1. This writ petition has been filed by General Manager (Operations), State Bank of Bikaner & Jaipur, against the award dated 06.12.2006 passed by the Central Government Industrial Tribunal-Cum-Labour Court, Kanpur (hereinafter referred to as the 'Tribunal') in Industrial Dispute No. 63 of 1999 upon a reference made by the Central Government, Minstry of Labour, New Delhi, vide Notification No. L-12012/503/98-1R.(B-I) dated 22.03.1999, which reads as under:-
" Whether the action of the management of State Bank of Bikaner & Jaipur in terminating the services of Sri Rajeev Sharma w.e.f. 21.07.1987, peon, Ratanlal Nagar City Branch Kanpur and not giving him permanent employment as per the directions of Ministry of Finance Govt. of India is legal and justified? If not to what relief the workman is entitled to?"
2. The aforesaid reference was at the behest of the respondent No.1 (hereinafter referred to as the 'Workman') who on 10.02.1998 raised an industrial dispute. The claim of the Workman was that he was appointed as a Peon on 02.05.1987 at Ratanlal Nagar City Branch at Kanpur of State Bank of Bikaner & Jaipur (hereinafter referred to as the ' Employer'). He worked in the aforesaid capacity till 20.07.1987. On 21.07.1987, without any prior notice or compensation, his service was unlawfully and unjustifiably terminated. The work and post on which he was appointed, was regular and permanent in nature. At the time of the termination of his service, persons junior to him, on the same class/category, were retained in service. Later, fresh appointments in the same category of posts were made by the employer. The Employer, therefore, adopted unfair labour practice, inasmuch as the service of the workman was terminated just after completion of 80 days of service, so that he could be deprived of the benefits of the regularisation, etc available to a workman who completes 90 days of service. The action of the employer in terminating the services of an old workman and thereafter appointing a new workman in his place amounted to violation of the provisions of Section 25-G and 25-H of the Industrial Disputes Act, 1947 (hereinafter referred to as 'I.D. Act, 1947'). Therefore, the Workman was entitled for reinstatement in service with full back wages.
3. In response to the claim of the Workman, a written statement was filed on behalf of the Employer. In the written statement it was claimed that the dispute was a stale dispute and could not have been referred for adjudication after a lapse of more than 11 years. As per Bipartite Settlements, Sastri Award or Desai Award, the Employer was entitled to engage temporary workman on temporary nature of job even in case where a permanent workman had gone on leave or absented otherwise. By the circular of the Ministry of Finance, Department of Economic Affairs, Banking Division, Govt. of India, one time opportunity for appointment was provided to the temporary employees who had worked with the Employer for at least 90 days in temporary capacity. The Employer had invited applications from temporary employees who had put in a minimum service of 90 days to be absorbed as permanent employees. Those temporary employees who had put in 90 days or more, and had applied, were considered. Since, the term of appointment of the Workman concerned had come to an end, no notice was required. As the termination of service of the Workman concerned was automatic, by virtue of the provisions of Section 2 (oo)(bb) of the I.D. Act, 1947, it did not amount to retrenchment, therefore, there was no occasion to follow the retrenchment proceedure. It was further submitted that as there was no retrenchment, the provisions of Section 25 -H of the I.D., Act, 1947 were not attracted. In paragraph 13 of the written statement, the statement of the Workman that juniors to him were retained in service, was specifically denied. With the aforesaid averments, the Employer claimed that the automatic termination of service by way of non-renewal and non-extension of his term of employment was legal and justified, and since the Workman was not eligible for being absorbed in the Bank, under the instructions of the Ministry of Finance, Govt. of India, therefore, the reference was liable to be answered in favour of the Employer and against the Workman.
4. The Workman, in reply, to the written statement filed by the Bank, submitted a rejoinder affidavit. In paragraph 7 of the rejoinder affidavit, it was stated that after termination of his service, Amar Bahadur Singh was employed and posted at Ratanlal Nagar City Branch, Kanpur. Likewise one Munna Lal was also appointed as Peon. However, no specific averment was made with regard to retention in service of any workman/employee junior to the Workman concerned on the date of his termination.
5. The Workman was examined as a witness (WW-1). His statement has been enclosed as Annexure No.7 to the writ petition. From a perusal of his statement, it is clear that Munna Lal and Amar Bahadur were appointed after the termination of his service. In his statement, he has nowhere stated that any person junior to him was retained while his services were terminated. From Annexure 7 to the writ petition, it appears that he was cross-examined on 30.09.2004. In his statement made on 30.09.2004, he stated as under:-
" cSad }kjk cksMZ ds ek/;e ls fu;qfDr lEca/kh v[kckj esa nh x;h foKfIr ij eSus cSad esa nj[kkLr nh Fkh ysfdu cSad }kjk ukSdjh ds fy, eq>s ugh cqyk;k x;k vkSj ugh esjk bErsgku fy;k x;k vkSj u gh eq>s dksbZ vkSj u gh eq>s dksbZ lwpuk bl lEca/k esa feyhA ;g lgh gS fd eq>s gVk;s tkus ds i'pkr cksMZ }kjk bErsgku ysus ds ckn ukSdjh ij j[ks tkus gsrq Lrqfr dh Fkh mlh vk/kkj ij fu;qfDr dh x;h fcuk bErsgku fy, lh/ks cSad }kjk fu;qfDr;kW ugh dh x;hA"
6. The Tribunal by the impugned award held that the Workman shall be entitled to be reinstated in service with full back wages and all consequential benefits w.e.f 21.07.1987 as the action of the management in terminating the services of the Workman from the above date was illegal, unfair and unjust being in breach of provisions of the I.D.Act, 1947. With regards to the claim of the workman for permanent employment, the Tribunal held that regularising his service as permanent employee did not come within the domain of the Tribunal, therefore, the workman cannot be granted any relief in that regard. However, it left it to the Employer to consider the claim for regularisation of the services of the Workman according to law.
7. While passing the impugned award, the Tribunal took notice of the appointment letters issued to the workman, which were Ext.-M-1 dated 02.05.1967, Ext. M.2 dated 22.05.1987, Ext. M.3 dated 11.06.1987 and Ext. M-4 dated 11.07.1987. From the aforesaid appointment letters, the Tribunal concluded that the Workman had worked in the Bank with effect from 02.05.1987 to 20.07.1987, as Temporary Peon in Bank's Ratanlal Nagar City Branch at Kanpur.
8. The award of the Tribunal is founded on the following reasons:-
" (a) From the oral evidence of the Workman it was proved that the Bank was in a habit of appointing workman after workman for fixed period on the post of Peon. This practice adopted by the Bank is defined as unfair labour practice by Section 2 (ra) of I.D. Act, and also appears to be against the rules of natural justice.
(b) The provisions of Section 2 (oo)(bb) of I.D. Act, 1947 are not applicable to the facts and circumstances of the case as the evidence of the workman on the point of unfair labour practice goes uncontroverted and the workman has been successfully able to substantiate his claim that management has breached the provisions of Section 25-H of the Act read with rule 78 of I.D. (Central) Rules, 1957.
(c) After terminating the employment of the Workman, again temporary hands were engaged ignoring the claim of the Workman therefore the Bank committed breach of Section 25-H of the I.D. Act read with rule 78 of the rules framed thereunder."
9. I have heard counsel for the petitioner and Sri Manoj Kumar Sharma Advocate for the respondent No.1(the workman).
10. Before I take up the arguments on merit, I must deal with the preliminary objections raised by the counsel for the respondent. The counsel for the respondent raised two preliminary objections with regard to the maintainability of the writ petition. These are:-
"(i) that in absence of impleadment of Central Government as a party-respondent to the writ petition, the writ petition was not maintainable and as such liable to be dismissed;and
(ii) the Bank, being a Public Sector undertaking, was required to take permission from the Ministry of Labour and Employment, as is required by circular dated 05.01.2006, for instituting the writ petition against the award of the Tribunal, as this permission was not taken at the time of filing of the writ petition, the writ petition was liable to be dismissed."
11. As regards the first preliminary objection i.e. maintainability of the writ petition without impleadment of Central Government, I find that the dispute is between the "Bank" and the "Respondent No.1". The Central Government is not a necessary party. The role of Central Government is only to make reference, and to publish the award under Section 17 of the I.D. Act. Sub-section 1 of Section 17 A provides that an award shall become enforceable on the expiry of 30 days from the date of its publication under Section 17. By way of Proviso to Sub-section 1 of section 17 it is provided that if the Appropriate Government is of the opinion, that it will be inexpedient on public grounds affecting national economy or social justice to give effect to the whole or any part of the award, the Appropriate Government may, by Notification in the Official Gazette, declare that the award shall not become enforceable on the expiry of the said period of 30 days. Considering these provisions, the Apex Court in the case of India General Navigation & Rly. Co. v. Their Workmen reported in AIR 1960 SC 219, in paragraph 12, observed as under:-
" 12. The third branch of the preliminary objection is based on the contention that the Government of Assam was a necessary and proper party, as it had acted under delegated powers of legislation under the Act, in making the Award enforceable and giving it the force of law. It is a little difficult to appreciate how the State Government became a necessary or proper party to this appeal. The State Government does not play any part in the proceedings, except referring the dispute to the Tribunal under Section 10 of the Act. The publication of the Award under Section 17, is automatic on receipt of the same by the Government. Its coming into operation is also not subject to any action on the part of the State Government, unless the case is brought within the purview of either of the provisos to S.17A. In view of these considerations, it must be held that there is no merit in the preliminary objection. The appeal must, therefore, be determined on its merits."
12. The aforesaid decision of the Apex Court still holds the field. There is nothing on record to show that any action was taken under the provisos to Section 17 A with regards to the implementation of the award in question. In view of the aforesaid decision, I have no hesitation to hold that the Central Government is not a necessary party. Accordingly, the writ petition is not defective for non-impleadment of Central Government as a party-respondent.
13. So far as the second preliminary objection is concerned, suffice it to say that through the rejoinder affidavit the petitioner has brought on record the order dated 22.10.2007 passed by the under Secretary to the Government of India thereby providing permission to the Bank in the following terms :-
" Permission of the Government is granted for challenging the award dated 06.12.2007 passed by CGIT-Cum-Labour Court, Kanpur in I.D.No. 63 of 1999, Sri Rajeev Sharma, in the High Court. Necessary action may kindly be taken at your hand in this regard."
14. However, the counsel for the respondent contends that this permission having been granted after the filing of the petition, the petition is, therefore, liable to be dismissed. In the light of this objection it has become necessary to discuss the nature of the circular dated 05.01.2006, and its effect.
15. Before I discuss the nature, and the effect, of the aforesaid circular, it is necessary to examine the background in which that circular was issued. The Hon'ble Apex Court in the case of ONGC & Another v. Collector of Central Excise reported in 1992 Suppl. (2) SCC 432 observed that a Public Sector Undertaking of Central Govt. and the Union of India should not fight their litigations in Court by spending money on fees of counsel, court fees, procedural expenses and thereby wasting public time. In a follow up order, as reported in 1995 Suppl. (4) SCC 541, the Apex Court, in para 3, directed as under:-
" We direct that the Govt. of India shall set up a Committee consisting of representatives from the Ministry of Industry, the Bureau of Public Enterprises and the Ministry of Law, to monitor disputes between Ministry and Ministry of Govt. of India, Ministry and Public sector undertakings of the Govt. of India and public sector undertakings in between themselves, to ensure that no litigation comes to a Court or to a Tribunal without the matter having been first examined by the Committee and its clearance for litigation."
In para 4, the Apex Court further observed:-
" It shall be the obligation of every Court and every Tribunal where such a dispute is raised hereinafter to demand a clearance from the Committee in case it has not been so pleaded and in the absence of the clearance, the proceedings would not be proceeded with."
This judgment of the Apex Court came up for consideration before the Apex Court in the case of Canara Bank and others v. National Thermal Power Corporation and Another reported in (2001) 1 SCC 43. In para 12 of Canara Bank case (supra), the Court observed:-
" What the Court has directed in ONGC case is that frivolous litigation between government departments and public sector undertakings of the Union of India should not be dragged in the Court and be amicably resolved by the Committee. The judgment is intended to prevent avoidable litigation between the government departments and the public sector undertakings of the Union of India. In the present litigation there does not appear to be a genuine dispute between the Government of India undertakings. In this case, one of the public sector undertaking is shown to be acting not as an undertaking but as Trustee of a Trust. The Board was, therefore, justified in holding "that the real litigation in this case, therefore, is between the Mutual Fund and NTPC "and not between the two undertakings."
After discussing in detail, the Apex Court, in para 13 of Canara Bank's case (supra) observed:-
" We are of the opinion that the High Court was not right in referring the alleged dispute to the high-powered Committee with the aid of judgment in ONGC case."
All these decisions of the Apex Court were again considered and reiterated in the case of Mahanagar Telephone Nigam Ltd. v. Chairman, Central Board, Direct Taxes and another, reported in AIR 2004 SC 2434.
In the light of the aforesaid decisions of the Apex Court, in order to avoid litigation between the two departments of the Govt., or between two PSUs, or between two Governments, or between PSU and Government, that a circular was issued by Govt. of India on 05.01.2006 thereby mandating clearance from the Ministry of Labour for challenging the award of a Tribunal by a PSU.
16. Considering the fact that the Apex Court's decision in the ONGC case (supra) does not squarely apply to the facts of the present case, as there is no dispute between PSU and the Government, or between its departments, as also the decision of the Apex Court in the case of Canara Bank's case (supra), I hold that the said circular cannot prevent this Court from exercising its constitutional power of judicial review. In any case, since the Ministry has granted permission, the maintainability of the writ petition cannot be doubted.
17. Now coming to the merits of the case, the counsel for the petitioner has assailed the validity of the award on the following grounds:-
" (a) The jurisdiction of the Tribunal is determined by the scope of the reference. The Tribunal in the instant case exceeded its jurisdiction by invoking the provisions of Section 25-H of the I.D. Act read with Rule 78 of the I.D. (Central) Rules, 1957 for granting relief to the Workman;
(b) The view taken by the Tribunal that the Bank was guilty of adopting unfair labour practice as mentioned in Section 2 (ra) of the I.D. Act was in ignorance of the provision of Item No.10 of the 5th Schedule of the I.D. Act, as interpreted by the Apex Court in the cases of Regional Manager, State Bank of India v. Raja Ram, (2004) 8 SCC 164 and Regional Manager, SBI v. Mahatma Mishra, (2006) 13 SCC 727.
(c) The finding of the Tribunal that the provisions of Section 25-H of the I.D. Act were attracted to the present case, is incorrect. In view of the fact that the appointment of the Workman was for a fixed term, therefore, his termination being automatic, he could not be termed as retrenched employee by virtue of Section 2 (oo) (bb) of the I.D. Act, 1947.
(d) As the workman had worked for only 80 days, therefore, the provisions of Section 25-F of the I.D., Act, 1947 were not attracted. Moreover, the workman was not able to prove that any person junior to him was retained at the time of the termination of his service, therefore, the provisions of Section 25-G of the I.D., Act were also not attracted. Accordingly, it was not open for the Tribunal to hold that the termination of the services of the workman Sri Rajeev Sharma w.e.f 21.07.1987 was illegal and unjustified."
18. Per contra, the counsel for the respondent submitted that since the Bank was guilty of adopting unfair labour practice, therefore, it was open for the Tribunal to conclude that the termination was unjustified and since new hands were employed after the termination of the service of the Workman, the Tribunal was well within its jurisdiction to invoke the provisions of Section 25-H of the I.D. Act, 1947 so as to provide relief to the Workman.
19. To appreciate the arguments of the counsel for the petitioner it would be necessary for me to notice the nature of the appointment provided to the workman. The appointment letters have been enclosed as Annexure No.2 to the writ petition. These appointment letters have not been denied by the contesting respondent. A perusal of the appointment letters indicate that the first appointment was made on 2.05.1987 for a period of 20 days, as a Peon temporary, w.e.f 2.5.1987 to 21.05.1987.The appointment letter clearly provided that service of Sri Rajeev Sharma being purely temporary will be terminated on 21.5.1987 without any notice whatsoever. After 21.05.1987, fresh appointment was provided on 22.05.1987 for a further period of 20 days w.e.f 22.05.1987 to 10.06.1987 on same terms and conditions. Thereafter, on 11.06.1987, fresh appointment was provided for a period of 30 days w.e.f 11.06.1987 to 10.07.1987 again on same terms and conditions. Lastly, on 11.07.1987, appointment was provided for 10 days w.e.f 11.07.1987 to 20.07.1987. In this appointment letter it was again provided that the service of Sri Rajeev Sharma, being purely temporary, will be terminated on 20.07.1987 without any notice whatsoever.
20. From the aforesaid appointment letters, it is clear that the services of the workman concerned was purely temporary and that his service got automatically terminated in terms of the appointment letter dated 11.07.1987. This being the position, the workman having worked for only 80 days was not entitled to the benefit of Section 25-F of the I.D. Act, 1947 which provides for notice, etc. The termination of the workman concerned cannot also be termed as retrenchment in view of Section 2 (oo) (bb) of the I.D. Act, 1947.
21. For attracting the provisions of Section 25-H of the I.D. Act, 1947, it is necessary that the workman concerned should have been retrenched. Since the workman in this case was not retrenched, as would be apparent from Section 2 (oo) (bb) of the I.D. Act, 1947, the benefit of Section 25-H of the I.D. Act, 1947 cannot be provided to the respondent No.1. At this stage, it would be useful to quote a portion of paragraph 6 of the judgment of the Apex Court in the case of Regional Manager, SBI v. Mahatma Mishra (supra), which reads as under:-
"6. The approach of the Labour Court as also the High Court cannot be appreciated. The respondent was appointed only for 88 days. The requirements of Section 6-N of the U.P. Industrial Disputes Act were, thus, not required to be complied with. The Labour Court although proceeded on the basis that Section 25-H of the Industrial Disputes Act would be attracted, no reason has been assigned in support thereof. If the appointment of the respondent as a casual worker was for a fixed period and the termination of his services was in terms of contract of employment, Section 25-H of the Industrial Disputes Act would not have any application. In a case of this nature, Section 25-H of the Industrial Disputes Act is not attracted."
22. Even othewise, it was not open for the Tribunal to grant relief to the respondent-workman by invoking the provisions of Section 25-H of the I.D. Act read with Rule 78 of the I.D. (Central) Rules. The reference was limited to test the validity of the termination, and not to adjudge whether the Workman had a right to be re-employed under Section 25-H read with Rule 78. It is now well settled that the jurisdiction of the Labour Court emanates from the order of reference. It cannot pass order going beyond the terms of the reference.
23. With regards to the finding of the Tribunal that the Bank had adopted unfair labour practice, it would be useful to examine the definition of unfair labour practice. Unfair Labour Practice is defined in Section 2 (ra) of the I.D. Act, 1947, which reads as under:-
" "unfair labour practice" means any of the practices specified in the Fifth Schedule;"
24. The Fifth Schedule of the I.D. Act, 1947 enlists as many as 16 unfair labour practices on the part of the employers and trade unions of employers. The unfair labour practice which finds mention in Item No.10 is relevant for the instant case:-
"10. To employ workmen as "badlis", casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen."
25. Interpreting the aforesaid entry, the Apex Court in the case of Regional Manager, State Bank of India v. Raja Ram (supra), in paragraph 9, held as under:-
"9. It appears that the High Court as well as the Labour Court had proceeded on a fundamental misconception as to the nature of the right available to the respondent. The respondent was employed for a fixed period of 91 days. Assuming that such an employee could be called a temporary employee for the purposes of the Sastry Award, the requirement as to service of notice of 14 days, would, in cases where an employee has been appointed for a fixed tenure, amount to an embargo on the employer terminating the services prior to the expiry of such period without giving a 14 days' notice. The non-giving of the notice would not mean that the employee would thereby continue to serve beyond the period for which he was originally appointed. The exception to this principle is when an employee is appointed temporarily for successive fixed tenures with artificial breaks in between so as to deny the employee the right to claim permanent appointment. This action would be an unfair labour practice within the meaning of the phrase in Section 2 (ra) of the Act. Section 2 (ra) says that unfair labour practice means any of the practices specified in the Fifth Schedule to the Act. The Fifth Schedule to the Act contains a list of unfair labour practice which have been classified under two heads, namely: (I) on the part of the employer and trade unions of employers, and (II) on the part of the workmen and trade unions of workmen. The principle that we have referred to earlier finds place in Item 10 of Part I under which "to employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen"
is an unfair labour practice. In other words, before an action can be treated as an unfair labour practice it would be necessary for the Labour Court to come to a conclusion that the badlis, casuals and temporary workmen had been continued for years as badlis, casuals or temporary workmen, with the object of depriving them of the status and privileges of permanent workmen. To this has been added the judicial gloss that artificial breaks in the service of such workmen would not allow the employer to avoid a charge of unfair labour practice. However, it is the continuity of service of workmen over a period of years which is frowned upon. Besides, it needs to be emphasised that for the practice to amount to unfair labour practice it must be found that the workman had been retained on a casual or temporary basis with the object of depriving the workman of the status and privileges of a permanent workman. There is no such finding in this case. Therefore, Item 10 in List I of the Fifth Schedule to the Act cannot be said to apply at all to the respondent's case and the Labour Court erred in coming to the conclusion that the respondent was, in the circumstances, likely to acquire the status of a permanent employee. Furthermore, both the High Court and the Labour Court appeared to have proceeded on the basis that the appointment of Ram Kumar after the employment of the respondent ceased, also on casual basis, was an unfair labour practice. If this view is to be upheld the respondent's appointment in place of Sooraj would equally be an unfair labour practice and therefore unsustainable."
26. Relying on the aforesaid observations of the Apex Court, in a subsequent decision, namely, in the case of Regional Manager, SBI v. Mahatma Mishra (supra), in paragraph 10, the Apex Court observed as under:-
"Unfair labour practice is not to be readily inferred. Before a conclusion in that behalf is drawn, the conditions precedent therefor must be satisfied. The Labour Court failed to show as to how the appellant can be said to have taken recourse to unfair labour practice. It was not a case where the respondent was being appointed consistently for a number of years with artificial breaks. It was also not a case where the purport and object for such appointment was to violate the provisions of the Industrial Disputes Act."
27. In view of the law laid down by the Apex Court, it is, therefore, settled that for concluding that unfair labour practices have been adopted by an employer, the casual labour or temporary appointee concerned must be engaged for years, as such, with the object of depriving him of the status and privileges of a permanent workman. In this case, the Workman was appointed, and had worked, for only 80 days, that too, within a span of three calender months. Accordingly, the conclusion of the Tribunal that the Bank had adopted unfair labour practices is in the teeth of the decisions of the Apex Court.
28. The counsel for the respondent had cited a Division Bench Judgment of the Rajasthan High Court in the case of Alcobex Metals Ltd. v. State of Rajasthan and others reported in 2004 (102) FLR 502.
29. Relying on the aforesaid judgment, the counsel for the respondent contended that the question of unfair labour practice can be considered by the Labour Court/Tribunal for deciding whether the termination of service was justified or not. This judgment of the Rajasthan High Court was made in the context of an order of reference, which was challenged by the petitioner therein. The Court there was not testing the validity of an award passed by a Labour Court or a Tribunal. Therefore in that context the Court had held that the question of validity of termination of service, when appointment is for a fixed term, can be tested by the Labour Court/Tribunal on the ground of unfair labour practice, and it was not for an Appropriate Government, at the stage of reference, to test the same. Since the Apex Court judgments, as discussed above, have clearly laid down that the question of adoption of unfair labour practice cannot be considered in a case of short-term appointment, the Tribunal was not justified in holding that the petitioner had adopted unfair labour practice with regards to appointment and termination of service of the Workman.
30. The counsel for the respondent by relying on the statement of claim submitted by the Workman has argued that the termination of the Workman was vitiated, being in violation of the provisions of Section 25-G of the I.D. Act, 1947. Even though the Tribunal has not based its award on violation of the provisions of Sections 25-G, but it would be in the interest of justice to discuss the same.
31. The provisions of Section 25-G of the I.D. Act, 1947 are based on the principle of last come first go. In the present case, the workman has not been able to prove that any person junior to him was retained in the category, while his services were dispensed with. He has only been able to prove that after the dispensation of his service few persons were appointed in that category through fresh recruitment process. In this view of the matter, the basic ingredient of the principle of last come first go was not proved by the Workman, therefore, the benefit of Section 25-G of the I.D. Act cannot be provided to him. In the case of Regional Manager, SBI v. Rakesh Kumar Tewari reported in (2006) 1 SCC 530, the Apex Court observed as under:-
" The "last come first go" rule contained in Section 25-G predicates (1) that the workman retrenched belongs to a particular category; (2) that there was no agreement to the contrary; and (3) that the employer had not recorded any reasons for not following the principle. These are all questions of fact in respect of which evidence would have to be led, the onus to prove the first requirement being on the workman and the second and third requirements on the employer. Necessarily a fair opportunity of leading such evidence must be available to both parties. This would in turn entail laying of a foundation for the case in the pleadings. If the plea is not put forward, such an opportunity is denied, quite apart from the principle that no amount of evidence can be looked into unless such a plea is raised."
Further, the Apex Court in the aforesaid case observed that since the order of reference of the Central Government had not referred to Section 25-G, but only to Section 25-H, it was not open to the Tribunal to "fly off at a tangent" and conclude that the termination of service of the respondent was invalid because of any violation of Section 25-G by the Employer.
32. In view of the aforesaid discussion, I am of the considered opinion that the award passed by the Tribunal is unsustainable in law and is liable to be set aside.
33. In the result, the petition succeeds and is allowed. The impugned award dated 06.12.2006 is hereby quashed and set aside. However, the idle wages provided to the respondent No.1 under the interim order dated 02.05.2007 shall not be recovered from him.
34. There shall be no order as to costs.
Order Date :- 13.-1.2012 Sunil Kr Tiwari