(Prayer: Writ Petition is filed under Article 226 of the Constitution of India for the issue of a Writ of Certiorari to call for the records of the first respondent in I.D.No.65 of 2000 and quash the Award, dated 18.11.2008.

Prayer: Writ Petition is filed under Article 226 of the Constitution of India for the issue of a Writ of Certiorarified Mandamus to call for the records pertaining to the order of the first respondent in I.D.O.P.No.65 of 2000, dated 18.11.2008 and set aside the order in respect of disallowing the back wages to the petitioner alone and award all the attendant benefits along with back wages to the petitioner.)

Common Order:

1. As the issues involved in both the Writ Petitions are common with a challenge to the very same Award of the Labour Court, they have been taken up together and dealt with by a Common Order.

2. The case of the petitioner in W.P.(MD)No.3607 of 2009 is that the petitioner/management is engaged in the manufacture of condoms. The second respondent/workman joined the service of the management in the year 1991 and he was working as Operator. As the second respondent/workman was a habitual absentee, during the years, 1997 and 1998, disciplinary action was initiated against him for his unauthorized absence and he was awarded with minor punishment. Thereafter, on 16.09.1998, the second respondent/workman reported for duty and he was allowed to work in the first shift, viz., from 06.00 AM to 02.00 PM. At about 12.00 noon, he made a request for leave and left the place, and thereafter, nothing was heard from him. On 07.01.1999, the petitioner/management sent a letter to the second respondent/workman, advising him to report for duty, followed by reminders, dated 15.01.1999 and 05.02.1999. Since the second respondent/workman did not turn up for duty, despite the above communications, on 20.02.1999, the petitioner/management sent a final reminder, requiring him to report for duty, on or before 25.02.1999. In the said communication, it was made clear that if the second respondent/workman did not turn up for duty, on or before the said date, his name would be removed from the rolls of the company, with effect from 28.02.1999. However, the second respondent/workman did not report for duty. Thereafter, it was alleged that on 22.03.1999, the second respondent/workman submitted a letter to the petitioner/management requesting that on suspicion ground, he was arrested by the police, on 16.09.1998, and thereafter, he was released on bail and when he reported for duty, he was not allowed to join duty. By reply letter, dated 30.03.1999, the petitioner/management informed the second respondent/workman that in view of his absence from 17.09.1998, despite the letter of the petitioner/management, his name was removed from the rolls of the company from 28.02.1999. The petitioner/management specifically denied the allegations of the second respondent/workman that when he reported for duty, he was not permitted to resume work. As the second respondent/workman was not allowed to report for duty, he raised an industrial dispute. The Labour Court, by Award, dated 18.11.2008, directed reinstatement of the second respondent/workman in service, without back wages.

3. Assailing the correctness of the Award, dated 18.11.2008, made in I.D.No.65 of 2000, on the file of the first respondent, directing reinstatement of the workman in service, without back wages, the management has come forward to file W.P.(MD)No.3607 of 2009.

4. Challenging the Award of the Labour Court, dated 18.11.2008, made in I.D.O.P.No.65 of 2000, insofar as it relates to disallowing the back wages to the workman alone and award all the attendant benefits along with back wages, he has come forward to file W.P.(MD)No.6876 of 2009.

5. The learned counsel appearing for the petitioner/management submitted that the Award of the Labour Court is perse illegal and against all probabilities of the case. The learned counsel contended that adequate opportunity was granted to the employee to report for duty. The learned counsel further assailed the order of the Labour Court contending that the notices were all sent to the correct address, and therefore, the finding of the Labour Court that the order of termination was passed without opportunity is bad in law.

6. The learned counsel also refuted the contention of the learned counsel for the delinquent employee that the management had received the letter of the petitioner, dated 11.01.1999. The learned counsel also contended that in any case, considering the previous conduct of the employee and the laches in raising the Industrial Dispute, the employee is not entitled to back wages. Relying upon the Judgment of the Apex Court in O.P.Bhandari Vs.Indian Tourism Development, reported in 1986 (4) SCC 337 [LQ/SC/1986/353] L&T Komatsu Ltd., Vs.N.Udayakumar, reported in 2008 (1) SCC 224 [LQ/SC/2007/1465] , and the Judgment of a Division Bench of this Court, in M.M.Velappan Vs. The Commissioner, Madurai Municipal Corporation, Madurai, reported in 1999 (1) MLJ 628 [LQ/MadHC/1999/62] : 1999 (II) LLJ 182,the learned counsel sought for setting aside of the Award of the Labour Court.

7. Per contra, the learned counsel appearing for the petitioner /employee contended that having found the action of the management to be illegal, the Labour Court ought to have awarded reinstatement in service with back wages. With regard to the challenge to the Award, the learned counsel contended that after appreciating the documentary evidence and the probabilities, the Labour Court had rightly directed the management to reinstate the petitioner/employee. The learned counsel, in support of his contention, placed reliance upon the Judgments in Ved Prakash Gupta Vs.Delton Cable India [P] ltd., reported in 1984 (2) SCC 569 [LQ/SC/1984/65] ; Mgmt of LUK India Private Ltd., Vs. P.O, reported in 2007 (4) MLJ 1247 [LQ/MadHC/2007/2168] ; V.Senthurvelan Vs.High Court of Judicature at Madras, reported in 2009 (7) MLJ 1213 and J.Fairose Basha Vs. Managing Director,reported in 2010 (5) MLJ 990and sought for modification of the Award to the extent of back wages.

8. I have considered the above submissions and perused the records carefully.

9. In the Judgment in L&T Komatsu Ltd., Vs.N.Udayakumar, reported in 2008 (1) SCC 224 [LQ/SC/2007/1465] , the Apex Court in a case, where the employee had unauthorizedly absented himself several times, after considering various judgments rendered earlier, held as follows:

"12.When the factual background is considered in the light of the principles indicated above, the inevitable conclusion is that the Labour Court and the High Court were not justified in directing the reinstatement by interference with the order of termination. The orders are accordingly set aside. The order of termination as passed by the authority concerned stands restored. The appeal is allowed with no order as to costs."

10. In the above case, a domestic enquiry was conducted and after the services were terminated. In the present case, there was no domestic enquiry. The service of the employee was directly terminated.

11. The learned counsel for the employee has relied upon the Judgment in J.Fairose Basha Vs. Managing Director,reported in 2010 (5) MLJ 990to contend that the services of an employee cannot be terminated without enquiry and the Judgment in V.Senthurvelan Vs.High Court of Judicature at Madras, reported in 2009 (7) MLJ 1213to contend that the punishment must be proportionate to the charges. Of course, it has now been settled by the Apex Court in the Judgments in Bank of Baroda Vs. Anita Nandrajog, reported in 2009 (9) SCC 462 [LQ/SC/2009/1777] and in Vijay S.Sathaye Vs. Indian Airlines Ltd., reported in 2013 (10) SCC 253 [LQ/SC/2013/998] , that in case of habitual absentees, after notice if the employee does not report for duty, the same can be treated as voluntary cessation and no inquiry is necessary.

12. In the present case, the core dispute is whether the notice was served or not. After considering the documents, the Labour Court has come to a conclusion that the management has failed to prove that the notices calling for the employee to report for duty were served on the employee. I have also seen the letters and the postal documents. All the letters alleged to be sent by the management contain the wrong address of the employee, but the certificate of posting contains the correct address. Well, there can be a mistake once, but not four times. If the management was aware of the correct address even before 11.01.1999, they would have mentioned the correct address in the recital of the letter. Further, this Court is also of the view that since the employee was taken into custody from the factory of the petitioner/management on 16.09.1998, the management would be aware of it as the police would not have been able to enter without intimation to the management. Therefore, this Court finds no irregularity in the order of the Labour Court, directing reinstatement in service of the employee.

13. Now, coming to the point of back wages, the learned counsel for the employee relied upon the following judgments.

14. In the Judgment in Ved Prakash Gupta Vs.Delton Cable India [P] ltd., reported in 1984 (2) SCC 569 [LQ/SC/1984/65] , the Apex Court held as follows:

There is nothing on record to show that any previous adverse remark against the appellant had been taken into consideration by the management for awarding the extreme penalty of dismissal from service to the appellant even if he had in fact abused in filthy language Durg Singh and S.K. Bagga. We are therefore of the opinion that the punishment awarded to the appellant is shockingly disproportionate regard being had to the charge framed against him. We are also of the opinion that no responsible employer would ever impose in like circumstances the punishment of dismissal on the employee and that victimization or unfair labour practice could well be inferred from the conduct of the management in awarding the extreme punishment of dismissal for a flimsy charge of abuse of some worker or officer of the management by the appellant within the premises of the factory. We therefore hold that the termination of the appellants service is invalid and unsustainable in law, and that he is entitled to reinstatement with full back wages and other benefits including continuity of service. The appeal is allowed accordingly with costs quantified at Rs 1000/-. The writ petition is dismissed without costs.

15. Following the above judgment, this Court, in Mgmt of LUK India Private Ltd., Vs. P.O, reported in 2007 (4) MLJ 1247awarded 50% back wages, holding as follows:

"15. Considering the nature of charges, the Labour Court has held that the punishment of dismissal imposed by the management on the workmen is disproportionate and, consequently, ordered reinstatement with continuity of service and other benefits, which, in my view, cannot be said to be perverse, in view of the decision of the Supreme Court in Ved Prakash Gupta v. Delton Cable India (P) Ltd., referred to above. Therefore, I do not find any reason to interfere with the award passed by the Labour Court, on that score.

16. However, as regards the finding with regard to back wages, I see some reason to interfere with the award. Considering the fact that the workmen have put in ten years of service and they have lost a further service of ten years during the pendency of the proceedings and still they have service for ten more years pursuant to reinstatement, I direct the management to pay 50 % of the back wages, due to the workmen, within a period of two months from today."

16. The learned counsel for the management has relied upon the Judgment of the Apex Court in O.P.Bhandari Vs.Indian Tourism Development, reported in 1986 (4) SCC 337 [LQ/SC/1986/353] to contend that instead of reinstatement with back wages, the Labour Court can award salary and usual allowances as compensation.

17. The learned counsel also placed reliance upon the Judgment in M.M.Velappan Vs. The Commissioner, Madurai Municipal Corporation, Madurai, reported in 1999 (1) MLJ 628 [LQ/MadHC/1999/62] : 1999 (II) LLJ 182to contend that while deciding the question of back wages, this court must consider the previous conduct of the employee.

18. In the present case, the absence of the employee is not for the first time. On the second occasion, the allegation is that the employee absented himself from 17.09.1998. As stated, the employee was taken into custody by the police on 16.09.1998. The employee after satisfying the bail conditions has claimed to have reported for duty on 10.01.1999 and then sent a letter on 11.01.1999. However he has raised a disputed only on 27.03.1999. The Labour Court has denied back wages not only on the ground that there are laches in raising the Industrial Dispute, but also in prosecuting the dispute. Therefore, this Court finds no reason to interfere with the Award of the Labour Court regarding back wages. However, the employee is entitled for back wages from the date of the Award.

19. In the result, W.P.(MD)No.3607 of 2009 filed by the Management is dismissed. W.P.(MD)No.6876 of 2009 filed by the employee is disposed of with a direction to the Management to reinstate the employee in service within two weeks from today. The employee is entitled for back wages from the date of the Award. No costs.