- (1.) IN this petition the petitioner has prayed for quashing the Award dated 31st March, 2011 rendered by the Central Government Industrial Tribunal No.1. Dhanbad, whereby learned Tribunal has held that the action of the Management in not allowing Shri B.K. Prasad Dispatch Clerk to resume his duty w.e.f. 01.12.1983 is not justified and hence the concerned workman is entitled to be reinstated with full back wages w.e.f. 01.12.1983 till the date of his superannuation.
(2.) THE Award has been challenged mainly on the ground that though learned Tribunal has held that the domestic enquiry was fair and proper it has interfered with the punishment order. Mr. Mehta learned counsel, appearing on behalf of the petitioner submitted that once learned Tribunal held that the domestic enquiry was fair and proper it cannot sit in appeal over the finding recorded by the domestic enquiry. He further submitted that the direction of the full back wages cannot be made in mechanical manner in absence of a finding that the concerned workman was not gainfully employed. It has been further submitted that the term of reference was as to whether the action of the Management of P.B. Area in not allowing Shri B.K. Prasad. Dispatch Clerk to resume his duty w.e.f. 01.12.1983 is justified and if not, to what relief the workman is entitled but learned Tribunal while holding that the action of the Management of P.B. Area was not justified also held that the workman is entitled to be reinstated with full back wages w.e.f. 01.12.1983 and other consequential benefits. Learned counsel submitted that after holding that the domestic enquiry was fair and proper learned Tribunal should not have interfered with the impugned order of punishment. Learned counsel further submitted that Tribunal has acted as a Court of appeal and has reviewed the entire matter and has made the Award on erroneous consideration of facts and law.
(3.) LEARNED counsel for the petitioner referred to and relied on a decision of the Supreme Court in Usha Breco Mazdoor Sangh v. Management of Usha Breco Limited and Anr., reported in (2008) 5 SCC 554. Learned counsel submitted that while recording its finding learned Tribunal has mainly swayed by non -service of second show -cause notice before passing the order of termination/dismissal. But only because second show -cause notice was not issued order of termination/dismissal cannot be held to be illegal. Learned counsel referred to and relied on a decision of the Supreme Court in S.K. Singh v. Central Bank of India and Ors., (1996) 6 SCC 415. He submitted that learned Tribunal has also committed an error in directing reinstatement of the concerned workman with full back wages w.e.f. 01.12.1933 and other consequential benefits till the date of his superannuation. It has been submitted' that the full back wages cannot be awarded unless the concerned workman stated on record that he was not gainfully employed elsewhere.;