High Court
Case Details
WP(C) 7258/2005 BEFORE HON’BLE MR JUSTICE B. K. SHARMA Heard Mr. G. P. Bhowmick, learned counsel for the petitioner. None has appeared for the respondent No.1. This writ petition is directed against the award dated 08.04.2005 by whi ch the particular reference on the following issues has been answered against th e writ petitioner Workman and in favour of the respondent No.2.
Legal Reasoning
The Reference Case No. 27/2003 stood answered in favour of the responden t on the basis of the following issues raised vide notification dated 03.09.2013 : (cid:28)(1) Whether the management of Krishnabehari T.E. is justified, (1) by allowing Shri Swapan Kumar Chatterjee to work as a learner for a period of two years and five months (w.e.f. 10.06.2000 to 12.11.2002) and thus depriving him of the stat us and privileges of permanent workman? (cid:29) The petitioner was appointed by the Management of the Respondent Tea Com pany vide Annexure-B, appointment letter dated 09.05.2000. He was appointed as M achine Attendant in the basic pay of Rs. 1380+ DA(40%) of Rs.552+ VDA (8%) of Rs .110 totalling to Rs.2042. In the letter of appointment it was stipulated that t he petitioner would be on probation for a period of six months which could be ex tended for further six months, if found necessary. It was also stipulated that d uring the period of probation, the suitability for permanent employment of the p etitioner would be considered. By Annexure-C communication dated 12.11.2002, the services of the petiti oner was terminated. For a ready reference the said order is quoted below. (cid:28)KRISHNABEHARI TEA CO.LTD. RLY. STN: KHARAJAT (NF RLY) DISTRICT:SIBSAGAR AIRPORT: JORHAT Ref No. 564/44/2002-08 To, Sri Swapan Kumar Chatterjee Krishnabehari Tea Estate P.O. Domow- 785662 Sub: Termination of Service. Dear Sir, P/O & T.O-RAJMAI PIN: 785672 (ASSAM) Dated 12th Nov/2002 Please note you were appointed as Machincal Attendent in the garden Gact ory. But you were found not suitable for the post as such vide letter dated 10.0 6.2000. You were given a chance to work as 3rd Grade Artisan. But it is found that you are also not fit for the said post. Inspite of repeated request you have paid to show your performance in your duty allotted b y the Management. You are always found absent from your duty without any written permissio n from the authority and without any official reason. You are found always disob edience to your superior officer and always make quaral with the staff and Manag er and who your wife take part in the quaral and made unpleasant situation in th e Manager’s office. That apart from that you are absent from your duty from 7th September, 2 002 without any permission from the Garden. You also took advance of Rs.2000/- f rom the garden for your medical treatment but till date no any voucher/cash memo Medical certificates were submitted in the office. There are other grounds for which it seems that your service is not requ ired in the Garden and therefore your service is hereby terminated with immediat e effect. You can collect your dues if any from the garden and you are advice to h andover the Gas Cylinder given to you and vacate the quarter given to you on or before 16.11.2002 without fail. Failing on your post necessary action will be ta ken as per law. Thanking you. Yours faithfully Manager. (cid:29)
Decision
After such termination of service of the petitioner, a dispute was raise d entertaining which the Government vide the aforesaid notification referred the above quoted issues to the learned Labour Court of Assam at Dibrugarh. The ref erence was registered as Reference Case No. 27/2003. It has been disposed of by the aforesaid impugned judgement and award. Mr. G. P. Bhowmick, learned counsel for the petitioner submits that the petitioner having been appointed pursuant to selection, his service could not ha ve been terminated without following the due procedure. He submits that in case of attribution of any misconduct on the part of the petitioner, it was incumbent on the part of the Management to conduct the domestic inquiry levelling distinc t and definite Article of charges. Although, the petitioner was appointed by the aforesaid appointment orde r dated 09.05.2000, but from the impugned termination order dated 12.11.2002 it appears that according to the Management when he was not found suitable for the post, he was given a chance to work as a Grade-III Artisan. Nowhere in the termi nation order it is depicted that the petitioner was appointed as learner and he was allowed to continue his duty as learner. The learned Labour Court referring to the deposition made by the Managem ent witnesses has held that petitioner was learner and that as per the provision of Apprentice Act 1961, he could not have claimed as Workman entitling him to g et the above reference answered by the Labour Court. Although, in the award the Labour Court has held that the petitioner was a qualified person having National Trade Certificate in the trade of Fitter and that he was appointed pursuant to the advertisement issued for the post of Head fitter but the learned Labour Cour t has observed that since the petitioner was a trainee under the Management was not entitle to get the reference adjudicated by the Labour Court. On the basis of the materials on record it is found that except the subm issions of the Management witnesses, there is nothing on record to show that the petitioner was appointed as learner. Thus, the question of applicability of the provisions of the Apprentice Act does not arise. Even in the impugned terminati on order also the petitioner has not been described as trainee. He has been desc ribed as Grade-III Artisan. If that be so, after rendering couple of years servi ce, his service could not have been terminated by a stroke of pen as was done by the impugned Annexure-3 order dated 12.11.2003. In view of the above, the impugned award is set aside and so also the im pugned termination letter dated 12.11.2001. However the Management will be at li berty to conduct domestic inquiry in respect of the allegations made against the petitioner as reflected in the impugned termination order. Upon setting aside of the impugned award, the petitioner will be entitle d to reinstatement in service with continuity in service with 25% of the back wa ges. Retention of the quarter by him stands regularised till he is required to v acate the same in accordance with law. The management shall pass consequential order immediately.