The normal rule in cases of wrongful termination of service is reinstatement with back wages, subject to considerations such as length of service, nature of misconduct, and financial condition of the employer.

VINOD GOEL, J.

1. In this writ petition the petitioner has impugned the award dated 26.02.2018 passed by the learned Presiding Officer, Labour Court, South-West District, Dwarka Courts, New Delhi (in short ‘Industrial Adjudicator’) in a Direct Industrial Dispute No. 3358/2016.

2. The facts giving rise to file the writ petition are that the respondent/workman has been working with the petitioner/Management since month of July, 1997. He worked as a Store Keeper for about four years. Thereafter he was posted as Caretaker of Library where he had worked for about 12 years till 2013. The respondent/workman alleged that after the year 2013, the petitioner/Management started harassing him. He was transferred to work in its godown at Alipur with the intention that it would not be possible for him to attend his duties being the workplace situated at a long distance compelling him to leave the job.

3. Admittedly, on 14.08.2015 the respondent during the course of his employment fell down on the floor and was taken to Sanjeevani Medical Centre where he was admitted. The respondent claimed that the petitioner/Management did not pay even a single penny for his treatment and he was left alone in the hospital. After regaining his consciousness, he called his elder son who deposited Rs.17,424/- with the hospital. The petitioner/Management did not pay him his earned salary for the month of August, 2015. He further claimed that on 03.09.2015 when he went to join his duties he was forcibly thrown out of the office of the petitioner/Management at Daryaganj, Delhi and was not allowed to attend to his duties. It was conveyed to him that his services had been terminated by the petitioner/Management.

4. In its written statement, the petitioner/Management has denied the allegation of the respondent that after the year 2013 the petitioner started harassing him. It is denied that salary for the month of August, 2015 was not paid or that he was not allowed to join his duties. It is pleaded that the respondent did not come to join his duties even when the petitioner/Management contacted him and did not give any response and hence they deputed another person in his place. The Management has also denied that the services of the respondent were terminated.

5. On the pleadings of the parties, the following issues were framed by the Industrial Adjudicator:-

“(1) Whether the claimant himself left the job by absenting himself? OPM

(2) Whether termination of service of claimant by management on 03.09.2015 is illegal and/or unjustifiable? OPW

(3) Relief.”

6. In support of his case, the respondent/workman examined himself. He had, inter-alia, placed on record the copy of his medical papers Ex.WW-1/9 (five pages). The petitioner/ Management examined its Transport Manager Shri Shyam Sunder as MW-1.

7. After appreciation of evidence, the Industrial Adjudicator came to the conclusion that the services of the respondent/workman were terminated illegally by the petitioner/ Management and that the respondent is entitled to his full back wages with all consequential benefits.

8. It is submitted by the learned counsel for the petitioner that they have never terminated the services of the respondent and that the petitioner/Management has transferred the respondent/ workman at Noida vide letter dated 01.09.2015 asking him to join his duties by 07.09.2015 but he failed to join, thus, remaining absent. He further submits that the cash payment in the hospital was made by the staff of the petitioner/Management at the time of the respondents admission in private hospital which was adjusted from his salary for the month of August, 2015. He submits that the respondent/workman is covered under ESI and the petitioner had paid contribution to ESI.

9. I have heard the learned counsel for the petitioner.

10. Learned counsel was confronted with the written statement filed by the petitioner before the Industrial Adjudicator wherein no such defence was taken that the respondent/workman was trans