(Per : HONOURABLE MR.JUSTICE D.H.WAGHELA)
1. The appellant has sought to challenge order dated 8.2.2012 of learned Single Judge of this court in Special Civil Application No. 18212 of 2011 whereby petition of the appellant has been rejected. There is no dispute about the facts that the respondent having been removed from service on the basis of allegation of misconduct without holding any inquiry or following any procedure whatsoever; and upon the industrial dispute being raised, the Labour Court awarded reinstatement with 25% back wages and continuity of service.
2. Learned senior counsel Mr K.M. Patel appearing for the appellant vehemently argued that having regard to the record of service of the respondent and serious allegation of habit of the respondent of indulging in taking alcoholic drinks, the order of reinstatement was required to be modified so as to award some lumpsum amount by way of compensation. He further submitted that the Labour Court has made certain assumptions and observations in the award which were unwarranted and could become basis of other claims by the respondent.
3. Although the original petition of the appellant was styled as petition under Articles 226 and 227 of the Constitution, the jurisdiction invoked and exercised in making the impugned order is apparently under Article 227 of the Constitution and, therefore, strictly speaking, the appeal would not be maintainable. As for the prayer for modifying the order, that aspect has been elaborately and duly dealt with by the learned Single Judge in the impugned order and there is no reason to take a different view. As for the observations made in the award of the Labour Court, the objectionable part, according to the appellant was that though the respondent was employed on temporary basis, the Labour Court had observed that it was not just and proper to call the respondent a temporary employee in view of the fact that he was appointed on regular pay scale by a Resolution dated 29.9.2003. Apparently such observations are made in the context of the arguments of the appellant that the respondent could have been discharged from service without following the necessary procedure because he was in temporary employment of the appellant. Torn from that context, it could not be claimed that the respondent was employed on permanent basis by the appellant. Therefore, subject to that observation, the appeal is dismissed in limine along with Civil Application.
[D.
H. WAGHELA, J.] [G.
B. SHAH, J.] msp Top