JUDGMENT : K.M. Thaker, J. 1. In present petition, the petitioner Company has challenged award dated 11.09.2008 passed by learned Labour Court at Bharuch in Reference No. 293 of 2003 whereby learned Labour Court directed the petitioner Company to reinstate the claimant on his original post with 20% back-wages. 2. Heard Mr. Mathew, learned advocate for petitioner Company and Mr. Gadhvi, learned advocate for respondent workman. 3. So far as factual background is concerned, it has emerged from the record and submissions by learned advocates for petitioner and respondent that the claimant has raised industrial dispute with the allegation that the Company without any fault on his part, illegally terminated his service on 25.01.2003. He alleged that he was working with the opponent employer since may years, however, the employer arbitrarily terminated him in violation of principles of natural justice. With such allegation, he demanded that he should be reinstated in service with all benefits. 4. The opponent employer opposed the Reference on diverse grounds including the contention that the service of the claimant was terminated after conducting domestic inquiry pursuant to charge-sheet with reference to reported misconduct allegedly committed by him. The Company contended that the claimant had, reportedly, indulged in serious misconduct and, therefore, after issuing charge sheet regular domestic inquiry was conducted. The Company also contended that the claimant was very irregular in performing his duties and that he continuously and unauthorizedly remained absent. With such claims and submissions, the Company opposed the Reference and resisted demand by the claimant. 5. Upon conclusion of the stage of pleading, learned Labour Court received evidence from both the sides and after both sides concluded their evidence, learned Labour Court heard submissions by learned advocates for claimant and the Company. Upon completion of the proceedings, learned Labour Court considered material available on record and rival submissions and thereafter passed impugned order with above mentioned direction. 6. During hearing of present petition, one of the major objections raised by learned advocate for petitioner Company is that the learned Labour Court failed to appreciate that the Company had discontinued its operation and closed the establishment since February, 2002. It is claimed that there is no justification to pass direction to reinstate the claimant. He submitted that the said direction is, in view of the facts of the case, incapable of being complied with. It is claimed that there is no justification to pass direction to reinstate the claimant. He submitted that the said direction is, in view of the facts of the case, incapable of being complied with. Learned advocate for Company contended that actually in 3 other Reference Case i.e. Reference Case No. 293 of 2003 and Reference Case No. 211 of 2002 and in Reference Case No. 222 of 2002, learned Labour Court itself has acknowledged and accepted the fact that the Company discontinued its operation and it is closed down with effect from 18.02.2002. He submitted that, however, disregarding the said fact in present case the Labour Court passed order directing the Company to reinstate the claimant and that, therefore, the said direction and impugned award suffers from non application of mind and the direction is contrary to the evidence available on record. 7. He further submitted that at the time when the Company discontinued its activities and closed the undertaking, the other workmen who were in service were relieved and the Company had paid compensation payable upon closure of the undertaking. He further submitted all employees accepted the said payment of compensation and were relieved from service. He clarified that such payment was not made to the claimant because domestic inquiry was pending against the claimant. Thereafter, his service came to be terminated on account of his proved misconduct. 8. According to the submissions by learned advocate for the Company, at the time when the claimant's service was terminated, the Company had paid all dues payable (on termination of service) to the claimant. Learned advocate for Company, however, admitted that the amount which was paid to other workmen on closure of the undertaking was not paid to the claimant. 9. Learned advocate for the Company also opposed the direction to pay 20% back-wages to the claimant on the ground that the claimant was terminated on the ground of misconduct and, therefore, there is no justification to award any back-wages. 10. Mr. Gadhvi, learned advocate for the respondent-workman opposed the submissions. He relied on the deposition of the claimant where the claimant denied the claim of the Company that it has discontinued its activities/operations and it is closed down. He submitted that said claim is incorrect. He also submitted that the claimant was not gainfully employed in the interregnum. 10. Mr. Gadhvi, learned advocate for the respondent-workman opposed the submissions. He relied on the deposition of the claimant where the claimant denied the claim of the Company that it has discontinued its activities/operations and it is closed down. He submitted that said claim is incorrect. He also submitted that the claimant was not gainfully employed in the interregnum. He submitted that the domestic inquiry which was allegedly conducted against the claimant was declared illegal by learned Labour Court and, thereafter, the Company failed to prove the misconduct and, therefore, the Labour Court granted back-wages. According to learned advocate for the claimant, there is no error in the award passed by learned Labour Court, therefore, petition may be dismissed. 11. I have considered rival submissions by learned advocates for the Company and the claimant. I have also considered material available on record including above mentioned 3 Awards passed by learned Labour Court in Reference Cases as well as impugned award. 12. Before proceeding further it is relevant to mention that while deciding Reference Case No. 218 of 2002 which was filed by one of the workmen of the petitioner Company wherein the said claimant demanded/reinstatement with all benefits, the Learned Labour Court observed and recorded in the award dated 04.09.2006 that as the Company is closed down since long time, the relief prayed for in Para-6(a) and 6(b) cannot be granted. With the said observation, the learned Labour Court rejected Reference Case No. 218 of 2002. 13. Likewise, while adjudicating the dispute raised by one Mr. Vinod Singh in Reference Case No. 222 of 2002 wherein also the claimant, who was one of the workmen of the present petitioner Company, demanded/reinstatement in service with all benefits, the Learned Labour Court passed award dated 04.09.2006 and in the said award in Reference Case No. 222 of 2002 also the learned Labour Court recorded that the Company is closed down since long time and, therefore, the relief prayed for by the claimant cannot be granted. 14. Similar, observation is made by learned Labour Court in the award dated 04.09.2006 passed in Reference Case No. 211 of 2002 which was filed by one Mr. Jaswant C. Patel. The said reference came to be dismissed by learned Labour Court with the observation that the Company is closed down since long time. 15. 14. Similar, observation is made by learned Labour Court in the award dated 04.09.2006 passed in Reference Case No. 211 of 2002 which was filed by one Mr. Jaswant C. Patel. The said reference came to be dismissed by learned Labour Court with the observation that the Company is closed down since long time. 15. Whereas in present case, while passing impugned award dated 11.09.2008 in Reference Case No. 293 of 2003, learned Labour Court ignored the fact that the Company is closed down and the conclusions recorded in said three awards. 16. The learned advocate for the petitioner submitted that the said details were placed before learned Labour Court, however, learned Labour Court failed to take into account the said factual aspect. 17. Having regard to the submission by learned advocate for petitioner Company that the Company discontinued its operation in February, 2002 and the undertaking came to be closed down in 2002 and also the submission that at the relevant time the Company had paid closure retrenchment compensation to the workmen who were in service, this Court had passed an interim direction vide interim order dated 05.05.2009. The said order reads thus: "CORAM : HONOURABLE MR. JUSTICE K.M. THAKER Date : 05.05.2009 ORDER 1. In this petition notice was issued by order dated 8.12.2008. Notice was returnable on 30.12.2008. It is shown that the notice has been served, however no one on behalf of the respondent has entered appearance. On 28.4.2008 order was passed giving last opportunity to the respondent to enter appearance. Even after the said order dated 28.4.2009 no one on behalf of the respondent has entered appearance. Mr. Mathew learned advocate for the petitioner company submitted that the company has been closed down since 18.2.2002 and all other workmen were duly retrenched by the company with effect from 31.3.2002. He further submitted that the reference proceedings initiated by other workmen have been rejected by the labour Court. As regards the respondent Mr. Mathew learned advocate for the petitioner submitted that at the relevant time departmental proceedings were pending against the respondent and that therefore any compensation or other amount were not paid to him and after conclusion of the proceedings the respondent was terminated with effect from 25.6.2003. Now the labour Court has directed the petitioner company to pay 20% back-wages to respondent and to reinstate him. Mr. Now the labour Court has directed the petitioner company to pay 20% back-wages to respondent and to reinstate him. Mr. Mathew learned advocate for the petitioner submitted that the company is ready and willing to make payment and benefits to the respondent at the same rate at which the other workers were paid at the time of retrenchment. 2. Considering the submissions of Mr. Mathew learned advocate for the petitioner and upon considering the impugned award in view of the fact that the company has been closed down as asserted by Mr. Mathew learned advocate for the petitioner, the petition requires consideration. 3. Hence, Rule. Ad-interim relief in terms of paragraph No. 13(i) is granted on condition that the petitioner shall, within six weeks from today, deposit the amount which would be payable to the respondent if all the benefits as paid to the other workmen at the time of retrenchment were to be extended to the respondent of present petition as well. The amount shall be deposited after calculating the amount on the aforesaid basis. The amount to be deposited in this Court within 6 weeks. On compliance of the said condition interim relief shall operate. 4. Since order has been passed in absence of the respondent, it would be open for the respondent to make appropriate application to modify/vacate order of the interim relief." 18. Learned advocate for the petitioner Company informed the Court that in compliance of the said direction vide order dated 05.05.2009 the Company had deposited Rs. 12,630/- which is equivalent to the amount which was paid to the other workmen towards retrenchment/closure compensation. 19. In present case, it is true that the domestic inquiry against present respondent was declared illegal by the learned Labour Court. It is also true that the learned Labour Court seems to have held that the charge and allegation against the claimant are not proved. 20. Even if this Court proceeds on the basis of the said conclusion by the learned Labour Court and also on the premise that the findings of fact recorded by learned Labour Court should not be disturbed in this proceeding then also the fact that the claimant's service, even according to his own allegation, was terminated in June, 2003, would still stare in face of the claimant inasmuch as the Company had discontinued its operations and closed down the undertaking in 2002. 21. 21. According to the Company, at the time when the operations were discontinued, domestic inquiry against claimant was pending and, therefore, he was not relieved along with other workmen. 22. In this view of the matter, it appears that the service of the claimant came to be terminated after the Company discontinued its operation and activities. 23. The fact that the Company closed down/discontinued its activities in 2002 is accepted recorded by learned Labour Court in above mentioned 3 Awards which, according to learned advocate for Company, have attained finality. 24. Learned advocate for respondent claimant could not dispute the said submission, of course for want of any information. 25. In this view of the matter, this Court has no reason to disbelieve the statement of the learned advocate for Company that the said 3 Awards have attained finality. 26. Therefore, this Court has to proceed on the premise that the activities and operations of the Company were discontinued/closed when the service of the claimant was terminated. 27. Under the circumstances, it is not possible to sustain the direction passed by learned Labour Court because the said direction seems to have been passed without taking into account above mentioned fact i.e. the activities of the Company had closed down in February, 2002. 28. In view of the fact that learned Labour Court declared that domestic inquiry was not conducted in legal and fair manner and subsequently the Company failed to prove the allegation against the claimant, the impugned award whereby the Company is directed to reinstate the claimant and to pay 20% back-wages deserves to be modified in light of the conclusion recorded by learned Labour Court at Bharuch in above mentioned 3 Reference Cases. 29. Therefore, following order is passed: "(a) The Company has already deposited Rs. 12,630/- which, according to the Company's declaration, is equivalent to the amount paid to other workmen towards compensation when they were relieved from the Company. (b) In view of the fact that if the domestic inquiry had not been pending against the claimant and if his service had not been terminated on the ground of misconduct, then he would have been relieved from the service in 2002 along with other workmen and he would have been paid Rs. 12,630/-. (b) In view of the fact that if the domestic inquiry had not been pending against the claimant and if his service had not been terminated on the ground of misconduct, then he would have been relieved from the service in 2002 along with other workmen and he would have been paid Rs. 12,630/-. (c) Therefore, it appears that it would be just and equitable to modify the award with the direction that the said amount of Rs. 12,630/- shall be paid to the workman towards compensation. (d) It has also emerged from the record that in view of the order dated 29.10.2009 passed by the Court in Civil Application No. 11230 of 2009, the claimant has already withdrawn the said amount. Therefore, further direction for disbursement/payment is not required. (e) In the result, the petition is partly allowed. The award is modified and instead of direction to reinstate the claimant with 20% back-wages, the aforesaid amount is paid to the claimant by way of compensation. Rule is made absolute to the aforesaid extent. Orders accordingly."