- (1.) This is second round of litigation, in which respondent No. 2-workman has been dragged by the appellant-bank. This Letters Patent Appeal has been filed by United Commercial Bank (hereinafter referred to as 'the appellant-management'), challenging the order dated 5.9.2009, passed by the learned Single Judge, whereby Civil Writ Petition No. 14670 of 2006 filed by the appellant-management for setting aside the award dated 12.12.2005 (Annexure P-4) passed by the Labour Court, Chandigarh, ordering re-instatement of the respondent - workman without back wages, has been dismissed. The brief facts of the case are that the respondent-workman was engaged by the appellant-management as a Driver on daily wages on 11.6.1991. He continuously worked as such upto 21.10.1994. Suddenly, on 21.10.1994, his services were terminated, without complying with the mandatory provision of section 25-F of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act'), as retrenchment compensation was not paid to the workman. The respondent-workman raised industrial dispute by issuing demand notice. Vide award dated 7.9.2001 (Annexure P-l), passed by the Labour Court, termination of the services of the respondent-workman was held to be illegal and unjustified as made in gross violation of the section 25-F of the Act. He was ordered to be reinstated without back wages, but with continuity of service. While deciding the said reference, it was also observed by the Labour Court that the management will be free to dispense with the services of the workman, after complying with the provision of section 25-F of the Act- It is further undisputed fact that after the said award, the workman was taken back in service on 17.1.2002 and on the same day, his services were again dispensed with, by passing the following order: We have to inform you that you were engaged on daily wage basis during the period 11.6.91 to 21.10.94 and now no post of Driver exists at our branch, therefore, your services are dispensed with, with immediate effect i.e. 17.1.2002. The respondent-workman, thinking that the said order was totally illegal and unjust, challenged the said order by filing CWP No. 3782 of 2002. During the pendency of the said writ petition, the appellant-management paid wages for the period from 7.9.2001 (the date of award) to 17.1.2002 (the date of termination of the services of the respondent-workman for the second time). Since while passing the order of second termination, the provisions of section 25-F of the Act were not complied with, this Court while disposing of the writ petition vide order dated March 1, 2004 (Annexure P-3) gave liberty to the respondent-workman to assail the said order of termination of his services by seeking a reference under the provisions of the Act. Thereafter, the respondent-workman again issued demand notice and got the matter referred to the Labour Court for its adjudication.
(2.) Vide award dated 12.12.2005 (Annexure P-4), the Labour Court again found that termination of the services of the respondent-workman for the second time was illegal and unjustified, as before terminating the services of the respondent - workman, the mandatory requirement of section 25-F of the Act was not complied with. After holding the termination of the services of the respondent-workman as illegal and unjustified, the Labour Court again ordered his re-instatement, but without any back wages, as it was found that during the period of his termination, he was in gainful employment. However, it was ordered that in view of the fact that termination of the services of the respondent-workman was illegal and unjustified, the workman shall be deemed to be in continuous service of the management till date. He was also held entitled to all the benefits, except the monetary benefits due to him under the rules, as if he had been in the service of the management all through this period.
(3.) The management challenged the said award by filing CWP No. 14670 of 2006, which was dismissed with costs of Rs. 3 5,000/-, vide the impugned order, while observing as under: Along with the other, the workman was also offered a month's wages but did not provide for a computation of compensation in the manner set forth under section 25-R The Labour Court found that there had been no due compliance of section 25-F and directed reinstatement. The attempt of the learned Counsel from the Bank before this Court was, therefore, to show that the dispensation of service which they had made was as per the liberty granted to them by the Labour Court in its award dated 7.9.2001. In my view, the manner of termination of services is on account of improper understanding of the effect of the award passed by the Labour Court on 7.9.2001. When it was setting aside the order of termination earlier made and providing for continuity of service, the fresh order of termination ought to have taken the service that commenced on 11.6.1991 till the date when it chose to pass a fresh order of termination as the period when the workman was in service. The compensation under section 25-F ought to have, therefore, allowed for computation of the entire period from 11.6.1991 to 17.1.2002 as the period when he was in service and provided for 15 days salary for each year of such service. The liberty that the Court granted would be illusory to a workman and the award of the Labour Court itself would be rendered nugatory if an interpretation were to be cast that it could dispense with the services of the workman anyway, even without providing for compensation. It is also meaningless to give such an interpretation for the award itself states that the termination shall be made in the manner provided under section 25-F. The order passed on 17.1.2002 without due computation of the wages for the number of years that he served, was clearly wrong and illegal. The Labour Court had entered a correct finding on the same and had while setting aside the impugned order of termination directed reinstatement. Before the learned Single Judge, an argument was raised that since the vacancy of Driver was not available with the appellant-management, therefore, instead of re-instating, the respondent-workman should be awarded compensation. This contention was rejected, as it was found that during the pendency of the proceedings, the appellant-management had advertised the posts of Drivers, therefore, it cannot be said that no post of Driver was available with the appellant-management;