By way of this petition the petitioner has challenged the judgement and award dated 5.4.2003 passed by Industrial Tribunal whereby Complaint (IT) No. 107 of 1996 in Reference (I.T.) No. 265 of 1992 was allowed and the order dated 16.7.1992 terminating the services of the respondent workman was held to be illegal and the respondent workman was ordered to be reinstated with continuity of service and full backwages. 2. Brief facts of the case are that the respondent was working as conductor in the petitioner Corporation. He remained absent from duty without prior intimation or sanction from the competent authority. The respondent was asked to submit his explanation. Thereafter, the competent authority issued chargesheet on 17.9.1991 for having remained absent since 25.7.1991 without obtaining leave from the authority. The respondent was found guilty of the charges and his services were terminated vide order dated 16.7.1992.
3. Against the aforesaid order, the respondent preferred Appeal No. 352 of 1992. The appeal was partly allowed in favour of the respondent. The appellate authority reduced the punishment to stoppage of four increments with future effect and the respondent was directed to be reinstated vide order dated 5.2.1993 with continuity of service and treating the period from dismissal to reinstatement as leave without pay.
4. Thereafter, the respondent workman was called upon to resume duty in pursuance of the order of the Tribunal as stated above. Since he failed to resume his duty, the petitioner issued reminders to the respondent. However, he failed to resume his duty. Therefore, the petitioner cancelled the order of reinstatement of the respondent vide order dated 11.7.1993.
5. The respondent filed complaint application before the Industrial Tribunal alleging that the original order of termination dated 16.7.1992 was in breach of the provisions under Section 33 of the I.D. Act since the dispute was pending before the Tribunal. The petitioner Corporation opposed the said complaint on the ground that the original order was merged with the order of appeal and the same having not been challenged further, the complaint was not maintainable before the Tribunal. The complaint was allowed by the Tribunal as aforesaid.
6. Learned counsel Mr. Shelat for the petitioner contended that the original order was passed on 16.7.1992 terminating the services of the petitioner. Against the said order, an appeal was preferred which came to be allowed on 5.2.1993 with a direction to reinstatement the respondent. The respondent was called upon to resume his duty and since he failed to resume his duty, the order of his reinstatement pursuant to the order of the Tribunal in appeal was cancelled on 11.7.1993.
6.1 He further contended that the respondent filed complaint without disclosing the aforesaid facts. He also contended that order dated 11.7.1993 removing the respondent from services was not a subject matter of complaint. Therefore, the Tribunal has committed an error in setting aside the order dated 16.7.1992 which was not in existence pursuant to the order of the appellate authority whereby the appeal was allowed by judgement and order dated 5.2.1993 and reinstatement of the respondent was ordered. Therefore, he contended that the respondent approached the Tribunal against the order dated 16.7.1992 which was not in existence and the order of the Tribunal dated 5.4.2003 is bad in law which is required to be quashed and set aside.
7. Earlier this matter was heard on 18.8.2010 when the following order was passed:
“The petitioner has challenged the judgement and award dated 5th April, 2003 passed by the Industrial Tribunal, Ahmedabad, whereby the petitioner was directed to reinstate the respondent with full back wages. The respondent had challenged the order dated 16.7.1992 by appeal which was partly allowed and the punishment was reduced to stoppage of four increments with future effect. It appears that the complaint was lodged after a delay of three years and seven months and the order of dismissal was not in existence on the date of complaint filed on 25.9.1993. Prima facie the Court was inclined to accept this submission. However, Mr. Brahmbhatt, learned advocate for respondent has requested for time. Hence matter is adjourned to 1st September, 2010.”
8. I have heard learned advocate Mr. Shelat for the petitioner and learned advocate Mr. Brahmbhatt for the respondent.
9. It is interesting to note that learned counsel for the respondent has guts to say that though he was the appellant in the appeal, the judgement of the appeal is not binding to him since it is not communicated to him. I have come across with such argument for the first time raised by the appellant in the appeal who is the beneficiary of the judgement of the Tribunal in appeal. In my view, this is nothing but an unreasonable stand and I am sorry to say that this is a dishonest stand taken by learned counsel for the respondent.
9.1 The order passed by the Tribunal quashing and setting aside the order dated 16.7.1992 is required to be quashed and set aside more particularly on the ground that the date on which the Reference was preferred, the order of 1992 was not in existence pursuant to the order dated 5.2.1993 whereby the order of dismissal of the respondent was substituted and he was directed to be reinstated with continuity of service by the Tribunal and the penalty of dismissal was reduced to stoppage of four increments with future effect. However, the respondent has not resumed his duty pursuant to the order of the Tribunal dated 5.2.1993 and his services were put to an end on 11.7.1993 which is not in challenge in the complaint.
9.2 In that view of the matter, the Tribunal has committed error in quashing and setting aside the order dated 16.7.1992 which was not in existence.
9.3 Even the complaint was filed after a delay of three years and seven months. In that view of the matter, I am of the opinion that the order of the Tribunal dated 5.4.2003 is required to be quashed and set aside.
10. In the result, the petition is allowed. The order of the Tribunal dated 5.4.2003 is quashed and set aside. Rule made absolute to the aforesaid extent. No order as to costs.
(K.S.JHAVERI, J.) (pkn)