Ajay Rastogi, J. - (1.) INSTANT petition has been filed by workman assailing Award dated 29.6.2005 (Ann.4) in Ref. (LCR) 237/2004) passed by Labour Court Bharatpur, whereby Reference made by appropriate Government was answered in negative. Case set up before Labour Court and this Court is that as alleged Petitioner was initially appointed as Carpenter Gr.I on 1.6.1985 and continued but was arbitrarily terminated from service on 1.3.1989 and on his application filed before Conciliation Officer, settlement was arrived at between parties as is evident from document date 10.5.1989 (Ann.1) - as per which it was agreed that Petitioner be taken back on duty with continuity in service but without wages for intervening period (1.3.1989 to 10.5.1989) - in pursuance whereof, he joined on 12.5.1989 and thereafter continued in service.
(2.) HOWEVER , services of Petitioner were again terminated on 1.4.1992, against which he again filed application before Conciliation Officer and it was mutually settled that he would be taken back with continuity in service from 21.1.1993. But, because of his illness, he remained on medical leave from 5.2.1993 and when reported for duty on 9.7.1993 alongwith sickness certificates for the period 5.2.1993 to 8.7.1993, when he was not permitted to report for duty and at this stage, he approached this Court by way of CWP -761/1994 which was dismissed on the ground of availability of alternative remedy under the provisions of Industrial Disputes Act, 1947 ("the Act") -against which Special Appeal (Writ) -925/2003 was preferred, that too was disposed of with the direction to approach Labour Court -in pursuance whereof, Reference was made by appropriate Government vide notification date 21.6.2004 for adjudication of the dispute as to whether by not permitting the Petitioner to report for duty on 9.7.1993, is valid and if not, to what relief, Petitioner (workman) is entitled for. Petitioner -workman submitted his sickness certificates (Ex.DW6 to DW9) covering the period from 5.2.1993 to 8.7.1993, alongwith affidavit in which he deposed that he reported for duty alongwith sickness certificates but was not permitted to join on 9.7.1993.
(3.) COUNSEL for Petitioner submits that Respondents never came out with the case that services were retrenched or terminated; contrarily it was pleaded that workman himself left the job and remained wilful absent from duty and even prior thereto, he remained absent on various occasions as referred to by Labour Court in para 3 of the Award. Counsel submits that learned Labour Court committed serious error in recording a finding that since the workman failed to work for 240 days in preceding 12 months before alleged retrenchment/ termination (9.7.1993), Respondents were not required to comply with requirement under Section 25 -F of the Act; while case set up was that Petitioner was not permitted to join duty; in absence of service being retrenched, there was no occasion to go ahead for compliance of Section 25 -F of the Act. Counsel further submits that once Respondents came out with the case that Petitioner remained wilful absent from duty, it tantamounts to misconduct and Respondents were not justified in dispensing with services by not permitting him to report for duty from 9.7.1993 without holding any inquiry under law or without due compliance of principles of natural justice; and such arbitrary action has caused prejudice to the workman.;