- (1.) D. K. Seth, J. The writ petition was disposed of by an order dated 20th May, 1996. The said order was sought to be recalled by an application which was dis missed for want of prosecution. Sub sequently another application was made for recalling the said order. Notice of the said application was given to the learned counsel for the other side. Mr. Manish Kumar ap pears to oppose the said application. The grounds made in the said application were found sufficient and accordingly it was sug gested that both the learned counsel should address the Court on the merit of order dated 20th May, 1996 for the purpose of recalling/modifying the said order, if it so deserves on its own merits.
(2.) MR. Satish Chaturvedi learned coun sel for the other side submitted that the scope of reference was not the question of abandonment of his services but as to whether the services of the petitioner was illegally terminated or not. According to him, the services of the petitioner was never terminated. On the other hand, the petitioner had abandoned his service. Therefore, in the absence of any order of termination of service by the employer, no order for re-instatement could be ordered with the scope of the reference on the ground that there was no abandonment. Ac cordingly, the Tribunal has rightly recorded a finding that the services were never ter minated. The learned counsel further sub mits that this Court cannot direct re-instate ment, on the other hand this Court ought to have remanded the case for adjudication afresh by the Labour Court in view of the order dated 30th July, 1991, wherein such a view was expressed by this court while refus ing the interim order. He also drew the attention of the court on the impugned award and pointed out that there was no termination of the service of the workman. On the other hand, the workman did not join his service. On these grounds he assails the order dated 20th May, 1996 and con tends that the said order should be recalled and at the best the matter be referred for adjudication afresh if this court intends to interfere with the award. Mr. Manish Kumar, learned coun sel, however, opposes the said argument and contended that while exercising the writ jurisdiction, as soon the matter is brought before this court, the entire dispute is open to be adjudicated by this court. Though it can be coined in different terms as abandon ment or termination but it is nothing but non-employment. The reference of ter mination encompasses non- employment. The question of non- employment can not be excluded simply because the word ter mination has been used in the order of refer ence. I have heard Mr. Satish Chaturvedi and Mr. Manish Kumar, learned counsel for the respective parties.
(3.) INDUSTRIAL dispute as defined in Sec tion 2 (k) of the INDUSTRIAL Disputes Act, 1947 corresponding to Section 2 (1) of the U. P. INDUSTRIAL Disputes Act, 1947 (herein after referred to as the Central Act and the State Act respectively), means "any dispute or difference between employers and workmen. " connected with the employment or non-employment. . . of any person". By reason of Section 2-A dispute or difference connected with or arising out of discharge, dismissal, retrenchment or termination otherwise from service of an individual workman is deemed to be an industrial dis pute. A reference of an INDUSTRIAL Dispute is made by the appropriate Government to the Labour Court or the Tribunal under Section 10 (1) of the Central Act (Section 4 (k) of the State Act ). Such reference can be made when an industrial dispute exists or ap prehended. Under Section 4 (k) reference can be made of any matter appearing to be connected with or relevant to the dispute. Section 10 (4) of the Central Act provides that the Labour Court or the Tribunal has to confine to the points of adjudication specified in the order of reference and mat ters incidental thereto. According to the scheme of the said Act a reference is ordinarily proceeded by a conciliation proceeding. If no settlement could be arrived at in the conciliation, the conciliation officer has to submit a failure report under Section 12 (4) of the Central Act. An order of reference is made by the Government ordinarily on receipt of such failure report specifying the points of ad judication in such reference. Section 11-A of the Central Act empowers the Labour Court or the Tribunal in case of discharge or dismissal to set aside the same and re- in state the workman or to substitute any other punishment. Section 6 (2-A) of the State Act corresponds to Section 11-A of the Central Act.;