JUDGMENT Bharati Sapru, J.
1. This writ petition has been filed against an award of the Labour Court dated 22.3.96 passed in Adjudication No. 250 of 1985, by which, the Labour Court reinstated the respondent workman Mahendra Singh Tyagi with full back wages. The dispute was raised in the year 1985 and it has taken 20 years for the matter to be heard finally at the High Court level. The position as on today is that the respondent workman has attained the age of superannuation and, therefore, the question of reinstatement is no longer alive except granting the benefits of reinstatement in terms of money.
2. The facts of the case are that the respondent workman was terminated by the Corporation on 6.2.81 on the ground of absenteeism. While the Corporation says that the respondent workman did not attend duties from 6.2.81, the workman's story on fact, is different. He says that on account of having met with an accident, he was allowed light duties and he continued to be at the service of the petitioner Corporation. He refused the charge that he was absent from duty with effect from 6.2.81.
3. Learned Counsel for the petitioner raised four arguments before this Court.
4. First argument as raised by learned Counsel for the petitioner is that the finding of the Labour Court in its award that the domestic enquiry club by the petitioner was bad and violative of the rules of natural justice is perverse and illegal on account of the fact the enquiry report itself records that every opportunity was given to the respondent workman to defend his case. Learned Counsel for the petitioner has referred to the order passed on 3.3.84 in the domestic enquiry, which is appended as Annexure-I to the petition, which records that not only was written charge sheet given to the petitioner on 2.9.81 but the same was also received by him on 10.9.81. Learned Counsel for the petitioner has also pointed-out that the respondent workman was given an opportunity to defend himself by way of personal hearing on 21.6.82 When the respondent workman did not appear on the date fixed for hearing, another notice was given to him on 15.12.82 and the respondent workman appeared and gave a written statement on 23.12.82. On the next date of hearing on the domestic enquiry on 14.2.84 also the respondent workman was questioned and the authority, having given full opportunity to the respondent workman, therefore came to the conclusion by his order-dated 3.3.84 that the respondent workman had remained absent from 6.2.81. Learned Counsel for the petitioner has argued that if the test of reasonability is applied to the matter as is contained in Regional Manager, U.P.SRTC, Etawah and Ors. v. Hoti Lal and Anr. The inescapable conclusion in the present matter establishes that indeed the respondent workman had been given a reasonable opportunity to defend himself. Learned Counsel for the petitioner, therefore, argues that the conclusion of the labour Court in its award that the domestic enquiry was not fair and proper is clearly vitiated.
5. The second argument stands from the first argument and learned Counsel for the petitioner argues that if the Labour Court had come to the conclusion that the domestic enquiry as held by the employer was not fair and proper, then, the petitioner in the very first instance had made a prayer in paragraph-25 of its W.S. that it should be allowed to lead additional evidence to prove his case. This is the law as has been laid down by the Hon'ble Supreme Court in the case of Workmen of Fire Stone and Tyre Rubber Company of India Pvt. Ltd. In this decision, the Hon'ble Supreme Court laid down that while granting relief to workmen, the Labour Court was clothed with power also to allow the employee to adduce additional evidence for the first time, even if the enquiry held by the employer was found to be vitiated or was held to be perverse. This decision was followed and applied also in the case of Bharat Forge Company Ltd. v. A.B. Zodge and Anr. as reported in 1996(73) FLR 1754. The decision of law continues to be the same and in a later judgment in the case of Divyash Pandit v. Management N.C.C.B.M. reported in 2005 (105) FLR 1179 also the Hon'ble Supreme Court continues to hold that no fetter placed on the powers of the Court/Tribunal to require or permit parties to lead additional evidence at any stage of proceedings. Thus, the contention of the petitioner that because the petitioner had sought an opportunity to lead additional evidence to prove the charges against the workman, it should have been given an opportunity is correct. The failure on the part of the Labour Court to permit the petitioner to give additional evidence to prove the charges against the workman is clearly resulted in prejudice to the petitioner.
6. The third aspect of the matter, which has been argued by learned Counsel for the petitioner, is on the question of the nature of misconduct, which was indulged in by the respondent workman, that is, of absenteeism.
7. Learned Counsel for the petitioner argues that in the facts and circumstances of the present case, the respondent workman had remained absent for a period of three years and, therefore, on the facts of the present case, dismissal of the respondent workman was wholly justified, as that was the only punishment that should have been given to the respondent employee who has willfully absented from the year 1981 to the year 1984. Learned Counsel for the petitioner in support of his argument has relied in the case of State of Rajasthan and Anr. v. Mohd. Ayub Naz as . Learned Counsel for the petitioner has also argued that relief of back wages should not be given to the petitioner on account of the fact that he did not work during that period with the employer and, therefore, he was not entitled to any pay on the principal of ' no work no wages'. This issue was also been dealt with in the case cited above.
8. The last and fourth argument of learned Counsel for the petitioner is that the Labour Court has wrongly placed the burden of proving that the workman was not gainfully employed on the Petitioner Corporation. He has argued that it is settled law that the burden to prove that the workman is not gainfully employed lies on the person's seeking the relief and raising the claim. Learned Counsel for the petitioner refers to the claim filed by the respondent workman where there is not even a whisper made by the respondent workman that he is without work. Learned Counsel for the petitioner, therefore, argues that from such a state of affairs, the workman was actually, usefully occupied in some way. Learned Counsel for the petitioner also refers to the written statement filed by the Petitioner Corporation before the Labour Court, wherein the petitioner has clearly stated that the respondent workman was gainfully employed.
9. Learned Counsel for the petitioner argues that the relief of back wages can only be given by the Labour Court when it has fully applied its mind to the issue and has examined the question and, thereafter, comes to the conclusion that back wages are to be granted to the respondent workman and the extend thereof. Learned Counsel for the petitioner has relied on the decision of U.P. State Brassware Corporation v. U.N. Pandey as . In reply to all this contentions as raised by the learned Counsel for the petitioner, the learned Counsel for the respondent has argued that on facts the respondent workman's contention that he was not absent with effect from 6.2.81 but rather he was on light duty, other than this argument, learned Counsel for the respondent has not been able to counter any of the argument made by learned Counsel for the petitioner.
10. I have carefully considered the submissions made by both counsels and I have also seen the pleadings and record of the case and 1 fully come to the conclusion that the arguments as raised by learned Counsel for the petitioner on all four points have substance and, therefore, I accept the same.
11. There is no doubt that in this case adequate opportunity was given to the respondent workman to defend himself in the domestic enquiry. Secondly, when the Labour Court came to the conclusion that the domestic enquiry was vitiated, it ought to have given the petitioner Corporation an opportunity to lead additional evidence. When it did not do so, it failed to exercise jurisdiction so vested in it. Specially on account of the fact that the petitioner had cared to make a prayer to lead additional evidence at the very stage of the case. Thirdly, the Labour Court indeed failed to go into the question of the nature of misconduct in which of absenteeism as indulged in by the respondent workman. When the job is of responsibility, absenteeism could not be encouraged. The Hon'ble Supreme Court has held that such misconduct would no doubt warrant dismissal. Therefore, in the fact of the present case, where also there was charges of absenteeism, the Labour Court ought not have granted complete relief without carefully examining the matter
12. Lastly, the burden to prove gainful employment of the respondent workman was wrongly been placed on the Petitioner Corporation. In the present case, the workman had not even set-up the claim that he was out of job or that he was not gainfully employed. The Labour Court has granted relief without there being any claim for the grant of back wages. On the other hand, the petitioner Corporation clearly stated in its W.S. that the workman was gainfully employed.
13. Quiet apart from all this, the learned Counsel for the respondent workman, even has not been able to show from the pleadings made in the counter affidavit in the present writ petition that the workman was without a job or that he was suffering any prejudice on account of being without a job. Therefore, I am of the opinion that the grant of back wages in the present case is not justified.
14. In the end result, I hold that the award of the Labour Court is perverse and illegal. I hereby set aside the award of the Labour Court.
15. The writ petition is allowed. There will be no order as to costs.