JUDGMENT
B.K. Sharma, J.
1. By this writ petition, the Workman has made a grievance against the award dated 8-10-1999 passed by the Presiding Officer, Labour Court, Dibrugarh in Reference case No. 20/98 by which the dispensation of the services of the Workman Atul Bora by the Management -respondent has been up held on the basis of the reference made to it.
2. The workman was appointed as a Driver by the Management-respondent on 11-8-1994. As per the averments made in the writ petition his service was regularised w.e.f. 1-10.1995. However all on a sudden the services of the Workman was dispensed with by an order dated 8.6.1996. The said order is quoted below :-
“It is hereby notified that the services of Sri Atul Bora who was engaged as a Driver on probation and was working as such till date are no longer required by us with effect from 30th June/96 upto which date he will be allowed his full wages together with one month’s pay in lieu of the notice to be given under the General Practice in the Garden.
He is further, hereby advised to collect his dues at any time during working hours on 2.7.1996 from the office.”
Sd/- Manager
Gorunga T.E. Golaghat.
Copy to: Sri Atul Bora, Driver (on probation) Gorunga T.E. P.O. Golaghat for information and action as advised above.
Sd/- Manager,
Gorunga Tea Estate”
Thereafter the petitioner took up the cause of the workman by raising an industrial dispute. Conciliation proceeding resulted in failure. Thereafter, the Government of Assam by a Notification No. GLR.H1/ 97/6 dated 19-11-1998 referred the dispute to the Labour Court of Assam at Dibrugarh for adjudication. The dispute was registered under reference No. 20/98. The terms of reference were as follows : –
1. Whether the Management of Gorunga T.E., Golaghat was within its legal right in ordering the dismissal of Shri Atul Ch. Das, Vehicle Driver ?
2. If not, to what relief(s) Shri Bora is entitled?
The petitioner as well as the Management-respondent appeared before the Labour Court and submitted their respective written statement. The petitioner asserted that the services of the workman who was serving on permanent basis could not have been dispensed with without assigning nay reason. On the other hand the Management-respondent took the plea that it was not a case of dismissal from service but was a case of termination simplicator. It was the case of the Management-respondent that they were not satisfied with the performance and general conduct of the workman during his probation period and thereafter the services of the workman was dispensed with as stated above.
3. The Labour Court upon adjudication of the reference passed the impugned award holding that as the Management was within its legal right in passing the order of dismissal of the workman, he was not entitled to any relief. It is this award which the subject-matter of the dispute in this writ petition.
4. I have heard Mrs. A. Bhattahcaryya, learned counsel appearing for the petitioner and Mr. A.C. Das, learned counsel appearing for the Management-respondent. Mrs. Bhattahcaryya, submitted that the workman being a permanent employee under the Management-respondent, his services could not have been dispensed with in the manner and method in which the same has been done. Referring to Clause 1(a)/(b) of the standing orders holding the field Mrs. Bhattacharyya submitted that the termination of the services of the petitioner workman on the face of it is illegal. The provision of Clause 1(a) and (b) of the standing order are quoted below :
(a) A permanent worker is one who resides in the tea estate and whose . name is entered in the estate roll of workers and includes any person who has completed probationary period of 6 (six) months in the same or any other occupation in the industrial establishment, including breaks due to sickness, accident, leave lockout, strike (not illegal strike) or involuntary closure of the establishment.
(b) A “probationer” is a workman who is provisionally employed to fill a permanent vacancy in a post and has not completed 6 (six) months service therein.
5. Mrs. Bhattacharyya has also referred to the provision of the Industrial Disputes Act 1947 more particularly the definition as contained in Section 2(oo) and the provision of Section 25F. Her further submission is that the power of the Labour Court is wide enough so as to pass an effective award. In a nutshell her submission is that the Workman having attained the permanent status, his services could not have been dispensed with holding him to be on probation. Referring to the stand taken by the Management-respondent in their written statement Mrs. Bhattacharyya, submitted that the services of the workman could not have been terminated on the ground of unsatisfactory performance and misconduct.
6. Mr. Das on the other hand argued that the award passed by the Labour Court is legally valid. Referring to the term of reference as quoted above, Mr. Das submitted that the reference which was referred to the Labour Court gave little scope to the Labour Court to enter into the area of legality or otherwise of the dispensation of the services of the petitioner. As regards the applicability of the standing order referred to above, Mr. Das upon instruction submitted that the said standing order is applicable to the instant case.
7. The admitted position is that the services of the workman was dispensed with-holding him to be on probation by the aforesaid order dated 8.6.1996. However, as per the provision of 1(a) and (b) quoted above, a workman on completion of six months of service becomes a permanent worker. As per the definition of “probationer”, a probationer is a workman who is provisionally employed to fill a permanent vacancy in a post and has not completed six months service therein. The workman was appointed on 11.8.1994 and his services were regularised w.e.f. 1.10.1995. By the time his services were dispensed with by the aforesaid order dated 8.6.1996, he had attained the permanent status by operation of the aforesaid provision of the standing order and thus his services could not have been terminated holding him to be on probation. On this short ground alone the order dated 8.6.1996 passed by the Management-respondent is liable to be interfered with.
8. The Labour Court while passing the impugned award has only dealt with the power and competence of the Management-respondent to dispense with the services of their employees. It has been held by the Labour Court that the Management was competent to dismiss him. While holding so it has failed to appreciate the term of reference as extraced above. Although the term of reference was in respect of the legal right of the Management-respondent in ordering the dismissal of the workman from service, the Labour Court could not have ignored the factors involved in the term of reference. The Labour Court proceeded in the matter by way of adopting a mechanical approach without answering the real issue involved in the term of reference.
9. From the date of appointment of the petitioner on 11.8.1994 to the date of dispensation of his service on 8.6.1996, the workman had completed almost two years of service which is much beyond the period of limitation prescribed for probation. Not only this, his services were regularised w.e.f. 1.10.1995. Thus he having attained the status of permanent employee, his services could not have been dispensed withholding him to be on probation. Once it is held that the workman has attained the status of permanent employee, his services could not have been dispensed with on the ground of his misconduct without holding any enquiry.
10. In view of the above discussion the award dated 8.10.1999 passed by the Labour Court is liable to be interfered with which I accordingly do. Upon such interference with the award of the Labour Court, the workman is entitled to be reinstated in service with immediate effect. This will now lead to the question as to whether the workman will be entitled to his wages for the period in question during which he was out of employment from the date of dispossession of his service i.e. 8.6.1996 to the date of passing of this judgment, it is now more than seven (7) years. The workman was in the employment of the Management-respondent as a Driver. Nothing has been stated in the writ petition as to the present position of the workman. It is unlikely that the workman with his skill of a Driver would remain unemployed for such a long period. Under these circumstances I am not inclined to pass an order granting full back wages to the workman. However he will be entitled to 25% of the back wages.
The writ petition stands allowed to the extant indicated above. No order as to cost.