( 1. ) THIS is a petition under Article 226 of the Constitution of India.

( 2. ) ABDUL Rehman, non-petitioner No. 1, was at the material time an employee of the Central India Machinery Manufacturing Co. Ltd. (CIMCO ). Petitioner No. 2 was at the material time working as a fitter in the petitioners factory; petitioner No. 1 is the factory manager.

( 3. ) THE case of the petitioners is that on 7-9-1962 at about 8 P. M. Abdul Rehman was caught red-handed while committing theft of brass piece weighing about 5 lbs. of the value of Rs. 35 from the petitioners factory. He was handed over to the police station. He was prosecuted for theft, but was acquitted by the trial Magistrate, vide Annexure R-1. As Abdul Rehman absented himself from duty and avoided to remain present till 28th September, 1962 without obtaining any leave or even applying for leave, the management treated him as having abandoned his job and his services were terminated with effect from 29-9-1962 and his name was also struck off the rolls.

( 4. ) ABDUL Rehman filed an application in the Labour Court under Section 31 (3) of the M. P. Industrial Relations Act on 3-1-1963 after giving an approach notice to the petitioner praying for his reinstatement, vide Annexure A-3. The application was made on the ground that he was falsely prosecuted on the charge of theft and that he could not file any application for leave as he was ill and under treatment. The petitioners opposed the application on several grounds, vide Annexure A-4. They wanted to adduce evidence of the misconduct of Abdul Rehman relating to the theft of the brass piece in order to justify their action against him. But the Labour Court disallowed them from adducing evidence in this connection. The Court held that the termination was not proper inasmuch as the non-applicant No. 1 could not obtain leave being ill and under treatment.

( 5. ) THE petitioners were, therefore, directed to reinstate him with full back wages, vide order of the Labour Court dated 31-3-1967 (Annexure A-13 ). Against the said order the petitioners filed a revision petition before the Industrial Court which was dismissed (Annexure A1 ). The Court while upholding the order of the Labour Court observed that the order of termination of the services of Abdul Rehman, non-petitioner No. 1 was liable to be set aside on the additional ground that it was in contravention of the provisions of Section 73 of the Employees State Insurance Act. Being aggrieved by this order the petitioners have filed this petition for a writ quashing the order of the Labour Court and the Industrial Court and for other incidental reliefs.

( 6. ) ABDUL Rehman, non-petitioner No. 1, has filed a return in which he has supported the orders of the Courts below. The non-petitioner No. 2 is the member of the Industrial Court who passed the impugned order and is as such a pro forma party to these proceedings.

( 7. ) THE learned Counsel for the petitioners in the first place contended that the order of termination of the services of non-petitioner No. 1 was justified because he could be deemed to have abandoned his job having remained absent from duty without leave. In support of his contention he relied on the decision of this Court in Burhanpur Tapti Mills Ltd. v. State Industrial Court 1959 M. P. L. J. 1009. That case is however distinguishable on the ground that there was a standing order which provided that an employee not reporting for duty within 15 days of the expiry of the sanctioned leave shall be treated as having left the service from the date he was due to return to work.

( 8. ) IN the present case there is no such standing order providing for automatic termination of services. From paragraph 6 of the order of the Labour Court dated 31-3-1967 (Annexure A-13) it would appear that under the standing order applicable to the petitioners factory over-staying sanctioned leave without sufficient ground or proper or satisfactory explanation amounted to misconduct for whi