JUDGMENT : K.M. Thaker, J. 1. Heard Mr. Dave, learned advocate for the petitioners and Mr. Mishra, learned advocate for the respondent. 2. In this petition the petitioners have challenged award dated 3.1.2011 passed by learned Labour Court at Bhavnagar in Reference (LCB) No. 590 of 1993 whereby learned Labour Court has directed the petitioners to reinstate the respondent with 20% backwages and continuity of service. 3. So far as factual backdrop is concerned, it has emerged from the submissions by learned advocates for the contesting parties and from the record of the petition that the respondent raised industrial dispute on the allegation that his service was illegally terminated by present petitioners on and from 28.11.1990. 3.1 The dispute was referred for adjudication by appropriate Government under order of reference dated 13.8.1993. The order of reference was registered as Reference (LCB) No. 590 of 1993. 3.2 In the learned Labour Court the respondent herein filed his statement of claim (exh.4) wherein he claimed and alleged that he joined service with the petitioner in October 1981 as Asst. Project Leader and subsequently in November 1983 he was promoted to class-III post i.e. Asst. Project Formulation Officer. He was confirmed on the said post vide order dated 17.10.1985 w.e.f 30.11.1984. He claimed that accordingly w.e.f 30.11.1994 he worked with the petitioners as permanent employee and suddenly, on 28.11.1990 his service came to be terminated on the ground of absentism. He alleged that his service was terminated without granting opportunity of hearing and in violation of principles of natural justice. It was also claimed by the respondent that his service was terminated without following procedure prescribed by law. He claimed that he could not attend his duty because of his wife's illness and he had to extend his leave on account of domestic problem or on account of certain other reasons, however the petitioners, without considering said difficulty terminated his service. He also claimed that he preferred Appeal before the Appellate Authority and claimed that he should be reinstated, however, Appellate Authority rejected the appeal vide order dated 1.12.1992. With the said allegation the respondent herein challenged the orders dated 28.11.1990 and 1.12.1992 before learned Labour Court. 4. The petitioners herein opposed the reference and the said allegation by present respondent by filing written statement (exh.7). In their written statement the petitioners denied the allegation and claim by the respondent. With the said allegation the respondent herein challenged the orders dated 28.11.1990 and 1.12.1992 before learned Labour Court. 4. The petitioners herein opposed the reference and the said allegation by present respondent by filing written statement (exh.7). In their written statement the petitioners denied the allegation and claim by the respondent. The petitioners herein opposed the maintainability of the reference on the ground that the respondent was not employed as workman and his duty was in nature of instructor i.e. a teacher therefore he cannot be considered "workman" within definition of the term defined under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the "Act"). 4.1 It was also claimed that even if the said aspect is not accepted then also, in view of the fact that the respondent was engaged in Administrative/Officer Cadre, and his duties were of supervisory nature he would not come within the purview of the term "workman" defined under Section 2(s) of the Act and therefore also reference at his behest was not maintainable. 4.2 Besides the said objection the petitioners herein opposed the reference on factual ground as well and claimed before the learned Labour Court that the respondent was in habit of remaining absent without any intimation or permission and he used to frequently remain absent from duty. It was also claimed that the medical certificate which respondent had submitted was not genuine. It was also claimed that despite several intimations asking the respondent to resume his duty, he did not report for duty and though he was asked to submit medical certificate issued by Civil Surgeon he did not submit such certificate. It was also claimed by the petitioners that in view of the fact that several intimations were issued asking the respondent to report for duty, his allegation that opportunity of hearing was not granted is not correct. The petitioners also claimed that since opportunity of hearing was granted to the respondent before the appeal committee, his allegation that his service was terminated in violation of principles of natural justice is incorrect. 5. The petitioners also claimed that since opportunity of hearing was granted to the respondent before the appeal committee, his allegation that his service was terminated in violation of principles of natural justice is incorrect. 5. The claimant placed on record of the reference before learned Labour Court several documents including his appointment letter and his leave report at the time when his grand mother died and the leave report with the order sanctioning leave and his application/request to extend the leave and the medical certificate certifying his wife's illness etc. The deposition of the claimant was recorded at exh. 27. 6. The petitioners also placed document on record and the deposition of the witness of the petitioner employer i.e. Mr. D.V. Vadodariya and Mr. Chudghar were recorded at exh. 80 and exh. 84 respectively. 6.1 After stage of evidence was completed learned Labour Court heard the submissions by learned advocate for the claimant and learned advocate for the employer and after hearing the submissions and after considering the material on record learned Labour Court, passed impugned award with above mentioned directions. 7. Mr. Dave, learned advocate for the petitioner submitted that the respondent was in habit of remaining absent without intimation and that the medical certificate which the respondent submitted raises doubts and did not appear to be genuine and that despite several intimations asking the respondent to resume his duty he did not report for duty. He also claimed that it was the respondent who stopped reporting for duty and therefore the petitioner was left with no alternative but to discontinue the respondent as he lost lien on the post. Mr. Dave, learned advocate for the petitioner also contended that the learned Labour Court failed to appreciate that the respondent was not employed as a workman and he would not come without purview of the definition of the term 'workman' defined under Section 2(s) of the Act. 7.1 Mr. Mishra, learned advocate for the respondent submitted that the petitioner terminated respondent's service in violation of principles of natural justice and that the petitioner is not justified in claiming that the respondent was not employed as workman or that he was employed in administrative/officer cadre or that his duties were of supervisory nature. Mr. 7.1 Mr. Mishra, learned advocate for the respondent submitted that the petitioner terminated respondent's service in violation of principles of natural justice and that the petitioner is not justified in claiming that the respondent was not employed as workman or that he was employed in administrative/officer cadre or that his duties were of supervisory nature. Mr. Mishra, learned advocate for the respondent also submitted that the petitioner failed to take into account the reasons and circumstances on account of which the respondent was not able to attend his duty. Mr. Mishra, learned advocate for the respondent submitted that the respondent was dragged in certain domestic problems coupled with his wife's illness for sometime and the petitioner terminated the respondent's service without appreciating circumstances. Mr. Mishra, learned advocate for the respondent submitted that the respondent had submitted medical certificate which the petitioner did not believe and did not accept the said certificate as true and genuine. 8. I have heard learned advocates and considered the submissions as well as material on record and the award. 9. So far as the employer's contention against the maintainability of reference on the ground that the claimant cannot be termed within the meaning of the term under Section 2(s) of the Act is concerned, learned Labour Court did not frame any specific issue on that count. 9.1 It is not in dispute that the service of the respondent came to be terminated on the ground that he frequently remained continuously absent from duty and during the period from 8.5.1990 to 30.9.1990 the respondent remained absent for about 135 days. 9.2 The details of the respondent's absence are as mentioned below: Sr. No. Date Days 1 8.5.90 to 25.5.90 17 2 26.5.90 to 22.6.90 (23.6.90 and 24.6.90 it was a public holiday of the institution 28 3 27.6.90 to 27.7.90 31 4 28.7.90 to 31.7.90 4 5 1.8.90 to 26.8.90 26 6 1.9.90 to 30.9.90 30 9.3 It is also not in dispute that the petitioners had asked the respondent to submit medical certificate issued by civil surgeon however, the respondent failed to submit the certificate as asked for by the petitioners. 10. 10. Learned Labour Court has also recorded that the petitioners had specifically informed the respondent that his request for leave/extension of leave is not sanctioned and his request is rejected and that therefore he should report for duty, however despite such instruction the respondent did not report for duty. 10.1 It is pertinent to note that the learned Labour Court found fault with the decision of the employer on the ground that the employer did not explain any reason for rejecting claimant's request for leave. 10.2 Learned Labour Court proceeded on the premise that since the respondent submitted medical certificate there was no justification to decline request for leave/extension of leave. Learned Labour Court also recorded that since the respondent had submitted medical certificate, he should not be considered absent from duty. 10.3 On this count it is relevant to note that this is not a case where the respondent/workman himself was suffering from ill-health. On the contrary, in present case, it has emerged from the record that the respondent remained absent from duty and did not report for duty on different grounds e.g. he remained absent from duty on the ground of death of his grand mother and thereafter he remained absent for 28 days on the ground of medical reason and subsequently in June 1990 to August 1990 he remained absent for about 61 days on ground of his wife's ill-health and immediately thereafter he remained absent for 30 days i.e. entire month of September 1992 on ground of his daughter's illness and his son's examination. 10.4 The said details/facts bring out that the respondent remained absent from duty on different grounds and some of them which were unreasonable, if not frivolous, inasmuch as he remained absent from duty for 28 days on ground of domestic work and he remained absent from duty for several days on ground of his son's examination. 11. A person holding officer's post or working in cadre of supervisory/administrative capacity cannot behave in such irresponsible manner. He cannot remain absent from duty continuously for such long period i.e. for more than 100 days i.e. over a span of 4 months and that too on ground of domestic reason and son's examination etc. 11.1 It is also relevant to note that the employer had reason to believe that the reasons assigned by the respondent for his absence from duty viz. 11.1 It is also relevant to note that the employer had reason to believe that the reasons assigned by the respondent for his absence from duty viz. his wife's illness was not genuine and therefore the employer had asked the respondent to submit medical certificate from civil surgeon however the respondent did not comply the said direction and never submitted medical certificate issued by civil hospital. 12. Having regard to the said facts and circumstances, the conduct of the respondent cannot be said to be reasonable and the conduct of the respondent has to be termed as unbecoming of an employee. 12.1 Having regard to the facts and circumstances of the case the learned Labour Court's observation amounts to undue and unjust sympathy towards irresponsible conduct of an employee. 12.2 The conduct of frequently remained absent from duty and/or the conduct of remaining absent from duty for long duration and that too without bonafide and reasonable cause cannot be viewed lightly as it affects the workman and the establishment and the discipline of the establishment and it also adversely influences the conduct of sub-ordinate staff and other employees. 13. Under the circumstances, if any action is taken against such conduct of an employee, by considering such conduct and behavior as misconduct, the Court would be slow in interfering with the decision of the employer more particularly when the conduct of the employee is not disputed and/or conduct is matter of record, unless victimisation is alleged and proved and accepted by the Court. In present case victimisation is neither specifically alleged nor proved and the Court has not proceeded on such premise. 14. Unfortunately, the learned Labour Court failed to appreciate this aspect involved in present case and attached to the respondent's conduct. 14.1 The continuous absence from duty by the respondent and that too for long span of about 4 months could not have been viewed lightly and the employer's action could not have been faulted. 14. Unfortunately, the learned Labour Court failed to appreciate this aspect involved in present case and attached to the respondent's conduct. 14.1 The continuous absence from duty by the respondent and that too for long span of about 4 months could not have been viewed lightly and the employer's action could not have been faulted. Further, only on the ground that workman subsequently submitted medical certificate his conduct and absentism would not stand justified more so when the respondent failed to submit certificate by civil hospital and in view of the fact that (a) the reason was not his own illness and (b) even his wife's illness was not the only reason for such long absence from duty inasmuch as he cited some other reasons as well to explain his long absence from duty. 15. For the aforesaid reasons the said conclusion by the learned Labour Court is not sustainable. 15.1 However, in the facts and circumstances of the case this Court cannot overlook or ignore vital fact that the petitioner's action is defective on account of violation of principles of natural justice. 15.2 It is undisputed fact that before passing termination order dated 28.11.1990 the employer did not grant opportunity of hearing to the respondent and departmental inquiry after issuing show-cause-notice/chargesheet for misconduct of frequently remaining absent and/or for remaining continuously absent without permission and intimation for long duration was held. 15.3 Therefore, the employer's action is, undoubtedly vitiated on account of violation of principle's of natural justice. 16. With a view to coming out from said defect in its action, the learned advocate for the petitioners submitted that though formal domestic inquiry was not conducted notices asking explanation were issued and in any case, sufficient and reasonable opportunity of personal hearing was granted to the respondent by the appeal committee at the time of hearing of the appeal. 17. It is not in dispute that post facto hearing cannot cure the violation of principles of natural justice at first/initial stage. 17.1 Merely because, the respondent was heard by the appeal committee at the time when the appeal committee took up the respondent's appeal for decision, does not justify employer's action of terminating service of the respondent without granting opportunity of hearing. 17.2 The said opportunity should have been granted, before passing disciplinary/dismissal order. 17.1 Merely because, the respondent was heard by the appeal committee at the time when the appeal committee took up the respondent's appeal for decision, does not justify employer's action of terminating service of the respondent without granting opportunity of hearing. 17.2 The said opportunity should have been granted, before passing disciplinary/dismissal order. The defect which crept-in in the employer's action at initial stage cannot be, and could not have been, cured by subsequent and post facto hearing. 17.3 In this view of the matter, learned Labour Court's decision of holding employer's action as defective cannot be faulted. 18. Mr. Dave, learned advocate for the petitioners submitted that after learned Labour Court passed order the petitioners' addressed letters/intimation to the respondent to report for duty in compliance of the direction to reinstate the respondent. Mr. Dave, learned advocate for the petitioner further submitted that despite repeated intimations issued and served by the petitioners, the respondent never reported for duty and for entire interregnum from January 2011 when the award came to be passed until April 2016 the respondent never reported for duty and never made even any attempt to resume duty. He also submitted that according to the information available with the petitioners, the respondent is engaged in gainful activity viz. business with his son/relative. 19. In this background the issue arises about appropriate relief. 19.1 After telephonic instruction received from the respondent learned advocate for the respondent fairly conceded the fact that the respondent is engaged in gainful activity viz. he is engaged in business and he is not interested in the service and he is not inclined to report for duty. Learned advocate for the respondent fairly submitted that the respondent would be satisfied if appropriate lump sum compensation instead of reinstatement and backwages is granted. 20. Having regard to the facts and circumstances of the case and after taking instruction from the respondent, Mr. Mishra, learned advocate for the respondent submitted that if Rs. 1,45,000/- is awarded as lump sum compensation in lieu of all rights, claims and disputes, demands etc including terminal benefits, like gratuity then the respondent would accept the said amount as full and final settlement of his all claims and demands. 20.1 Mr. Dave, learned advocate for the petitioners submitted and clarified that at the time when respondent's service was terminated the terminal dues including gratuity were paid to the respondent. 21. 20.1 Mr. Dave, learned advocate for the petitioners submitted and clarified that at the time when respondent's service was terminated the terminal dues including gratuity were paid to the respondent. 21. In light of the facts of the case, more particularly the fact that the respondent's termination of service was effected in violation of principles of natural justice therefore, the learned Labour Court's direction granting reinstatement cannot be faulted however, at the same time, the direction granting continuity of service and 20% backwages, in light of the facts of the case and in light of the respondent's admission with regard to his gainful engagement, cannot be sustained. 21.1 On overall consideration of facts and circumstances of the case it appears that suggestion from the learned advocate for the respondent, which is put forward under instruction and with consent of the respondent can be accepted and that would serve the interest of justice. 22. Therefore, following order is passed:- "The impugned award 3.1.2011 passed by learned Labour Court at Bhavnagar in Reference (LCB) No. 590 of 1993 is partly set aside and modified." The petitioner employer is directed to pay sum of Rs. 1,45,000/- as lump sum compensation to the respondent. The said payment shall be in lieu of all claims, disputes, rights and demands etc. of the respondent including those arising from impugned award and by way of full and final settlement of all claims and rights. Upon payment of the said amount any claim including claim for terminal benefit like gratuity, provident fund, leave salary etc. will not survive and if any claim or demand survives the same shall be deemed to have been waived by the respondent. The employer shall pay the said amount as expeditiously as possible and preferably within 6 weeks from the receipt of the certified copy of this order. With the aforesaid clarifications the petition is partly allowed. The award and direction by the learned Labour Court is partly set aside and modified. Rule is made absolute to the aforesaid extent.