L.P.A. No. 412 of 2010 -1- In the High Court for the States of Punjab and Haryana at Chandigarh L.P.A. No. 412 of 2010(O&M) Date of decision: 21.11.2011 Punjab Ex-Servicemen Corporation ....... Appellant Versus The Presiding Officer, Industrial Tribunal, Punjab & another ..Respondents Coram: Hon’ble Mr. Justice M.M.Kumar Hon'ble Mr. Justice Rajiv Narain Raina **** Present: Mr. P.K. Mutneja, Advocate for the Appellant. Mr. Ravi Kant Sharma, Advocate for respondent No.2. ***** 1. To be referred to the reporters or not ? 2. Whether the judgment should be reported in the digest? Rajiv Narain Raina,J. 1. This Letters Patents Appeal under Clause X of the Letters Patent is directed against the judgment and the order of the learned Single Judge dated 13.10.2009 by which CWP No. 4452 of 2000 was dismissed with Rs. 5,000/- as costs. In the writ petition challenge was laid to the award dated 26.10.1999 passed by the Presiding Officer, Industrial Tribunal, Punjab, Chandigarh (for short ‘the Tribunal’) under Section 33(1)(b) of the Industrial Disputes Act, 1947 (for short ‘the Act’). The award was rendered on complaints filed by four workmen under Section 33-A of the Act of which one of the workmen is the respondent in the present appeal. On a detailed examination of evidence and materials on record the Tribunal by its well reasoned order directed reinstatement to service with continuity and full L.P.A. No. 412 of 2010 -2- back wages. The Tribunal found that the discharge of the workman by appellant PESCO was punitive in nature for the alleged misconduct. Termination was effected without holding enquiry into the alleged charges. A finding has also been returned that respondent-Harinder Singh was at the material time the elected Secretary of the Workers Union and was discharged because of his Trade Union activities. It was found that PESCO had acted unfairly in terminating the services of the respondent workman arbitrarily on 10.9.1998, during the last extension of contractual service from 14.5.1998 to 13.5.1999. To make matters worse for PESCO there was non-compliance of Section 25-F of the Act. 2. It may be noticed as an admitted fact that the respondent-workman as Secretary of the Punjab Ex-Serviceman Corporation Employees Union (Regd.) had raised an industrial dispute through a demand notice dated 7.2.1998 and a large number industrial disputes between the employer and workmen came to be referred by the appropriate Government to the Tribunal on 4.6.1997, which was registered as reference No. 74 of 1997. The reference was decided vide award dated 20.10.1999. It was during the pendency of this reference that the respondent-workman and three of his compatriots had moved complaints under Section 33-A of the Act, that culminated in the award dated 26.10.1999, impugned in the writ petition, which has been upheld by the learned Single Judge. 3. We have heard learned counsel for the parties. 4. Mr. Pawan Kumar Mutneja, learned counsel for the appellant- PESCO in his challenge to both the judgment and order of learned Single Judge and the award of the Tribunal has drawn our attention to an order of the appropriate Government (P2) addressed to PESCO dated 19.6.1999 according Government approval to the closure of the Auto Workshop, a unit of PESCO. It is thus contended that since the respondent workman L.P.A. No. 412 of 2010 -3- was engaged in the Auto Workshop, therefore, he could be legally shunted out de hors his status as a Secretary of the Union or ‘protected workman’. 5. On the other hand, Mr.Ravi Kant Sharma, learned counsel for respondent No.2 –workman would remind us that the services of his client were brought to an end prior to issuance of Annexure P-2 and consequently the notice of closure of workshop by the Appellant- Corporation was issued after the termination of the respondent No.2 and it obviously would not contain the name of Mohinder Singh respondent. Since his name did not figure in the list of workers sought to be discharged w.e.f. 2.8.1999 it follows a priori the closure compensation was not paid to the respondent-workman as he was ‘out of sight out of mind’. 6. It is in the above conspectus of facts that the learned Single Judge examined the issues raised. The learned Single Judge saw the trap PESCO had got itself into. It had extended services of the workman upto 13.5.1999; terminated his services on 10.9.1998 on the touchstone of misconduct for activities prejudicial to PESCO and for working against its interest and that too without holding enquiry; since no enquiry was held then the only option left was through the mandatory provisions of Section 25-F of the Act and that too remained in breach as no retrenchment compensation was paid. In this situation the learned Single Judge was perfectly correct in upholding the award and dismissing the writ petition. The decision making process resulting in the termination was unfair to say the least and was justifiably faulted by the Tribunal. Mr. Mutneja’s argument that Section 33(3) would not be applicable is an argument which we notice and reject. So long as the complaint of a workman is traceable to Section 33(1)(b) of the Act notwithstanding that the workman was the Secretary of the Union that had spearheaded the various disputes that stood referred for adjudication and a reference was indeed pending on the date of the termination, it would be mandatory for the management to seek L.P.A. No. 412 of 2010 -4- approval under the provisions of Section 33(b) of the Act of the action proposed even qua a workman who may or may not be a 'Protected Workman' as defined in the Explanation to Section 33(3). It is well settled that mere citing of wrong provision would not come to the aid of anyone so long the power exercised is traceable to a statutory provision. Reference to Section 33(3) of the Act in the order of the learned Single Judge is corrected to read Section 33(1)(b) of the Act. 7. In our considered view there is no merit in this appeal. The judgment of the learned Single Judge is upheld. As a consequence of this order we direct that since the operation of the award of the Tribunal had been stayed by this Court in the writ petition filed in 2000, the 2nd respondent would be entitled to last drawn wages under Section 17-B of the Act and to arrears thereof, if not paid. However, since the stay order would stand vacated in view of this order the 2nd respondent would be entitled to regular salary of the post held by him at the time of termination from the date he now submits joining report to PESCO with a certified copy of this order in hand. On reinstatement the 2nd respondent would be entitled to all service benefits including seniority, a right to consideration for revised pay scales and promotion, if any, falling in between and all other benefits that qualify as service benefits but with a rider that no arrears would be paid for the period of operation of Section 17-B of the Act. The actual benefits would run notionally on re-fixation after joining service. 8. The appeal is disposed of in the above terms. (M.M.KUMAR) (RAJIV NARAIN RAINA) JUDGE JUDGE November 21, 2011 ‘sp’