JUDGMENT B.K. Roy, J.
1. The petitioner prays to quash (i) the order of reference of the appropriate Government (State of U.P. - Respondent No. 4) as contained in An-nexure-1 and (ii) the award dated September 14, 1981 of the Presiding Officer, Labour Court, Ghaziabad (Respondent No. 2) in Adjudication Case No. 151 of 1979.
The Facts:
2. Respondent No. 3 Kartar Singh Tyagi was employed as an Apprentice-chemist in the Establishment of the petitioner. On July 7, 1978 he did not report to work. Respondent No. 3, on the other hand, took up a plea that on account of ailment of his wife he went to his home to attend her after sanction of leave from July 7, 1978 to July 27, 1978 by the Chief Chemist Sri K.K. Singh and that on July 28, 1978 he himself fell ill and his illness continued till August 3, 1978 and got himself treated from July 28, 1978 to August 3, 1978 in the Employees State Insurance Dispensary, Kiran Colony, Ghaziabad and after obtaining medical certificate on August 4, 1978 he went to join his duties but was told by the Time Keeper that he has been removed from service by the petitioner who also refused to accept the medical certificate. On August 4, 1978 he informed the Conciliation Officer, Ghaziabad of the aforementioned facts by telegram and on August 5, 1978 the Management of the Establishment by a registered letter and requested to continue his employment. Reference was made by respondent No. 4 to Respondent No. 1 and the following findings were recorded in the impugned award: (1) Labour Court is not competent to adjudicate the validity of reference though made in regard to only one workman besides in view of Section 2(a) of the U.P. Industrial Disputes Act termination of even an individual workman will also be an Industrial Dispute, (ii) Both sides accept that the workman was on sanctioned leave on July 5, 1978 and July 6, 1978 was his weekly leave who may differ on facts in regard to July 7, 1978 onwards, (iii) on July 7, 1978 the application dated July 7, 1978 of the workman for grant of leave of 22 days duly recommended by Sri K.K. Singh, the Chief Chemist, who was his departmental head, was received by the Manager and it was the Manager's responsibility to obtain an order of either according the leave prayed for or its rejection by the Management and communicate the fact of this application to the workman inasmuch as normally the applications for grant of leave supported by the recommendation of the departmental head are accepted. Accordingly to treat the absence of the workman without leave from July 7, 1978 to July 27, 1978 was not proper. The workman had also applied for grant of leave on account of his own ailment from July 28, 1978 to July 31, 1978 which was also proved by the Medical certificate granted by the Employees State Insurance Dispensary and received by the Manager. According to Section 73 of the Employees State Insurance Act, 1948 if a workman is on leave for treatment of his ailment his services cannot be terminated. Accordingly striking of the name of the workman on July 31, 1978 from the register by the management was illegal and improper, (iv) The provisions of Clause 10(j) of the Standing Orders are not applicable because the departmental head had accorded approval for grant of leave of the workman, which is ordinarily treated to be granted, (v) The Management has also failed to prove that the workman was otherwise gainfully employed from July 31, 1978. (vi) For the reasons aforementioned termination of the service of the workman was improper and illegal and thereby the management is being directed to appoint the workman in continuity of his earlier service and pay his full wages till July 31, 1978. (vii) The management is also directed to pay as cost Rs. 100/- to workman.
The submissions:-
3. Mr. Dinesh Dwivedi, learned counsel appearing in support of the Rule very fairly pressed only one point, namely, that in view of the decision of the Supreme Court in D.K. Yadav v. J.M.A. Industries Ltd. (1993-II-LLJ-696) as the workman had admittedly not worked at all from July 7, 1978 till the passing of the impugned order the Labour Court should have granted only 50% of the back wages.
4. Sri Santosh Kumar Misra, learned counsel appearing on behalf of the workman - respondent No. 3, on the other hand, contended that the sole submission made by Sri Dwivedi is not sound inasmuch as D.K. Yadav (supra) the Supreme Court had awarded only 50% of the back wages to the workman after finding that the workman was to blame himself for the impugned action whereas in the instant case on the findings of fact recorded by the Labour Court, which were not shown to be vitiated on account of any error, the fault lay with the management and accordingly the impugned award cannot be said to be vitiated and the writ petition is liable to be dismissed with cost.
My Findings:-
5. The relevant part of the judgment in D.K. Yadav (supra), relied upon by Mr. Dwivedi, reads thus P.702 "This conclusion leads us to the question as to what relief the appellant is entitled to. The management did not conduct any domestic enquiry nor give the appellant any opportunity to put forth his case. Equally the appellant is to blame himself for the impugned action. Under the circumstances, 50 per cent of the back wages would meet the ends of justice. The appeal is accordingly allowed. The award of the Labour Court is set aside and the letter dated December 12, 1980 of the Management is quashed. There shall be a direction to the respondent to reinstate the appellant forthwith and pay him back wages within a period of three months from the date of the receipt of this order. The appeal allowed accordingly. The parties would bear their own cost".
A bare perusal of the aforesaid passage shows that only 50% of the back wages was allowed by the Supreme Court after recording a finding that the workman was also equally to be blamed for the impugned action.
In the instant case, however, there is no finding against the workman that he was also equally to be blamed for the impugned action. On the other hand, on the findings of fact recorded by the Tribunal it was the Management who was to be blamed and not the workman. Thus, D.K. Yadav (supra) does not support the solitary submission made by Mr. Dwivedi.
6. Since the solitary submission made by Mr. Dwivedi has failed, there is no merit in this writ petition.
7. Accordingly this writ petition is dismissed with cost. Hearing fee quantified to the tune of Rs. 250/-.