Gujarat State Land Development Corporation Ltd. vs Gandabhai Kachrabhai Thakore and Another

M.R. Shah, J.—By way of this petition under Article 227 of the Constitution of India, petitioner Gujarat State Land Development Corporation Limited has preferred Special Civil Application No. 7466/2003 challenging the impugned judgment and award passed by the learned Labour Court, Kalol dated 27.12.2002 passed in Reference LCK No. 241/1990, by which the learned Labour Court has partly allowed the said reference by directing the petitioner to reinstate the respondents with 30% back wages.

Special Civil Application No. 132/2004 has been preferred by the workman challenging the aforesaid judgment and award passed by the learned Labour Court, Kalol in denying 70% back wages.

It is not in dispute that respondents of Special Civil Application No. 7466/2003 were admittedly appointed as daily wagers on stop gap arrangement till the regularly selected candidates are available. In the appointment order itself, it has been specifically provided that the respective respondents shall be relieved on availability of the regular selected candidates. It is not in dispute that on availability of the regularly selected candidates, respective respondents came to be relieved. Being aggrieved and dissatisfied with the aforesaid, the respondents raised industrial dispute which was numbered as Reference LCK No. 241/1990 and the learned Labour Court by impugned judgment and award partly allowed the same directing the petitioner to reinstate the respondents with 30% back wages.

Shri Munshaw, learned advocate appearing on behalf of the petitioner has vehemently submitted that as such, as the appointment of the respective respondents were as daily wager on stop gap arrangement and till regularly selected candidates are available, Section 2(oo)(bb) of the Industrial Disputes Act would be applicable and therefore, the learned Labour Court has materially erred in directing the petitioner to reinstate the respondents with 30% back wages. It is further submitted that as the post on which the respective respondents were working on stop gap arrangement, to be filled by regularly selected candidates, no post was available and therefore, there cannot be any reinstatement on the post, which is not vacant. It is further submitted that as such in the appointment order itself, it was provided that respective respondents shall be relieved as soon as the regularly selected candidates are available and therefore, as soon as the regularly selected candidates are available and were appointed, the respective respondents were relieved. Therefore, it is submitted that there was no retrenchment and/or termination at all. Under the circumstances, it is requested to allow the present Special Civil Application.

Shri Bipin Mehta, learned advocate appearing on behalf of the respective respondents has tried to support the impugned judgment and award passed by the learned Labour Court by submitting that this is petition under Article 227 of the Constitution of India and considering the fact that when the learned Labour Court found that the termination of the respective respondents was in violation of the provisions of 25-F of the Industrial Disputes Act, learned Labour Court has not committed any error in directing the petitioner to reinstate the respondents that too with 30% back wages. It is further submitted by him that in fact the Labour Court ought to have awarded full back wages. Therefore, it is requested to allow even the Special Civil Application No. 132/2004.

Having heard learned advocates appearing on behalf of respective parties and considering the aforesaid undisputed fact that when respective respondents were appointed, they were appointed as daily wager and as a stop gap arrangement till the regularly selected candidates are available and considering the fact that in the order of appointment itself, it was specifically provided that as soon as the regularly selected candidates are available and appointed, respective respondents shall be relieved, the Labour Court has materially erred in partly allowing the said Reference by directing the petitioner to reinstate the respondents. As such there is no retrenchment and/or termination at all. It is also required to be noted that even when the respective respondents were appointed as daily wagers, no selection procedure was followed. As rightly submitted by Shri Munshaw, learned advocate appearing on behalf of the petitioner, when there is no vacant post, there is no question of reinstatement on the post which is not vacant. Considering the aforesaid over all facts and circumstances of the case, impugned judgment and award passed by the learned Labour Court directing the petitioner to reinstatement the respondents, deserves to be quashed and set aside and is, accordingly, quashed and set aside. At this stage, Shri Mehta, learned advocate appearing on behalf of the respondents has stated that there are two posts available at other places and therefore, as and when the concerned respondents apply, their case may be considered in accordance with law.

In view of the above and for the reasons stated above, Special Civil Application No. 7466/2003 is allowed. Impugned Judgment and award dated 27.12.2002 passed by the learned Labour Court, Kalol in Reference LCK No. 241/1990 is hereby quashed and set aside. Rule is made absolute to the aforesaid extent in Special Civil Application No. 7466/2003. So far as Special Civil Application No. 132/2004 is concerned, the same is dismissed. Rule is discharged.

However, it is observed that as and when the concerned respondents apply for the appointment on the vacant post, their case may be considered in accordance with law for which this Court has not expressed any opinion on merits. No costs.