THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO Dated this the 12th day of November, 2009. Writ Petition No. 29641 of 1997. Between: Superintending Engineer, GVC Ltd., Karimnagar. ……Petitioner. Vs. Mothi Khan and another. ……..Respondents. THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO Writ Petition No. 29641 of 1997. ORAL ORDER: This writ petition has been preferred by the Superintending Engineer, GVC-IV Ltd., Karimnagar calling in question the correctness and the validity of the Award passed by the Labour Court-II, Hyderabad in I.D.No. 813 of 1991 dt. 12.9.1996. The said I.D. was raised by the 1st respondent/workman. During the pendency of this writ petition, the 1st respondent/workman died and his legal representatives have been brought on record and permitted to prosecute this case. The case of the workman before the Labour Court was that he joined the service of the respondent as a cleaner on 1.1.1950 and earned promotions by dint of his hard work and during 1979, he was promoted to the Special Grade post of Crane Operator. While he was working as such, he sought for 50 days earned leave commencing from 12.11.1979. The said leave was sanctioned upto 31.12.1979. He sought for this leave on private affairs. While he was attending to his private affairs at his hometown, he has suffered set back in his health and consequently he applied for sanction of medical leave with effect from 1.1.1980. He continued to solicit sanction of leave and he has also enclosed a medical certificate. However, when he reported to duty on 3.9.1982 along with medical fitness certificate, he was informed that his services have already been terminated and consequently he was not admitted to duty. Questioning the termination of his services, he raised the above mentioned I.D. in terms of Section 2-A (2) of the I.D. Act. Before the Labour Court, the workman himself was examined as a witness and got marked Exs: W.1 to W.5. On behalf of the writ petitioner herein, one witness was examined and got marked Exs:M.1 to M.8. The case set up on behalf of the petitioner herein is that after initial earned leave applied for 50 days was sanctioned, the 1st respondent/workman did not report to duty on 1.1.1980 and he applied for sanction of leave on medical grounds, on loss of pay basis for 12 months at a time commencing from 1.1.1980 and that was not sanctioned at all. The Executive Engineer has issued a notice on 11.6.1980 calling upon the workman to report to duty immediately as his services as a crane operator are essentially needed. The said communication was sent by registered post to the leave address furnished by the workman. However, the said registered post letter was returned by the postal authorities with an endorsement ‘party left’. The communication dt. 11.6.1980 is marked as Ex:M.1. The registered cover is marked as M.3. It was brought out that an option which is needed to be exercised for coming to the revised pay scale was also sent to his last known leave address. That was marked as Ex:M.4. The said option form was returned by the postal authorities undelivered. Ex:W.5 is the order of termination. It was further contended that the respondent/workman is not interested in resuming duties and performing his duties as he was gainfully employed elsewhere and that was the reason why he took more than 12 years to raise the industrial dispute. Therefore, it was suggested that it was not a fit case for entertaining any claim of the workman. The Labour Court has examined and considered the material that was brought before it very carefully and had noticed that the industrial dispute in question was raised only on 16.4.1992 i.e. nearly 12 years after the services of the workman were terminated. But however, the Labour Court has found that when the respondent/workman has rendered 30 years of service in the organization, his services ought not to have been terminated without following the due process. The Labour Court has come to a conclusion that the termination of the services of the workman amounts to retrenchment in terms of the definition contained under Section 2(oo) of the I.D. Act. Since such retrenchment has not been preceded by complying with the requirements of the Section 25-F of the I.D. Act, the Labour Court found that the termination of the services of the workman is unjust and unsustainable and hence, it ordered reinstatement of the workman into service. Since, the respondent/workman has raised industrial dispute nearly 12 years after his services have been terminated, the Labour Court thought it proper to deny him payment of any back- wages for the said period. Further, by the date the Award itself could be passed by the Labour Court on 12.9.1996, the respondent/workman was said to have attained the age of superannuation. Therefore, with a view to balance the interests of both sides, it directed payment of 50% of the wages from the date of institution of the I.D. i.e. from 16.4.1992 till his normal age of superannuation that was on 31.7.1994. Thus, the Labour Court has also penalized the respondent/workman by denying him 50% of the wages for the post institution of the I.D. period. The learned Assistant Government Pleader very strenuously contends that the Labour Court has grossly misdirected itself in exercising its discretion in favour of the respondent/workman. She contends that the respondent/workman was working as a Special Grade Crane Operator and he was working in an important irrigation project and hence his services are essentially needed, but taking into consideration the leave that was standing to his credit, the competent authority has sanctioned him as many as 50 days of earned leaves commencing from 12.11.1979 to 31.12.1979 but however, the respondent/workman has not retuned to duty on 1.1.1980 and he unauthorizedly remained absent from 1.1.1980. His very conduct in submitting an application seeking sanction of medical leave, at a stretch for a period of 12 months itself not only reflects lack of bona fides behind the claim but also shows that the respondent/workman has been gainfully employed elsewhere. The learned A.G.P. further submits that when Ex:M.1 has been despatched by the Executive Engineer calling upon the respondent/workman to report to duty immediately latest by 5.7.1980, such notice has been returned by the postal authorities with an endorsement ‘party left’. When once the communication has been sent to the leave address furnished by the respondent/workman and when once it was returned stating that the ‘party left’, it is clearly made out that the respondent/workman is gainfully employed elsewhere and that he is not interested in resuming duties under the Government Service. Therefore, the learned A.G.P. contends that the exercise of compassion and sympathy in favour of the workman, instead of validly exercising the discretion by the Labour Court, vitiates the award. The learned A.G.P. also pointed out that the workman has approached the Labour Court with an extraordinary delay of nearly 12 years after his services were terminated and in stead of throwing out the industrial dispute on that score alone, the Labour Court wrongly interfered and granted the relief in favour of the workman. The delay of nearly 12 years in approaching the Labour Court by the Workman ought to have convinced the Labour Court that he was gainfully employed elsewhere and any relief granted in favour of such a workman would only amount to rewarding the misconduct on his part. In contrast Sri.B.G.Rajender Reddy, learned Counsel for the 1st respondent/workman contends that for a variety of reasons including lack of knowledge of legal rights and also due to lack of necessary financial wherewithal, the workmen in general do not approach the courts. He also contends that no workman would straightaway rush to the court without first requesting the authorities concerned repeatedly for his reinstatement. He would seek to invoke the sympathies of the competent authorities and satisfy them that the reasons, which forced him to stay away from the duty, are not illusory or imaginary but genuine and real. The learned Counsel for the 1st respondent further contends that the 1st respondent/workman has established his bona fide and genuine desire to work for the State Government by reporting to duty on 3.9.1982 and if he was permitted to resume duty as on that date, there would not have been any necessity for him to raise the industrial dispute at all. Further, the learned Counsel for the 1st respondent places reliance upon a decision in Shahaji vs. Executive Engineer, PWD [(2005) 12 Supreme Court Cases 141] wherein the Supreme Court, after considering the various Judgments rendered by it earlier, has held that the legal question has been correctly laid in Ajaib Sing vs. Sirhind [(1999) 6 SCC 82] wherein it was held that the delay in invoking the jurisdiction of the Labour Court itself will not defeat the claim for reinstatement by the workman and it is for the Labour Court, when it comes to the conclusion that the termination was illegal, to suitably mould the relief to be granted to the workman, taking into account the delay that had occasioned in raising the dispute. In view of this settled principle of law now, the contention canvassed by the learned AGP that there was an inordinate delay in raising the I.D. by the 1st respondent/workman cannot be said to be so fatal for his claim. In the instant case, the Labour Court had rightly denied any benefit for the workman for the post termination period till 16.4.1992, the date on which the I.D. was raised. Therefore, the delay that was caused in raising the industrial dispute, notwithstanding the provision incorporated by the local amendment to Section 2-A (2) of the I.D. Act was in fact put against the workman only. The Labour Court has also penalized the respondent/workman by denying him 50% of the back-wages for the period between 16.4.1992 to 31.7.1994, the date on which he would have attained the age of superannuation. That was considered to be appropriate punishment by the Labour Court for the unauthorised absence of the workman. Therefore, in my opinion, the Labour Court has rightly exercised the discretion vested in it in terms of Section 11-A of the I.D. Act. It has appropriately balanced the interests of both sides. The Award does not therefore warrant any interference and hence, the writ petition deserves to be dismissed. Accordingly, the writ petition is dismissed but however without costs. _____________________________ NOOTY RAMAMOHANA RAO,J 12.11.2009. KRB. THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO Writ Petition No. 29641 of 1997. Dated this the 12th day of November, 2009.