K.S. Jhaveri, J. - (1.) PRESENT appeal under Clause 15 of Letters Patent has been filed challenging the order dated 11.04.2002 passed by the learned Single Judge of this Court in Special Civil Application No. 5686 of 1991 whereby the workmen were granted reinstatement with 50% backwages. It is the case of the appellant that the respondents were appointed as daily rated packers/delivery boys at the petrol pump of the appellant Corporation on adhoc basis on account of suspension of the employees working at petrol pump. The respondents, however, came to be relieved from services with effect from 23.11.1990. Being aggrieved by the same, the respondents preferred Special Civil Application No. 5686 of 1991 before this Court whereby the learned Single Judge allowed the petition and directed the appellant to reinstate the respondents with 50% backwages.
(2.) MR . K.M. Patel, learned Senior Counsel appearing with Mr. Varun Patel for the appellant submitted that the learned Single Judge failed to appreciate that the respondents were appointed as daily rated employees without following any regular selection procedure and that their services were liable to be terminated without assigning any reasons. He contended that their appointment was purely a stop gap arrangement in view of the fact that permanent employees working on the petrol pump were suspended pending inquiry and that they had worked for less than six months. 2.1 Mr. Patel has drawn the attention of this Court to the impugned order passed by the learned Single Judge wherein a conclusion is recorded that there is no breach of section 25(F) of the Industrial Disputes Act and that only on the ground of unfair labour practice the reinstatement has been granted by the learned Single Judge. He contended that in fact in a writ petition the shall not be appropriate to grant backwages as per the settled provisions of law. 2.2 Mr. Patel submitted that assuming for the sake of argument that everything is against the appellant, even then as per the latest decision of the Apex Court in the case of Asst. Engineer, Rajasthan Dev. Corp. & Another vs. Gitam Singh reported in : 2013 (2) SCALE 126, reinstatement ought not to have granted to the respondent workmen. Learned advocate appearing for the respondent No. 1 & 3 submitted that respondent No. 2 had withdrawn his claim therefore he represents respondents No. 1 & 3 only. He has supported the impugned order and submitted that no interference is called for in the matter.
(3.) HAVING gone through the records of the case, it is borne out that the learned Single Judge in the impugned judgment and order has observed that there is no breach of Section 25(F) of the Industrial Disputes Act. Under such circumstances, it shall not be appropriate to grant reinstatement. There is no question of unfair labour practice in view of the terms of appointment which are placed on record at page 65/A of the petition wherein it is mentioned that the appointment is given on 29 days basis/Fixed salary/Daily wage basis and that during this time, any time, without assigning any reason or giving notice it will be open to terminate the services. 4.1 The Apex court in the case of Asst. Engineer, Rajasthan Dev. Corp. & Another (supra) has observed in paras 26, 29 & 31 as under: 26. From the long line of cases indicated above, it can be said without any fear of contradiction that this Court has not held as an absolute proposition that in cases of wrongful dismissal, the dismissed employee is entitled to reinstatement in all situations. It has always been the view of this Court that there could be circumstance(s) in a case which may make it inexpedient to order reinstatement. Therefore, the normal rule that dismissed employee is entitled to reinstatement in cases of wrongful dismissal has been held to be not without exception. Insofar as wrongful termination of daily -rated workers is concerned, this Court has laid down that consequential relief would depend on host of factors, namely, manner and method of appointment, nature of employment and length of service. Where the length of engagement as daily wager has not been long, award of reinstatement should not follow and rather compensation should be directed to be paid. A distinction has been drawn between a daily wager and an employee holding the regular post for the purposes of consequential relief. 29. In our view, Harjinder Singh and Devinder Singh do not lay down the proposition that in all cases of wrongful termination, reinstatement must follow. This Court found in those cases that judicial discretion exercised by the Labour Court was disturbed by the High Court on wrong assumption that the initial employment of the employee was illegal. As noted above, with regard to the wrongful termination of a daily wager, who had worked for a short period, this Court in long line of cases has held that the award of reinstatement cannot be said to be proper relief and rather award of compensation in such cases would be in consonance with the demand of justice. Before exercising its judicial discretion, the Labour Court has to keep in view all relevant factors, including the mode and manner of appointment, nature of employment, length of service, the ground on which the termination has been set aside and the delay in raising the industrial dispute before grant of relief in an industrial dispute. 31. In light of the above legal position and having regard to the facts of the present case, namely, the workman was engaged as daily wager on 01.03.1991 and he worked hardly for eight months from 01.03.1991 to 31.10.1991, in our view, the Labour Court failed to exercise its judicial discretion appropriately. The judicial discretion exercised by the Labour Court suffers from serious infirmity. The Single Judge as well as the Division Bench of the High Court also erred in not considering the above aspect at all. The award dated 28.06.2001 directing reinstatement of the respondent with continuity of service and 25% back wages in the facts and circumstances of the case cannot be sustained and has to be set aside and is set aside. In our view, compensation of Rs. 50,000/ - by the appellant to the respondent shall meet the ends of justice. We order accordingly. Such payment shall be made to the respondent within six weeks from today failing which the same will carry interest @ 9 per cent per annum.;