M.L.Bhat - (1.) IN favour of respondent No 3 there is an award passed by respondent No. 2 on 12-2-79 by which the termination of services of respondent No. 3 was declared illegal and it is ordered that respondent No. 3 be reinstated with back wages. The petitioner who is an employer is aggrieved by the said award and he has filed this writ petition to quash the said award and the reference No. 5090 dated 20-6-78 is also prayed to be quashed,
(2.) THE facts as emerge from the pleadings are brief. Respondent No. 3 is said to have been an employee of the petitioner. The petitioner is engaged in the business of exhibiting motion pictures at Gorakhpur. It is stated that respondent No. 3 while in the employment of the petitioner had indulged in manhandling a customer of the petitioner. The management issued a show cause notice to respondent No. 3 who is said to have replied the show cause notice, but his reply was not found satisfactory. Therefore, it was decided to hold domestic enquiry into the matter: It is averred by the petitioner that respondent no. 3 in his explanation had admitted his guilt. The petitioner was contemplated to hold an enquiry but respondent No. 3 absented from duty from 13-7-74 and he was paid full payment upto 12-7-74. Respondent No. 3 is said to have taken employment elsewhere. The petitioner presumed that respondent No. 3 had left the service voluntarily and no domestic enquiry was called for. The State Government by notification dated 28-2-75 under section 4-K of the U: P. Industrial Disputes Act, 1947 seems to have made a reference to the labour court for adjudication which was registered as Case No. 18/75 by the labour court. Gorakhpur. The reference was rejected on 3-12-76 on the ground that it was not maintainable in law. The State Government seems to ha\e referred the matter u/Sec. 10 of the Industrial Disputes Act, 1947 to the labour court on 20-6-78. The petitioner challenged the State Government's Reference No. 5090 dated 20-6-78 as being without jurisdiction. It is contended that since the earlier reference, made on the same cause of action and on the same ground, was rejected, the subsequent reference could not be competent. In pursuance of the subsequent reference the labour court passed an award ordering reinstatement of respondent No. 3 with full back wages.
(3.) THE impugned award under reference is challenged inter alia on the following grounds- (1) THE labour court had rejected the reference on earlier occasion under the U. P. Industrial Disputes Act, therefore, fresh reference could not be made on the same cause of action under the Central Industrial Disputes Act by the labour court. (2) THE State Government did not have an authority, to make another reference if its earlier reference was rejected by the labour court unless the earlier award was set aside in an appropriate proceeding, subsequent reference could not be made. (3) THE order of reinstatement of respondent No. 3 is wrong. Only compensation could have been granted to him. THE petitioner had lost confidence in respondent No. 3 and his reinstatement would adversely affect the business of the petitioner. (4) THE award is without jurisdiction because it is made in pursuance of the reference which was not competent. (5) After the admission of the guilt by respondent No. 3 the petitioner was not bound to hold the domestic enquiry. (6) THE petitioner was not bound to ask respondent No. 3 to join his duty because he has abandoned the service suo motu and has conveyed this fact to the management. Respondent No. 3 has filed a counter to the writ petition. It is stated that labour court while dealing with the reference made under U P. Industrial Disputes Act has held that the dispute referred to it had not been espoused by the trade union of workmen. The trade union which has espoused the dispute was a one man show. Therefore, the reference made to it was refused to be considered. The labour court at that stage had not gone into the merits of the case but had dismissed the reference on a technical ground. The ground for rejection of the reference was that it was not presented by the Union as required under Law. The subsequent reference made under section 10 which was considered on merits and culminated in the award passed by the labour court was therefore, competent. The labour court, therefore, had the jurisdiction and competence to pass the impugned award and lack of its jurisdiction is refuted. Respondent No. 3 further states that .he has never made any admission of his alleged misconduct. The labour court had deducted Rs; 3729.66 from respondent No. 3's back wages taking into consideration the period during which respondent No. 3 had been gainfully employed somewhere else.;