JUDGMENT
Mukul Mudgal, J.
1. This writ petition challenges the award dated 31st October, 1995 entitling the workman for full back wages along with continuity of service. The dispute has been raised in the following terms of reference:-
”Whether Shri Hazari Lal abondoned his job or his services were terminated by the management illegally and/or unjustifiably, and if so to what relief is he entitled and what directions are necessary in this respect?”
2. The claim of the respondent was that he was working with the management as a Packingman and was drawing wages @ Rs. 555/- per month and while he was on medical leave from 30.3.87 and applied therefore, and when he joined the services on 23rd April, 1987 along with fitness certificate, he was denied duty and was illegally removed from service.
3. Written statement was filed by the management and the case set up by the petitioner management was that the respondent workman Hazari Lal absented from duties w.e.f. 6th April, 1987 without any information or prior sanction of leave and inspite of being advised vide letters dated 9th April, 1987 and 23rd April, 1987, he never reported for duty.
4. The workman/respondent No. 1 led evidence in support of his averments in the statement of claim. However, no evidence was led by the petitioner management inspite of opportunities given to show that the respondent No. 3 has abandoned his job. The workman had appeard on his behalf and testified in support of his claim. He has also testified and held that no notice or compensation under Section 25 was paid to the workman. Even assuming that there was abandonment of service, the petitioner was nevertheless duty bound to hold an enquiry before terminating the services of the respondent No. 3.
5. In support of the award, the learned counsel for the respondent has also submitted that the impugned award can also be sustained on the basis of Section 73 of the Employee’s State Insurance Act, 1948, which reads as under:-
”73. Employer not to discuss or punish employee during period of sickness, etc.–(1) No employer shall dismiss, discharge or reduce or otherwise punish an employee during the period the employee is in receipt of sickness benefit or maternity benefit, nor shall he, except as provided under the regulations, dismiss, discharge or reduce or otherwise punish an employee during the period he is in receipt of disablement benefit for temporary disablement or is under medical treatment for sickness or is abset from work as a result of illness duly certified in accordance with the regulations to arise out of the pregnancy or confinement rendering the employee unfit for work. (2) No notice of dismissal or discharge or reduction given to an employee during the period specified in sub-section(1) shall be valid or operative.”
6.Thus the petitioner who did not avail of the opportunity to lead evidence or even argue his case at the stage of arguments cannot now be heard to assail the award on merits. However, there is merit in the plea of Mr. Singla who appeared on behalf of the petitioner who submits that considering the long period of elapsing between the date of alleged abandonment since 1987 and rejoining of respondent No. 3 around November, 1997, it is appropriate that full back wages may not be awarded.
7. Taking into account the fact that there is hiatus of 9 years between the impugned order and the rejoining of the respondent No. 3 with the petitioner, the counsel for the parties agreed between them that the award granting full back wages with continuity of service deserves to be altered to that of half of the back wages with continuity of service.
8. Apart from the above agreement between the parties, even otherwise I am satisfied that in the facts and circumstances of the case, the award granting full back wages with continuity of service deserves to be altered to half of the back wages with continuity of service. It is ordered accordingly. If any payment has been made in the meanwhile to the respondent before his joining of service as an interim order of this Court that amount is liable to be adjusted from the 50% back wages now being sustained.
9. The writ petition and all pending applications stand disposed of accordingly.