Sahityaratna Lokshahir Annabhau ... vs Pravin Satva Telang
2023 Latest Caselaw 11340 Bom

2023:BHC-AS:33652
                                                                                  WP3722-2023.DOC

                                                                                                Santosh
                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        CIVIL APPELLATE JURISDICTION


                                       WRIT PETITION NO. 3722 OF 2023

               1      Sahitya Ratna Lokshahir Annabhau
                      Sathe Development Corporation Ltd.,
                      Mumbai, Administrative Building, 3rd
                      Floor, Ramkrishna Chemburkar Marg,
                      Chember (East), Mumbai - 400 071
                      Through its Managing Director
               2      M/s. Sahitya Ratna Lokshahir
                      Annabhau Sathe Development
                      Corporation Ltd., District Office, Nashik
                      Dr. Babasaheb Ambedkar Samajik
                      Nyaya Bhavan, Near Nasardi Bridge,
                      Nashik-Pune Road, Nashik - 422 011                             ...Petitioners
                                        Versus
                      Shri. Pravin Satva Telang
                      Age - 29 years, Occ. NIL
                      Panchsil Nagar, Behind Vijay - Mamta
                      Theater, Nashik - 422 006                                    ...Respondent

               Mr. Chandrakant Chandratre, for the Petitioner.
               Mr. Avinash Jalisatgi, a/w T. R. Yadav and Divya Wadkar, for
                    the Respondents.


                                                          CORAM: N. J. JAMADAR, J.

RESERVED ON : 11th JULY, 2023 PRONOUNCED ON : 4th NOVEMBER, 2023 JUDGMENT:-

1. Rule. Rule made returnable forthwith and, with the

consent of the learned Counsel for the parties, heard finally.

2. This petition under Articles 226 and 227 of the

Constitution of India assails the legality, propriety and

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correctness of the judgment and order dated 4 th July, 2022

passed by the learned Member, Industrial Court, Nashik, in

Revision Application (ULP) No.43 of 2021 in Complaint (ULP)

No.15 of 2020, whereby the learned Member, while rejecting the

revision application preferred by the petitioners, was persuaded

to modify the interim order to the extent of payment of 50% of

salary instead of full interim reinstatement, ordered by the

learned Judge, Labour Court, Nashik.

3. Shorn of unnecessary details, the background facts

leading to this petition can be stated as under:

(a) Petitioner No.1 is a Corporation established by the

State Government to ensure Economic and Social Up-liftment of

persons belonging to 13 specified castes. It has also been

registered as a limited company under the Companies Act, 1956.

The State Government in Social Justice Department exercises

all pervasive control over the affairs of petitioner No.1. It is thus

a State within the meaning of Article 12 of the Constitution of

India.

(b) The respondent was initially appointed as a peon on

daily wage basis under an order dated 1st December, 2012. By a

further order dated 31st May, 2013 the respondent was

confirmed as a regular employee and was appointed on

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probation of one year. By a subsequent order dated 21 st August,

2014 the respondent was declared to have satisfactorily

completed the probationary period.

(c) The respondent approached the Labour Court with a

complaint of unfair labour practice under Schedule IV Item 1(a),

(b), (d), (f) and (g) of the Maharashtra Recognition of Trade Union

and Prevention of Unfair Labour Practices Act, 1971 ("the Act,

1971"), with the allegations that despite the respondent having

been appointed on a clear and vacant post by following the

procedure, which petitioner No.1 had adopted in giving

employment to all its employees, a notice was served on the

respondent on 5th October, 2015 calling upon him to show cause

as to why his services be not terminated. Since such notices

were issued to other employees as well, a complaint of unfair

labour practice, being ULP Case No.115 of 2015, was filed before

the Industrial Court. During the pendency of the said

complaint, on 5th May, 2016 the respondent was allegedly

unlawfully suspended. As the subsistence allowance was not

paid to the complainant in ULP No.430 of 2015, the learned

Member, Industrial Court, passed certain interim orders.

Thereupon by an order dated 10th October, 2017, suspension

came to be revoked and the respondent resumed his duties at

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Nashik office - petitioner No.2, on 28th August, 2017. The

respondent further alleged that petitioner No.1 had served a

charge-sheet on the respondent on 28 th June, 2017. However,

till the petitioner came to be terminated by an order dated 27 th

July, 2020 disciplinary proceedings were not conducted.

Indeed, by the said order dated 27 th July, 2020, the petitioner's

services came to be terminated without adhering to the

mandate of law.

(d) In the complaint, the respondent alleged that the

purported claim of petitioner No.1 that the respondent came to

be appointed without following regular recruitment process and

it was a case of back-door entry, is a subterfuge. Since the

establishment of petitioner No.1 Corporation had never resorted

to and followed any recruitment process, respondent was

appointed on a clear and vacant post by following the method

which the petitioner No.1 adopted in the matter of appointment

of employees. It was further alleged that against few of the

employees, who were also allegedly appointed without following

regular recruitment process, no action was taken. Moreover,

even the employees, who came to be appointed subsequent to

the respondent and rendered relatively less service, were also

protected. The respondent, thus, alleged that discriminatory

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practices were adopted by petitioner No.1. In the said complaint

respondent took out an application for interim relief under

Section 30(2) of the Act, 1971.

(e) The petitioners resisted the complaint and interim

application by filing a written statement. The petitioners

contended that the respondent was appointed by the then

management of petitioner No.1 in the absence of any sanctioned

post. No recruitment process as such, was followed. As a large

scale fraud and mismanagement in the affairs of petitioner No.1

was noticed, an enquiry was instituted, and the said enquiry

revealed that 82 employees were given back-door entry in the

absence of sanctioned posts and sans any recruitment process.

Respondent was one of them. Since it is a case of "public

employment", the appointment of the respondent was wholly

illegal since inception. It was, therefore, not necessary for the

petitioners to follow any disciplinary proceedings. Yet the

respondent was given an opportunity to show cause and,

thereafter, the termination order came to be passed.

(f) As regards the interim relief, the petitioners

contended that the interim relief sought by the respondent was

in the nature of final relief and, thus, cannot be granted during

the pendency of the complaint.

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(g) The learned Judge, Labour Court, after appraisal of

the material on record was persuaded to grant interim relief

directing the petitioners to allow the respondent to resume his

duties during the pendency of the complaint. The learned

Judge was of the view that the termination in question was not

a simplisitor discharge but a stigmatic termination. The

employer had resorted to terminate the services of the petitioner

without following the due process of law and in utter disregard

to the principles of natural justice. Holding that the balance of

convenience lay in favour of the respondent and that the latter

would suffer irreparable loss, the learned Judge repelled the

challenge based on the ground that interim relief would partake

the character of final relief.

(h) The petitioners carried the matter in revision before

the Industrial Court. By the impugned order, the learned

Member, Industrial Court, rejected the revision holding, inter

alia, that even if the entry of the employee was not in conformity

with the recruitment process, the termination must be in

conformity with the procedure established by law. The learned

Member, Industrial Court, also found that there was apparent

discrimination as few of the employees, over whose employment

also there was a cloud of doubt, like the respondent, were

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spared and retained in service. The learned Member, Industrial

Court, however, found it appropriate to modify the order to the

extent of payment of salary, post interim reinstatement, and

directed that the respondent be paid 50% of the salary.

4. Being aggrieved, the petitioners have invoked the writ

jurisdiction.

5. I have heard Mr. Chandratre, the learned Counsel for the

petitioners, and Mr. Jalisatgi, the learned Counsel for the

respondent, at some length. The learned Counsel took the

Court through the pleadings and documents on record and the

impugned orders.

6. Mr. Chandratre, the learned Counsel for the petitioners,

submitted that the learned Judge, Labour Court, as well as the

learned Member, Industrial Court, committed a manifest error

in not appreciating the substance of the matter.

Incontrovertibly, according to Mr. Chandratre, the petitioner is a

State within the meaning of Article 12 of the Constitution of

India and the respondent was appointed without following any

recruitment process. An enquiry found large scale irregularities

in the administration of the affairs of the petitioner No.1 -

Corporation. Since the appointment of the respondent and

similarly circumstanced employees was wholly illegal and clearly

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amounted to backdoor entry in breach of the constitutional

imperative of equality in the matter of public employment and

sans any recruitment process worth its name, the termination

of the services of the respondent cannot be faulted at. The

learned Judge, Labour Court and the learned Member,

Industrial Court, failed to appreciate the real question that

arose for consideration while granting interim relief, namely,

should the illegality in appointment be perpetuated?

7. Mr. Chandratre submitted that it is well settled that illegal

appointments cannot be countenanced and do not deserve any

protection. Both the courts below lost sight of the fact that by

directing reinstatement of the respondent by way of interim

relief, an illegal order of appointment would stand revived. To

bolster up this submission Mr. Chandratre placed reliance on

the decisions of the Supreme Court in the cases of State of

Manipur and others vs. Y. Token Singh and others1 and Arbind

Kumar vs. State of Jharkhand and others2.

8. Mr. Chandratre would further submit that the impugned

orders are also legally unsustainable as the reinstatement of the

respondent during the pendency of the complaint, at an interim

stage, has the effect of granting the final relief which the

1(2007) 2 Supreme Court Cases (L&S) 107.

2(2019) 2 Supreme Court Cases (L&S) 213.

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respondent would otherwise be entitled to only upon proof of

unfair labour practices. It was submitted that it is well neigh

recognized that by way of interim relief reinstatement cannot be

ordered as that would revive the employer - employee

relationship which was brought to an end by termination. On

this count, the impugned orders deserve to be interfered with.

Mr. Chandratre placed reliance on a judgment of a Division

Bench of this Court in the case of State of Maharashtra and

others. vs. Pandurang Sitaram Jadhav3, wherein the Division

Bench held that the provisions of Model Standing Orders by

themselves cannot and do not confer any right of permanency

unless and until the other prerequisites are satisfied, i.e. (i)

appointment being in conformity with rules relating to

appointment and (ii) permanent sanctioned vacant post being in

existence.

9. Mr. Chandratre also invited the attention of the Court to

an order dated 13th October, 2020 in Writ Petition (St) no.92902

of 2020 in the matter of Amrat Rajaram Pawar and others vs.

Lokshahir Annabhau Sathe Corporation Ltd. and ors., whereby

while, admitting the petition of the similarly circumstanced

terminated employees of the petitioner No.1, this Court declined

to grant any interim relief observing that there was no question

3Letter Patent Appeal No.14/2008 in WP/4141/2006.

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of granting of any interim relief as the employer's main

contention was that the petitioners appointments were made

without following due process of law. Mr. Chandratre would

urge, in the event, the complaint is allowed and it is held that

the petitioner indulged in unfair labour practices, appropriate

order regarding reinstatement with continuity of service with

backwages can be passed. However, till the termination holds

the field, the Courts below were in error in ordering

reinstatement, especially when the appointment of the

respondent was ex facie illegal.

10. Mr. Jalisatgi, the learned Counsel for the respondent,

countered the submissions of Mr. Chandratre by canvassing a

two-fold submission. One, even though initial appointment is

found to be illegal yet the employer is statutorily enjoined to

follow the mandate of the provisions contained in Section 25-F

and the succeeding provisions in the matter of termination of

the services of the employee which amounts to retrenchment.

Mr. Jalisatgi would thus urge that, in other words, even where

the initial appointment can be said to be tainted with illegality,

the termination of the employee cannot be illegal. To buttress

this submission, Mr. Jalisatgi placed a very strong reliance on

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the decision of the Supreme Court in the case of Ajaypal Singh

vs. Haryana Warehousing Corporation4.

11. The second limb of the submission of Mr. Jalisatgi was

that the petitioner has indulged in invidious discrimination, in

the matter of action against the employees who were allegedly

appointed without following recruitment process. Inviting the

attention of the Court to the averments in the complaint

especially as regards the nine employees against whom no

action of whatsoever nature has been taken and the fact that

out of 82 employees action is initiated against only 58 persons,

Mr. Jalisatgi submitted that such invidious discrimination

between the similarly circumstanced employees in itself

furnishes a sustainable ground to grant interim relief. Mr.

Jalisatgi would urge that the said allegation of discrimination

have virtually gone unchallenged. To this end, Mr. Jalisatgi

placed reliance on a decision of the Supreme Court in the case

of Bhartiya Seva Samaj Trust through President and another vs.

Yogeshbhai Ambalal Patel and another5.

12. Mr. Jalisatgi further submitted that the petitioner -

Corporation had in fact appointed 200 odd employees. None of

the employee was appointed by following any recruitment

4(2015) 6 Supreme Court Cases 321.

5(2012) 9 Supreme Court Cases 310.

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process. Therefore, the petitioner cannot be urged to say that

the appointment of the respondent was, in a sense, a backdoor

entry.

13. To start with, it may be apposite to note that the character

of the petitioner No.1 as an instrumentality of the State appears

rather incontrovertible. The petitioner No.1 being an

instrumentality of the State, the principle of "public

employment" governs the appointment of the employees in the

petitioner No.1 establishment.

14. It is not the case of the respondent that the respondent

came to be appointed with the petitioner No.1 after following a

recruitment process. On the contrary, it is the bold case of the

respondent that since the year of the establishment of the

petitioner No.1 - Corporation no recruitment, followed by a

public advertisement, has been resorted to. The respondent

was also appointed in a similar fashion under an order passed

by the Managing Director dated 1st December, 2012. The

respondent further claimed that on 28 th September, 2012 after

having learnt about the vacancy in the petitioner No.1

establishment, he had applied for the said post and after finding

him suitable in all respect, he came to be appointed as a peon

and subsequently confirmed.

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15. In the case of State of Karnataka vs. Umadevi6, the

Supreme Court enunciated that adherence to the rule of

equality in public employment is a basic feature of our

Constitution and since the rule of law is the core of our

Constitution, a Court would certainly be disabled from passing

an order upholding a violation of Article 14 or in ordering the

overlooking of the need to comply with the requirements of

Article 14 read with Article 16 of the Constitution of India. A

distinction was drawn between illegal and irregular

appointment. A mechanism to absorb the persons in service

whose appointments were irregular, as distinct from illegal, was

also devised. If the appointment is illegal there is no question of

regularization.

16. In the case of Maharashtra SRTC vs. Casteribe Rajya

Parivahan Karmachari Sanghathna7, the Supreme Court

clarified that Umadevi (supra) does not denude the Industrial

and Labour Courts of their statutory power under Section 30

read with Section 32 of the MRTU and PULP Act to order

permanency of the workers who have been victims of unfair

labour practice on the part of the employer under Item 6 of

Schedule IV where the posts on which they have been working

6(2006) 4 SCC 1.

7(2009) 8 SCC 556.

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exist. Umadevi (supra) cannot be held to have overridden the

powers of the Industrial and Labour Courts in passing

appropriate order under 30 of the MRTU and PULP Act, once

unfair labour practice on the part of the employer under Item 6

of Schedule IV is established.

17. Banking upon the aforesaid enunciation of law in the case

of Casteribe (supra) Mr. Jalisatgi would submit that the

termination of the services of the respondent, even on the

premise that the initial appointment was illegal, ought to have

been in conformity with the provisions contained in Section 25-

F of the Industrial Disputes Act, 1947. An illegal appointment

per se does not justify an illegal termination.

18. In the case of Ajaypal Singh (supra) on which a strong

reliance was placed on behalf of the respondent, the following

question arose for determination:

Whether the validity of initial appointment of a

workman can be questioned in a case in which

court/tribunal has to determine whether the termination

of service of the workman which comes within the

meaning of "retrenchment", is violative of Section 25-F of

the Industrial Disputes Act?"

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19. The aforesaid question arose before the Supreme Court in

the backdrop of the following facts. The appellant therein was a

workman within the meaning of 2(s) of the Industrial Disputes

Act, 1947, with the Haryana Warehousing Corporation -

respondent therein which was an industry within the meaning

of Section 2(j) of the Act, 1947, and the appellant had completed

more than 240 days of service in the preceding calander year

and yet his services were terminated with effect from 1 st July,

1988 without notice pay or compensation in terms of Section

25-F of the Act, 1947.

20. The aforesaid question was answered by the Supreme

Court in paragraphs 21 to 24 as under:

"21. We have held that provisions of Section 25H are in conformity with the Articles 14 and 16 of the Constitution of India, though the aforesaid provisions (Articles 14 and 16) are not attracted in the matter of re-employment of retrenched workmen in a private industrial establishment and undertakings. Without giving any specific reason to that effect at the time of retrenchment, it is not open to the employer of a public industrial establishment and undertaking to take a plea that initial appointment of such workman was made in violation of Articles 14 and 16 of the Constitution of India or the workman was a backdoor appointee.

22. It is always open to the employer to issue an order of "retrenchment" on the ground that the initial appointment of the workman was not in conformity with Articles 14 and 16 of the Constitution of India or in accordance with rules. Even for retrenchment on such ground, unfair labour practice cannot be resorted and thereby workman cannot be retrenched on such ground without notice, pay and other benefits in terms

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of Section 25F of the Industrial Disputes Act, 1947, if continued for more than 240 days in a calendar year.

23. However, in other cases, when no such plea is taken by the employer in the order of retrenchment that the workman was appointed in violation of Articles 14 and 16 of the Constitution of India or in violation of any statutory rule or his appointment was a backdoor appointment, while granting relief, the employer cannot take a plea that initial appointment was in violation of Articles 14 and 16 of the Constitution of India, in absence of a reference made by the appropriate Government for determination of question whether the initial appointment of the workman was in violation of Articles 14 and 16 of the Constitution of India or statutory rules. Only if such reference is made, a workman is required to lead evidence to prove that he was appointed by following procedure prescribed under the Rules and his initial appointment was legal.

24. In the present case, the services of appellant was not terminated on the ground that his initial appointment was made in violation of Articles 14 and 16 of the Constitution of India. No such reasons was shown in the order of retrenchment nor was such plea raised while reference was made by appropriate Government for adjudication of the dispute between the employee and the employer. In absence of such ground, we are of the opinion that it was not open for the High Court to deny the benefit for which the appellant was entitled on the ground that his initial appointment was made in violation of Articles 14 and 16 of the Constitution of India."

(emphasis supplied)

21. The aforesaid arguments found favour with the learned

Member, Industrial Court. I have given anxious consideration to

the proposition sought to be canvassed by Mr. Jalisatgi. I find it

difficult to accede to the broad submission of Mr. Jalisatgi that

de hors nature of initial appointment the termination must be in

conformity with the mandate contained in Section 25-F of the

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Act, 1956. The judgment of the Supreme Court in the case of

Ajaypal Singh (supra), if considered in the correct perspective,

cannot be said to lay down such an absolute proposition. On the

contrary, it appears that in the said case, the order of

retrenchment was not on the ground that the initial

appointment was illegal. When the workman therein challenged

the retrenchment, an endeavour was made on behalf of the

State to justify the termination on the ground that the initial

appointment itself was illegal. It is in that context, the Supreme

Court held that, without giving any specific reason at the time of

retrenchment, it was not open to the employer of public

industrial establishment and undertaking to take a plea that

initial appointment of such employee was made in violation of

Articles 14 and 16 of the Constitution of India or the workman

was a backdoor appointee.

22. In the instant case, as noted above, after the enquiry

report revealed that large scale appointments were made with

the petitioner No.1 Corporation without following any

recruitment process, a notice was issued calling upon the

respondent and the similarly circumstanced employees to show

cause as to why the services of the petitioner should not be

terminated. The termination order dated 27 th July, 2020

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records that since the initial appointment of the respondent was

found wholly illegal and unconstitutional, a notice to show

cause was served on respondent No.1 on 5 th December, 2015

and the respondent had given an explanation thereto on 9 th

October, 2015. Whether the termination of the respondent was

legal and valid would undoubtedly be a matter for adjudication

in the complaint of unfair labour practices. However, it cannot

be said that the petitioner has tried to justify the termination,

which otherwise amounts to retrenchment, by subsequently

asserting that the initial appointment was illegal. In fact, the

very basis of initiating the action by the petitioner was the

enquiry report that there were large scale illegal appointments.

In a situation of the present nature, in my view, the decision of

the Supreme Court in the case of Ajaypal Singh (supra) cannot

be applied with equal force.

23. The learned Judge, Labour Court, was of the view that the

termination of the respondent was stigmatic and the said order

was passed without conducting disciplinary enquiry and

following due process of law and thus it prima facie amounted to

unfair labour practice. It was, inter alia, observed that the

question as to whether the appointment of the petitioner was

illegal was required to be determined by conducting a proper

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departmental enquiry by appointing an independent enquiry

officer.

24. The learned Judge, Labour Court, it seems, lost sight of

the fact that so far as the right of the employer to justify the

termination of an employee before the Industrial adjudicator, a

case of "no enquiry", by and large, stands on the same footing

as that of a, "defective enquiry".

25. In the case of The Workmen of M/s. Firestone Tyre and

Rubber Co. of India (Pvt) Ltd. vs. The Management and Ors. 8,

while culling out the principles which emerged before the

introduction of Section 11-A in the Industrial Disputes Act,

1947, the Supreme Court in paragraph 33 enunciated that

before imposing a punishment, the employer is expected to

conduct proper enquiry in accordance with the provisions of the

Standing Orders, if applicable, and principles of natural justice.

The enquiry should not be an empty formality. Even if no

enquiry has been held by an employer or if the enquiry held by

him is found to be defective, the Tribunal in order to satisfy

itself about the legality and validity of the order, has to give an

opportunity to the employer and to, adduce evidence before it. It

is open to the employer to adduce evidence for the first time

8 (1973) 1 SCC 813.

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justifying his action; and it is open to the employee to adduce

evidence contra. It has never been recognised that the Tribunal

should straightaway, without anything more, direct

reinstatement of a dismissed or discharged employee, once it is

found that no domestic enquiry has been held or the said

enquiry is found to be defective.

26. Secondly, the courts below did not properly appreciate

that on facts, prima facie, there was not much dispute. In the

complaint itself, the respondent-complainant asserted that on

28th September, 2012 the respondent had tendered an

application to appoint him to the post of peon and after finding

the him suitable, he came to be appointed by an order dated 1 st

December, 2012. The respondent nowhere claimed that he had

participated in any recruitment process. On the contrary, it was

the stand of the respondent that the petitioner never made

appointment by following a recruitment process. It is in the

backdrop of these uncontroverted fats, the allegations of unfair

labour practices were required to be determined, for the limited

purpose of grant of interim relief.

27. Under the provisions of Section 30(2) of the MRTU and

PULP Act the Court/Tribunal is empowered to grant interim

relief. However, it is well recognized that normally the interim

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relief ought not to be the whole relief to which a party would be

entitled to at the stage of final adjudication. A profitable

reference in this context can be made to the judgment of the

Supreme Court in the case of Management of Hotel Imperial

and ors. vs. Hotel Workers' Union9, wherein in the matter of

grant of the interim relief by the Industrial Tribunal, the

Supreme Court had enunciated that ordinarily interim relief

should not be the whole relief that the workman would get if he

succeeds finally.

28. It is equally well settled principle that where the employer

- employee relationship is brought to an end by an order of

termination, ordinarily, during the pendency of the

complaint/reference the Court/Tribunal shall not direct the

reinstatement of the terminated employee as that would amount

to compelling the employer to continue to employ a person

whose services have been terminated on account of the

misconduct or otherwise. If at the conclusion of the

proceedings, the Court finds that the employee was wrongfully

terminated from the service, the Court is equipped to pass

appropriate orders, including reinstatement with all

consequential benefits. A profitable reference in this context

can be made to the judgment of this Court in the case of United

9AIR 1959 SC 1342.

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Ink and Varnish Co. Ltd. vs. Chandrashekhar Kuvre and

others10, wherein it was observed as under:

"8. The legal position is no more res intergra that inter alia where an order of dismissal of an employee on the ground of misconduct is passed without holding the domestic enquiry, it is open to the employer to prove the misconduct in the Court. That being the legal right available with the employer, we hardly find any justification in the order of the Industrial Court directing the employer to reinstate the complainant and pay him wages during the pendency of the complaint. That order, in our view, is not justified even in exercise of the power under Section 30(2) of the MRTU and PULP Act. The order passed by the Industrial Court, if allowed to stand, would occasion in failure of justice inasmuch as despite the right having been given in law to the employer to prove the misconduct in the Court in a case where the order of dismissal was not preceded with by the domestic enquiry, such legal right would be seriously prejudiced. On the other hand, if ultimately, the employer fails to establish the misconduct and the complaint is allowed; the order of dismissal is set aside, obviously, an appropriate consequential order shall be passed by the Court."

29. Mr. Jalisatgi submitted that the learned Member,

Industrial Court, has adverted to the invidious discrimination

on the part of the employer in the matter of taking action on the

count of illegality in the appointments. The learned Member

referred to the fact that out of 82 employees charge-sheet was

served against 74 only. No action at all was initiated against

nine employees. Out of 74 employees, action of termination was

taken against 58 employees. Few of them were subsequently

reinstated. This apparent discrimination constitutes an unfair

10 2006 SCC Online Bom 1431.

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labour practice and, therefore, the impugned order does not

warrant any interference, submitted Mr. Jalisatgi.

30. In the case of Bhartiya Seva Samaj Trust (supra) on which

reliance was placed by Mr. Jalisatgi, the Supreme Court

declined to grant relief to the employer despite having found that

the employee was not qualified to be appointed as it was

established that the employer had acted with malice towards the

respondent therein and it was not merely a case of

discrimination rather it was a clear case of victimisation of

respondent by the employer for raising his voice against

exploitation.

31. In the case at hand, the allegations of the respondent -

complainant that no action has been taken against few of the

employees who were junior in service to him or no action was

initiated against few of the employees, appear to have not been

specifically denied by the petitioners-employers. However, I find

it rather difficult to persuade myself to hold that those acts or

omissions on the part of the employer furnish a sustainable

ground to order reinstatement of the respondent in service, by

way of an interim order, when prima facie, the initial

appointment of the petitioner was not in adherence to the

principle of equality in public employment and against a

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sanctioned post. The aspect of discrimination urged on behalf

of the respondent complainant merits adjudication while finally

deciding the complaint as there can be reasons/circumstances

peculiar qua those employees. At an interim state, the said

factor ought not to have been given such weight as to direct

reinstatement of the respondent during the pendency of the

complaint.

32. The conspectus of aforesaid consideration is that the

Courts below committed an error in law in directing

reinstatement of the respondent complainant in service during

the pendency of the complaint, where it was not the case of the

complaint that his appointment was in adherence to the

principle of equality of opportunity in public employment. The

impugned orders, therefore, warrant interference.

33. Hence, the following order:

:ORDER:

(i)      Petition stands allowed.

(ii)     The impugned order passed by the learned Member,

Industrial Court, dated 4th July, 2022 stands quashed

and set aside.

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(iii) The order passed by the learned Judge, Labour Court,

dated 22nd September, 2021 also stands quashed and set

aside.

(iv) The application for interim relief (Exhibit-U2) stands

rejected.

(v) The learned Judge, Labour Court, shall make an

endeavour to decide the Complaint (ULP) No.16 of 2020 as

expeditiously as possible and preferably within a period

of nine months from today.

(vi) It is clarified that the consideration was confined to

determine the legality, propriety and correctness of the

impugned orders at an interim stage and this Court

should not be construed to have expressed opinion on the

merits of the complaint (ULP) No.16 of 2020 and the same

shall decided on its merits and in accordance with law

without being influenced by any of the observations

hereinabove.

(vii) In the circumstances of the case, there shall be no order

as to costs.

Rule made absolute to the aforesaid extent.

[N. J. JAMADAR, J.]