Rajula Nagarpalika vs Babubhai Kanjibhai Dabhi and Another

A.L. Dave, J.—By this appeal the Appellant challenges the order passed in Special Civil Appeal No. 9385 of 2010 on 12.08.2010 whereby the petition came to be dismissed.

The aforesaid petition was preferred against the award of Industrial Tribunal, Bhavnagar in Complaint I.T. No. 16 of 2002 whereby the Industrial Tribunal vide order dated 29.01.2010 directed the Petitioner to reinstate the respondent workman in service.

The case history is necessary to be recorded as is reflected in the award. A complaint was lodged u/s 33A of the Industrial Disputes Act by the respondent stating that he has been working with the Appellant since 01.10.1993 as permanent employee continuously and though the nature of work taken from him was of permanent nature, Appellant - institution has adopted unfair labour practice. It was also alleged that other similarly situated employees were given status of permanent employee and were being paid more salary and more benefits. In the said matter, present Appellant was served with the notice and despite several opportunities given, it did not file reply and, therefore, right of filing reply was closed and award was passed against present Appellant. The said award was challenged by way of Special Civil Application No. 14702 of 2007 which was disposed of by order dated 05.08.2008 whereby the Appellant was directed to pay Rs. 17,500/- to the workmen and while setting aside award, directed further to dispose of complaint before 31.01.2009.

Matter was remanded to the Tribunal and reply was filed at Exh.26 contending that Industrial Disputes Act is not applicable to the Appellant - institution. A contention was also raised that workman was daily wager and was taken on work as and when necessary and that he was not regularly appointed workman and, therefore, by virtue of the order passed by this Court his services were terminated along with several other employees who were not appointed regularly. The Tribunal found that services of the workman were terminated during the pendency of the complaint u/s 33A and ultimately ordered reinstatement of the workman without any back wages or any other rights. This award was rendered on 29.01.2010 which was subject matter of challenge in the petition.

Learned Single Judge by order dated 12.08.2010 dismissed the petition while observing that there is clear case of violation of relevant provisions of Industrial Disputes Act; that the Industrial Tribunal has rightly passed the award of reinstatement; and that he is in agreement with the reasoning given by the Labour Court. The learned Single Judge also recorded the fact that, admittedly, termination was during pendency of the complaint and no permission of the Industrial Tribunal was taken before terminating the services of the respondent workman and that the learned Counsel was unable to point out anything contrary to the said finding of the Labour Court.

Learned Counsel Mr. Desai for the Appellant has relied on following judgments to show that trend of judgments has recently been changed and in case of termination of irregular appointee, reinstatement is not to be granted as a rule but some compensation is to be awarded.

(1) Mysore Paper Mills Limited, Bhadravathi v. Prasanna reported in 2010 III LLJ 2009

(2) Senior Superintendent Telegraph (Traffic), Bhopal v. Santosh Kumar Seal and Ors. reported in (2010) 6 SCC 773

(3) Himanshu Kumar Vidyarthi and Others Vs. State of Bihar and Others,

We have gone through the judgments and we agree with the submission made by learned Counsel, Mr. Desai, that there is a change in the recent trend of judgments, but we may also observe that there is no absolute proposition of law settled by any of these judgments that in case of termination, no reinstatement can be granted and compensation is only redressal. That apart when attention of the learned Counsel was drawn towards paragraph 12 of the award, he had no explanation to tender nor he could refute the factual part. Paragraph 12 of the award clearly indicates termination was ordered during pendency of complaint before the Tribunal. Learned Counsel also agrees that discretion is left with the Court whether to award reinstatement or to award compensation. He is not able to satisfy us for exercise of appellate jurisdiction against use of judicial discretion by the Court. Element of arbitrariness or non-application of mind or legal perversity is not pointed to us. Under the circumstances, we do not deem it proper to exercise our Appellant jurisdiction. The appeal must fail and stands dismissed.

As the appeal is dismissed, Civil Application also stands disposed of.