(Prayer: This Writ Petition is filed under Articles 226 & 227 of Constitution of India praying to quash the award Dated 16.08.2010 passed by the Additional Labour Court, Hubli, in Kid No. 3/2006 vide Annexure-A & etc.)

1. Heard the learned counsel for the petitioner and the learned counsel for the respondent and perused the records.

2. The petitioner has called in question the order passed by the Addl. Labour Court, Hubballi, in KID No. 3/2006 dated 16.08.2010 in awarding various reliefs to the respondent herein.

3. The brief factual matrix that are not disputed are that the respondent is a party workman working as a Conductor in the petitioners management who was a permanent employee. That, on the allegations that, he remained absent from 10.12.2000 to 21.10.2001, a departmental enquiry was initiated on the above said allegation of absence of the respondent without any leave or permission by the petitioner management. After giving sufficient opportunity and after appreciation of the documentary and oral evidence the enquiry officer appears to have given a report holding that the respondent is guilty of misconduct, his absence has been considered as unauthorized absence. Thereafter the disciplinary authority, i.e., the petitioner herein, has imposed a penalty of dismissal on the petitioner. The said order of the management dated 22.08.2005 in dismissing the respondent from service was called in question before the Labour Court in KID No. 3/2006. After hearing in detail and considering the oral and documentary evidence putforth before the Labour Court, the Labour Court has come to the conclusion that, the order passed by the management in dismissing the workman is illegal and consequently the said order was set aside and the management was directed to reinstate the workman into service with continuity of service and other service benefits and also directed to treat the period from 11.12.2000 to 14.5.2001 as medical leave or any other kind of leave as per law and also directed to pay full wages from 15.05.2001 to 02.10.2001 and as well to pay 75% of the backwages from 22.08.2005 till the workman is reinstated.

4. The learned counsel for the petitioner strenuously contends before this Court that, the KID has unnecessarily shown sympathy towards workman. Even in the absence of certain evidence before the Court, it has come to the conclusion that, the management is at fault in not taking the respondent on duty on various occasions though the respondent has made all efforts to join the duty after recovering from his illness. He also contends before this Court that, due to the absence of the respondent the management has suffered great inconvenience and for that they have to make alternative arrangement for to pull on the system. Therefore, it is contended that, awarding of the backwages is erroneous and it causes severe loss to the management.

5. Learned counsel also submits that the workman is already retired from service in the year 2013 itself. Therefore, there is no question of considering his leave for a particular period when reinstatement has been ordered by the KID with continuity of service. He further contends before this Court that, the employee has not furnished sufficient materials to show with regard to genuine reasons for his absence and the medical certificate provided is also not adequate for the purposes of considering the said absence of the employee as a genuine one. Therefore, for all the above said reasons he contends that, the KID has not properly appreciated the oral and documentary evidence on record and wrongfully concluded in ordering for reinstatement and also ordering the backwages.

6. Per contra, learned counsel for respondent strenuously contends before this Court that, the KID has properly appreciated the entire materials on record and it has come to the conclusion that the management, i.e., the petitioner herein, has shown some inhuman attitude towards an employee in not properly considering the leave application filed at the relevant point of time and not considering the joining report submitted on three occasions by him and even without issuing call notices at the relevant point of time. If at all the joining reports were merely filed without any intention to join to the duty immediate action should have been taken. Therefore, these aspects have been appreciated and considered by the Labour Court.

7. Learned counsel also contends that, it is only at the instance of the management the respondent could not able to join duty. Therefore, at the fault of the management the employee was prevented from discharging his duty. Hence, the Labour Court has properly awarded 75% backwages. Therefore, the said order does not call for interference at the hands of this Court.

8. On hearing the learned counsel and on careful perusal of the judgment of the Labour Court and other materials on record, it is just and necessary to find out whether the order passed by the Labour Court is proper and based on materials on record.

9. Undoubtedly, the factual aspects disclose that in the year 1993 the respondent has suffered an accident and due to which he has suffered severe injuries. Therefore, he started absenting himself to the duty on various occasions but on the leave granted by the management. He has been absented himself to duty with permission which is the core object of this case to ascertain whether he unauthorizedly absented himself from 11.12.2000 to 21.10.2001. It is also from records seen that he has not submitted the leave application at the earliest but he has submitted the application after 44 days. It is also evident that, he remained absent for a period of more than 297 days. It is also evident that, for such period no leave has been granted by the management. Of course, it is the discretion of the management to grant leave or otherwise. However, fact stands that in this particular case, the leave has not been granted.

10. As per the submission of the learned counsel for the petitioner that, because the leave application has not been supported by sufficient medical reports, except one medical report submitted by the respondent, it only shows that he was treated in the OPD and he was sent out on that day itself, that was on 11.05.2001. Though this document shows that the said person requires rest from 27.02.2001 to 14.05.2001. But, there is no material to show from 10.12.2000 to 27.02.2001 whether there was any medical certificates for the purpose of considering the said period as on medical leave, etc.

11. It is also evident from the records that, on three occasions the respondent has given joining reports. It is elucidated from the report of the enquiry officer that, the respondent has given his joining report on 15.05.2001, 02.07.2001 and thereafter on 13.07.2001. It is the contention of the management that on those occasions though he has filed the reports to join duty, but actually he had no intention to join the duty but he has simply given the application and went away even without waiting for the permission of the management. Therefore, the management was forced to issue a call notice on 10.08.2001.

12. There is no materials to show or produced either by the petitioner or by the respondent what was the reason for the respondent to go back simply by filing such joining report to the management. None of the parties have produced sufficient materials / evidence to draw any inference as to at whose instance or at whose fault these things have happened.

13. On perusal of the materials on record, on 15.05.2001 the first joining report was submitted, if at all the respondent went out from the office without any intention to join service, the management has not taken swift action against him by calling him to join duty. It waited up to 10.08.2001 without any reasons. On the other hand, when the respondent was prevented from discharging his duty even after submitting the joining reports, if so, according to him, he also has not taken any action against the management to see that, the management is obliged to allow him to discharge his duty. Therefore, in the view of the above said vague circumstances and when the facts are hazy with regard to these aspects, the Court may not be in a position to find out who is at fault. However, the fact remains that three applications have been filed seeking for joining the duty, nevertheless he did not work even after such joining reports.

14. Under the above said circumstances, I am of the opinion, that the Labour Court has rightly come to the conclusion that the management has not properly established that during that particular period the respondent remained absent unauthorizedly.

15. The document which is produced before the trial Court is the medical certificate, to some extent goes to show that a Government Doctor has advised him to take rest for a particular period, i.e., from 27.02.2001 to 14.05.2001. There is no material as to why this public servants report or the certificate has to be disbelieved. Contrary evidence ought to have been led by the management to show that, though the employee was hale and healthy during that particular period of time but deliberately he absented himself to avoid discharging his duty. In the absence of such materials the Labour Court is right in holding that, the management has not established this particular aspect that, the respondent remained absent deliberately during that particular point of time to cause wrongful loss to the management.

16. The second aspect of the matter remains for consideration is that, with regard to awarding of the back wages by the Labour Court. It awarded 75% backwages from 22.08.2005. Admittedly, the employee is retired in the year 2013. Therefore, it goes without saying that from 22.08.2005 till the date of his retirement he is entitled for backwages. Though the period from 11.12.2000 to 14.05.2001 was ordered to be treated as medical leave or any other kind of leave. Such direction becomes redundant because of the simple reason that the Labour Court itself has ordered for continuity of service from 22.08.2005. Therefore, such direction to treat the said period as medical leave becomes superfluous.

17. So far as the awarding of the backwages are concerned, admittedly from the date he absented himself, the management has to suffer in the absence of one workman, it has to make alternative arrangement for the purpose of extracting such work. Due to his absence, either they have to appoint a person temporarily or to adjust with the other employees by making extra payment to them. Though there is no material produced before the Court it goes without saying that the management has suffered loss of one persons work during that particular period. Therefore, in my opinion, in the above said circumstances when the Court is not in a position to come to a definite conclusion with all certainty as to at whose fault the instance happened, i.e., the absence of the respondent even though he made attempts to join duty whether at the instance of the management he was prevented from discharging duty or he was not in a position or not intended to join duty but for the name sake he has given those joining memos.

18. Under the above said circumstances, in my opinion, the Labour Court ought to have fastened liability on both the persons to the extent of 50% each. Ordering of 75% backwages is little bit harsh so far as the management is concerned, it should have been 50% instead of 75%.

19. Under the above said circumstances, the order of the Labour Court requires to be modified to that extent. Hence, I proceed to pass the following order.

ORDER

Petition is partly allowed. The order passed by the Labour Court issuing direction to the respondent to pay 75% of the backwages from 22.08.2005 till the workman is reinstated or retirement, is hereby modified to the extent of 50% instead of 75%. Rest of the order of the Labour Court is not disturbed.