Bharuch Municipality vs Hitesh Vinodchandra Kayasth

Honourable Mr.Justice K.S. Jhaveri

By way of this Intra-Court Letters Patent Appeal, the appellant ? original petitioner has challenged the judgment and order dated 26.08.2011 passed by the Learned Single Judge in Special Civil Application No.11466 of 2011 whereby the Learned Single Judge dismissed the writ petition and confirmed the award dated 11.02.2011 passed by the Labour Court at Bharuch in Reference (LCB) Case No.508 of 2006 whereby the Labour Court ordered reinstatement of the respondent with effect from 07.05.2001 without any back wages.

We have heard Mr. Dipak Sanchela, learned counsel appearing for the appellant.

Learned counsel appearing for the appellant has relied on the decision of the Hon''ble Supreme Court in the case of Jagbir Singh Vs. Haryana State Agriculture Marketing Board and Another, more particularly, paragraphs 7 & 14 of the said decision which is extracted below :

It is true that earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention to the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice.

It would be, thus, seen that by catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation of Section 25F although may be set aside but an award of reinstatement should not, however, be automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily wager who does not hold a post and a permanent employee.

Learned counsel for the appellant has, therefore, submitted that the Labour Court and the Learned Single Judge ought to have followed the above decision of the Hon''ble Supreme Court and instead of ordering reinstatement, lumpsum compensation ought to have been awarded to the respondent herein.

In our view, while considering the case on merits, the Labour Court has considered that there is breach of Section 25(F), (G) & (H) of the Industrial Disputes Act. It is further observed by the Labour Court that juniors to the respondent were retained by the appellant Municipality. Hence, in our view, since the appellant being a Local authority and being a State within the meaning of Article 12, should not be allowed to practice such discriminatory treatment in case of employment. Further, it may be a different case where the employer looses his confidence in the employee, but it does not give a handle to the employer to terminate the services of a daily wager on his own whims and ask the employee to take only compensation. In the above view of the matter, we do not find any substance in the arguments advanced on behalf of the appellant. We do not find any illegality in the order of the Learned Single Judge as well as the award of the Labour Court.

In the result, the present Letters Patent Appeal is devoid of any merits and is accordingly dismissed.

In view of dismissal of Letters Patent Appeal, Civil Application also stands dismissed.