- (1.) THIS appeal is directed against the order dated January 22, 1986, passed by a Single Bench in C. W. P. No. 2341 of 1983 'jai Bhagwan Jain v. M. C. Bhardwaj and anors. ', whereby the learned Single Judge has while allowing the writ petition filed by Jai Bhagwan ordered his re-instatement in the service of the appellant on the post of Accounts Clerk or any equivalent post with all other benefits.
(2.) IN order to decide the question raised in the appeal, it is proper to make reference to some of the facts. Respondent Jai Bhagwan was appointed in the service of the appellant as Accounts Clerk on November 4, 1968 and was confirmed as such on May 31, 1969. On November 28, 1976 he was transferred to Saraswati Sugar Mills, Yamunagar, which according to the appellant, is a unit of Saraswati Industrial Syndicate Ltd. On January 6, 1978 a direction was given to the respondent-workman by the Cane Manager to work in the night shift as Cane Clerk/weighment Clerk vice Shri Rattan Lal, Cane Clerk. Respondent-Workman protested against this posting and this plea was accepted by the management. However, after some time, office order dated March 3, 1979 was issued by Cane Manager and the workman Jai Bhagwan was directed to work in the nigh shift as Cane Clerk in place of Sharwan Kumar. The respondent-Workman did not attend the duty in the night shift as Cane Clerk but attended that very shift in which he was working prior to March 3, 1979. However, he was not assigned any work. At the same time Cane Manager issued a notice to him on March 8, 1979 indicating therein that he was not attending the duty in pursuance of order dated March 3, 1979 and still he was marking his attendance elsewhere. He was treated absent from duty w. e. f. March 5, 1979 and was warned to comply with the order dated March 3, 1979, or else face action for dispensing with the service in accordance with the standing orders. To this notice, respondent Jai Bhagwan replied on March 9, 1979 and claimed that having been appointed as Accounts Clerk, he cannot be made to work in the night shift. He pleaded that he was regularly attending duties but was not being allowed to mark attendance from March 9, 1979. He claimed that the action of the employer was illegal and, therefore, he was entitled to full back wages till he was allowed to resume duty. A demand notice dated April 16, 1979/may 4, 1979 was served by the workman on the employer claiming that he was not being allowed to join duty and was not being allowed to mark his attendance. He claimed re-instatement with continuity of service and full back wages. The dispute which arose between the parties was ultimately referred for adjudication to the Industrial Tribunal, Haryana, Faridabad vide Notification dated February 11, 1981 issued under Section 10 (i) (d) of the Industrial Disputes Act, 1947 (for short 'the Act' ). Respondent Jai Bhagwan filed his statement of claim and prayed for re-instatement in service but the employer contested his claim by asserting that he had failed to comply with the order dated March 3, 1979 and that he had remained absent from duty. After considering the rival pleadings and evidence as well as the arguments advanced before it by the representatives of the parties, the Industrial Tribunal held that the workman was not justified in not carrying out transfer order and, therefore, he would be deemed to have severed his connection with the management. On the basis of this conclusion, the Industrial Tribunal declared that the workman was not entitled to any relief.
(3.) AGAINST the award of the Industrial Tribunal, workman filed writ petition which has been allowed as aforementioned by a Single Bench of this Court. Learned Single Bench has made reference to a Full Bench decision in Tulpar Machine and Tool Company, Faridabad v. Shri Joginder Pal, Workman and Ors. , I. L. R. 1983 (2) Punjab and Haryana 357, whereby the Full Bench had quashed the appointment of Shri M. C. Bhardwaj as the Presiding Officer of the Tribunal on the ground that he did not posses the requisite qualifications. The learned Single Bench further observed that while quashing the appointment of Shri Bhardwaj the Full Bench had made it clear that all decisions rendered by him are not necessarily to be vitiated only on the ground of illegality in the appointment of Shri Bhardwaj. The learned Single Bench then proceeded to examine the rival submissions on merits and held that transfer of the workman to the night shift was illegal and arbitrary and, therefore, the workman cannot be said to have absented from duty. The learned Single Bench further observed that no action had been taken by the employer for terminating the services of the workman on the basis that he had absented without sufficient or justifiable cause. It is further held that termination of services of the workman after he had rendered more than ten years' service amounted to retrenchment and since there was a non-compliance of Section 25-F of the Act, action of the employer was liable to be declared as void.;