Thermo Touch vs Shaikh Nazir Shaikh Abdulla

B.N. Srikrishna, J.—The facts of this writ petition under Articles 226 and 227 of the Constitution of India reflect the malaise that has gripped the psyche of the workmen because of the liberal attitude shown by Courts in the matter of reinstatement and back-wages.

By this writ petition the Petitioner challenges the Award dated 2nd May, 1991 made by the Labour Court, Pune, in Reference (IDA) No. 172 of 1985 under the provisions of the Industrial Disputes Act, 1947 (hereinafter referred to as ''the Act'')

The First Respondent was a workman employed the service of the Petitioner as Helper. The Petitioner is a small factory employing about 20 workmen and carries on the business of Heat Treatment of metal parts. The case of the First Respondent appears lo be one of chronic absence, as the record speaks. After exhausting all leave available to him, the First Respondent remained absent in the year 1983 for about 52 days, during the year 1984 for 87.1/2 days and till April 1985, he remained absent for 26 days on the ground of E.S.I. certificate. He was continuously absent from 11th March, 1985 till 20th March 1985. On 21st March, 1985, the First Respondent came to the factory, produced a fitness certificate issued by the Doctor of E.S. I Corporation but did not resume duty and thereafter produced a Medical certificate on 22nd March, 1985.

The Petitioner called upon the First Respondent to resume duty several times, but nothing was heard from him. On 19th April, 1985, the Petitioner wrote a letter to the First Respondent putting the facts on record and called upon the First Respondent to immediately report for duty on receipt of the letter with a Medical Certificate covering the days of his absence. A deadline was given to the First Respondent that he should resume duty on 24th April, 1985 with a Fitness Certificate, failing which he was threatened with disciplinary action.

The First Respondent apparently addressed a letter dated 18th April, 1985 which was received by the Petitioner after the despatch of its letter dated 19th April, 1985. The Petitioner wrote another letter dated 22nd April, 1985 to the First Respondent and called upon him to produce a Medical Certificate to cover the period of his absence arid immediately resume duties. The Petitioner also stated that it was a default on the part of the First Respondent not to have resumed duty by producing the requisite Medical Certificate and, therefore, the Petitioner was not liable to pay wages for his absence. If the First Respondent had been better advised, he would have forthwith resumed duty. Instead of doing so, he moved the Government authorities with a demand for reinstatement, which came to be processed. During the processing of the said demand also, the Petitioner offered before the Government Labour Officer that the First Respondent would be taken on duty immediately provided he reported for work with a Fitness Certificate, but the First Respondent again failed to do so. Finally, the industrial dispute for reinstatement with continuity of service and full back-wages came to be referred for adjudication vide Reference (IDA) No. 172 of 1985.

In its written statement filed before the Labour Court too, the Petitioner reiterated that it was ready and willing to take the First Respondent on duty if he reported for work with a Fitness Certificate. In fact, at the end of the written statement the Petitioner made a prayer to the Labour Court to direct the First Respondent to report for duty immediately. The First Respondent appeared to have been badly advised and never reported for duty by taking advantage of the repeated offers made.

The reference was tried and resulted in the impugned Award dated 2nd May, 1991 by which the Labour Court directed reinstatement of the First Respondent on his original post with continuity of service together with full back-wages for the interregnum. The impugned Award has been challenged by the present writ petition which was admitted on 6th April, 1992. However, this Court declined to grant interim relief. The Petitioner allowed the First Respondent to resume work from 8th July, 1991, and thus complied with the direction as to reinstatement, though the direction as to payment of back-wages has remained unimplemented and the Award has also not been executed by the First Respondent. Thus, the only challenge to the Award in this writ petition is to the direction as to back-wages.

From the perusal of the record it is seen that the Petitioner on four distinct occasions called upon the First Respondent to resume work which the First Respondent failed to do. First, by its letter dated 19th, April, 1985 (Exh. ''A''); second, by its letter dated 22nd April. 1985 (Exh.''B''); third, before the Government Labour Officer and finally, in the written statement filed by the Petitioner. If on four distinct occasions the Petitioner had unconditionally offered to First Respondent to take him back in service provided he reported and produced a Medical Certificate to cover the period of absence, I see no reason why the First Respondent should be rewarded with back-wages by putting premium on his own conduct. The direction as to back-wages made in the impugned Award, therefore, appears to be erroneous to my mind. Incidentally, Mr. Bukhari pointed out the chronic absenteeism of the First Respondent even after his reinstatement which resulted his once again being dismissed from service.

Considering it from all angles, I see no justification for the direction as to back-wages.

In the result, the writ petition is allowed. The direction in the impugned Award for payment of back-wages is hereby quashed and set aside.

Rule accordingly made absolute with no order as to costs.