CW 553/06 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** Civil Writ Petition No.553/2006 Bhagwati Lal Sharma Versus Judge, Labour Court, Bharatpur & Ors. Date of Order ::: 04/02/09 Hon'ble Mr. Justice Ajay Rastogi Mr. Rajendra Soni, for petitioner. Mr. Pradip Kalwania, Addl. Govt. Counsel, for respondents Instant petition has been filed by workman assailing Award dt.29/06/05 (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 & this Court is that as alleged petitioner was initially appointed as Carpenter Gr.I on 01/06/85 and continued but was arbitrarily terminated from service on 01/03/89 and on his application filed before Conciliation Officer, settlement was arrived at between parties as is evident from document dt.10/05/89 (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 (01/03/89 to 10/05/89) – in pursuance whereof, he joined on 12/05/89 and thereafter continued in service. However, services of petitioner were again terminated on 01/04/92, against which he CW 553/06 //2// again filed application before Conciliation Officer and it was mutually settled that he would be taken back with continuity in service from 21/01/93. But, because of his illness, he remained on medical leave from 05/02/93 and when reported for duty on 09/07/93 alongwith sickness certificates for the period (05/02/93 to 08/07/93), when he was not permitted to report for duty and at this stage, he approached this Court by way of CWP-761/94 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)-925/03 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 dt.21/06/04 for adjudication of the dispute as to whether by not permitting the petitioner to report for duty on 09/07/93, 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 05/02/93 to 08/07/93, alongwith affidavit in which he deposed that he reported for duty alongwith sickness certificates but was not permitted to join on 09/07/93. CW 553/06 //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 absence 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 (09/07/93), respondents were not required to comply with requirement U/s 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 S.25-F of the Act. Counsel further submits that once respondents came out with the case that petitioner remained willful 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 09/07/93 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. CW 553/06 //4// In their reply while supporting the finding recorded by Labour Court, respondents inter-alia averred that once petitioner had failed to fulfill requirement of having work for 240 days in preceding 12 months before alleged termination, S.25-F of the Act was not attracted and learned Labour Court has not committed any error of law which may call for interference by this Court. I have considered contentions of Counsel for the parties and with their assistance, examined material on record. Petitioner has basically come up with a specific case for adjudication before Labour Court that after he reported for duty in reference to 2nd settlement dt.21/01/1993 arrived at between the parties taking back with continuity of service and thereafter since he felt sick could not immediately report for duty and presented himself for reporting on duty on 09/07/93 alongwith sickness certificates (Ex.DW6 to Dw9) for the period (05/02/93 to 08/07/93) but was not permitted to join, hence raised dispute for adjudication. Even respondents have not come out with the case before Labour Court that services of workman were ever retrenched w.e.f.09/07/93 and on the contrary, in para 3 of the Award, Labour Court has taken note of plea raised by CW 553/06 //5// respondents in their written statement in which it was averred that petitioner was habitual absentee and his services were also not satisfactory and at the same time, his services were never retrenched by respondents and the petitioner has voluntarily abandoned the job; and furnishing medical certificates for having not reported for duty for the period in question is not a valid excuse taken by him. Labour Court in para 12 of Award has accepted plea of the petitioner as regards furnishing of medical sickness certificates (Ex. Dw6 to Dw9); and so also the fact that petitioner has reported for duty alongwith medical sickness certificates on 09/07/93 and further observed that when he was not permitted by the respondents to join on 09/07/93, which was considered to be retrenchment; and accordingly proceeded to examine as to how far action of respondents in not complying with S. 25-F of the Act was valid in the facts of instant case. Question arising out of case as set up in written statement in fact was for consideration as to whether by not permitting the petitioner to report for duty on 09/07/93, how far decision of respondents was valid or whether it was a case of voluntarily abandoning CW 553/06 //6// the job by workman; in both the occasions, it could not be construed to be a case of retrenchment which may entail compliance of S.25-F of the Act. Once petitioner (workman) came out with a specific case of having remained absent due to his sickness as pleaded and alongwith certificates (Ex.Dw6 to Dw9), he reported for duty on 09/07/93; if at all respondents were of the view that he was not to be taken back on duty or for his willful absence from duty or any other reason, only recourse available for respondents was to go ahead by holding of inquiry or atleast affording him opportunity of hearing in compliance of principles of natural justice for alleged misconduct, if any committed by him - in absence whereof, finding that there was no requirement of S.25-F of the Act to be complied is not legally sustainable. It is indeed not a case of respondents that before restraining the petitioner from reporting for duty on 09/07/93, any opportunity of hearing was ever afforded to him – in absence whereof, action of respondents cannot be upheld. In ordinary course, matter was required to be remitted back to the Labour Court but looking to the material came on record, which remained uncontroverted and being stale claim of workman CW 553/06 //7// having been out of employment for last 15 years and having two rounds of litigation, this Court does not consider it proper to remit the matter as no fruitful purpose is likely to serve after remand but at the same time, considered appropriate that petitioner would not be entitled to get back wages for intervening period during which he has actually not worked with the respondents since 22/01/93 till date. Consequently, writ petition succeeds and is hereby allowed. Award dt.29/06/05 (Ann.4) passed by Labour Court, Bharatpur is hereby quashed & set aside. Respondents are directed to reinstate the petitioner pursuant to 2nd settlement with continuity of service without back wages for the period since 05/02/93 during which he has actually not worked till he reports for duty. Compliance of this order be ensured within three months. No order as to costs. (Ajay Rastogi), J. K.Khatri/p.7/553CW06ID-4Fb.doc