IMPORTANT POINT
A workman terminated through unfair labor practices is entitled to reinstatement, especially when the employer misrepresents the status of operations.

JUDGMENT :

A.S. SUPEHIA, J.

1. The present Letters Patent Appeal is filed under Clause 15 of the Letters Patent, directed against the judgment and order dated 01.12.2016 passed by the learned Single Judge in Special Civil Application No. 14096 of 2007, wherein and whereby, the learned Single Judge has allowed the writ petition by setting aside the award passed by the Labour Court, Bhavnagar in Reference (LCB) No. 238 of 1998 to the effect of payment of compensation, and directing the reinstatement to the respondent-workman on his original post with continuity of service and 30% back wages.

2. The short issue which falls for deliberation in the present Letters Patent Appeal is that whether after the termination of the workman is held to be illegal by the Labour Court, he could have been ordered to reinstate on his original post with continuity of service along with the back wages or he would be entitled to compensation.

3. The respondent-original petitioner of Special Civil Application No. 14096 of 2007 was terminated by the appellant on 26.02.1998, which was subject matter of challenge before the Labour Court, Bhavnagar in Reference (LCB) No. 238 of 1998 and the Labour Court has partly allowed the Reference holding the termination of the respondent as illegal and in breach of statutory provisions and awarded a lump-sum compensation of Rs.40,000/-.

4. The facts suggest that the respondent was appointed as Dock-man in the year 1995 on probation basis @ salary of Rs.2,048/- whereas it was contended that by the appellant that the respondent was engaged as a Junior Inspector w.e.f. 01.09.1997 on probation for six months and his monthly salary was fixed at Rs.1,775/- and conveyance allowance of Rs.450/-. He was discharged/terminated with effect from 26.02.1998. There was a dispute before the Labour Court with regard to his actual date of appointment. The respondent asserted that he was appointed in the year 1995, whereas the appellant asserted that he was appointed on probation basis with effect from 01.09.1997. The Labour Court categorically recorded that appellant has tried to suppress that the respondent-workman was in service before 01.09.1997. In fact, it was believed that the respondent was discharging his services with effect from 1995 on the basis of evidence, which was produced before the Labour Court. The Labour Court has believed that the appellant had deliberately relieved the respondent from the service so that he could not have been made permanent and it is recorded that he was relieved from service two days in advance without following any procedure and such discharge/termination was made with a mala fide intention and it was nothing but an unfair labour practice. After recording such facts and holding the termination as illegal, the Labour Court directed the appellant to pay lump-cum compensation of Rs.40,000/-. It is not in dispute that the appellant has accepted the award passed by the Labour Court.

5. Learned advocate Mr. J.V. Japee, appearing for appellant has submitted that the respondent-workman filed a writ petition challenging the award of the Labour Court to the effect that he was entitled to reinstatement instead of compensation and the learned Single Judge has fell in error in directing the appellant to reinstate the workman instead of paying him the compensation. He has submitted that in fact, the respondent-workman accepted the sum of compensation and thereafter, he claimed reinstatement on any other post. While inviting the attention of this Court to the findings recorded by the Labour Court on the issue No. 2, he has submitted that before the Labour Court, it was established that the Branch, in which, the respondent was serving was closed and hence, there was no question of reinstating him and the Labour Court has precisely ordered the grant of compensation instated of reinstatement.

6. Learned advocate Mr. Japee, in support of his submission has placed reliance on the judgment of the Supreme Court in the cas