BLOOM DEKOR LIMITED Vs. DEVIDUTT UPADHYAY

JUDGEMENT

(1.) The present appeal is directed against the order dated 27.2.2018 passed by the learned Single Judge in Special Civil Application No.4407 of 2015 rejecting the petition and awarding cost of Rs. 5000/-.

(2.) The case of the present appellant is that the learned Single Judge has committed a patent error by ignoring the fact that the award dated 30.7.2007 impugned in the writ petition was an ex parte award and hence, the same being in violation of the principles of natural justice was required to be quashed and set aside as the appellant could not get an opportunity to defend its case. The learned advocate Mr. Palak H. Thakkar appearing on behalf of the appellant has submitted that due to negligence of the concerned advocate before the Labour Court, no one had represented the case of the present appellant and the Labour Court had passed an ex parte award, whereby the respondent No.1-workman has been reinstated with 25% back wages. The learned advocate has contended that in fact, the respondent No.1-workman was appointed on contractual basis and thereafter since his probation period was not extended, the appellant had terminated his services. He has also invited attention of the court to the appointment letter dated 6.12.1995 and the conditions incorporated therein. He has submitted that the probation period of the respondent No.1- workman was six months and thereafter, since his work was not required, his probation period was not extended and vide communication dated 3.1.1997 his services were terminated with immediate effect, viz. 3.1.1997. The same was the subject matter of an industrial dispute. The learned advocate has lastly contended that the conduct of the present appellant was not deliberate and hence, instead of reinstatement the appellant may be directed to pay appropriate compensation to the workman.

(3.) The learned advocate has placed reliance on a decision of Division Bench of this Court rendered in Jaya Raina v. Gujarat Livelihood Promotion Company Ltd and another, reported in 2015 LLR 193 for the proposition of law that after completion of period of probation if there is no order of confirmation, then on expiry of the same, service of such employee is to be treated as terminated. Reliance has also been placed by the learned advocate on the decision of the Apex Court rendered in the case of Kendriya Vidyalaya Sangathan and another v. S.C. Sharma, reported in (2005) 2 SCC 363 , more particularly, the learned advocate laid emphasis on the observations made in paragraph 16, for the proposition of law that when the question of determining the the entitlement of a person for back wages is considered, the employee has to show that he was not gainfully employed.