The employer's willingness to permit the employee to join duties and the absence of termination of service influenced the court's decision.

R.K. DESHPANDE, J.

1. The Labour Court has answered Reference IDA No. 68 of 1999 in respect of termination of service of the petitioner with effect from 14.01.1999, in the negative. It has been held that the petitioner has failed to join duties in spite of the fact that the employer had sent various reminders calling upon the petitioner-employee to join the duties. This award dated 29.03.2008 is the subject matter of challenge by the employee in the present writ petition.

2. On 08.06.2009, this Court issued notice for final disposal of the matter and the order passed is reproduced below:-

"Heard Shri Kalbande for the petitioner.

The learned counsel for the petitioner submitted that the impugned order is patently erroneous as learned Labour Court, Nagpur, clearly erred in failing to consider the relevant documents produced by the petitioner on record at Exh. 16, 18 and 25 which clearly showed that the petitioner was desirous of joining his duties, but the respondent refused to permit him to do so.

Hence, issue notice of final disposal to the respondent making the same returnable on 6th of July, 2009."

3. Shri Kalbande, the learned counsel appearing for the petitioner has invited my attention to the documents at Exh.16 dated 14.01.1999, at Exh. 18 dated 15.01.1999 and Exh. 25 dated 19.04.1999. He has also invited my attention to several such documents showing that the petitioner has always been ready and willing to join the duties, but it is the respondent-employer who has not allowed the petitioner to join the duties.

4. After going through the decision of the Reference Court, it is apparent that the Labour Court has taken into consideration the contention raised by the petitioner that he was willing to perform his duties, but as and when he approaching the employer, the employer refused to permit him to work on the post of clerk which he was holding. Though the documents at Exh. 16, 18 and 25 have not been specifically referring the stand taken by the petitioner, have been dealt with in detail. After going through the record, I find that the employer has also issued several such communications inviting the petitioner to join the duties. However, the petitioner has failed to join the duties. There is an oath against oath. The reference Court has taken a possible view of the matter.

5. Shri Thakur, the learned counsel appearing for the respondent-employer has invited my attention to the stand taken by the employer in para 4 of its written statement filed before the Labour Court. The relevant portion is reproduced below:-

"4. So far as the illegality of termination is concerned, it is the humbly submission of the Party No. 1 that the name of the Party No. 2 is still borne on the muster roll of the Party No.1 and he is being marked as Absent. It is further submitted that the Party No. 2 can resume duties immediately along with the explanation for unauthorized absence. The services of the Party No. 2 were never terminated. In view of this submission, the present Reference is devoid of substance and, therefore, be answered in negative and to dismiss accordingly."

6. Before the Labour Court, the employer filed pursis dated 03.11.2006, the contents of which are reproduced below:-

"That Party No. 1 in its written statement Ex8 has categorically stated that Party No.1 has not terminated the services of Party No. 2 and can resume duty, further stated that Party No.2 is remaining unauthorisely absent.

On the last of hearing party No. 2 showed willingness for resuming duty, but failed to resume duty till today."

The Labour Court had passed an order that it tried its level best to conciliate the matter, but the dispute raised by the employee was in respect of backwages and unless it is settled, the employee was not prepared to join the duties.

7. During the pendency of this petition, the petitioner has joined his duties and is working on the post. Shri Kalbande, the learned counsel appearing for the petitioner has relied upon the dec