MESSRS AUTOMOBILE KASHYAP Vs. RIYAZUDDIN AND ANOTHER

JUDGEMENT

(1.) By this petition filed under Articles 226 and 227 of the Constitution of India, the petitioner seeks quashing of the Award passed in ID No. 311/89 dated 1.7.2002 whereby the Industrial Tribunal directed the reinstatement of the respondent workman with full back wages.

(2.) Brief facts relevant for deciding the present petition are that the respondent No. 1 workman joined the petitioner company as a Denter on 2.4.1986. It is alleged by the petitioner that the respondent workman frequently absented himself from duty and due to this a charge sheet dated 22.2.89 was issued against him calling upon him to furnish an explanation for the same within three days. Thereafter from 8.3.89, the respondent workman started absenting himself from duty and also did not furnish any explanation to the charge sheet. By letter dated 15.3.89, the petitioner management informed the respondent asking him to furnish an explanation failing which it would be presumed that he has abandoned his services. On 25.3.1989, the respondent asked the petitioner to supply him with a Hindi Translation of the charge sheet which was sent to him by the petitioner on 5.4.89. Thereafter the respondent approached the Conciliation officer, but the conciliation proceedings were not successful and hence the government referred the dispute to the Industrial Tribunal No. III which passed an award in favour of the respondent workman holding that his services were illegally terminated by the petitioner management and directed his reinstatement with full back wages. Feeling aggrieved with the same, the present petition has been preferred.

(3.) Mr. Rajendra Dhawan, counsel for the petitioner submitted that the respondent workman had himself declined to join the petitioner management despite written letters sent to him by the management. The petitioner had issued a letter dated 15th March, 1989 to the respondent workman calling upon him to join the duties. Even in the written statement filed by the petitioner management before the Tribunal, the petitioner management had shown its willingness to allow the respondent to resume his duties and also took a stand that the services of the respondent workman were never terminated. The contention of the counsel for the petitioner was that these vital aspects have been ignored by the Tribunal while passing the impugned order and, therefore, there is a total non -application of mind on the part of the Tribunal in directing grant of back wages w.e.f. 1.3.1989 till the date of his joining i.e. 15.11.2000. In support of his arguments, counsel for the petitioner placed reliance on the judgment of the Bombay High Court in Sonal Garments vs. Trimbak Shankar : Karve 2003 LLR 5 where it was held that where an employer gives an offer to his employee to come and join back his duties and the employee still does not come forward, then in such a case the employee would not be entitled to back wages.