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2. What should be proper grade and scale of Shri Prasanta Ghosh?

3. What relief, if any, is the entitled to?"

Before the Tribunal, the Union, the respondent no. 3 herein, and the employer being the petitioner no. 1 herein were arrayed as the petitioner and opposite party respectively. The Union filed its statement before the Tribunal and prayed for an order directing the employer, (the writ petitioner no. 1) to absorb the trainee on a regular job in an appropriate grade(s)/scale(s) with effect from May 20, 1980 and to fix pay of the said trainee vis-à-vis his contemporaries. The petitioner no. 1 filed their written statement before the Tribunal making various allegations. In paragraphs 3 and 4 of the written statement the petitioner no. 1 alleged that the dispute referred by appropriate Government to the Tribunal was not an industrial dispute as the Union named in the order of reference came into existence only in or about 1996, it does not represent sufficient number of workmen and as such there is no community of interest amongst the workmen in respect of the dispute. The trainee himself adduced evidence before the Tribunal and proved that the Union is a registered Trade Union and he is a member of the Union. He produced the documentary evidence that he deposited a sum of Rs. 2000/- with the petitioner no. 1 as security, which was neither appropriated nor refunded. On behalf of the petitioner no. 1 its, General Manager adduced evidence and he admitted that the concerned workman was still working in the company as trainee supervisor. No documentary evidence was adduced to prove any unsatisfactory performance by the trainee or any complaint from the petitioner no. 1 about any breach of contract or unsatisfactory performance by the trainee. In his examination-in-chief, the said witness of the petitioner no.1 stated that the said Union has got no substantial member. On August 29, 2005 the Tribunal made the impugned award and submitted the same to the State Government. The said award was accepted and published by the State Government on September 20, 2005.

Although on the strength of the said decision of the Supreme Court Baldev Singh (supra) and the Full Bench decision of the Patna High Court in the case of Dipendranath Sarkar. Mr. Bhattacharya strenuously urged for dismissal of the writ petition in limine on ground of defect in the affidavit verifying the writ petition. I could not convince myself to accept such contention on two grounds. First, the decision in the case of Baldev Singh (supra) was in an Election Petition and the Supreme Court reiterated the settled principle that verification of an Election Petition, must be done strictly in terms of Order VII Rule 15 of the Code of Civil Procedure. Secondly, in the said decision of Dipendra Nath Sarkar (supra) before the Full Bench of the Patna High Court the deponent who affirmed the affidavit had no authority to file the same and in any event requirement of Order XIX Rule 3 of the Code of Civil Procedure is procedural requirement, they are directory in nature and non compliance therewith would not automatically render the writ petition non est. In this regard reference may be made to the decision of the Supreme Court in the case of Vidyawati Gupta vs. Bhakti Hari Nayak reported in (2006) 2 SCC 777. After appreciating all the evidence adduced on behalf of the trainee and the petitioner no. 1, the Tribunal held that the petitioner no. 1 company has failed to substantiate that it ever informed the trainee of his unsatisfactory performance or the reason for which he could not be absorbed by the company. The Tribunal further held that from May, 1978 the said trainee was made to render service to the petitioner no. 1 for monthly stipend fee of Rs. 400/- for about 27 years and the company just could not produce anything in writing informing the trainee that his service was not upto their satisfaction nor they dismissed him and the management's action of non-absorption of the said trainee in a regular post and not giving him any grade/scale is not justified. The learned counsel appearing for the petitioners could not demonstrate that any of the above findings of the Tribunal in impugned award is vitiated by any perversity. Thus, as held by the Supreme Court in the said case of Amrit Vanaspati (supra) while exercising jurisdiction under Article 226 of the Constitution of India, this Court cannot interfere with the finding of the Tribunal that the management's action of non-absorption of trainee in a regular post and not giving him any grade/scale is not justified. For the reason aforementioned, I find no merit in the writ petition. However, since during the pendency of this writ petition, the trainee attained the age of superannuation of 58 years there is no further scope for his actual absorption in any regular post of the petitioner no. 1 as directed by the Tribunal. The counsel for the Union was correct in his submission that since the trainee has rendered his service to the petitioner no. 1 till the date of his superannuation, he is entitled to receive all monetary benefits from the petitioner no. 1 as per the grade/scale accordingly like other employees with effect from May 20, 1980. Thus, I dispose of the writ petition by directing that the trainee Prashanta Ghosh shall be deemed to have been absorbed to a regular post of the petitioner no. 1 with effect from May 20, 1980 as per the training given to him, having the grade/scale of pay of Rs. 501-520- 20-700/- and he shall be entitled to all increments and other allowances till the date of his attaining the age of 58 years as have been granted to the other employees. He shall also be entitled to receive gratuity and provident fund, as per law, on the basis of the grade/scale of pay to be fixed to be applicable as on the date of his superannuation. The difference of the amount receivable by Shri Prasanta Ghosh in terms of this order and the amount received by him as monthly stipend from May 20, 1980 and superannuation benefits, if any shall be communicated by the petitioner no. 1 to Shri Ghosh within June 30, 2015 and payment of the said amount shall be made to Shri Ghosh within July 31, 2015. In the event of any failure to pay the amount receivable by Shri Prashanta Ghosh within July 31, 2015 the petitioner no. 1 shall be liable to pay interest on the sum at the rate of eight per cent (8%), per annum from August 01, 2015 till the date of actual payment.