(Sanjay Kishan Kaul and M.M. Sundresh, JJ.)
L.G. Balakrishnan and Bros Ltd. _______________________ Appellant;
v.
Virendra Singh ____________________________________ Respondent.
Civil Appeal Nos. 7569-7570/2021, decided on March 10, 2022
The Order of the court was delivered by
Order
1. The respondent was offered a job by the appellant as a Tool Room Trainee for period of one year from the date of joining as per the letter dated 21.09.2010. Some of the relevant clauses of the said letter are as under:
“3. You are not eligible for any of the benefits or facilities which are given to our regular staff members such as Bonus, Leave facilities, etc. during the period of training with us.
4. During your training period, if your performance or conduct is found to be not satisfactory, the Management reserves the right to terminate your training without any notice or without assigning any specific reason.
10. After the completion of your training the Management is not bound to absorb you for regular employment. Nor do you have any preferential right to claim for regular employment.
11. The Management reserves its right to terminate your training at any time without giving any notice and without assigning any specific reason whatsoever.”
2. On 16.05.2012 the appellant issued a letter to the respondent notifying him that his performance was not found satisfactory as a result of which he was provided an opportunity to improve himself but even during that extended period he had failed to do so. The decision, thus, had been taken to dispense with his training arrangement but, despite him not being a workman and thus, not entitled to any compensation, on humanitarian grounds he was being paid one month’s stipend along with retrenchment compensation in full and final settlement through DD dated 16.05.2012 for Rs. 19409/-. It appears that there were some disputes between the management and settlement was arrived at by the Union on 06.08.2012. One of the conditions of settlement was that the management will not take back the expelled trainee/respondent herein and this was accepted on behalf of the workman. We may note that in the meantime, at the behest of the respondent, the dispute had been registered with the Conciliation Officer, Rudrapur.
3. The industrial dispute was ultimately adjudicated as Adjudication Dispute No. 01/2013 by an award dated 05.12.2014. It was found that in the absence of any opportunity to the respondent to explain his stand, it was a stigmatic termination and the termination order was consequently quashed.
4. The appellant filed a writ petition before the High Court of Uttarakhand at Nainital as Civil Miscellaneous Writ Petition No. 522/2015 which was decided by a judgment dated 02.07.2019. The conclusions are set out in paras 15 to 18 which are material and re-produced hereinunder.
“15. Considering the aforesaid facts and considering the impact of other judgments, which have been relied by the learned counsel for the petitioner pertaining to the manner in which the Court of law has to consider the status of a trainee as compared to the status of workmen, who has been employed by the employer and its consequences of termination of services, in most of the judgments, it has been held out that no doubt that the trainee who is being appointed by the employer will since is included in the definition of the workman under Section 2(Z) of the U.P. Industrial Disputes Act, any right or liability accruing in favour of or against the workman, which also includes the trainee, has had to be determined in the same manner as it has been sought to be referred to be adjudicated by the Labour Court in relation to the workmen working as an employee of the organization.
16. Consequently, the apprehension which has been expressed by employer/petitioner, that as a resultant effect of the impugned award dated 06.12.2014, it may not be treated to have an effect of providing the status of a regular employee to that of the respondent is absolutely a misconception which is being drawn, because logically even otherwise also, if the order of termination is set aside, it goes without saying that the effect of setting aside of the termination order would only be revival of the status of the workmen, which was existing or he was enjoying in relation to the trainee which was prevailing at the time when the services were dispensed with on 16.05.2012.
17. Hence, the effect of the impugned award would be that when the respondent is directed to be reinstated as a consequence of the award dated 06.12.2014, he would be only acquiring the status of being that of a Tool Room Trainee only and not a regular workman working with the petitioner’s organisation.
18. In view of the aforesaid clarification, which has been made above, the effect of the impugned award so far it relates to setting aside the termination order dated 16.05.2012 is not disturbed by this Court and the same is maintained, but with a clarification that the effect of the said setting aside of the order the effect would be that the respondent would only be reinstated into the status of a Tool Room Trainee only.”
5. In our view the effect of the aforesaid order is that while the respondent is liable to be reinstated, which has since been done, the status of the respondent is only as a Tool Room Trainee.
6. The appellant filed the SLP[C] No. 24895/2019 which was withdrawn on 25.10.2019. The said order reads as under:
“Learned senior counsel for the petitioner points out that in view of the settlement arrived at in Form I (Section 5 Rule 1) and duly registered in Form II under Section 6B and Rule 27 of the Uttarakhand (Uttar Pradesh) Industrial Dispute Act, 1947 the award and the impugned judgment were uncalled for. On the query being raised, it is conceded that this aspect does not form part of adjudication though the plea in that behalf is stated to have been raised before the Tribunal and even before the High Court.
In view of the aforesaid, the petitioner seeks to withdraw the petition with liberty to approach this Court in case of an adverse order both against the impugned judgment and the review judgment.
Liberty granted.
The Special Leave Petition is dismissed as withdrawn.”
7. A reading of the aforesaid shows that predicated on the settlement, a plea was raised that the Industrial Tribunal was not required to adjudicate the dispute. It was acknowledged that the issue sought to be raised did not form a part of the adjudication though the plea in this behalf was stated to have been raised both before the Tribunal and even before the High Court. The petition was withdrawn with liberty to approach this Court in case of an adverse order both against the impugned judgment and the review petition for which liberty was granted.
8. On the review petition being filed, the same was dismissed on 29.11.2019.
9. The rationale for the same is that the very basis on which the Special Leave Petition had been withdrawn to file a review application was not borne out from the record as no ground had been pleaded in that behalf.
10. It is in the aforesaid circumstances that the two Special Leave Petitions were filed assailing both the original order and the order in review.
11. On the matter coming for hearing on 10.02.2020 we noticed the factual scenario which had given rise to the present proceedings. We were informed that the respondent had already joined as trainee but there were some contempt proceedings still pending. It was recorded that the counsel for the parties wanted to make one more endeavour of mediation. We accordingly referred the matter to the Mediation centre annexed to the Uttarakhand High Court. The report of the Mediator dated 27.02.2020 was received showing that the mediation proceedings had been closed as unsuccessful. Thus, leave was granted on 06.12.2021 making the interim order absolute.
12. We have heard learned counsel for parties.
13. We find ourselves in a scenario where the respondent had already been reinstated as a trainee. Part of the concerns of the appellant were addressed in terms of the operative portion of the judgment dated 02.07.2019 and we had extracted the relevant portion aforesaid, inasmuch as the respondent was held not to enjoy the status of the regular employee but was to acquire a status only of a Tool Room Trainee.
14. On our query, learned counsel for the appellant states that even now the respondent’s work is not found to be satisfactory. The only result of the aforesaid is that, if that is so, the appellant can always proceed in accordance with law to deal with that aspect, treating the respondent as a Tool Room Trainee.
15. The appeals are thus, disposed of in the aforesaid terms leaving parties to bear their own costs.
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