(Prayer: Writ Petition filed under Article 226 of Constitution of India for the issuance of Writ of Certiorari, to call for the records on the file of the second respondent pertaining to order in I.D.No. 260 of 2011 dated 07.03.2014 and to quash the same.)

1. This writ petition is filed challenging the award dated 07.03.2014 of the II Additional Labour Court, Chennai, in I.D. No. 260 of 2011. By the said award, the Labour Court directed the reinstatement of the workmen with 50% of back wages.

2. The parties are referred to as per their array before the Labour Court as Management and Workman.

3. The workman's case is that he was employed under the management for a period of 18 years. While so, when he demanded a reasonable hike in salary from 01.04.2011 onwards, he was refused employment. The management neither followed the provisions under Section 25(F) nor took any disciplinary proceedings in respect of non-employment, and therefore, the workman is entitled to the relief of reinstatement with back wages.

4. The case was resisted by the management. While the employment was admitted, the management's case was that it received a complaint and, upon inspection, found that the cylinders meant for customers were illegally diverted and supplied for commercial interest. When this was discovered and a complaint was lodged at the police station, the workman, during the enquiry at the police station, stated that henceforth he was quitting the job and that he would call it truce, and thereafter he never reported for duty. As a matter of fact, the management filed a counter affidavit stating that even if the workman reports for duty, they are ready and willing to take him back.

5. The Labour Court considered the case of the parties and, after considering the evidence led by both sides, held that the workman had made out a case and ordered reinstatement with 50% back wages. Aggrieved by the same, the present writ petition is filed.

6. Mr. S Abdul Wahab, the learned counsel appearing on behalf of the petitioner, would contend that when the entire episode of diverting the cylinders came to light, the workman voluntarily stopped work. This stand is categorically taken in the counter-affidavit, and even there it was pleaded on behalf of the management that they are ready and willing to employ the workman if he reports for duty. The workman, when he was in the witnessbox, was specifically cross-examined as to whether he is willing to join duty if offered employment, and he answered in the negative. It is the case of the workman that, in view of the fact that the management is not willing to reinstate him with full back wages and all attendant benefits, he is not willing to join duty. It is further argued by the learned counsel for the petitioner that even before this Court a categorical stand has been taken that, if the workman reports for duty, they are willing to permit him to join duty.

7. Per contra, Mr. R. Gowthaman, learned counsel appearing on behalf of the workman, would submit that the workman refused to join duty because, without granting him the full benefit of reinstatement, including back wages, the management made the offer only to escape liability for back wages as well as the 17B wages. As on date, the arrears of 17B wages alone are running to more than Rs.4,00,000/-, and the total amount due comes to around Rs.12,00,000/-. Even now, the management is not offering reinstatement with full back wages. When non-employment was accepted by the management, the Labour Court was right in passing the award.

8. I have considered the rival submissions from both sides and perused the material records of the case.

9. It is evident that the workman examined himself as W.W.1, and Exs.W1 to W9 were marked. On behalf of the management, one Devasagayam was examined as M.W.1, and one Varadharajan was examined as M.W.2, and Exs.M1 to M7 were marked. Upon considering the oral and documentary evidence on record, it is evident that the entire episode relating to the diversion of cylinders and the lodging of the complaint before the J7, Velachery Police Station, all coincide. Therefore, from the facts, it is clear that there was some misconduct on the part of the workman relating to the diversion of cylinders, for which a criminal complaint was sought to be filed, and at that time the non- employment had taken place.

10. Be that as it may, even if the workman had committed misconduct, nothing prevented the management from issuing a charge in that regard, and it ought to have taken disciplinary proceedings. Even if the workman had voluntarily undertaken not to report for work, that undertaking was not communicated, nor did the management send any letter until the workman raised a dispute to that extent. The finding of the Labour Court that there was nonemployment cannot be said to be perverse so as to warrant interference in the exercise of writ jurisdiction. However, the next question is what relief can be granted. It can be seen that at all material times, that is, during the conciliation proceedings, in the counter-affidavit, in the cross-examination, and in the affidavit filed before this Court, the management has consistently taken the stand that it will allow the workman to join duty. The workman has categorically refused to join duty, and his answers in the cross-examination have to be taken note of. Therefore, by the said conduct, it can be seen that putting the workman back into duty would be unjust to the management, given the facts and circumstances of the case, and I am of the view that the interest of justice would be served to both parties if compensation in lieu of reinstatement is ordered in the instant case.

11. Considering the period of service rendered by the workman, his last drawn wages, the dictum of the Hon’ble Supreme Court of India in O.P. Bhandari’s case, and the categorical and repeated refusal of the workman to join duty, I am of the view that instead of reinstatement with 50% back wages, a sum of Rs.2,50,000/- shall be ordered as compensation. The said sum shall be paid within two weeks of receipt of the web copy of the order. If the management fails to pay the said sum by way of a demand draft to the workman, thereafter the said sum shall carry interest at the rate of 9% per annum from the date of the order till the date of payment.

12. Accordingly, the writ petition stands disposed of. No costs. Consequently, connected miscellaneous petition is also closed.