JUDGMENT : K.M. Thaker, J. 1. Heard Mr. Karia, learned advocate for the petitioner, and Mr. Mishra, learned advocate for the respondent. The respondent herein is the heir (son) of the concerned workman (since deceased). Therefore, the concerned workman is hereafter, for the sake of brevity and conveyance, referred to as "the claimant" or "the concerned workman". 2. In present petition, the petitioner company has challenged award dated 30.8.2011 passed by the learned Labour Court, Surendranagar in Reference (LCS) No. 146 of 2001 (old No. 282 of 1992) whereby the learned Labour Court directed present petitioner to pay 50% backwages for the period from 18.8.1992 to June 2005 when the claimant reached the age prescribed for superannuation. The petitioner company is aggrieved by the said direction, hence, this petition. 3. So far as factual background is concerned, it has emerged from the record that the claimant had raised a dispute on the allegation that his service was illegally terminated. The appropriate government referred the dispute for adjudication to the learned Labour Court, Surendranagar and the dispute came to be registered as Reference No. 282 of 1992 which was, thereafter, renumbered as Reference (LCS) No. 146 of 2001. 3.1. In the statement of claim, the claimant alleged that he was appointed as machine operator w.e.f. 20.4.1968 and at the time when his service was terminated, he was paid salary at Rs. 44.68 per day. He alleged that his service was illegally terminated w.e.f. 18.8.1992 and before terminating his service, the opponent employer did not grant opportunity of hearing. He also alleged that at the time of his termination, the opponent employer did not pay retrenchment compensation and terminated his service without following procedure prescribed by law. The claimant also alleged that since last about 3 years his health was not keeping good and that therefore, he had to frequently proceed on leave. The claimant also alleged that he used to submit medical certificate whenever he proceeded on leave because of his ill health, however, without considering the reasons of his absence, the opponent employer terminated his service. 3.2. The reference and the allegations by the concerned workman were opposed by the opponent - present petitioner who has filed written statement before the learned Labour Court (Exh. 7). 3.2. The reference and the allegations by the concerned workman were opposed by the opponent - present petitioner who has filed written statement before the learned Labour Court (Exh. 7). In the written statement, the opponent employer submitted that the claimant was in habit of remaining absence without leave and he habitually abstained from work without permission and prior intimation. It was also claimed that the provisions of ESI Act are applicable to the company and that therefore, the claimant was instructed to submit medical certificate issued by the ESI dispensary whenever he remained absent or proceeded on leave on the ground of ill health. The opponent also claimed that the claimant never submitted certificate issued by ESI dispensary. The petitioner categorically denied that the claimant was proceeding on leave on account of his ill health and the company asserted that the claimant was actually remaining absent without prior intimation. The petitioner further claimed in its written statement that since the claimant continued to remain absent without permission and prior instructions and never followed the instructions to submit the medical certificate issued by the ESI dispensary in August 1991, he was visited with notice dated 24.8.1991 and his explanation was called for. It was claimed that in pursuance of the said notice, inquiry was conducted, however, at the request of the claimant, lenient view was adopted and without taking any disciplinary action, he was allowed to continue in service. The petitioner further claimed that despite such opportunity, the claimant did not improve his conduct and continued to remain absent and that therefore, a notice dated 26.5.1992 was served to the claimant and when despite the said notice, the claimant did not report for duty, a charge sheet dated 17.6.1992 was issued and the claimant was asked to remain present during inquiry on 19.6.1992. Since the claimant did not attend the inquiry, the proceedings were adjourned with a view to granting one more opportunity to the claimant and further hearing was scheduled for 6.7.1992 as well. Thereafter, the inquiry officer conducted the inquiry in absence of the claimant and the proceedings were forwarded to the claimant on 8.7.1992 by registered post. Since the claimant did not attend the inquiry, the proceedings were adjourned with a view to granting one more opportunity to the claimant and further hearing was scheduled for 6.7.1992 as well. Thereafter, the inquiry officer conducted the inquiry in absence of the claimant and the proceedings were forwarded to the claimant on 8.7.1992 by registered post. Since the claimant did not attend the hearing even after 8.7.1992, the inquiry officer, ultimately, conducted the proceedings and concluded the inquiry on 10.8.1992 and after considering the evidence on record, the inquiry officer submitted his report holding that the charge against the claimant is proved. It was claimed that after considering the said report, the claimant was discharged from service w.e.f. 18.8.1992. 3.3. After the stage of pleadings was concluded, the learned Labour Court recorded evidence of the contesting parties. After the stage of evidence was concluded, the learned Labour Court heard the submissions and thereafter, the learned Labour Court after considering the material on record and the submissions by the contesting parties, passed the award which is impugned in present petition. 4. Mr. Karia, learned counsel, assailed the award and submitted that the learned Labour Court failed to appreciate that the claimant was in habit of remaining absent without permission and even without any intimation. He also submitted that the claimant's service was terminated on ground of misconduct and after conducting domestic inquiry and that therefore, Section 25F is not applicable. He also submitted that during the inquiry proceedings, the company had submitted documentary evidence to establish the allegations against the concerned workman. Mr. Karia, learned counsel, further submitted that after this Court passed the order dated 6.5.2011 in Special Civil Application No. 2058 of 2008, the company had examined the witness to prove the allegations before the learned Labour Court, however, vide order dated 15.7.2011, the Court held that the allegations are not proved. He further submitted that in view of the fact that the concerned workman was, at that time, suffering from serious ailment (cancer) and considering his inability to appear before the learned Labour Court in person and give his oral evidence, it was agreed to not lead any oral evidence and therefore, a purshis was filed declaring that the parties do not want to lead evidence. He submitted that the said aspect is recorded by the learned Labour Court in the order dated 15.7.2011. He submitted that the said aspect is recorded by the learned Labour Court in the order dated 15.7.2011. He also submitted that despite such fact the learned Labour Court recorded conclusion, on the ground that the petitioner did not lead evidence, that the allegation is not proved and on that basis, the learned Labour Court passed the final award. He submitted that the learned Labour Court, however, failed to consider the documents which were available on record, inasmuch as the company had placed on record of the reference case entire material on record of the domestic inquiry, however, the learned Labour Court failed to take into account the said material and also failed to appreciate that the concerned workman had not submitted medical certificate issued by the ESI dispensary. According to learned advocate for the petitioner, the final decision and award are passed without taking into account the documentary evidence which establishes the allegations against the workman and that therefore, the award is not sustainable. 5. Mr. Mishra, learned advocate for the respondent, opposed the submissions and the petition. He submitted that the learned Labour Court held that the inquiry was not legal and thereafter, opportunity to lead evidence was granted to the company, however, the petitioner company failed to lead evidence and the learned Labour Court passed the order dated 15.7.2011. According to learned advocate for the respondent, the order dated 15.7.2011 is not suffering from any error. He also submitted that the final award dated 30.8.2011 is passed on the basis of the order dated 15.7.2011 and that therefore, there is no error or illegality in the award. 6. I have considered the submissions by the learned counsel for the petitioner and the respondent claimant and also the material on record of present petition as well as the impugned award. 7. From the record, it has emerged that the claimant's service was terminated after issuing charge sheet for reported misconduct and after conducting domestic inquiry. In that view of the matter, the petitioner's action cannot be faulted on the ground that retrenchment compensation is not paid because the disciplinary action for alleged misconduct would fall outside the scope of "retrenchment" as defined under Section 2(oo) of the Act. 7.1. In that view of the matter, the petitioner's action cannot be faulted on the ground that retrenchment compensation is not paid because the disciplinary action for alleged misconduct would fall outside the scope of "retrenchment" as defined under Section 2(oo) of the Act. 7.1. Further, so far as the legality of the inquiry is concerned, it has emerged from the record that the learned Labour Court had declared the domestic inquiry defective and thereafter, granted opportunity to the petitioner company to establish the allegations by leading evidence. 7.2. On this count, Mr. Karia, learned advocate for the petitioner, submitted that by the time the learned Labour Court passed the order declaring the inquiry defective and Court granted opportunity to the company to prove the charges, illness of the claimant was detected and according to medical reports, the claimant was suffering from serious ailment (cancer) and since in view of the concerned workman's ill health, it was not possible to examine the workman, any witnesses were not examined by either side. 8. On reading the award, it appears that the learned Labour Court did not examine the documentary evidence and instead, the learned Labour Court disbelieved the case of the petitioner company only on the ground that the company failed to prove that the concerned workman had not submitted medical certificate issued by the ESI dispensary. 9. The learned Labour Court failed to appreciate that if the concerned workman had submitted the medical certificate issued by the ESI dispensary, then, the same would be on record of the domestic inquiry. The Court also failed to appreciate that the respondent did not place copy of the certificate on record of the reference to demonstrate that he had submitted the certificate. Without considering these aspects, the learned Labour Court came to the conclusion that such certificate was not submitted. However, the learned Labour Court also did not take care to independently examine at least the documentary evidence (if not the oral evidence) which formed part of the inquiry proceedings. If the learned Labour Court had examined the documents independently, then, it could have reached to its own independent conclusion. 9.1. However, the learned Labour Court also did not take care to independently examine at least the documentary evidence (if not the oral evidence) which formed part of the inquiry proceedings. If the learned Labour Court had examined the documents independently, then, it could have reached to its own independent conclusion. 9.1. Having regard to the said defect in the proceedings before the learned Labour Court and having regard to the fact that the documentary evidence which was available on record of the domestic inquiry ought to have been considered by the learned Labour Court, instead of proceeding only on one premise viz. that company failed to prove that ESI certificate, for determining as to whether there is substance in the allegations or not and whether charge are proved or not, it would be necessary to remand the proceedings before the learned Labour Court who can undertake said process and then reach to fresh conclusion after considering the material on record. However, having regard to the fact that the concerned workman/original claimant died during the proceedings before the learned Labour Court on account of his illness and now, his heirs are prosecuting the proceedings, this Court is of the view that the proceedings need not be remitted before the learned Labour Court and appropriate final decision should be taken in present proceedings. 10. In this view of the matter and in aforesaid backdrop, it was inquired with the learned advocate for the petitioner as to whether the petitioner company is ready to consider the option of paying lump sum compensation to the heirs of the concerned workman as ex-gratia payment so that it may not be necessary to remand the case to the learned Labour Court and for that purpose, petitioner company may take into account the rate of back wages awarded by the learned Labour Court. 10.1. To consider the said aspect and to take instruction from the concerned officer/director of the petitioner company, time was granted to Mr. Karia, learned advocate for the petitioner. Thereafter, Mr. Karia, learned advocate for the petitioner, fairly submitted that the petitioner company is ready to pay amount equivalent to the amount awarded by the learned Labour Court, however, the petitioner company would pay such amount as ex-gratia/lump sum compensation and not by way of backwages. 11. In this view of the matter, following order is passed:- 11.1. Thereafter, Mr. Karia, learned advocate for the petitioner, fairly submitted that the petitioner company is ready to pay amount equivalent to the amount awarded by the learned Labour Court, however, the petitioner company would pay such amount as ex-gratia/lump sum compensation and not by way of backwages. 11. In this view of the matter, following order is passed:- 11.1. For the reasons recorded above, the impugned award deserves to be set aside and the matter deserves to be remitted to the learned Labour Court. However, considering the peculiar facts and circumstances of the case, the Court has not passed the order remitting the petition for reconsideration and fresh decision. Instead, having regard to the fact that the question of actual reinstatement does not survive in view of sad demise of the concerned workman, it would be appropriate, while setting aside the award and the conclusion by the learned Labour Court (viz. that the concerned workman deserved to be reinstated with 50% backwages) and interest of justice would be served if the petitioner company is directed to pay Rs. 75,000/- to pay to the respondent, by way of ex-gratia/lump sum compensation in full and final settlement of all claims, disputes and demands of the concerned workman. 11.2. It is clarified that the Court had asked Mr. Karia, learned advocate for the petitioner company, to calculate the backwages as per the direction of the learned Labour Court. In response, Mr. Karia, learned advocate for the petitioner company, submitted that on calculation, 50% backwages as per the learned Labour Court's direction i.e. after taking into account recommendations of the Engineering Wage Board from the date when the reference proceedings were restored (after the reference was dismissed on the ground of non-prosecution on account of concerned workman's absence), the said amount comes to Rs. 73,580/-. In that view of the matter, the Court considers it appropriate that the petitioner company shall pay lump sum amount i.e. Rs. 75,000/- as ex-gratia payment. The said amount shall be paid to the respondent as expeditiously as possible and preferably within four weeks from the date of receipt of certified copy of this order. 11.3. To remove any confusion or doubt in future, it is clarified that for the reasons recorded in the award, the award is found unsustainable and that therefore, it is set aside. 11.3. To remove any confusion or doubt in future, it is clarified that for the reasons recorded in the award, the award is found unsustainable and that therefore, it is set aside. The Court also found that the matter deserves to be remanded, however, considering the fact that the concerned workman has died and the question of actual reinstatement now does not survive, the Court considered it appropriate to direct the petitioner to pay amount equivalent to the backwages originally awarded by the learned Labour Court in full compliance of the award, however, by way of ex-gratia payment. Therefore, the above directions are passed. With aforesaid observations, directions and clarifications, the petition partly allowed and accordingly stands disposed of. Rule is made absolute to the aforesaid extent.