Vibhu Bakhru, J.

1. The present petition has been filed by the petitioner challenging an order dated 12.05.2010 and an award dated 09.01.2012 passed by the Labour Court, Delhi in D.I.D. No.109/07 (hereinafter referred to as the ‘impugned award’).

2. By the order dated 12.05.2010, the Labour court had held that the enquiry held against the respondent was vitiated on account of violation of principles of natural justice. Although the labour court upheld the allegation of misconduct, it found the punishment of dismissal from service disproportionate and shocking. Accordingly, the Labour Court passed the impugned award setting aside the order terminating the services of the respondent and directed reinstatement of the respondent with full back wages, continuity of service and all consequential benefits along with a payment of Rs.50,000/- as cost to the respondent.

3. Brief facts of the present case are that the respondent workman was working with the petitioner as a conductor since 02.08.1984. During the course of his employment, the respondent was absent from duty, from 20.04.1995 to 08.05.1995, without prior intimation and permission of the petitioner. The petitioner sent a letter dated 05.05.1995 to the respondent calling upon the respondent to report on duty within 72 hours of receipt of the said letter and also warned the respondent that failure to do so would invite action for misconduct. The respondent claimed that the said letter was received by him on 06.05.1995. The respondent joined his duties on 09.05.1995 and submitted an application intimating that the respondent could not attend his duties because, on 19.04.1995, the mother of the respondent had fallen seriously ill and was admitted to the Bara Hindu Rao Hospital. She was discharged from the hospital on 08.05.1995 and the respondent had joined the duty on 09.05.1995. It was also stated that the respondent had given prior intimation to the petitioner by sending an application of leave through his colleague Ram Avtar, however, the same was not received by the petitioner.

4. Thereafter, the petitioner issued a charge-sheet dated 19.06.1995 alleging that the acts of respondent in absenting from duty amounted to misconduct under Section 19 (e), (h) & (m) of the Standing Orders of the petitioner. On 03.07.1995, the respondent filed his reply and denied all the charges leveled against him. The Enquiry Officer found the respondent guilty of the charges alleged and the petitioner issued a show cause notice dated 18.12.1995 to the respondent proposing a penalty of termination of service. The respondent, by its reply dated 01.01.1996, submitted that the enquiry proceedings were conducted without giving an opportunity of hearing to the respondent. The respondent also justified his absence from the duty. Subsequently, on 09.01.1996, services of the respondent were terminated by the petitioner. The appeal filed against the said termination order was also rejected by petitioner as time barred.

5. Thereafter, the respondent raised an industrial dispute and filed a petition (DID No.109/07) before the Labour Court challenging the termination of his services. The Labour Court framed the following issues for adjudication:-

“1. Whether the enquiry conducted against the workman in terms of chargesheet dated 19.06.1995 was not just, fair, proper and was not in accordance with the principles of natural justice, if so, its effect? OPW.

2. Whether the services of the workman have been terminated illegally and/or unjustifiably by the management, if so, its effect? OPW

3. Relief.”

6. By an order dated 12.05.2010 the issue No.1 was decided, as preliminary issue, in favour of the respondent and against the petitioner. By the impugned order, the Labour Court held that as the preliminary issue was decided in favour of the respondent, therefore, the burden of proving the misconduct was shifted on the management. With regard to Issue Nos. 2 & 3, it was held that the charges of misconduct were prove