By means of this writ petition the petitioner has challenged the award of the Labour Court dated 28.4.2013 published on 30.1.2014. By the said award the workman-respondent no.3 has been held to have been illegally removed from service and a direction was issued to reinstate the workman with 50% of the back wages for the period he was made to sit out.
Sri S.D.Singh, learned Senior Advocate assisted by Sri Diptiman Singh, learned counsel appearing for the petitioner submits that respondent no.3 was initially taken in employment on 16.11.1999 upon probation of six months. Before the expiry of probation warnings were issued to the workman to improve his work. Under the standing orders the probation is for a period of six months. However, twice time was extended with the hope that the workman would improve his work. But since no improvement was seen, he was removed from service on 15.5.2001. The workman then raised a dispute and a reference was made in 2002 upon which adjudication case being Adjudication Case No. 130 of 2002 was registered. The trial court while considering the standing order have held that the fixed term of probation was over and the workman since thereafter was allowed to work is deemed to have been confirmed and without complying the procedure prescribed under Section 6-N of the Industrial Disputes Act, 1947 his removal form service was illegal and has directed reinstatement with 50% of the back wages.
Learned counsel appearing for the petitioner submits that the age of superannuation in the standing order is 60 years and the workman has already attained the age of 60 years in the year 2012, therefore, reinstatement cannot be directed and is contrary to the standing order itself. It is further submitted that there is no finding with regard to the fact that the workman was not gainfully employed during the period he stood terminated from service and in view of various decisions of the Hon'ble Supreme Court the burden lies upon the workman to prove that he was not gainfully employed during the aforesaid period to claim back wages. It is further submitted that there is no automatic confirmation even in the standing order as the workman-respondent was given repeated warning and his work being unsatisfactory, the services of the workman cannot be thrust upon the employer.
The matter requires consideration.
Learned Standing Counsel represents respondents no.1 and 2.
Issue notice to respondents no.3 returnable at an early date.
The respondents may file counter affidavit within three weeks.
The petitioner shall take steps for service of notice upon respondent no.3 within a week.
List this matter after one month.
Till the next date of listing, the operation of the impugned award shall remain stayed provided the petitioner deposits with the Labour Court 50% of the amount awarded by the Labour Court with the liberty to the workman to withdraw 50% of the amount so deposited before the Labour Court.
Order Date :- 30.4.2014 SKM