The unlawful termination of service without complying with statutory procedures mandates reinstatement and full back wages for the workman under the Industrial Disputes Act.

JUDGMENT :

B.R. SARANGI, J.

The management-petitioner, by means of this writ petition, seeks to quash the award dated 16.06.2012 passed in I.D. Case No.21 of 2010 under Annexure-6, by which the Presiding Officer, Industrial Tribunal, Bhubaneswar, while answering the reference in favour of workman-opposite party no.2, directed the management-petitioner to reinstate the workman-opposite party no.2 in service and pay full back wages within a period of two months of the date of publication of the award in the official gazette.

2. The factual matrix of the case, in a nutshell, is that the workman-opposite party no.2 joined as a Sales Executive on probation under the management-petitioner in December, 1982 and his services were regularized in April, 1984. Till 08.09.2009, he was in continuous service under the management-petitioner. Thereafter, he was refused employment w.e.f. 09.05.2009, but the termination of service, by way of such refusal, was effected without compliance of the provisions contained in Section 25 -F of the Industrial Disputes Act, 1947 (for short I.D. Act, 1947).

2.1 After retrenchment of the workman-opposite party no.2, the management-petitioner engaged a new employee to work in his place. As a consequence thereof, industrial dispute was raised and the Conciliation Officer- cum-District Labour Officer, Cuttack, vide letter dated 30.09.2009, submitted conciliation failure report under Section 12 (4) of the I.D. Act, 1947. On the basis of such report, the Government of Odisha in Labour & Employment Department, (now the Labour and E.S.I. Department), in exercise of powers conferred upon them by Sub-section (5) of read with Clause (d) of Sub-section (1) of Section 10 of the I.D. Act, 1947, referred the following dispute for adjudication, vide order no.ID-9/10 3716/LE dated 06.05.2010:- “Whether the termination of service of Sri Haramohan Biswal, Ex-Sales Assistant with effect from 09/05/2009 by the management of M/s. Utkal Auto, Cuttack is legal and/or justified? If not, to what relief the workman Sri Biswal is entitled ?”

2.2 The Presiding Officer, Industrial Tribunal, Bhubaneswar, considering the claim statement and written statement filed by the respective parties, settled as many as four issues, which read as follows:

“1) Whether the reference is maintainable?

2) Whether the Second Party is a ‘workman’ as defined under the Industrial Disputes Act?

3) Whether there was termination of service of Sri Harmohan Biswal w.e.f. 9.5.2009 by the Management of M/s. Utkal Auto, Cutack and if so, if it is legal and/or justified?

4. Whether the Second Party is entitled to any relief?”

2.3. While answering issues no.1 & 2, the Presiding Officer, Industrial Tribunal, Bhubaneswar, held that it is not possible that the workman-opposite party no.2 is excluded from the definition of ‘workman’ and even if, it is held that his nature of work was that of a workshop in- charge, it cannot be said solely on that description that his work was supervisory in nature. Therefore, the Tribunal held that the workman-opposite party no.2 comes within the definition of ‘workman’ and accordingly the industrial dispute is maintainable. While answering issue no.3, the Tribunal held that since notices under Section 25 -F of the I.D. Act, 1947 were not served on the workman-opposite party no.2 and no domestic enquiry was conducted, his retrenchment is illegal and thereby directed the management-petitioner to reinstate the workman-opposite party no.2 in service and pay full back wages within two months of the date of publication of the award i