Reinstatement is not an automatic remedy in employment termination cases; financial compensation may be more appropriate based on the circumstances.

ORAL ORDER

1. Present petition is filed by the petitioner under Articles 226 and 227 of the Constitution of India challenging the impugned award dated 06.07.2018 passed in T. Application No. 623 of 2003 by the Labour Court, Surat, whereby the Labour Court has allowed the application and ordered to reinstate the workman with 25% back wages and costs and the order dated 30.09.2023 passed by the Industrial Court, Surat in Appeal (I.C.) No.54 of 2018 whereby the Industrial Court rejected the appeal.

2. Brief facts of the present case are that the applicant - respondent herein was alleged to appoint as workman in the company and work in dyeing department from 18.05.2001 for a period of two years at the salary of Rs.6,000/- and without there being any reason his services came to be terminated by the opponent – petitioner herein from 01.03.2003 and, therefore, the respondent preferred application before the concerned Labour Court under the provisions of Section 79 of the Gujarat Industrial Relations Act . In the proceedings before the Labour Court, though notice served upon the opponent – petitioner, however, the opponent had not remained present and hence the right to file the reply was closed, subsequently, the right to cross-examine the witnesses was also closed vide Exhibit 16. The Labour Court vide award dated 22.03.2007, after considering oral as well as documentary evidence, passed an award and ordered to reinstate the respondent along with compensation of Rs.50,000/- and costs. That again Application No. 172 of 2007 was filed by the petitioner for restoration / recalling of the award, which came to be allowed with cost of Rs.10,000/- and restored the proceedings on 05.08.2008 and restored original Application No. 623 of 2003 on its original file. Thereafter, considering the relevant materials, the Labour Court passed the aforesaid award.

3. Heard Mr.Dipak Dave, learned counsel for the petitioner and Mr.U. T. Mishra, leaned counsel for the respondent at length. Perused the material available on record.

4. Mr. Dave, learned counsel for the petitioner has submitted the same facts which are narrated in the memo of appeal and has further submitted that there was no employer and employee relationship established as there was no appointment order issued in favour of the respondent and he was working only for temporary period of two hours in a day and, therefore, as per the provision of Section 3 (2) of the Act, he was not fallen under the definition of the workman. He has further submitted that the respondent was not regular employee and no salary slip or anything issued in favour of the respondent and even no any documentary evidence was produced to prove his case. He has submitted that such contention raised by the petitioner was not considered by the Labour Court at all while adjudicating the dispute. He has submitted that instead of reinstatement with back wages, the Court may dispose of the petition by passing appropriate order of lump sum compensation.

5. Mr.Mishra, learned counsel for the respondent was unable to controvert the submissions made on behalf of the petitioner and has submitted that appropriate order of compensation may be passed.

6. Considering the submissions canvassed by learned counsel appearing for the respective parties and the impugned award passed by the Labour Court, it appears that the Labour Court has rightly appreciated the evidence while coming to the conclusion and without there being any rebuttal, on the other hand, the Labour Court has passed an award of reinstatement with 25% back wages along with costs which is erroneous. In view of the decision of the Hon’ble Supreme Court in the case of Maharashtra State Cooperative Marketing Federation Limited Ve