 12. 7. 1986, intimating the workman about his deeming to have abandoned service, on account of the regular absence, being Annexure M-2 was filed. Likewise letter dt. 30. 9. 1985 has been produced as Annexure M-3, informing about he being habitual absentee from 21. 7. 1985. Then, apology letter for his remaining absent from 21. 5. 1985 to 12. 6. 1985 has been produced as Annexure M-4, and charge-sheet dt. 5. 6. 1985 for his absence from 21. 5. 85 has been produced as Annexure M-5, Warning letter dt. 30. 3. 1986 has been produced as Annexure M-6, and the apology letter in response to Annexure M-6 has been filed as Annexure M-7. Likewise apology letters for remaining absent in 1984 have also been produced as Annexure M-8, M-12, M-22, M-23, M-25, M-31, M-38 etc. The workman has produced copy of the leave application, copy of medical certificate, letter of Employees State Insurance, and failure report. Learned Tribunal discussed the evidence, and found, that absence upto 21. 7. 1985 was with duly sanctioned leave, and his name was wrongly removed from the roll, and that, from the totality of circumstances, there is no doubt, that his name was removed from the roll, treating it absence from 4. 7. 1985 to 20. 7. 1985, illegally, otherwise there was no reason for the management, not to take action under Standing Order 24 (e) without any delay, since July 1985 itself. Even in letter Annex. M-2, workman was not called upon to submit explanation. It was considered, that mere absence is not that serious a matter, and even in the past, on the workman remaining absent, every time the employer gave charge sheet only, and never passed termination order, and on one occasion when such order was passed, he was taken back on duty. Thus arriving at the conclusion of abandonment of service, without giving opportunity to the workman to explain, cannot be said to be justified. Thus, the order Annexure M-2 was found to be invalid. Then it was considered, that the workman has initiated proceedings to assail the termination at belated stage, and no satisfactory explanation has been given for that, and therefore, he was not found entitled to be awarded entire back wages. Thus, the learned Labour Court passed the award as above.
(3.) THE learned Single Judge dismissed the writ petition, as noticed above. Learned Single Judge noticed the contention of the learned counsel for the workman, that two documents of the employer dated 7. 11. 1985 and 15. 2. 1986 itself clearly speak, that workman was not taken on duty though he made his efforts to take him on duty, therefore, the question of applicability of Clause 24 (e) of the Standing Orders does not arise, and the findings are based on admitted facts of the case, that the services of the workman were terminated in violation of provisions of Section 25-F of the Act. Even then, the workman has proved by oral and documentary evidence, that he was not taken on duty after expiry of sanctioned leave. Learned Single Judge found, that this writ petition was second one inasmuch as earlier writ petition was decided vide order dt. 26. 8. 93, which order was challenged before the Division Bench, and the Division Bench, vide judgment dt. 23. 3. 1994, set aside the order dt. 26. 8. 93, and the matter was remitted to the learned Single Judge, for decision of the writ petition on merits. It was also noticed, that on 24. 10. 2007, a proposal was made by the employer, that if the workman is ready to accept compensation, then the employer can consider such prayer, in lieu of his reinstatement, but the workman declined, on the ground of his having become overage. Examining the case on merits, the learned Single Judge found, that due to illness the respondent gave application for leave, which was duly sanctioned, the workman was not daily rated employee, but was a regular employee, and that, as appears from documentary evidence, that the employer refused to take the employee back on duty. Thus it was found, that the learned Labour Court rightly arrived at the conclusion about the matter being not covered by Clause 24 (e) of the Standing Orders, and being a case of termination of service. THEn it was found, that admittedly the employer is an industrial establishment to which provisions of the Act are applicable, and the termination of service being violative of provisions of Section 25-F (a)& (b), and being not a case of abandonment of service, no reason was found to interfere with the award of the learned Labour Court, being based on sufficient evidence, and the writ petition was dismissed. When this matter came up for consideration for admission on 25. 2. 2008, the record of the Labour Court was requisitioned, and on receipt of the record when the matter came up on 2. 4. 2008, the learned counsel for the parties were directed to explore the possibilities of some amicable settlement. The matter thereafter went on being adjourned, and finally it was heard on 21. 7. 2008. Since the pleadings are already complete, and the record of the learned trial Court has already received, at the request of the learned counsel for the parties, the matter was heard for final disposal at this stage itself. Assailing the impugned judgment and the award it was contended by the learned counsel for the appellant, in substance, that the learned Single Judge, and the learned Labour Court have erred in holding that after availing sickness leave workman reported on duty on 21. 7. 1985, and continued to do so, but he was not allowed to join. It was also contended, that notice for his absence was sent by registered post at the address given by him in the service record but was returned. Likewise, another intimation sent to him on 12. 7. 1986 also returned. Thus, it cannot be said, that the employer simply lied low, and sent Ex. M-2. Then, on 3. 2. 1987 another letter was sent to him to settle the account within seven days of the receipt of the communication, and this communication was also sent at the same address, which was received by the workman on 9. 2. 1987, and still the dispute was not raised till as late as in August, 1988. Regarding his attempts to report on duty, the Gate Registers have been produced by the employer, which shows that it was only on 7. 11. 1985 and 18. 2. 1986, that the workman had come, and on 7. 11. 1985 he had come at 3. 55, and went out at ten past four, and the purpose of visit is described to be official. Then, on 18. 2. 1986 again, he came at 11 A. M. , and returned that time itself, and is reported to have contacted Mr. Ajmera. This does show, that whenever workman came, he was allowed to make necessary entries, and there is nothing to show, that he ever appeared earlier. As such the findings of the learned Labour Court, and the learned Single Judge, are bad. Then, Standing Order 24 (e) was pressed into service with all vehemence at his command, and it was contended, that may be, that in the past workman had remained absent for six weeks unauthorisedly, and in that situation also the matter was covered by said Clause 24 (e), but still he was reinstated, but the acts of continued benevolence on the part of the employer, were required to be stopped, at some time, and it did not confer any perennial right on the workman to so remain absent, despite clear provisions of Clause 24 (e ). Learned counsel relied upon the judgment of the Hon'ble Supreme Court, in U. P. State Bridge Corporation Ltd. vs. U. P. Rajya Setu Nigam S. Karamchari Sangh, reported in (2004) 4 SCC-268, wherein Hon'ble the Supreme Court has held, that illegal strike also amounts to abandonment of job, by holding, that illegal strike and legal strike are both absent, but the absence in illegal strike is unauthorised absence, and legal strike is not, and that, merely because the action is punishable otherwise, does not mean, that the consequence of unauthorised absence is not available under the Certified Standing Orders, if it so specifically provides, and that, the submission, that Industrial Disputes Act provided for a penalty in respect of the workman, who may have gone on illegal strike, and therefore, there could be no termination of services on account of illegal strike, is unacceptable, as there is no proof, that the respondents were on strike at all. Likewise it was also held, that the question as to whether the workman was called upon to return on duty amounting to compliance of the principles of natural justice is a question of fact. Learned counsel then relied upon another judgment of the Hon'ble Supreme Court, in Chief Engineer (Construction) vs. Keshava Rao, reported in (2005) 11 SCC-229, wherein after 1. 11. 1977 workman did not report on duty, and did nothing till 4. 4. 79, to assert his right of reinstatement, which delay was found to be significant, and the stand of the employer, about workman having abandoned service, and on that count his name having been deleted from the muster roll, was found to be legal. Then reliance was placed on another judgment of the Hon'ble Supreme Court, in Seema Ghosh vs. Tata Iron & Steel Co. , reported in (2006) 7 SCC-722, to contend that where even the findings of fact, recorded by learned Labour Court are perverse, or illegal, interference can be made in exercise of Art. 226 jurisdiction, even by re-appreciating the evidence. Then, Single Bench judgment of this Court, in Vijay Singh Charan vs. Management, Shri Swetamber Nakoda Parshwnath Tirth Mewa Nagar & Anr. , reported in RLW 1999 (1) Raj.-314, was relied upon, where absence without any cause for 75 days was held to be amounting to voluntary abandonment of service. Then the judgment of the Hon'ble the Supreme Court, in Punjab & Sind Bank & Ors. vs. Sakattar Singh, reported in (2001) 1 SCC-214 was also relied upon, wherein the employer had given notice, calling upon to report on duty within 30 days, and failure would entitle the management to come to the conclusion, that the employee has no intention of joining duty, rather a presumption will be drawn that the employee does not require the job anymore. Then, alternative suggestion was made by the learned counsel for the appellant, that in case it is found that the termination was bad still, reinstatement is not required to be, and should not, be ordered, and equities should be appropriately settled. For that purpose reliance was placed on judgment of the Hon'ble Supreme Court, in J. K. Synthetics Ltd. vs. K. P. Agrawal, reported in (2007) 2 SCC-433. Learned counsel then relied upon Division Bench judgment of this Court, in D. B. S. A. W. No. 52/2006 Union of India vs. Manohar, decided on 29. 11. 2006, wherein the employee was terminated on account of unauthorised absence, and finding dismissal to be illegal, this Court instead of reinstatement, awarded cash compensation of Rs. 2 lacks. Learned counsel for the appellant submitted, that in this direction, on the instruction of his client, he has already offered, an all told cash compensation of Rs. 4 lacks to the workman. ;