D.K.Seth, J. - (1.) The Award dated 10th November, 1983 passed by the Labour Court, Meerut, U. P, in adjudication case No. 193 of 1977 (formerly 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, therefore, the reference cannot be continued by his successor-in-office and, therefore, he had sent the record to the record room. On the basis of an application 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, the provisions of Section 6-N of U. P. Act is not attracted. He further contends that the workman's service was dispensed with on the ground that the workman could not pick up the job assigned to him and he could not complete the said job 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 contends that the Award is void and should be set aside.
(3.) Miss N. A. Moonis, learned counsel appearing on behalf of respondent No. 2 on the other hand, contends that the order dated 3-5-1982 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 enforcible. There is nothing on record to show that the said order dated 3-5-1982 was ever published. The said award is enforcible after expiry of one month from the date of publication in view or 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 nonest 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 continuing with the dispute. According to her it is not re-opening. It is rather continuation of the disputes in terms of Section 6-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 (L & S) 132. In view of the ratio decidendi therein the present termination comes within the purview of Section 6-N of the U. P. Act. Admittedly notice for 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 set 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 or reinstatement cannot be assailed- The question of back wages is also matter of rule in normal cases. Therefore, the grant thereof cannot also be assiled except in cases, as has been laid down in the case of Postal Sales Industrial Co-operative Society Limited Aligarh v. Labour Court II U.P. Lucknow, Special Appeal No. 1139 of 1968, disposed of in 1970 and Hindustan Tin Works (P.) Ltd. v. Employees 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.;