UTKAL AUTO, CUTTACK Vs. STATE OF ORISSA

JUDGEMENT

(1.) The management-petitioner, by means of this writ petition, seeks to quash the award dtd. 16/6/2012 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 8/9/2009, he was in continuous service under the management-petitioner. Thereafter, he was refused employment w.e.f. 9/5/2009, but the termination of service, by way of such refusal, was effected without compliance of the provisions contained in Sec. 25-F of the Industrial Disputes Act, 1947 (for short I.D. Act, 1947).

(3.) Mr. G. Mukherji, learned Senior Counsel along with Mr. S.D. Ray, learned counsel appearing for the management-petitioner vehemently contended that the Tribunal has committed gross error apparent on the face of the records by directing reinstatement of the workman-opposite party no.2 in service with full back wages. It is contended that the entire allegations of the workman-opposite party no.2 are based on anticipation and there is not a single document to show that such anticipation has come true or are well founded. It is contended that the Tribunal has failed to appreciate the definition of 'retrenchment', as defined under Sec. 2(oo) of the I.D. Act, 1947 and, as such, the question of reinstatement of the workman-opposite party no.2 in service does not arise. As a consequence thereof, the impugned award dtd. 16/6/2012 passed by the Tribunal in I.D. Case No.21 of 2010 is vitiated. It is further contended that the workman-opposite party no.2 abandoned his job willfully and, as such, he having not been terminated by the management-petitioner at any point of time, direction given by the Tribunal for his reinstatement in service cannot be sustained in the eye of law. It is further contended that the workman-opposite party no.2 is not a workman, as he was discharging the work and responsibility, which is supervisory in nature and, thereby, the proceeding is not maintainable before the Industrial Tribunal. It is further contended that the workman-opposite party no.2, being engaged gainfully elsewhere, abandoned the job voluntarily, therefore, he is not entitled to get any relief, as granted by the Tribunal. It is further contended that since the workman-opposite party no.2 has discharged the duty of Sales Executive, he comes under the Sales Promotion Employees (Conditions of Service) Act, 1976 (for short S.P.E (C.S) Act, 1976). Thereby, the Tribunal has committed gross error in considering the workman-opposite party no.2 as 'workman' and, as such, the impugned award passed by it cannot be sustained in the eye of law and is liable to be set aside. To substantiate his contentions, learned Senior Counsel has relied upon T.P. Srivastava v. National Tobacco Co. of India Ltd, AIR 1991 SC 2294; Upendra Ramanlal Mehta v . State of Maharashtra, 2000(85) FLR 787 : (2000) IILJ 111 Bom; Anglo-French Drug Co. v. Presiding Officer, (2004) IIILLJ 324 A11; Adyanthaya v. Sandoz (India) Ltd., AIR 1994 SC 2608; Chitturi Subbanna v. Kudapa Subbanna, AIR 1965 SC 1325 and the judgment of this Court reported in 2001 (I) OLR 484 (Atul Churiwala v. State Of Orissa).