IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 11.12.2009 CORAM THE HONOURABLE MR. JUSTICE M.M.SUNDRESH W.P. NO.23983 OF 2002 The Chief Signal & Telecommunication Engineer / Construction Moore Market Complex Southern Railway Park Town Chennai 600 003. .. Petitioner Versus 1.The Presiding Officer Central Government Industrial Tribunal cum Labour Court Chennai 600 104. 2.M.Senthil Kumar .. Respondents PRAYER: Petition filed Under Article 226 of the Constitution of India praying to issue a Writ of Certiorari, calling for the entire records of the first respondent in I.D.No.511 of 2001 including the Award dated 13.03.2002 and quash the same. For Petitioner : Mr.V.G.Suresh Kumar For Respondent - 1 : Court For Respondent 2 : Mr.K.M.Ramesh * * * * * O R D E R
The writ petition has been filed challenging the order passed by the first respondent Tribunal passing an award in favour of the second respondent by setting aside the order of removal with reinstatement along with back-wages and continuity of service.
2.The brief facts of the case in a nutshell are as follows:
The second respondent was appointed as a lascar to the Chief Works Manager, Signal and Telecommunication at Podanur on 01.06.1996. His appointed was approved by the Chief Personnel Officer at Chennai by his letters dated 24.04.1996 and 30.05.1996. The said appointment has been made after examining the second respondent medically and thereafter he joined the duty on 01.06.1996.
The order of appointment indicates that the appointment will not confer any right on the second respondent towards claiming regular appointment, the services are liable to be terminated at any time without notice and the further absorption is subject to the terms and conditions stipulated in letters dated 04.06.1977 and 11.03.1987. A reading of the letter dated 04.06.1977 would show that if the service of a lascar is found to be unsatisfactory within three years, the same can be terminated as well as if the services are not required within three years the same can also terminated. A lascar will be eligible for regular absorption after three years of continuous service either in the open line or construction. If after the regular absorption they are not required in the Bungalow due to the transfer of officers concerned, the lascars also should be transferred as lascars only in the existing vacancies and they have to seek further avenue along with office peons as per the existing channel of promotion.
Further the subsequent letter dated 14.06.1987 states even a lascar who has completed one year of service may be considered for absorption in the regular service as office peon etc. If a lascar becomes surplus before the completion of one year, the question of considering his absorption in the regular service does not arise for consideration.
Along with the officer concerned with whom the second respondent was working, he was transferred to Chennai. While he was working in Chennai with effect from 27.02.1998 onwards he was asked to undergo a medical test. The medical officer also gave a fitness certificate on 18.03.1999. However due to the misunderstanding between the second respondent and the officer concerned, no work was given to the second respondent from 13.03.2000 onwards. The second respondent gave a representation to the Appellate Authority on 03.04.2000 and his father also gave another representation on 24.03.2000. In those representations, it has been stated that no work was allotted to the second respondent and a request for confirmation and transfer have been sought by him. However an order of termination was passed on 19.04.2000 stating that he has been terminated with effect from 18.04.2000 in view of the abolition of the post.
Challenging the same, the second respondent sought a reference before the Central Government Industrial Tribunal cum Labour Court and on reference the first respondent has set aside the order of termination and ordered the consequential benefits.
In the claim petition, the second respondent has contented that there was a strained relationship between the second respondent and his officer under whom he was working. Therefore in view of the said position, the second respondent was referred to the medical board and thereafter he was not allowed to attend the work. The officer concerned was bent upon inducting some other third party in the place of the second respondent. The second respondent and his father gave representations to the higher authorities but however instead of taking appropriate action on the complaint made by the second respondent an order of termination was passed against the second respondent.
A counter affidavit was filed stating that the appointment of the second respondent is temporary and the order of termination has been passed in view of the abolition of the main post occupied by the concerned officer. It is further stated that the appointment is purely contractual and tenure based in nature and therefore the second respondent’s post cannot be equated with a Government post. The post being temporary and contractual in nature, there is no question of conducting any enquiry and the second respondent does not have any statutory or legal right.
On behalf of the second respondent about 27 documents have been marked and on behalf of the petitioner three documents have been marked. The Tribunal after considering the entire materials available on record and on hearing the learned counsels appearing for both sides has allowed the dispute in favour of the second respondent, by ordering the reinstatement with back-wages and continuity of service. The Tribunal has held that the second respondent was appointed under Ex.4 dated 01.06.1996 as Substitute Bungalow Lascar. The said appointment was made based upon the approval given by the competent authority subject to the conditions stipulated in the letters dated 04.06.1977 and 11.03.1987.
It is further held that the above said two letters also indicate that the second respondent is entitled to be absorbed and based upon the basic qualification and medical examination alone he was appointed. Further in the above said two letters, procedures have been contemplated for the absorption of a lascar appointed like that of the second respondent. Accordingly a lascar who has completed one year of service may be considered for absorption in the regular service as office peon etc. From the above said materials, the Tribunal came to the conclusion that the appointment cannot be termed as purely temporary and contractual in nature.
The Tribunal also held that the mere fact the second respondent was given retrenchment compensation and the notice of retrenchment would show that the contention of the petitioner cannot be accepted. The second respondent was given increment with a specific scale of pay as the date of retirement. The deductions have been made for the payment towards the provident fund and other statutory benefits. Even though an allegation has been made against the second respondent that he quarrelled with the servant maid, no enquiry was conducted and therefore the order of termination without conducting an enquiry is bad in law. The Tribunal also took note of the fact that the second respondent was working from 01.06.1996 to 18.04.2000. Accordingly, the Tribunal has held that in view of Ex.M-2 and M-3 letters, the petitioner will have to provide the employment in the next vacancy. The petitioner was also directed to reinstate the second respondent with continuity of service and back-wages. Challenging the same, the petitioner has filed the present writ petition.
3.Submissions of the learned counsel appearing for the petitioner:
Mr.V.G.Suresh Kumar, learned counsel appearing for the petitioner submitted that a reading of the appointment order itself would show that the appointment is temporary and the second respondent is liable to be terminated without any notice. The said appointment being casual and temporary, the second respondent has been removed after the abolition of the post of the officer. The learned counsel further submitted that therefore under those circumstances, the question of violation of Sections 25-F, 25-G and 25-N of the Industrial Disputes Act does not arise for consideration. Hence there is no need to conduct any enquiry before passing the order of retrenchment.
In support of his contention, the learned counsel relied upon the judgments reported in (1997) 2 SCC 191 [KUNWAR ARUN KUMAR v. U.P.HILL ELECTRONICS CORPORATION LTD.]; (2001) 3 SCC 117 [H.F.SANGATI v. R.G.HIGH COURT OF KARNATAKA] and (2005) 7 SCC 447 [RAJASTHAN SRTC v. ZAKIR HUSSAIN] and submitted that holding an enquiry before passing the termination order is not obligatory.
4.Submissions of the learned counsel appearing for the second respondent:
Mr.K.M.Ramesh, learned counsel appearing for the second respondent submitted that the termination order is not in pursuant to the non-availability of the post and the same has been passed on malafide exercise with the sole view to remove the second respondent. Admittedly, there were misunderstandings between the concerned officer and the second respondent. The second respondent was made to under-go mental agony and thereafter he was removed even though there were number of juniors available to be retrenched who were appointed after the second respondent. It is further submitted that inasmuch as the order of termination is punitive in nature, the Tribunal has correctly set aside the order.
5.It is the specific case of the second respondent that there were strained relationship between the second respondent and the officer concerned. The allegation made in the claim statement that the second respondent was harassed and he was asked to under-go medical test and there were misunderstanding between the second respondent on the one hand and the officer as well as the servant maid on the other hand have not been disputed or denied. Further the statement of the second respondent that he was not allowed to work by the concerned officer and complaints have been made to the superior officers, over which no action was taken, were also not denied.
6.It is a well settled principle of law that a failure to deny the allegation would amount to acceptance and such an acceptance would be a piece of evidence which can be put against the concerned party, which has not controverted the averment. The petitioner has not even controverted or denied the various allegations and averments alleging malafieds by the second respondent in his claim petition. Therefore, the Tribunal has rightly come to the conclusion that malafides have been established and only because of the alleged incident the second respondent has been removed. The second respondent has also marked number of documents indicating the complaints made to the higher authorities. It is also seen that only after the above said complaints, the order of termination has been passed.
7.Moreover, the statement of the petitioner that the work of the second respondent is no longer required in view of the abolition of the post of the officer has not been substantiated by any evidence. The officer concerned worked for some more months even thereafter as admitted by the petitioner. Admittedly, there were other lascars appointed after the second respondent who continue to work after the termination order of the second respondent.
8.The Tribunal has also relied upon the two letters, which stipulates certain conditions for absorption of the second respondent. A reading of the above said letters would show that the appointment of the petitioner is not totally contractual and temporary in nature. The second respondent is entitled to be considered for the next post and to be made permanent in accordance with the procedures mentioned in the said two letters. Admittedly, the second respondent has worked for more than three years. Therefore as per the said letters, he has got every right to be considered for absorption. They also provide for the working of a lascar in another place when the concerned officer is not available.
9.The Tribunal has also rightly held that the date of retirement of the second respondent has been indicated, statutory dues have been deducted from his salary and a fixed scale of pay has been made applicable to the second respondent as in the case of a permanent employee. The above said facts would indicate that the appointment of the second respondent cannot be termed as totally temporary and contractual in nature. Moreover, it is an admitted fact that the appointment has been made by the competent authority after undergoing the medical test. Hence when the procedure contemplated by the petitioner clearly provides for absorption the second respondent cannot be removed without even conducting an enquiry, more so when the allegation of the second respondent that such an order has been passed at the instance of the officer concerned for the reasons stated in the claim statement have not been denied.
10.The judgments relied upon by the learned counsel for the petitioner reported in (1997) 2 SCC 191 [KUNWAR ARUN KUMAR v. U.P.HILL ELECTRONICS CORPORATION LTD.]; (2001) 3 SCC 117 [H.F.SANGATI v. R.G.HIGH COURT OF KARNATAKA] and (2005) 7 SCC 447 [RAJASTHAN SRTC v. ZAKIR HUSSAIN] do not apply to the present case on hand. There is no difficulty in appreciating the preposition of law that a contractual and temporary employee as well as the probationer can be removed without conducting an enquiry, if the report suggests that the services are not satisfactory or work is not required. Such a report will have to be considered at the time of considering the concerned employee for making him permanent. However the facts involved in the present case are totally different. The Tribunal has clearly held that the second respondent has been removed based upon the allegations levelled against him. It is further seen that no attempt has been made by the petitioner to allot the work with some other officer as per the conditions stipulated in the letters dated 04.06.1977 and 11.03.1987. Also it is not the case of the petitioner that there is no vacancy at any place as a lascar. Therefore under those circumstances, the removal of the second respondent without conducting an enquiry is illegal.
11.In the judgment reported in (2007) 3 MLJ 1050 [P.RAJESWARI v. TAMIL NADU DR.MGR MEDICAL UNIVERSITY], the Hon’ble High Court was pleased to hold that when an order is arbitrary then such an order can be set aside for the violation under Article 14 and 16 of the Constitution of India. The Hon’ble High Court in the above said judgment has observed as follows:
“16.Article 14 is the genus while Article 16 is a specie. Article 16 gives effect to the doctrine of equality in all matters relating to public employment. The basic principle which, therefore, informs both Articles 14 and 16 is equality and inhibition against discrimination. Equality is a dynamic concept with many aspects and dimensions and it cannot be cribbed, cabined and confined within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetical to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal, both according to political logic and constitutional law and is therefore violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment, as held by the Supreme Court in the matter of E.P.Royappa v. State of Tamil Nadu AIR 1974 SC 555: (1974) 4 SCC 3: 1974-I-LLJ-172.
17.Law is a social engineering to remove the existing imbalance and to further the progress, serving the needs of the Socialist Democratic India under rule of law. The prevailing social conditions and actualities of life are to be taken into account in adjudging whether the impugned action would subserve the purpose of the society. The arbitrary and unbridled and naked power of wide discretion to dismiss an employee without any guidelines or procedure would tend to defeat the constitutional purpose of equality and allied purposes. Therefore, one would be circumspect, pragmatic and realistic to these actualities of life while angulating constitutional validity of wide, arbitrary, uncanalised and unbridled discretionary power of dismissal vested in an appropriate authority, either by a statute or a statutory rule. Vesting arbitrary power would be a feeding ground for nepotism and insolence. Thus, when the Constitution assures dignity of the individual and the right to livelihood, the exercise of power by the Executive should be cushioned with adequate safeguards for the rights of the employees against any arbitrary and capricious use of those powers. The right to life, a basic human right assured by Article 21 of the Constitution comprehends something more than mere animal existence. i.e. dignity of the individual.
18.The Supreme Court, in its judgment reported in the matter of Delhi Transport Corporation v. D.T.C. Mazdoor Congress and Others AIR 1991 SC 101: (1991) Supp 1 SCC 600: 1991-1-LLJ-395 has held as follows : (paras 280 and 281)
“…The ‘standard form’ contract is the rule. He must either accept the terms of this contract in toto, or go without. Since, however, it is not feasible to deprive oneself of such necessary services, the individual is compelled to accept on those terms. In view of this fact, it is quite clear that freedom of contract is now largely an illusion…
…This Court, as a Court of constitutional conscience enjoined and is jealously to project and uphold new values in establishing the egalitarian social order. As a Court of constitutional functionary exercising equity jurisdiction, this Court would relieve the weaker parties from unconstitutional contractual obligations, unjust, unfair, oppressive and unconscionable rules or conditions when the citizen is really unable to meet on equal terms with the State. It equally enables the employer to pick and choose an employee at while or vagary to terminate the service arbitrarily and capriciously. It is to find whether the citizen, when entering into contracts of service, was in distress need or compelling circumstances to enter into contract on dotted lines or whether the citizen was in a position of either to “take it or leave it” and if it finds to be so, this Court would nor shirk to avoid the contract by appropriate declaration. Therefore, though certainty is an important value in normal commercial contract law, it is not an absolute and immutable one but is subject to change in the changing social conditions.”
19.On an evaluation of the facts and circumstances of the case, it is seen that the first respondent has power to take any action on any matter concerning the affairs of the University, provided no order is passed unless the person likely to be affected is given a reasonable opportunity of being heard. This mandate under the Act has not been looked into by the first respondent in its proper perspective, while exercising his power to terminate the service of the petitioner and thus, it amounts to violation of principles of natural justice. Also, out of three persons selected for the post of Programmer having followed the due process of recruitment, the respondent University cannot selectively retain one employee and terminate the petitioner and the other employee namely Shanthi for the reason that the project for which they were recruited is closed. A notification for recruitment of three persons has been advertised and accordingly, selection of three persons has been made and therefore, the respondent University cannot pick and choose the petitioner at its whim or vagary to terminate her service arbitrarily and capriciously. This arbitrary action shown by the respondent University is contrary to the established rule of law and on that ground, the impugned order suffers from legal infirmity and hence, the same is unsustainable. As the impugned action of the first respondent is nothing but selective discrimination, it is violative of Articles 14 and 16 of the Constitution of India as the matter is concerned with public employment where fairness and reasonableness in the matter of equality of treatment is all the more necessary. Rather than issuing the impugned order, the respondent University could have waited till a vacancy arises as done in the case of Poongothai and since it is not done, it is clear that the respondent University has not applied the same yardstick to the petitioner and Shanthi which it applied to Poongothai and this is a clear act of selective discrimination. Thus, the respondent University has violated the Constitutional rights guaranteed under Articles 14 and 16 of the Constitution of India.
20.Lastly, it is to be noted that the Supreme Court has, time and again, made it clear that it is to be seen whether, a citizen when entering into contract of service was in distress need or compelling circumstances entered into contract on dotted lines or whether the citizen was in a position of either to “take it or leave it” and if it finds to be so, it would not shirk to avoid the contract by appropriate declaration. In the instant case, the only reason attributed for termination is that the employment is purely temporary and the services of the petitioner can be terminated at any time without assigning any reason therefor. If the above-said ratio of the Supreme Court is applied to the present case, the answer to the question as to whether such a condition can be given effect to the petitioner, is no. Thus, the respondent University has violated all the canons of justice in issuing the impugned order with arbitrariness and in violation of the principles of natural justice.
21.In view of the above discussion and considering the fact that it was not made known to the petitioner that she was appointed for a particular project either by way of advertisement or by way of her appointment order, I am of the considered view that the order of the first respondent terminating the services of the petitioner, heavily relying on the clause in the appointment order to the effect that the petitioner may be discharged from service without assigning any reason, is purely unconstitutional and arbitrary in nature for the reason that in the service law jurisprudence, any order of initial appointment will always be for a temporary vacancy. Therefore, whenever a regular vacancy arises, a temporary employee has to be fitted in the regular vacancy. The clause which is relied on by the respondent University is a routine and usual one which can be found in any appointment order and the respondent University cannot take shelter merely by the fact that such a clause has been incorporated in the order under challenge. Thus, it is held that the impugned action of the respondent University is one of sheer arbitrariness and selective discrimination.”
A reading of the above said judgment would show that notwithstanding the conditions mentioned in the order of appointment an employee cannot be terminated at the whims and fancies of the employer concerned.
12.Even a daily wager who has been appointed on a casual and temporary basis cannot be dismissed without conducting an enquiry, if the dismissal is based upon certain allegations levelled against him. In the judgment reported in (2008) 8 SCC 402 [TELECOM DISTRICT MANAGER AND OTHERS V. KESHAB DEB], the Hon’ble Apex Court was pleased to observe as follows:
“22.He, according to the appellants, has committed a misconduct. His services had been terminated on that ground. But therefore he was entitled to an opportunity of being heard. A regular departmental proceeding should have been initiated against him; the order of termination being stigmatic in nature……”
13.Hence on a consideration of the above said legal position, this Court is of the opinion that the order passed by the petitioner has correctly been set aside by the Tribunal.
14.The judgments relied upon by the learned counsel for the petitioner are not applicable to the present case on hand, since in the said judgments it has been held that an order of termination of a probationer or a temporary employee does not cause any stigma and such an employee does not have a legal right to challenge such an order.
15.The first respondent has considered the entire materials available on record and has given proper reasons for coming to the conclusion that the order of termination is illegal. When such a finding is given based upon the facts and the materials available on record, this Court exercising the power under Article 226 of the Constitution of India cannot reverse the same unless the said findings are perverse in nature.
16.However the first respondent has not considered the fact as to whether the second respondent has been gainfully employed elsewhere while ordering the back-wages. The second respondent is not entitled to get the back-wages as a matter of right. A duty is cast upon the second respondent to substantiate that he was not gainfully employed elsewhere. It is also seen that the second respondent has been paid the Section 17-b wages as stipulated under the Industrial Disputes Act after the filing of the writ petition.
17.In the judgment reported in (2006) 1 SCC 479 [U.P.STATE BRASSWARE CORPN. LTD. v. UDAY NARAIN PANDEY]. The Hon’ble Supreme Court was pleased to observe as follows:
61.It is not in dispute that the respondent did not raise any plea in his written statement that he was not gainfully employed during the said period. It is now well settled by various decisions of this Court that although earlier this Court insisted that it was for the employer to raise the aforementioned plea but having regard to the provisions of Section 106 of the Evidence Act or the provisions analogous thereto, such a plea should be raised by the workman.
62.In Kendriya Vidyalaya Sangathan this Court held: (SCC p.366, para 16)
“When the question of determining the entitlement of a person to back wages is concerned, the employee has to show that he was not gainfully employed. The initial burden is on him. After and if he places materials in that regard, the employer can bring on record materials to rebut the claim. In the instant case, the respondent had neither pleaded nor placed any material in that regard.
(See also Allahabad Jal Sansthan, SCC para 6.)”
18.Similarly, in the judgment reported in (2007) 2 SCC 433 [J.K.SYNTHETICS LTD. v. K.P.AGRAWAL], the Hon’ble Supreme Court was pleased to observe as follows:
19.But the cases referred to above, where back wages were awarded, related to termination/retrenchment which were held to be illegal and invalid for non-compliance with statutory requirements or related to cases where the Court found that the termination was motivated or amounted to victimisation. The decisions relating to back wages payable on illegal retrenchment or termination may have no application to the case like the present one, where the termination (dismissal or removal or compulsory retirement) is by way of punishment for misconduct in a departmental inquiry, and the court confirms the finding regarding misconduct, but only interferes with the punishment being of the view that it is excessive, and awards a lesser punishment, resulting in the reinstatement of employee. Where the power under Article 226 or Section 11-A of the Industrial Disputes Act (or any other similar provision) is exercised by any court to interfere with the punishment on the ground that it is excessive and the employee deserves a lesser punishment, and a consequential direction is issued for reinstatement, the court is not holding that the employer was in the wrong or that the dismissal was illegal and invalid. The court is merely exercising its discretion to award a lesser punishment. Till such power is exercised, the dismissal is valid and in force. When the punishment is reduced by a court as being excessive, there can be either a direction for reinstatement or a direction for a nominal lump sum compensation. And if reinstatement is directed, it can be effective either prospectively from the date of such substitution of punishment (in which event, there is no continuity of service) or retrospectively, from the date on which the penalty of termination was imposed (in which event, there can be a consequential direction relating to continuity of service). What requires to be noted in cases where finding of misconduct is affirmed and only the punishment is interfered with (as contrasted from cases where termination is held to be illegal or void) is that there is no automatic reinstatement; and if reinstatement is directed, it is not automatically with retrospective effect from the date of termination. Therefore, where reinstatement is a consequence of imposition of a lesser punishment, neither back wages nor continuity of service nor consequential benefits, follow as a natural or necessary consequence of such reinstatement. In cases where the misconduct is held to be proved, and reinstatement is itself a consequential benefit arising from imposition of a lesser punishment, award of back wages for the period when the employee has not worked, may amount to rewarding the delinquent employee and punishing the employer for taking action for the misconduct committed by the employee. That should be avoided. Similarly, in such cases, even where continuity of service is directed, it should only be for purposes of pensionary/retirement benefits, and not for other benefits like increments, promotions, etc.
20.But there are two exceptions. The first is where the court sets aside the termination as a consequence of employee being exonerated or being found not guilty of the misconduct. Second is where the court reaches a conclusion that the inquiry was held in respect of a frivolous issue or petty misconduct, as a camouflage to get rid of the employee or victimise him, and the disproportionately excessive punishment is a result of such scheme or intention. In such cases, the principles relating to back wages, etc. will be the same as those applied in the cases of an illegal termination.”
19.The Hon’ble Apex Court has been followed by the subsequent judgment reported in (2009) 2 SCC 288 [BALASAHEB DESAI SAHAKARI S.K. LTD. v. KASHINATH GANAPATI KAMBALE] wherein it has been held as follows:
13.It is now well settled by a catena of decisions of this Court that having regard to the principles contained in Section 106 of the Evidence Act, the burden of proof to show that the workman was not gainfully employed is not on the employer. In this case, the burden of proof had wrongly been placed upon the appellant. This Court in U.P.State Brassware Corpn. Ltd. v. Uday Narain Pandey held: (SCC pp.495-96, paras 61-62)
“61.It is not in dispute that the respondent did not raise any plea in his written statement that he was not gainfully employed during the said period. It is now well settled by various decisions of this Court that although earlier this Court insisted that it was for the employer to raise the aforementioned plea but having regard to the provisions of Section 106 of the Evidence Act or the provisions analogous thereto, such a plea should be raised by the workman.
62.In Kendriya Vidyalaya Sangathan this Court held: (SCC p.366, para 16)
“16. … When the question of determining the entitlement of a person to back wages is concerned, the employee has to show that he was not gainfully employed. The initial burden is on him. After and if he places materials in that regard, the employer can bring on record materials to rebut the claim. In the instant case, the respondent had neither pleaded nor placed any material in that regard.
(See also Allahabad Jal Sansthan v. Daya Shankar Rai, SCC para 6.)”
14.Furthermore, some materials had been brought on record to show that the respondent was gainfully employed. The evidence adduced on behalf of the appellant in that behalf, in our opinion, had not been considered in its proper perspective. The Industrial Court while holding that no licence is necessary to run a footwear shop in a small town committed a serious illegality in arriving at the finding that the respondent must have been doing so to meet his both ends. It may be correct that a person cannot afford to remain unemployed for a long time but for arriving at a conclusion that the respondent was gainfully employed or not, a large number of factors are required to be taken into consideration.”
20.Hence on a consideration of the above said legal position, this Court is of the opinion that the order passed by the first respondent in so far as the back-wages are concerned, the same will have to be modified by directing the petitioner to pay 50% of the back-wages instead of entire back-wages. Since the petitioner has been paying the 17-b wages to the second respondent, the second respondent is not entitled to make any claim from the date of filing of the writ petition till the date of reinstatement for any amount other than the amount received under Section 17-b and payable till that period. In so far as the continuity of service is concerned, it is for the petitioner to confirm the second respondent based upon the relevant records. The dispute has been raised in pursuant to the order of termination passed against the second respondent. However the same will not entitle the second respondent to get permanent automatically. While considering the case of the second respondent for absorbing him, the petitioner is directed not to take into consideration of the allegations made by the second respondent in his claim petition and the petitioner is also directed to take into consideration of the fact that if any of the persons who are juniors to the second respondent have been confirmed.
21.Therefore, the award passed by the first respondent is hereby modified by reducing the back-wages to 50% with the payment made and payable under Section 17-b from the date of filing the writ petition till the date of reinstatement and with a further direction that the 2nd respondent ‘s case will have to be considered for absorption on merits and in accordance with law without reference to the allegations made in the claim petition. If the 2nd respondent is absorbed then he should be placed above his juniors for the purpose of seniority.
22.With these observations, the writ petition is disposed of. No costs.
sri
To
The Presiding Officer
Central Government Industrial Tribunal cum
Labour Court
Chennai 600 104