- (1.) D. K. Seth, J. The Award dated 10th November, 1983 passed by the Labour Court, Meerut, U. P. in adjudication case No. 193 of 1977 (former ly Adj. Case No. 106 of 1976, Lucknow) has been challenged by means of this writ petition.
(2.) SRI D. K. Singh, holding brief of SRI S. C. Budhwar, learned counsel for the petitioner contends that initially the reference made to the Presiding Officer, named in the order of reference, he having retired, the same was transferred to the another Presiding Officer, by name. The said Presiding officer SRI M. Hasan by an order, dated 3rd May, 1982, observed that since the reference was made in the name of SRI Ram Chandra, there fore, the reference cannot be continued by his successor-in-office and, there fore, he had sent the record to the record room. On the basis of an applica tion by an order dated, 8-8-1983 the said case was re-opened and proceeded with and thereupon the present award has been given. According to him, the reference having become bad because the same was referred to SRI Ram Chandra, the same could not have been tried by his successor-in-office. The second contention of the learned counsel for the petitioner is that even then the case cannot be re-opened pursuant to the application dated 8-12-1983 inasmuch as such re-opening amounts to review of the earlier order, dated 3-5-1982. The Labour Court is not clothed with the power to review in view of the scheme of the Act itself. Therefore the dispute cannot be proceeded with and no award can be passed thereon. According to him when the order dated 3rd May, 1982 amounts to award and by reason thereof the dispute had come to an end within meaning of Section 6-D of the U. P. Industrial Disputes Act. Next he contends on the merit of the case that the workman did not complete 240 days within a period of '12'months and, therefore, he is not entitled to the retrenchment benefit, as held in the said Award. According to him the termination being termination simpliciter, t provisions of Section 6-N of U. P. Act is not attracted. He further tends that the workman's service was dispensed with on the ground that tie workman could not pick up the job assigned to him and he could not complete the said iob despite sufficient opportunity given to him. Therefore, he was found incapable of continuing in service and, therefore, his service was discontinued, which according to him does not come within purview of retrenchment. On these grounds he assails the impugned award and con tends that the Award is void and should be set aside. Miss N. A. Moonis, learned counsel appearing on behalf of respondent No. 2 on the other hand, contends that the order dated 5-5-1982 was not an Award. Even if it was an award according to Section 6-D of the Act the dispute comes to an end when the award is enforceable. There is nothing on record to show that the said order dated 3-5-1982 was out published. The said award is enforceable after expiry of one month from the date of publication in view of Section 6-A of the U. P. Act. She further contends that there was no question of review of the award. The order dated 3-5-1982 was an order non-est in the eyes of law. Even then by reason of the order dated 8-8-1983, which was passed on contest, after giving sufficient opportunity to the parties, there was no infirmity in continui02 with the dispute. According to her it is not re-opening. It is rather conti nuation of the dispute in terms of Section -D of the U. P Act She further contends that such a ground is purely technical and technicalities can override justice. On merits, she contends that since certain allegations were made. Therefore, the termination cannot be said to be termination simpliciter. A termination with stigma though not apparent in the order of termination but from the case made out by the employer when stigma appears it is to be taken that stigma has been appended. Therefore termination can only be done after giving adequate opportunity and holding an inquiry allowing the workman to discharge the allegations made against him. Alternatively she argues that even if the said contention is not accepted still then termination is hit by the provisions of Section 6-N of the U. P. Act in view of decision in the case of State Bank of India v sundara Money, 1976 SCC (Land S) 132. In view of the ratio decidendi therein the present termination comes within the purview of Section 6-N of the U P Vet Admittedly no notice pay was given but the retrenchment benefit as provided in Section 6-N (b) of the U. P. Act, was not given. Therefore, the retrenchment is bad. In that view of the matter, according to her there is no infirmity in the award and the order of termination has been rightly sat aside" She further contends that as soon termination is set aside the workman is deemed to be continuing in service and, therefore, the order of reinstatement is a matter of course or rule. Therefore, the order of re-instatement cannot be assailed. The question of back wages is also matter of rule in normal cases. Therefore, the grant thereof cannot also be assailed except in cases as has been laid down in the case of M/s. Postal Sales Industrial Co-opera' live Society Limited Aligarh v. Labour Court II U. P. Lucknow Serial Appeal No. 1139 of 1968, disposed of in 1970 and M/s. Hindustan Tin Works (P.) Ltd. v. Employees M/s Hindustan Tin Works (P.) Ltd AIR 1970 SC 75 and unless it is clearly shown that the back wages can be denied on the ground excepted in the said case. On these grounds she prays for dismissal of the writ petition. Admittedly, the order dated 3-5-1980 was an order by which it was found that the successor-in-office cannot proceed with the dispute and the records were sent to the record room. By no stretch of imagination the said order can be said to be an Award, even then the award becomes enforceable only on compliance of the provisions of Section o-A of the U P Act" There is nothing on record to show that the said provision has bean com' plied with. Even then the order of Sri M. Hassan, passed on 3-5-1982 is" wholly misconceived. A reference is made to the learned Tribunal as an Office and not a particular person. Therefore, either on transfer or on retirement of the officer holding the office the reference does not become invalid or bad. It continues for being decided by the successor-in-office. Therefore, the said order dated 3-5-1982 has no existence in the eyes of law Moonis relied on the decision in the case of M/s. WIMCO Limited v. Labour Court, U. P. , 1982 (45) FLR 183, in support of her contention, with regard to the validity of the order, dated 3-5-1982. It has been held in the said decision that such contention is devoid of merit as was raised in the same manner, in the said case. It was held that the reference was not made to the officer by name as an individual. It was made to the labour court, of which a person was the Presiding Officer. Therefore, adjudication would have undertaken by the said officer not in his personal or individual capacity.
(3.) THE matter having been' sent to the record room it cannot be said that the matter was disposed of. Sending of record to the record room is not an order which has permanent effect, particularly in the facts and circumstances of the present case. THE presiding officer, suo moto could have requisitioned the record and proceeded with the dispute. THE dispute had been sent to the record room with thoroughly misconceived notion. THE order dated 8-8-1983 was passed after hearing the application made by the workman for continuance of the dispute. This order cannot be treated to be an order for re-opening the case, A case is re-opened only when it is closed. In the present case, the case having not been closed the said order dated 8-8-1983 cannot be said to have re-opened the closed case. THErefore, the said order cannot be said to be a review of the order dated 3-5-1982. According to Section 6-D of the Act the dispute continues until the award is made after the reference. Here in this case admittedly no award having been made the dispute has not come to an end. THErefore the dispute was continuing. A dispute continues to exist until the same is settled or concluded by means of the award enforceable under Section 6-A of the Act. THE said tests having not been satisfied in the present case, it cannot be said that order dated 8-8-1983 was a review in the sense of ordinary legal parlance. On the question of merit, it appears that the Labour court had found that successive letters were issued to the workman by which it has been alleged that he has not been able to pick up the job, assigned to him and unless he picks up and completes the job, he was threa tened of termination. These are the stigma attached to termination, though the termination order does not show, on the face, of it. But the record shows that termination was the result of such stigma. Since stigma is attached, the workman has a right to vindicate the same and, therefore, it is incumbent upon the employer to give opportunity by means of holding inquiry against him. However, the labour court has not proceeded on the said basis. Though in that manner termination cannot be sustained on that ground as well.;