JUDGMENT Anjani Kumar, J.
1. By means of this writ petition under Article 226 of the Constitution of India the petitioner, concerned workman challenges the award of the labour court, Uttar Pradesh, Kanpur dated 21st June, 1996 passed in Adjudication Case No. 153 of 1991.
2. The following dispute was referred to the labour court for adjudication :
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3. The parties have exchanged their pleadings and adduced evidence before the labour court. The employer, in their written statement, have categorically stated that they have not terminated the services of the concerned workman and no order terminating the services of the concerned workman was passed. The name of the concerned workman is still on the rolls of the employer. In this view of the matter, the concerned workman is not entitled for any relief.
4. The case set up by the concerned workman was that he met with an accident and remained in the hospital and his absence on medical ground was approved by the Employees State Insurance Authority till 25th September, 1990. Therefore, he cannot be said to be absent from his duties.
5. The employer have replied that from bare reading of the application of the concerned workman dated 15th October. 1990, it is abundantly clear that the services of the concerned workman has not been terminated with effect from 26th September, 1990. In fact he is being recorded absent with effect from 26th September, 1990. Even after application dated 15th October, 1990. the concerned workman had not turned up for joining the duties.
6. During the conciliation proceeding, an order was passed by the Conciliation Officer that the concerned workman should now report for duty on the particular date but the concerned workman did not present himself for duty. The concerned workman has stated that, in fact, pursuant to the direction issued by the Conciliation Officer, he was present for duty on the relevant date and time but he was not allowed to Join the duty.
7. The labour court after considering the materials on record has arrived at the conclusion that even if it is assumed that the concerned workman has reported for duty on 26th September, 1990, as stated above, then it has to be seen whether he has inclination to work as he was working before the accident. The employer have specifically pleaded the case that after the accident, the concerned workman cannot perform duties which he was performing before the accident and that is why he was offered a light job which he is not prepared to accept as would be clear from the fact that he has not reported for duty even after direction issued by the Conciliation Officer. From this, it is inferred by the labour court that since the concerned workman was not in a position to resume his duties on the post on which he was working before accident. Therefore, in view of the case in 1995 (71) FLR 722, wherein it is to be decided as to whether the workman is in capacity to resume his duty or not has to be considered from the facts and circumstances of the case and from the nature of the accident. According to the employer, it is not relevant as to whether he is in a position to work on any other capacity or not and if the workman is not in the capacity to perform the same duty, the employer cannot be forced to take such an employee in employment. The labour court has arrived at the conclusion that even the change of duty which was light work available with the employer has not been accepted by the concerned workman and, therefore, certain employee cannot be thrust upon the employer. The labour court, therefore, decided the reference against the concerned workman.
8. Learned counsel for the petitioner has relied upon the case in S.K. Yadav v. J. M. A. Industries and Ors., 1993 (67) FLR 111 (SC). Similarly, the learned counsel for the employer has relied upon several decisions. But in view of the admitted facts that the employer themselves have admitted that they have not terminated the services of the concerned workman and his name is still continuing on the rolls of the employer, in my opinion, the labour court has travelled beyond the pleadings of the parties and arrived at the conclusion referred to above. Once the employer have admitted that they have not terminated the services of the concerned workman, the labour court should have stopped there and answered the reference that since, it is the employers' own case that they have not terminated the services of the concerned workman, therefore, there is no necessity of adjudicating whether his services were terminated or not and whether the termination is legal and justified or not?
9. In this view of the matter, the award dated 21st June. 1996, impugned in the present writ petition, deserves to be quashed and is hereby quashed. The labour court is directed to decide the controversy in view of the pleadings and evidence of the parties and if he comes to the conclusion that the employer have not terminated the services of the concerned workman, it has no option but to direct the resumption of duty by the concerned workman.
10. In view of what has been stated above, this writ petition succeeds and is allowed. The award of the labour court dated 21st June, 1996, is quashed and the labour court is directed to decide the matter afresh in the light of the observations made in this Judgment. Since the matter is fairly old, the labour court is directed to decide the case within a period of six months from the date of presentation of a certified copy of this order before it.
11. There Is no order as to costs.