ORDER

Both the writ petitions arisen out of the award dated

12.11.2008 in Ref. No.43/1999 on the file of the II Additional Labour Court, Bangalore (‘the Labour Court’ for short).

2. Writ petition No.8685/2010 is assailed by the workman to the extent of holding the respondent- establishment closed and not granting relief of reinstatement and back wages from 31.10.2002.

3. Writ petition No.31038/2009 is by the company to the extent of granting back wages from 01.03.1996 to 31.10.2002 by setting aside the order of termination and to pay closure compensation to the workmen.

4. Parties herein are referred to as per the ranking in W.P.No.8685/2010 as petitioner-workmen and respondent-company.

5. The petitioner was employed as a General Mazdoor, for his absenteeism, the respondent-company issued notices and memo, as the respondent remained continuously absent unauthorizedly, charge-sheet cum show cause notice was issued for his unauthorized absence. The absence according to the company was that the respondent was absent for a period of 130 days in the year 1993, 204 days in 1994 and 84 days from August 1995 to 05.01.2006 in a period of four months. The respondent-company terminated the services of the petitioner for a continuous ill-health on 29.02.1996 by taking exception to the retrenchment under Section 2 (oo) (c) of the Industrial Disputes Act, 1947 (‘the ID Act’ for short), the respondent-company had issued two cheques towards gratuity and earned wages, though the said cheques were refused by the petitioner.

6. The petitioner raised a dispute before the Labour Court challenging the order of termination, matter was referred to the Labour Court in Ref. No.43/1999, claim statement was filed by the workman, the company filed counter statement, the Labour Court by the impugned order set aside the termination order and directed the company to pay full back wages from 01.03.1996 to 31.10.2002 i.e., the date of closure of the company and directed th e company to pay closure compensation. Aggrieved by the order to the extent of finding that the factory is closed and not granting the relief of reinstatement, full backwages from 31.10.2002 onwards along with other consequential benefits, workman is before this Court in W.P. No.8685/2010 and the company insofar as directing to pay full back wages from 01.03.1996 to 31.10.2002 and paying closure compensation to the workman in W.P. No.31038/2009.

7. Learned counsel for the petitioner-workman would contend that the closure of the respondent- company as held by the Labour Court is not justified, as the Labour Court failed to appreciate that the closure as defined under the ID Act means permanent closing of place of business and a plea of closure belatedly, put-forth by the respondent-company was factually and legally unsustainable.

8. Learned counsel would contend that the Labour Court having held that the termination was not justified and illegal, the workman was entitled for relief of back wages and other consequential benefits and would contend that the ill-health of the workman for which the petitioner had admittedly submitted the medical certificate, the respondent-company could not have illegally and unjustifiably terminated invoking provisions of Section 2 (oo) (c) of the ID Act. Learned counsel would contend that the entire limitation of termination is without affording any opportunity and without enquiry, the extreme action of termination from service was unjustified action.

9. Per contra, learned counsel for the respondent would contend that the Labour Court has fell in error that the termination order is not justified while only referring to Ex.M.42 dated 02.03.1996 stating that the company has given reasons for terminating the services for continued ill-health, which reasoning of the Labour Court is error apparent on the face of record, as EX.M.42 is not the termination order and its only a communication to addressing to the petitioner for having refused to receive the termination order da