JUDGMENT : This writ petition has been filed by petitioner Ram Lal challenging the award dated 25.05.1996 passed by the Labour Court & Industrial Tribunal, Ajmer, in Case No.L.C.R.50/95 (352/90). The Labour Court & Industrial Tribunal, Ajmer (for short, 'the Labour Court') by aforesaid award, has answered the industrial dispute referred to it on the question whether action of the respondent no.2 -M/s. Shree Rajasthan Iron Foundry, Pushakar Road, Ajmer (hereinafter shall be referred to as 'the respondent-management') in removal of petitioner workman from service was legal and valid and if not, what relief the workman was entitled to?, in favour of the respondent-management and declined to grant any relief to petitioner-workman. Hence this writ petition. The petitioner-workman was appointed as Mistry in the Rajasthan Iron Foundry on 03.11.1986. The petitioner-workman worked with all sincerity and devotion to duty. Apart from regular working hours, the petitioner-workman also used to work in odd hours. In February, 1989, his basic salary was Rs.865/- and total emoluments were about Rs.2000/- per month. He was not being paid for the overtime. According to the petitioner-workman, he came in contact with the office bearers of the Engineering Laghu Udhyog Employees Union (for short, 'the employees union'). He tried to organize the workers of the Laghu Udhyog Employees Industries and the workers of the respondent no.2. When the respondent-management came to know about his efforts, it became annoyed. Shankar S/o Rameshwar Fatehpuria, owner of respondent no.2, called the petitioner-workman on 14.02.1989, and asked him to disassociate from the union activities. When the petitioner workman refused to oblige, he threatened him and finally ordered him not to come on duty from next date. Thus the oral termination was thrust upon the petitioner-workman from 15.02.1989. The petitioner-workman submitted a complaint to the Conciliation Officer on 11.03.1989, who issued a notice to respondent-management. The respondent-management filed reply thereto on 30.05.1989 denying therein oral termination of the petitioner-workman. The respondent-management rather asserted that the petitioner-workman on his own has left the job and therefore he is not entitled to any notice pay or compensation etc. as per Section 25 of the Industrial Disputes Act, 1947 (for short, 'the ID Act'). During pendency of the conciliation proceedings, the respondent-management also initiated proceedings against the petitioner-workman under Section 107 of the Code of Criminal Procedure for alleged breach of peace. as per Section 25 of the Industrial Disputes Act, 1947 (for short, 'the ID Act'). During pendency of the conciliation proceedings, the respondent-management also initiated proceedings against the petitioner-workman under Section 107 of the Code of Criminal Procedure for alleged breach of peace. However, no notice of any such proceedings was ever served upon the petitioner-workman. The proceedings in any case came to an end after expiry of six months. In response to the statement of claim filed by the petitioner-workman asserting the aforesaid fact, the respondent-management filed reply thereto and took the stand that since the workman has left the job at his own, there is no question of his reinstatement. However, the respondent-management moved an application seeking amendment to its reply so as to add the ground that it has lost the confidence in the workman, therefore, he was not entitled to reinstatement. The petitioner-workman filed his own affidavit in support of his claim filed his own affidavit and was subjected to cross-examination. Shri Rameshwar, owner of respondent-factory and his son Shri Shankar and their employee Sita Ram filed their affidavits in support of the case of the respondent-management. Learned labour Court answered the reference in terms indicated above. Shri Rajiv Bandhu, learned counsel for the petitioner-workman, has argued that the award passed by the Labour Court suffers from perversity inasmuch as findings recorded by the labour Court are contrary to the evidence on record. The Labour Court has illegally recorded a finding that delay of three weeks on the part of the workman in approaching the Conciliation Officer lends credence to the plea of the management that he abandoned the job on his own, and that it was not a case of removal. The Labour Court has also drawn an inference of the fact of filing of the proceedings under Section 107 of the Cr.P.C., whereas it was not proved whether any notice was served upon the petitioner-workman and all that was sought to be proved was that notice was issued to him. Learned counsel for the petitioner-workman submitted that complaint filed under Section 107 Cr.P.C. was nothing but a ploy adopted by the management to frustrate claim of the petitioner-workman for reinstatement. The respondent-management had made used of two of their workers to the workman and they were bound to toe the line of the management because they were their employees. Learned counsel for the petitioner-workman submitted that complaint filed under Section 107 Cr.P.C. was nothing but a ploy adopted by the management to frustrate claim of the petitioner-workman for reinstatement. The respondent-management had made used of two of their workers to the workman and they were bound to toe the line of the management because they were their employees. It was keeping in view that strategy that the management in their reply before the Conciliation Officer alleged that the petitioner-workman had stopped other workers from coming to the factory. In fact, the management did not take kindly to the efforts made by the petitioner-workman to organize the workers and form a union. Shri Rajiv Bandhu, learned counsel for the petitioner-workman, has drawn an adverse inference against the petitioner-workman for not producing any workman Budh Ram, who was named by him as one present at the time when Shankar S/o owner Rameshwar, orally asked the petitioner-workman not to come on duty. It is submitted that Budh Ram, employee of the respondent-management, did not have enough courage to appear against the management for the fear of loss of job that cannot be a reason for drawing adverse inference against the petitioner-workman. It was duty of the management to prove that it complied with the provisions of Section 25 of the ID Act at the time of retrenchment of the petitioner-workman. Totality of the circumstances clearly show that it was a case of hire and fire and unfair labour practice. Yet another perversity pointed out by the learned counsel for the petitioner-workman in the award of the labour Court is that when Shankar S/o owner of the factory Rameshwar, removed the petitioner, the petitioner should have complained of this to owner Rameshwar Lal and that since the petitioner had not produced any such evidence, therefore, his version cannot be believed. The learned labour Court has believed the version of the respondent-management especially the contents of para no.2 to the reply filed before the Conciliation Officer that the petitioner-workman asked the management/Shankar that he was unable to work with the management and that he should clear his account. Learned counsel for the petitioner-workman therefore submitted that the award is liable to be set aside. Learned counsel for the petitioner-workman therefore submitted that the award is liable to be set aside. Learned counsel for the petitioner-workman has submitted that if it was a case of the abandonment of job by the petitioner-workman, the respondent-management before the conciliation officer should have offered him to rejoin which they did not do, this exposes the bona-fide of their plea. It is argued that in cross-examination the petitioner-workman has denied suggestion by the respondent-management that Shankar was not partner/owner in the factory in question. Learned counsel for petitioner-workman has submitted that the petitioner-workman filed an application during pendency of the proceedings, in the Labour Court on 04.12.1990 requesting that since the respondent-management have set up a plea that it was a case of voluntary abandonment of service by the petitioner-workman and that they have not removed the petitioner-workman and he has left the job on his own, respondent-management be required to reinstate him in service. The respondent-management contested that application by filing reply on 12.03.1991 contending that such an application was misconceived as the matter will have to be decided on merits by the Labour Court. On the contrary, Shri Ravi Bhojak, learned counsel for the respondent-workman, has opposed the writ petition and submitted that there was absolutely no evidence produced by the petitioner-workman that the respondent-management had terminated his services. The petitioner-workman's mere assertion that he was removed from the service, does not prove his retrenchment. In fact, the petitioner-workman asserted that it was Shankar, who asked the petitioner-workman not to come on duty from next date, wheres Shankar had no authority to do so. Shankar runs a separate factory and owner of the factory in question was Rameshwarlal. It is argued that the petitioner-workman had taken a sum of Rs.3000/-as advance and therefore there was no occasion for making payment of further and additional sum towards the compensation and notice pay as required by Section 25-F of the ID Act. The plea of the workman that a sum of Rs.679.80 was further outstanding towards the management was not substantiated. The petitioner-workman, who was a moulder and that when he was engaged in foundry of the respondent-management, his age was 46 years and therefore clearly, he had been working in other factory from before. This shows that he left the job as he found some better job. The petitioner-workman, who was a moulder and that when he was engaged in foundry of the respondent-management, his age was 46 years and therefore clearly, he had been working in other factory from before. This shows that he left the job as he found some better job. Learned counsel argued that there was nothing illegal in the respondent in setting up of the plea of loss of confidence after seeking amendment of their reply to the statement of claim. In fact when the petitioner-workman left the job thereafter he tried to prevent other workers of the factory in question to enter to the factory premises, therefore, complaint under Section 107 of the Cr.P.C. was lodged against the petitioner-workman. The suggestion that it was sponsored by the respondent-management is wholly unfounded. The petitioner failed to shake the version of three witnesses of the respondent-management who have stood to the scrutiny of cross-examination. In fact he has not cross-examined any of those witnesses including Shankar on the plea that the petitioner-workman was removed from service and that it was not a case of voluntary abandonment of service and that he had not taken advance of Rs.3000/-. Learned counsel submitted that witness Shankar has in his statement in the affidavit and the statement before the Labour Court denied that it was he who had asked the petitioner-workman not to come on duty or that he removed him from job. In fact he was not subjected to cross-examination on this part. In fact, the labour Court has rightly accepted the suggestion by the respondent that employer Rameshwar Lal had certain dues with his brother Sita Ram and the petitioner was in contact with management which was not approved of by the management and therefore for this reason and for the reason of better job prospects, the petitioner-workman left the job on his own. This has caused loss to the factory as it has delayed its production and supply to the customers. On considering rival submissions and perusing the material on record, I find substance in the plea set up by the petitioner-workman that the findings recorded by the Labour Court in the award suffer from perversity and the Labour Court has failed to see the underlying object behind the termination of the services of the petitioner-workman by the respondent-management. On considering rival submissions and perusing the material on record, I find substance in the plea set up by the petitioner-workman that the findings recorded by the Labour Court in the award suffer from perversity and the Labour Court has failed to see the underlying object behind the termination of the services of the petitioner-workman by the respondent-management. The plea set up by the petitioner-workman that he tried to organize the workers and form a union has been amply corroborated by the stand of the respondent-management itself which is that after the petitioner-workman was removed or according to the respondent-management abandoned the job, he tried to obstruct the entry of other works into the factory premise and that a complaint under Section 107 of the Cr.P.C. had to be filed against him. This happened immediately after the petitioner-workman was discontinued from service. According to the respondent-management, the petitioner-workman left the job on 14.02.2009 and he approached the Conciliation Officer on 11.03.1989. This was about three weeks time and in between number of aforesaid developments had taken place. Three weeks' period within which the petitioner-workman approached the Conciliation Officer, cannot be said to be enormous delay on his part so as to draw an inference that he must have abandoned the job on his own and, therefore, he approached the Conciliation Officer with delay. The petitioner-workman has asserted and amply demonstrated that he had been making efforts to organize the workers and form a union and that this was disproved by the respondent-management and that it was through the Engineering Laghu Udhyog Employees Union that he approached the Conciliation Officer. The conclusion arrived at by the Tribunal that had the petitioner-workman been removed from service, he would have immediately approached the Conciliation Officer through the Union and would not have waited for three weeks, cannot be said to be justified because in law the workman may not be able to approach the Conciliation Officer. On the next day he may make effort of conciliation through the Union and persuaded them to agree to take him back in service. Delay of three weeks cannot be said to be so enormous so as to justify such a conclusion by the Labour Court. On the next day he may make effort of conciliation through the Union and persuaded them to agree to take him back in service. Delay of three weeks cannot be said to be so enormous so as to justify such a conclusion by the Labour Court. Mere fact that petitioner was engaged at the age of 46 years and therefore it should be inferred that he must have work with other factories and that in this view of the matter he must have decided to abandon the job with the respondent-management so as to find a better one, cannot be accepted in absence of positive evidence in support of such a plea. Filing of the complaint against the petitioner-workman under Section 107 of the Cr.P.C. rather supports his plea that the respondent-management did not take kindly to the efforts of the petitioner-workman to organize and form the labour union in their factory, which is not uncommon. Further the finding of the Labour Court that Shankar was neither a partner nor management of the factory in question and had nothing to do with the management and that it was Rameshwar Lal who was owner of the factory in question and that if Shankar had asked him not to come on duty from the next day, the petitioner-workman ought to have made a complaint of this fact to owner of the factory Rameshwar Lal. The Labour Court has lost sight of the modus operandi of the industrialists/businessmen (father and son), who had been having two factories. It is not uncommon to make such business of the families to show ownership of different factories in different names but unfortunately, the plea of the petitioner-workman that he was working with the respondent no.2 M/s. Shree Rajasthan Iron Foundry and was discontinued therefrom, has not been effectively rebutted by the respondent-management. The Labour Court's approach that it was not owner Rameshwar Lal but his son Shankar is said to have removed the petitioner-workman, who had no competence, is in fact a very strange way of approaching the issue. If it was so, nothing prevented the respondent-management in offering to reinstate the petitioner-workman when the notice of the Conciliation Officer was issued to the respondent-management. In this connection, learned counsel for petitioner-workman has cited a judgment of the Delhi High Court in M/s. Fateh Chand Vs. presiding Officer, Labour Court and Another – 2012 Lab. If it was so, nothing prevented the respondent-management in offering to reinstate the petitioner-workman when the notice of the Conciliation Officer was issued to the respondent-management. In this connection, learned counsel for petitioner-workman has cited a judgment of the Delhi High Court in M/s. Fateh Chand Vs. presiding Officer, Labour Court and Another – 2012 Lab. I.C. 840, wherein the Delhi High Court had the occasion to deal with somewhat identical issue in the context of plea set up by the respondent-management of abandonment of service and the Court observed thus, “8. It is also a settled legal position that abandonment of service is different from absenteeism. Abandonment of service is the voluntarily relinquishment of ones services with the intention not to resume the same. It is a matter of inference to be drawn from the facts and circumstances of each case and mere absenteeism for a continuous period does not mean that the employee has abandoned his service. The management has to bring on record sufficient material to show that the employee has abandoned the service and abandonment cannot be attributed to the employee without there being sufficient evidence. On the failure to report for duty, the management has to call upon the employee and if he refuses to report, then an enquiry is required to be ordered against him and accordingly action taken. In the absence of anything placed on record by the petitioner management, no presumption against the respondent can be drawn. No enquiry in this case was set up by the petitioner management and even no letter was sent by the management to the respondent workman calling upon him to resume his duty. The case in hand is a clear case of violation of Section 25-F of the Industrial Disputes Act as WP(C) No.758/2007 Page 8 of 10 the petitioner management failed to adhere to the procedure prescribed under Section 25-F of the I.D. Act before dispensing with the service of the respondent workman. The plea taken by the petitioner management that the respondent workman after having absented himself from the duty was working as an agriculturist is a plea worth outright rejection. The plea taken by the petitioner management that the respondent workman after having absented himself from the duty was working as an agriculturist is a plea worth outright rejection. If the petitioner management had not permitted the respondent workman to join back on his duties and during such period even if he had worked as an agriculturist to sustain and survive himself, the same cannot be taken against to deprive the respondent workman to claim back wages. The learned Labour Court has already been considerate enough to grant 40% of the back wages instead of granting full back wages.” It is also no more res integra that even in a case of unauthorized absenteeism or to prove abandonment of service on the part of the workman the management must place on record necessary material to prove that enough efforts were made by it to call upon the workman to resume back his duty and the workman has shown his clear reluctance for the same. Here it would be relevant to refer to judgment of the Apex Court in Scooters India Ltd. Vs. Mohammad Yaqub – (2001) 1 SCC 61 , where the workman when reported for duty was not allowed to join and according to the standing orders automatically terminated, the Court held that it was not a case of absenteeism but retrenchment in the following para: "12. The question which then arises is whether the principles of natural justice were followed in this case. As has been set out hereinabove Mr Swarup had submitted that the workman had been given an opportunity to join the duty and that he did not join duty even though repeatedly called upon to do so. It is contended that the principles of natural justice have been complied with in this case. However, the material on record indicates otherwise. The Labour Court in its award sets out and accepts the respondent's case that he had not been allowed to join duty. The respondent has given evidence that even though he personally met the Chief Personnel Officer he was still not allowed to enter the premises. The evidence is that in spite of slip Ext. W-2, he was prevented from joining duty when he attempted to join duty. The slip Ext. W- 2 had been signed by the Security Inspector of the appellant. This showed that the respondent had reported for work. The evidence is that in spite of slip Ext. W-2, he was prevented from joining duty when he attempted to join duty. The slip Ext. W- 2 had been signed by the Security Inspector of the appellant. This showed that the respondent had reported for work. As against this evidence the appellant has not led any evidence to show that the workman had not reported for duty. Even though the slip Ext. W-2 had been proved by the workman, the Security Inspector, one Mr Shukla, was not examined by the appellant. Further the evidence of the Senior Timekeeper of the appellant established that the workman had worked for more than 240 days within a period of 12 calendar months immediately preceding the date of termination of service. This was proved by a joint inspection report, which was marked as Ext. 45-A. It was on the basis of this material and this evidence that the Labour Court came to the conclusion that there was retrenchment without following the provisions of law. As the workman was not allowed to join duty, Standing Order No. 9.3.12 could not have been used for terminating his services. 13. In this view of the matter, in our view, the decisions of the Labour Court as well as High Court are correct and require no interference. Accordingly, the appeal stands dismissed. There will, however, be no order as to costs." Undoubtedly, unauthorized absenteeism is a ground for termination and has been held to be misconduct in a catena of judgments. But when is it an unauthorized absenteeism is to be determined from the facts and circumstances of each case. Here it would be relevant to refer to the judgment of the Division Bench of Delhi High Court in the case of Ram Niwas vs. Union of India 2010 (4) AD (Delhi) 281 where in the facts of the case the petitioner was compulsorily retired on the ground of unauthorized absenteeism, but the court held such action illegal as the petitioner was prevented from coming to work as he was not paid his wages and it cannot be said to be unauthorized absenteeism. It would be relevant to reproduce the said para here as under:- "It is evident from the factual narration noted above, that the petitioner was compelled to go on serving the respondents despite not receiving wages for the work which he had already done for the previous months. It was only when he reached such a stage of penury and object deprivation, that he was unable to bear the expenses of commutation to his place of work, that the petitioner unable to report for duty. In these facts, there is substance in the submission of the petitioner that he was not absent unauthorisedly from his place of work, but was prevented by the conduct of the respondent in accessing his place of work. The action of the respondents in compelling him to perform duties and refusing him to pay for the same, has to be held to be unconstitutional. The absence of the petitioner from service from 16th January, 2004 onwards in the circumstance noticed above was clearly not actionable. The impugned order is therefore unsustainable in law.” The plea of loss of confidence, set up by the respondent-management, was not set up by the respondent-management before the conciliation officer. Such a plea was not even set up by the respondent- management when reply to the statement of claim was originally filed by it. It was only in the course and during pendency of the proceedings before the Labour Court that the respondent-management got the reply to the statement of claim amended so as to incorporate such plea. This rather speaks volumes of their intention and lend credence to the stand of the petitioner-workman that the respondent-management wanted to get rid of him at any cost. It was nothing but a case of unfair labour practice and hire and fire. Even if the management had lost confidence in the petitioner-workman, the Labour Court nevertheless was required to adjudicate the basic point whether or not provisions of Section 25-F of the ID Act were complied with before retrenching the services of the petitioner-workman. When the plea of abandonment of service by the petitioner-workman was not believed, it was to be held that the respondent-management has violated the provisions of Section 25-F of the ID Act in retrenching the services of the petitioner-workman. When the plea of abandonment of service by the petitioner-workman was not believed, it was to be held that the respondent-management has violated the provisions of Section 25-F of the ID Act in retrenching the services of the petitioner-workman. Even if therefore the plea of loss of confidence set up by the respondent-management was accepted by the Labour Court, it ought to have directed payment of lump sum compensation in lieu of reinstatement. For this reason and also for the reason that the petitioner-workman had attained the age of 54 years when the writ petition was filed by him in the year 1996 and has by now attained the age of 72 years, his reinstatement in any case cannot be directed. While therefore declaring his retrenchment/removal to be illegal and violative of Section 25F of the ID Act, and considering the fact that the petitioner-workman was 48 years of age when he was removed and taking the normal age of retirement to be 60 years, he would have served 12 more years and the fact that he had been litigating with the respondent-management since 1989 and that as per his assertion in the statement of claim that he was receiving a sum of Rs.2000/- and not specifically denied by the respondent-workman that he was receiving total emoluments of Rs.2000/- per month at the time of retrenchment, ends of justice would be met if the respondent-management is required to pay him a lump sum amount of compensation of Rs.2,50,000/- (Rupees two lac fifty thousand only). Payment of such compensation be made to the petitioner within three months from today. Writ petition accordingly stands allowed.