JUDGMENT : B. AMIT STHALEKAR, J. 1. Heard Sri Vishnu Gupta, learned counsel for the petitioner, Sri Santosh Kumar Pandey, learned counsel for the respondent no.5 and the learned Standing Counsel for the respondents no.1 to 4. 2. The petitioner in the writ petition is seeking quashing of the award dated 11.01.1996 passed in Adjudication Case No.266 of 1993 as well as the order dated 22.08.1996 whereby its review application has been rejected, as well as the recovery certificate dated 07.09.1996. 3. Briefly stated the facts of the case are that the respondent no.5 was working under the petitioner as Time Keeper and he joined as such on 01.11.1980. There is no dispute that he worked as such regularly but on 07.01.1992 his services were dispensed with. The respondent no.5-workman raised an industrial dispute which was referred to the labour court through reference order dated 23.03.1993 whereupon the Adjudication Case No.266/1993 was registered. 4. The case of the respondent no.5-workman before the labour court was that he was appointed under the petitioner-management on the post of Time Keeper and he joined on 01.11.1980 and continue to work as such regularly but on 07.01.1992 when he reported back for duty he was not given any work and he was told to go away. His case is that the petitioner directed him to get a medical certificate whereupon he submitted a certificate of the C.M.O., Ghaziabad through registered post dated 19.02.1992 but thereafter also he was not taken back on duty. 5. The contention of the respondent no.5 is that the petitioner was writing letters to him to which he was also submitting replies. In fact it is admitted that the last letter of the petitioner-management was sent to him on 19.05.1993 which was received by him to which he also sent a reply through registered letter dated 08.07.1993. 6. The contention of the respondent no.5 in his counter affidavit (Annexure-14 to the counter affidavit) is that he had reported for duty before the petitioner-management on 09.01.1997 but he was not allowed to enter the gate of the establishment. 7. The labour court, however, by the impugned award dated 11.01.1996 has held the termination of services of the respondent no.5 w.e.f. 07.01.1992 to be wholly illegal and has directed his reinstatement in service with full back wages. 7. The labour court, however, by the impugned award dated 11.01.1996 has held the termination of services of the respondent no.5 w.e.f. 07.01.1992 to be wholly illegal and has directed his reinstatement in service with full back wages. Thereafter the petitioner-management filed recall application which the court treated as a review application and rejected the same vide order dated 22.08.1996. Thereafter the impugned recovery citation has been issued on 07.09.1996. 8. The contention of the learned counsel for the petitioner is that w.e.f. 07.01.1992, the respondent no.5 himself had left the work and the management had written several letters to him which the respondent no.5-workman admits having received but in spite of that he never came back to join duties. It is also stated that the respondent no.5 was a nuisance monger and used to misbehave and used to bring some muscle man at the work place which was objected to by the petitioner-management. 9. It is not disputed that no departmental enquiry was held for the unauthorized absence of the respondent no.5-workman from duty, although the respondent no.5 was a confirmed regular employee of the management. Therefore, I do not find any illegality with regard to the award of the labour court in so far as it has held the termination of the respondent no.5 to be illegal and has directed his reinstatement in service. 10. However, so far as the question of awarding full back wages is concerned, this Court has to be examined the conduct of the respondent no.5-workman. The respondent no.5-workman himself has never disputed that after 07.01.1992 the management was repeatedly sending him letters which he has received to which he also submitted his replies and that the last letter was received by him on 19.05.1993 to which he also submitted a reply on 08.07.1993 though he has made an allegation that he used to report to the management to work but the management locked the gate and did not allow him to enter the premises. This does not appear to be believable. 11. There is another aspect of the matter. This does not appear to be believable. 11. There is another aspect of the matter. After filing of this writ petition this Court at the time of admission on 08.10.1996 had stayed the payment of back wages subject to the condition that the petitioner would allow the respondent no.5 to join his duties and pay him salary, including current salary with effect from the date of the award within one month. 12. A supplementary affidavit has been filed by the petitioner-management dated 14.09.2009 in which it is stated that after the interim order of the Court the management allowed the respondent no.5 to join and also paid him salary from 01.01.1996 to 31.10.1996 including bonus for the year 1995-96 and upto 30.06.1996 through cheques which were duly received by the respondent no.5 on 08.11.1996. Thereafter the respondent no.5 again absented himself from duty w.e.f. 07.01.1997 and therefore, the petitioner wrote a letter to him on 13.01.1997 and 25.01.1997 to report for duty alongwith 3rd reminder dated 06.03.1997 but the respondent no.5 did not report back for duty. Copy of the letter dated 06.03.1997 has been filed as Annexure-2 to the supplementary affidavit. It is stated that looking the conduct of the respondent no.5, the petitioner-management also wrote a letter to the Deputy Labour Commissioner on 11.03.1997, which is annexure-3 to the supplementary affidavit. Thereafter on 04.04.1997 another letter was sent by the management to the respondent no.5 to report in the ‘C’ Shift but the respondent no.5-workman did not report for duty and again a letter was sent by the petitioner-management to the Deputy Labour Commissioner on 05.04.1997 informing him about non-joining of the respondent no.5. Therefore, looking to the conduct of the respondent no.5-workman, in my opinion, the award of the full back wages is wholly illegal. He is not entitled to full back wages and even otherwise on the basis of the material available on record at the time of giving the award it is quite clear that the respondent no.5 had been acknowledging the letters of the management to report for duty but except for submitting replies thereto he did not report for duty and therefore, in the facts and circumstances of the case he was not entitled to back wages. 13. The Supreme Court in Novartis India Limited Vs. 13. The Supreme Court in Novartis India Limited Vs. State of West Bengal and Others reported in, (2009) 3 SCC 124 has held that merely because the dismissal from service has been held to be illegal would not result in automatic payment of back wages and the conduct of the concerned workman would also have to be examined. Paragraphs 21 & 22 of the said judgment reads as under: “21. There can, however, be no doubt whatsoever that there has been a shift in the approach of this Court in regard to payment of back wages. Back wages cannot be granted almost automatically upon setting aside an order of termination inter alia on the premises that the burden to show that the workman was gainfully employed during interregnum period was on the employer. This Court, in a number of decisions opined that grant of back wages is not automatic. The burden of proof that he remained unemployed would be on the workmen keeping in view the provisions contained in Section 106 of the Evidence Act, 1972. This Court in the matter of grant of back wages has laid down certain guidelines stating that therefor several factors are required to be considered including the nature of appointment; the mode of recruitment; the length of service; and whether the appointment was in consonance with Articles 4 and 16 of the Constitution of India in cases of public employment; etc. 22. It is also trite that for the purpose of grant of back wages, conduct of the concerned workman also plays a vital role. Each decision, as regards grant of back wages or the quantum thereof, would, therefore, depend on the fact of each case. Back wages are ordinarily to be granted, keeping in view the principles of grant of damages in mind. It cannot be claimed as a matter of right. 14. In this view of the matter, this writ petition is partly allowed. 15. The award of the labour court is modified to the extent that the direction for payment of back wages is set aside. 16. So far as the impugned order dated 22.08.1996 is concerned, I do not find any illegality or infirmity in the same and the writ petition to that effect is dismissed. 17. 15. The award of the labour court is modified to the extent that the direction for payment of back wages is set aside. 16. So far as the impugned order dated 22.08.1996 is concerned, I do not find any illegality or infirmity in the same and the writ petition to that effect is dismissed. 17. So far as the recovery order dated 07.09.1996, Annexure-21 to the writ petition is concerned, I find that the interim order was passed by this Court on 08.10.1996 and thereafter the petitioner had joined duty and he had already been paid salary from 01.01.1996 upto 31.10.1996 including bonus for the year 1995-96 and upto 30.06.1996 which was received by him on 08.11.1996. 18. The respondent no.5-workman has filed the supplementary counter affidavit but I find that the averments of paragraphs 4 to 11 of the supplementary affidavit have not been denied at all. 19. For reasons aforesaid, the impugned recovery citation dated 07.09.1996 is set aside. 20. The writ petition is partly allowed.