S.R. Brahmbhatt, J.1. Heard learned Counsels for the parties.2. The Appellant, who happens to be the Original Petitioner in Special Civil Application No.9278 of 2000, has taken-out this Letters Patent Appeal for assailing the Judgment and Order, dated 2nd April 2012 passed in Special Civil Application No.9278 of 2000, whereby the learned Single Judge has partly allowed the Petition and the judgment and Award of the reinstatement passed by the Presiding Officer, Labour Court, Navsari in Reference (L.C.N.) No.8 of 1994, dated 21st February 2000 was confirmed. However, in view of the statement made by Mr. S.C. Patel, learned Advocate for the Respondent Workman, the Award of 50% Back Wages was quashed and Judgment and Award stands modified accordingly.3. The facts in brief as could be gathered from the Memo and proceedings required to be set-out as under:3.1. The Respondent-Workman was initially working on the post of Civil Mistry and Work Charge Establishment since 24th December 1980. It appears from the record that the said order came to be extended from time to time till 15th April 1981.3.2. The Respondent-Workman thereafter applied for the post of Clerk-cum-Typist-in the pay scale of '290-10-320-12-380-15-485-18-575. It appears from the record that pursuant to the said application, the Petitioner initiated Recruitment process. It appears from the record that the Petitioner's Circle Selection Committee held interview on 17th March 1981, wherein the report of 24 Candidates, who were called for the interview for the post of Junior Clerk-cum-Typist were considered and ultimately, the same culminated into the Appointment Order, dated 23rd April 1981. It appears that thereafter, the Respondent reported to the duties and was appointed at Vapi.3.3. It appears from the record that thereafter, the Petitioner through Superintending Engineer issued a Corrigendum, dated 9th June 1981 whereby Clause (2) of the original Appointment Order, dated 23rd April 1981 was substituted as provided in the said corrigendum. It appears that thereafter, the Written test was taken, wherein the Respondent-Workman failed and therefore, the services of the Respondent-Workman came to be terminated.3.4. The Respondent-Workman raised a dispute before the Competent Authority and as the conciliation failed, the said dispute was referred to the Presiding Officer of the Labour Court, Navsari and the same came to be registered as Reference (L.C.N) No.8 of 1994. The Labour Court, after hearing both the parties and after appreciating the evidence adduced by both the sides, by the impugned Judgment and Award, dated 21st February 2000 partly allowed the reference and directed the Petitioner-Employer to reinstate the Respondent-Workman with 50% Back Wages. Being aggrieved by the same, the Petitioner has filed Special Civil Application No.9278 of 2000.The Court therefore, partly allowed the Petition and as the statement was made by the learned Counsel for the Respondent-Workman, the Award of 50% Back Wages was quashed and set aside. Being aggrieved and dissatisfied with the said order, the Appellant filed the present Appeal.4. Learned Counsel for the Appellant submitted that the Labour Court in case of Termination of Contract could not have been gone beyond the scope of the limitation.5. Learned Counsel for the Appellant further submitted that the Workman was estopped from agitating as she had accepted the corrigendum without any demur and she acted upon the corrigendum by availing the opportunity of passing the examination. However, having availed this opportunity, as per corrigendum, it was not open to the Workman to turn around and contend that the corrigendum itself was uncalled or illegal.6. Learned Counsel for the Appellant further contended that the said factor has also been borne-out by the deposition of the Workman as she had answered the question that she has not raised any objection in writing to the same. All these factors go to show that the corrigendum had been accepted could not have been a subject matter of challenge and when she failed in passing the examination, she could not have challenged the same.7. Learned Counsel for the Appellant submitted that even as per the original Appointment Order, the Workman was on probation for one year and when her services came to be dispensed with during the said period, there could not have been any objection thereof irrespective of corrigendum.8. Learned Counsel for the Appellant further contended that the simpliciter discharge during the probation period would not attract the provision of Section 25-F of the Industrial Disputes Act, 1947. He further drawn the attention of this Court to the Paragraph Nos.24, 31, 32, 33, 34, 35 & 37 of the Judgment of the Supreme Court in case of Muir Mills Unit of NTC (UP) Ltd. v. Swayam Prakash Srivastava, 2007 (1) LLN 109 (SC): 2007 (112) FLR 865 (SC).9. Learned Counsel for the Appellant submitted that Exh.25 clearly indicates that the chance to improve upon the work was already given and the Termination of probation therefore, can be said to be only on the basis of finding that she is not in a position to cope-up with the work. He further submitted that out of six such Employees, two i.e., the Workman and one more could not clear the exam, and if rest of the four given appointment, there was no case of victimisation.10. Assuming that there is a violation of Section 25-F and if it is illegal, Termination, then also looking to the tenure of service lump sum Compensation be awarded. The Workman attained the age of Superannuation. In case if the Court is not inclined to accept the submission, the adequate Compensation around Rs.4,00,000 may be awarded and that would meet the ends of justice and subject to approval of the Appellant.11. Learned Counsel for the Appellant to support his case relied on the following authorities;(1) In case of Muir Mills Unit of NTC (UP) Ltd. v. Swayam Prakash Srivastava, 2007 (1) LLN 109 (SC): 2007 (112) FLR 865 (SC);(2) In case of State of Rajasthan v. Sarjeet Singh, 2007 (1) LLN 122 (SC): 2006 (111) FLR 908 (SC);(3) In case of Arvindbhai Manjibhai Mer v. Ahmedabad District Cooperative Bank and others, 2017 Law Suit (Guj). 2042;(4) In case of Rakhial Gram Panchayat v. Jagatsinh Adesinh Jhala, 2017 Law Suit (Guj) 2420;(5) In case of Management, Hindustan Machine Tools Ltd. v. Ghanshyam Sharma, 2018 (4) LLN 572 (SC): 2018 (159) FLR 883 (SC); and(6) In case of District Development Officer and another v. Satish Kantilal Amrelia, 2018 (2) LLN 39 (SC): 2017 Law Suit (Guj) 1218.12. Learned Counsel for the Respondent-Workman submitted that the Order passed by the learned Single Judge needs no interference and the same is based upon the concurrent finding of the facts and therefore, the Court may not interfere thereon.13. Unfortunately, learned Counsel could not show the terms of reference and when the entire Order of Dismissal was under scrutiny, the original order and the corrigendum were taken into consideration and the Court held that the corrigendum was uncalled for.14. We have heard learned Counsels for the parties and perused the original Award, impugned Order and Judgment passed by the learned Single Judge. The following Paragraphs (Nos.10 to 13, 15 & 16) of the Judgment passed by the learned Single Judge, which would clearly indicate that the Order impugned needs no interference required to be set-out as under:“(10) Before considering the rival submissions made by the learned Advocates appearing for the parties, it is appropriate to note the following:(a) By an Appointment Order, dated 23.4.1981, the Respondent-Workman came to be appointed as typist, wherein Clauses 2 & 3 of the said. Appointment Order reads as under:”2. The post is sanctioned on the Regular Establishment.3. You will be on probation for a period of one year in the first instance. The Gujarat Electricity Board however, reserves the right of Termination of services of an Employee during the probationary period at any time without assigning any reasons and without giving any notice.“(b) The corrigendum Exh.16 reads as under:”In partial modification of Clause No.2 of this Office Appointment Letter No.TGNS/ESTT/403. B/2525, 2526, 2527, 2528 & 2529 dated 23.4.1981, this is to inform you that the Clause 2 referred to above will be read as under:“Your appointment is purely on temporary basis for a period not exceeding six months and subject to your getting through successfully the speed test being held after the period of 6 months or earlier whatsoever deemed appropriate to the administration.”(11) On reading the corrigendum, it transpires that the Petitioner by issuance of corrigendum in fact deleted Clause 2 of the Appointment Order, dated 23.4.1981. If the contentions raised by Mr. Hasurkar are examined in this context, Clause 2 of the Appointment Order, dated 23.4.1981, which inter alia provided that the post is sanctioned on regular establishment is changed to a temporary post for six months with the conditions mentioned in the corrigendum Exh.16, whereas Clause 3 inter alia provides that the Respondent-Workman will be on probation for a period of one year in the first instance. Even condition No.4 of the said Appointment Order, dated 23.4.1981 provides that the Respondent-Workman would be eligible for confirmation on satisfactory completion of the probationary period. This Court finds that the corrigendum not only changed service conditions after the Respondent-Workman was appointed and joined the service, but also Clause 2, which is amended/substituted runs counter to Clauses 3 & 4 of the Appointment Order, dated 23.4.1981 as if Clause 2 is read in isolation, the selection would be temporary for six months. If that be the case, it goes without saying that there cannot be any probation for one year and further there cannot be any confirmation on satisfactory completion of the probationary period so provided.(12) The contention raised by the learned Advocate for the Petitioner that the appointment of the Respondent-Workman would attract the provisions of Section 2(oo)(bb) of the Act fails on this contradiction itself. Furthermore, no such contention is raised by the Petitioner before the Presiding Officer of the Labour Court, except the Appointment Order and the corrigendum. It appears that no other material has been produced by the Petitioner to show that the appointment was for a specified period on a contract.(13) The other limb of argument that the Respondent was on probation and that she was supposed to test the suitability of the Petitioner-Employer, though attractive at the first glance, runs counter to the very basis of the Termination, inasmuch as, on one hand, the Petitioner has relied upon the corrigendum whereby initially the appointment of the Respondent-Workman was on regular basis, which was changed to the appointment of temporary period of six months unilaterally as rightly noted by the Labour Court, whereas while arguing on the aspect of probation, the Petitioner has raised the contention that if the efficiency bar is not fulfilled and if the services of the Respondent-Workman were found not to be satisfactory, the Petitioner-Employer was within his right to discontinue the services of the Respondent-Workman. Only because the Respondent-Workman acceded to the directions issued by the Petitioner to appear in the type test would not make the said post temporary for six months. It is not the case of the Petitioner that any further corrigendum was issued or that Clause 2 as provided in the corrigendum Exh.16 was the only Clause to be read and that the initial Order, dated 23.4.1981 was substituted by such a corrigendum. On the contrary, on reading the Appointment Order, dated 23.4.1981, at the end, there is an endorsement, which reads as under:"She is posted against the created post of Junior Clerk cum Typist."(15) In view of the ratio laid down
Please Login To View The Full Judgment!
by the Hon'ble Supreme Court in the case of Devinder Singh (supra), the Labour Court, having examined the reference on the basis of the cogent evidence, has rightly come to the conclusion that the Termination of the Respondent-Workman was illegal and in view of the ratio laid down by the Hon'ble Supreme Court, as aforesaid, even the contentions raised by the Petitioner in this Petition regarding applicability of Section 2(oo) (bb) of the Act and non-applicability of Section 25-F of the Act are misconceived.(16) Considering the findings arrived at by the Labour Court, this Court finds that there is no error apparent on the face of the record, which warrants any interference by this Court in its extraordinary jurisdiction under Article 226 and/or 227 of the Constitution of India. The Petition is therefore deserves to be partly allowed."15. The aforesaid reasoning if appreciated in the facts narrated in the Petition would unequivocally go to indicate that the same cannot be said to be in any manner incorrect or erroneous so as to call for interference. Therefore, we are in complete agreement with the Judgment and Order, dated 2nd April 2012 passed in Special Civil Application No.9278 of 2000. As a result thereof, Appeal fails and the same is accordingly dismissed. However, there shall be no order as to Costs.