JUDGMENT - DR. CHANDRACHUD D.Y., J.:---The petitions under Article 226 of the Constitution are before the Court, the first by the employer and the second by the workman. In a reference under section 10 of Industrial Disputes Act, 1947, the Labour Court awarded the relief of reinstatement with continuity of service and half the back wages from 11th April, 1997 to 16th August, 1999. This relief has been granted as a consequence to a declaration that the employer illegally terminated the services of the workman on and from 11th April, 1997. According to the employer, there was, as a matter of fact, never any termination of the services of the workman and that in the course of conciliation proceedings as well as before the Labour Court, the consistent stand was that the contract of employment continued to exist; the workman was absenting himself from duties unauthorisedly and that the workman may be directed to resume duties. Hence, the employer challenges the order of the Labour Court in so far as and only to the extent that it grants 50% of the back wages. On an interim direction passed by the Labour Court on 16th August, 1999, the workman reported for work and resumed duties and hence, consistent with its position that there was in fact, no termination, the employer has not challenged the direction for reinstatement. The workman challenges in the companion petition, the denial by the Labour Court of half the back wages. 2. The workman in these proceedings was in the employment of the employer in the painting Department. An industrial dispute was raised by the workman claiming that on and from 11th April, 1997 when he sought to resume duties after a brief illness, he was not allowed to resume duties. According to the workman, he claimed reinstatement on 15th July, 1997 and thereupon addressed a letter dated 1st August, 1997 requesting the Deputy Commissioner of Labour to intervene in the matter. The employer disputes receipt of the letter of 15th July, 1997. Before the Deputy Commissioner of Labour, in the course of the conciliation proceedings, the employer addressed a communication dated 11th December, 1997 denying that there was any termination of the services of the workman. According to the employer, the workman was habituated to absence and had worked only for 221 days in 1995 and 180 days in 1996. Before the Deputy Commissioner of Labour, in the course of the conciliation proceedings, the employer addressed a communication dated 11th December, 1997 denying that there was any termination of the services of the workman. According to the employer, the workman was habituated to absence and had worked only for 221 days in 1995 and 180 days in 1996. During the year 1997, it was stated, the workman worked for only 5 days in the month of January, 8 days in the month of February and 14 days in the month of March and that after 29th March, 1997, he had not resumed duties and was continuously remaining absent. The employer specifically, however, stated that the workman though absent, continued to be in employment. The employer stated that the services of the workman had not been terminated and that while he continued to be in employment, it reserved its right to adopt disciplinary proceedings against him as and when he resumed duties. Thereafter, by a letter dated 31st December 1997, the employer reiterated that the services of the workman had not been terminated and stated that the name of the workman was borne on the muster rolls. A copy of the muster roll from April 1997 until date was produced in support of the plea that the workman had only been marked absent. Subsequently, by another communication dated 23rd January 1998, the employer placed a request on the record of the Deputy Commissioner of Labour to the effect that the workman may be directed to report on duty subject to the right of the management to take disciplinary action against him for habitual absentism. In fact, according to the employer, there was no industrial dispute and the workman may be called upon to join duty. 3. The conciliation proceedings ended in a failure report whereupon a reference under section 10 was sought before and made by the appropriate Government to the Labour Court. The contention of the workman was that his services had been terminated in violation of law and that he was entitled to reinstatement with full back wages. In its written statement, the employer stated that the services of the workman had not been terminated at any stage and that while the workman was absent from duty with effect from 29th March, 1997, he continued in service. In its written statement, the employer stated that the services of the workman had not been terminated at any stage and that while the workman was absent from duty with effect from 29th March, 1997, he continued in service. The company relied upon an extract from its muster roll and from the wage sheet for period from April 1997 to may 1999 which included the mane of the workman, but showed that he had remained absent from service. 4. During the pendency of the reference before the Labour Court, an application was moved by the workman on 16th August 1999 claiming a direction to the employer to allow him to resume duties in view of the assertion in the written statement that his services had not been terminated. That application was not opposed and it is common ground that thereafter, with effect from 16th August, 1999, the workman reported for work and has been allowed to work since then. Evidence was recorded in the course of the proceeding before the Labour Court both on behalf of the workman and the employer. 5. By its award dated 12th November, 1999, the Labour Court issued a declaration that the services of the workman had been terminated illegally with effect from 11th April, 1997. Counsel for the workman had prayed for the grant of the relief of reinstatement together with 50% back wages which was allowed by the Labour Court. The employer challenges the finding that there was a termination of the services of the workman and the consequential direction in regard to the payment of back wages. The workman challenges the denial of half the back wages. 6. Counsel appearing on behalf of the employer has assailed the award of the Labour Court submitting that a case for interference under Article 226 has been made out on the ground that the award is perverse. Reliance has principally been placed on the consistent position of the employer in the course of the conciliation proceedings and before the Labour Court that there was, in fact, no termination of service and to the communications addressed to the Assistant Labour Commissioner on the part of the employer that the workman should in fact, be directed to resume his duty. Reliance was placed on the admission of the workman in the course of the cross-examination that in the past whenever he had remained absent on the ground that he was sick, the company had accepted his medical certificates and that he was allowed to resume duties. A similar statement had been made in the course of the cross-examination by the witness for the employer that in the past, the absentism on the part of the workman had been regularised. In these circumstances, it was urged that in view of the fact that the muster roll and the wage sheet were produced in the course of the conciliation; the employer had categorically made a statement before the conciliation officer that there was no termination at all; a direction was sought in the course of the conciliation proceedings that the workman should join his duty and that in the written statement before the Labour Court there was again a reiteration of the position that there was, in fact, no termination of service, the finding of the Labour Court is contrary to the weight of the evidence and is preverse. 7. On the other hand, learned Counsel appearing on behalf of the workman while supporting the award of the Labour Court, submitted that after the alleged absence of the workman from 11th April, 1997, there was neither any show cause notice on the part of the employer, nor any communication calling upon him to resume work. Moreover, it was sought to be submitted that in response to the letter which was addressed by the workman on 1st August, 1997 to the Deputy Commissioner of Labour, there was no reply by the employer calling upon the employee to report for work. Learned Counsel submitted that it was the categoric case of the workman that on 9th April, 1997, he was prevented from reporting for work by an officer of the company one Sharma and that this case had not been rebutted on the part of the employer. In support of the petition which has been filed by the workman, it was sought to be urged that there was no justification on the part of the Labour Court in denying to the workman the benefit of the remaining half of the back wages that had been refused. 8. In support of the petition which has been filed by the workman, it was sought to be urged that there was no justification on the part of the Labour Court in denying to the workman the benefit of the remaining half of the back wages that had been refused. 8. In considering the rival submissions which have been urged before the Court, it would, at the outset, be instructive to advert to the three communications addressed by the employer to the Assistant Labour Commissioner in the course of the conciliation proceedings. In the first communication dated 11th December, 1997, the employer denied that there was any termination of the services of the workman. In fact according to the employer, it was the workman who was habituated to absence and that since 29th March, 1997, he had not resumed duties and was continuously absent from work. However, the employer reiterated that the workman continued to be in employment. By a subsequent communication dated 31st December, 1997, a statement in regard to the continuation of the relationship of employer and employee was reiterated and in support thereof, a copy of the muster roll for the period since April 1997 was produced. The third communication of the employer dated 23rd January, 1998 is of significance for two reasons. The first, which is of primary significance, is that the employer specifically requested that the workman may be directed to report for duty subject to the right of the management to take disciplinary action for habitual absence. The second reason for relying upon the letter is because it contains a record made by the employer of what had transpired before the A.L.C. The employer stated that it had received an intimation of the date of the preliminary enquiry on the previous evening and hence, it had not been able to make arrangements for being represented at the first hearing. On the next date 3rd January, 1998, the A.L.C. was not present and the proceeding was thereafter adjourned to 17th January, 1998. On that date, the A.L.C. was again not present in the office and upon enquiry, the representative of the employer was informed that the next date had been fixed as 31st January, 1998. On the next date 3rd January, 1998, the A.L.C. was not present and the proceeding was thereafter adjourned to 17th January, 1998. On that date, the A.L.C. was again not present in the office and upon enquiry, the representative of the employer was informed that the next date had been fixed as 31st January, 1998. This aspect of the matter assumes some significance in view of the finding which has been arrived at by the Labour Court to the effect that the employer had not attended all the hearings before the Conciliation Officer. Be that as it may, from the letters place on the record by the employer before the Conciliation Officer, a statutory authority under the Industrial Disputes Act, 1947, it is clear that the consistent stand of the employer was that the relationship of employer and employee continued to subsist though it was the workman who had remained habitually absent and a direction was in fact, sought calling upon him to resume duties. The same position was reiterated by the employer in the course of the oral evidence. 9. The case of the workman that there was a termination of his services by the company has, therefore, to be tested on the anvil of his oral testimony; perhaps necessarily so since his contention was that there was an oral termination of his employment. The workman deposed that he was on leave from 19th March, 1997 and that when he reported for work on 9th April, 1997 together with a certificate from the E.S.I. Doctor, the watchman prohibited him from entering the work place claiming that an officer by the name of Sharma had instructed him not to allow the workman to report for work. Thereafter, according to the workman, he reported for duty at the gate for one month from 11th April, 1997. In the course of his cross-examination, the workman, however, admitted that no incident had taken place on 9th April, 1997 as set up in the Examination-in-chief and he volunteered that he was sick on that date. A suggestion was made to the workman that he had in fact, not reported for work from 11th April, 1997 which he denied. The workman claimed that he did not remember whether he was on sick leave intermittently for 72 days in 1996. A suggestion was made to the workman that he had in fact, not reported for work from 11th April, 1997 which he denied. The workman claimed that he did not remember whether he was on sick leave intermittently for 72 days in 1996. However, he stated that in 1996 whenever he reported to the employer orally that he was sick, without producing a certificate, he was allowed to resume duties. Then in January and February 1997 he had produced medical certificates of his sickness upon which the employer had permitted him to resume duties. The witness for the employer deposed that in 1996 the workman had worked for only 180 days intermittently; that he was absent frequently and when he reported for duty either with or without medical certificates, he was permitted to work. The past absentism of the workman was stated to have been regularised. The witness for the employer deposed that the workman had remained absent from 29th March, 1997 and that he had not reported fro work thereafter at any time until the order was passed by the Labour Court on 16th August, 1999. There was a denial of the suggestion that there was any termination of the services of the workman on 11th April, 1997. The witness for the employer has reiterated the contention before the Labour Commissioner that there was no termination of service and that the muster roll had been produced to show the continuation of the name of the workman on the muster. 10. On the basis of this material which has come on the record, it is abundantly clear that consistent position of the employer was that the workman had not been terminated from service and that there was no cessation of employment. Before the Conciliation Officer, a direction was in fact, sought to the workman that he should resume work. The same position to the effect that there was no termination was reiterated in the written statement before the Labour Court. The Labour Court has rejected the defence of the employer for reasons which are extraneous and which are impossible to accept. The Labour Court relies on the circumstance that the employer was represented before the Conciliation Officer only on one occasion, though a reference is made to the three letters addressed by the employer on 11th December, 1997, 31st December, 1997 and 23rd January, 1998. The Labour Court relies on the circumstance that the employer was represented before the Conciliation Officer only on one occasion, though a reference is made to the three letters addressed by the employer on 11th December, 1997, 31st December, 1997 and 23rd January, 1998. The Labour Court then holds that there was no endorsement on any of the letters that the workman had knowledge about these letters. There is, in my view, merit in the submission which has been urged on behalf of the employer that the correspondence which was admittedly addressed by the employer in the course of the conciliation proceedings by placing the position of the employer on the record before the authority statutorily appointed to conciliate, cannot be rejected on these specious reasons. First and foremost, the employer had placed its grievance about the non availability of A.L.C. on several dates in its letter dated 23rd January, 1998. The material on the record belies the assertion of the Labour Court of a want of co-operation on the part of the employer before the A.L.C. Secondly, it was only to be expected that the position of the employer which was placed on the record before the conciliation officer would be brought to the notice of the workman by the Conciliation Officer during the course of conciliation proceedings. The Labour Court finds fault with the conduct of the employer for having kept silent for a period of three months despite the absence of the workman from 29th March, 1997. Again, this finding is in the teeth of the evidence both of the workman and on behalf of the employer. The workman had remained absent on several occasions in 1996 and 1997. The workman admitted that in 1996 he was allowed to resume work without the production of a medical certificate while in January and February 1997, the company had accepted the medical certificates produced by him and allowed him to resume duties. The witness for the employer stated that the workman had worked for 18% days in 1996 intermittently and that he was absenting himself frequently in 1997. The witness stated that the workman was allowed to resume either with or without medical certificates. The witness for the employer stated that the workman had worked for 18% days in 1996 intermittently and that he was absenting himself frequently in 1997. The witness stated that the workman was allowed to resume either with or without medical certificates. Having regard to this consistent pattern of conduct which emerges from the evidence both on the side of the workman and the employer, the inference and finding which has been arrived at by the Labour Court is patently perverse. To draw an adverse inference in these circumstances against the employers for not taking recourse to disciplinary proceedings would be perverse. Further more, the Labour Court relies upon the testimony of the workman that he was informed by the watchman that an officer by the name of Sharma had asked him not to allow the workman to report for work. This part of the testimony is in the context of the incident of 9th April, 1997. In the course of his cross-examination, the workman, however, admitted that he had not reported on duty on 9th April, 1997 as stated by him in the course of examination-in-chief. The remaining circumstance which has weighed with the Labour Court is the absence of a reply by the employer to the letter of demand of the workman dated 1st August, 1997. This in my view, is not a circumstance which tilts balance in favour of the workman having regard to the several communications which were addressed on the part of the employer in the months of December 1997 and January 1998 before the Conciliation Officer. The case of the workman that there was an oral termination of his services, has been accepted by the Labour Court contrary to the weight of both documentary and oral evidence on record. The finding of the Labour Court is unsustainable in view of the communications addressed to the A.L.C. by the employer. In these circumstances, conscious as the Court is of the limitations on the exercise of the jurisdiction under Article 226 of the Constitution, I am of the view that the finding of the Labour Court that there was an oral termination of services is perverse and that it warrants interference. 11. After the order of the Labour Court dated 16th August, 1999, the workman reported for work and has worked continuously thereafter. 11. After the order of the Labour Court dated 16th August, 1999, the workman reported for work and has worked continuously thereafter. That aspect of the order of reinstatement, therefore, does not warrant interference, particularly in the light of the stand of the employer that there has, as a matter of fact, not been any termination of service. The order for the payment of back wages is in the circumstances, clearly unsustainable and must be set aside. In view of the aforesaid finding, there is no merit in the petition filed by the workman claiming the entire component of the back wages. However, before parting with this aspect of the matter, it must be recorded that before the Labour Court, it was the contention of Counsel for the workman that the workman should be granted the relief of reinstatement with continuity of service and 50% back wages. Despite this, a petition has been filed on the part of the workman (Writ Petition 2466 of 2001) challenging the order of the Labour Court denying half the back wages. 12. In the circumstances, Writ Petition No. 179 of 2000 filed by the employer is allowed by setting aside the declaration issued by the Labour Court that there was a termination of the services of the workman and granting to the workman 50% of the back wages during the period 11th April, 1997 to 16th August, 1999. However, it would be necessary to record the statement made on behalf of the employer that the workman is and continues to remain in service. The petition filed by the workman shall stand dismissed. There shall, in the circumstances, be no order as to costs. Petition of employer allowed and that of worker rejected. -----