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2024 DIGILAW 1515 (GUJ)

TORRENT POWER LIMITED v. DILIPBHAI MANEKLAL VYAS

2024-07-05

A.S.SUPEHIA, MAUNA M.BHATT

body2024
JUDGMENT : A.S. SUPEHIA, J. 1. The instant Letters Patent Appeal emanates from the judgment and order dated 10.09.2014 passed in the captioned writ petition, wherein the learned Single Judge has directed the appellant-company to pay the wages along with the retirement benefits, after setting aside the order dated 27.02.2003 passed by the appellant-company discontinuing the respondent-workman from the post of Section In-charge. RELEVANT FACTS: 2. The respondent No. 1- party-in-person, who was an Ex-service man, was appointed to the post of Security Inspector, after undergoing the selection process initiated by the appellant-company vide public advertisement issued in the month of June,1990. He was appointed vide order dated 26.11.1990 on a fixed pay for a temporary period of six months. Thereafter, his period of six months was extended. By an order dated 27.12.1991, the respondent-workman was appointed on probation on the same post of Security Inspector for a period of six months. Since his services were found unsatisfactory, the appellant-company terminated him on 13.04.1992 by resorting to Clause-3 of the appointment order dated 27.12.1991. 3. Against the said order, the respondent-workman filed T. Application before the Labour Court being T. Application No. 248 of 1992, wherein an ex-parte award was passed by the Labour Court on 26.11.1992 ordering reinstatement. It is pertinent to note that the Labour Court did not pass any order setting aside the termination. 4. A restoration Application being Misc. Application No. 223 of 1992 was filed by the appellant-company for recalling the ex-parte award dated 26.11.1992. A pursis dated 16.03.1994 was filed by the appellant-company to the effect that they are ready and willing to reinstate the respondent-workman by keeping their rights and contentions open and subject to the outcome of T. Application No. 248 of 1992. The respondent-workman also showed his willingness to join duties subject to rights and contentions of the parties and subject to the final outcome of T. Application No. 248 of 1992. In view of the pursis, the Labour Court restored T. Application No. 248 of 1992 and listed the T. Application to decide on merits. An offer letter was issued by the company on 18.03.1994 offering reinstatement to the respondent-workman and accordingly, he was reinstated. 5. Meanwhile, during the pendency of T. Application No. 248 of 1992, a Notice was issued by the appellant-company inviting its employees to apply for the post of Section Incharge. An offer letter was issued by the company on 18.03.1994 offering reinstatement to the respondent-workman and accordingly, he was reinstated. 5. Meanwhile, during the pendency of T. Application No. 248 of 1992, a Notice was issued by the appellant-company inviting its employees to apply for the post of Section Incharge. Accordingly, the respondent-workman also applied and remained present in the interview. Thereafter, by the letter dated 30.06.1997, the respondent-workman was promoted to the post of Section In-charge. By letter dated 29.12.1997, the respondent-workman was confirmed on the post of Section Incharge with effect from 01.01.1998 on the same terms and conditions as envisaged in the letter dated 30.06.1997/07.07.1997. 6. Meanwhile, the Labour Court vide award dated 28.11.1997 allowed the T. Application No. 248 of 1992. We have noticed that the Labour court has directed the appellant-company to reinstate the respondent-workman with back wages however, there is no observations made regarding setting aside the termination. The appellant-company assailed the award dated 28.11.1997 by filing an appeal before the Industrial Court, Ahmedabad being Appeal (IC) No. 1 of 1998. The said appeal was rejected by the Industrial Court by the judgment and order dated 25.05.2001. The appellant-company thereafter, filed a Review Application No. 64 of 2001 against the said judgment and order dated 25.05.2001. By the order dated 18.06.2002, the Member of the Industrial Court confirmed the stay granted vide order dated 20.07.2001, against the execution and implementation of award of the Labour Court dated 28.11.1997 and order of the Industrial Court dated 25.05.2001 in Appeal (IC) No. 1 of 1998. 7. Finally, the Review Application No. 64 of 2001 filed by the appellant-company was allowed vide order dated 14.02.2003 and the order passed by the Labour Court dated 28.11.1997 allowing the T. Application No. 248 of 1992 and the order passed by the Industrial Court in Appeal (IC) No. 1 of 1998 dated 25.05.2001 was quashed and set aside. It was recorded in the order dated 14.02.2003 that “The Workman Shri Dilipbhai Maneklal Vyas is not entitled to any relief.” Pursuant to the order dated 14.02.2003 passed in review application, the appellant-company discontinued the service of the respondent-workman vide letter dated 27.02.2003. 8. The respondent-workman filed two writ petitions being Special Civil Application No. 2113 of 2003 and Special Civil Application No. 2819 of 2003. 8. The respondent-workman filed two writ petitions being Special Civil Application No. 2113 of 2003 and Special Civil Application No. 2819 of 2003. In Special Civil Application No. 2113 of 2003, the respondent-workman challenged the order dated 14.02.2003 passed by the Industrial Court, whereas in the Special Civil Application No. 2819 of 2003, the respondent-workman challenged the order dated 27.06.2004 discontinuing his service from the promotional post of Section In-charge. Both the aforesaid writ petitions filed by the respondent-workman were rejected. The writ petition being Special Civil Application No. 2819 of 2003 was rejected vide order dated 27.02.2003, by the learned Single Judge reserving liberty in favour of the respondent-workman to challenge the order dated 27.06.2004 before the Labour Court. It appears that no Letters Patent Appeal is filed against the said order rejecting the writ petition. The other writ petition being Special Civil Application No. 2113 of 2003 was rejected by the learned Single Judge vide judgment and order dated 13.01.2006. The appellant-company thereafter, filed Letters Patent Appeal No. 1205 of 2006 in Special Civil Application No. 2113 of 2003 challenging the judgment and order dated 13.01.2006 passed by the learned Single Judge. 9. By the judgment and order dated 18.06.2007, the Division Bench of this Court rejected the Letters Patent Appeal filed by the respondent-workman. Thereafter, the respondent-workman filed Special Leave to Appeal (Civil) Nos.24173 - 24174 of 2007 before the Apex Court assailing the order of the Division Bench. By the order dated 26.08.2011, the Apex Court disposed of the Special Leave Petition by reserving liberty in favour of the respondent-workman to challenge the letter dated 27.02.2003 discontinuing the service of the respondent-workman from the post of Section In-charge before the Labour Court by observing that the Labour Court to decide the issue raised in the present petition. Thus, so far as the orders, which are passed by the learned Single Judge on 13.01.2006 in writ petition being Special Civil Application No. 2113 confirmed by the Division Bench in Letters Patent Appeal No. 1205 of 2006 are concerned, the same were not disturbed and only liberty was reserved in favour of the respondent-workman to challenge his discontinuation of service from the post of Section Incharge before the Labour Court. 10. Accordingly, after the order of the Apex Court, the respondent-workman filed T. Application No. 88 of 2011 challenging the communication dated 27.02.2003. 10. Accordingly, after the order of the Apex Court, the respondent-workman filed T. Application No. 88 of 2011 challenging the communication dated 27.02.2003. The same was rejected by the Labour Court vide order dated 23.03.2012. He filed an appeal against the rejection of T. Application being Appeal (IC) No. 15 of 2012. The Industrial Court vide order dated 10.01.2024, confirmed the order dated 23.03.2012 passed by the Labour Court rejecting T. Application No. 88 of 2011. The respondent-workman assailed the aforesaid order dated 23.03.2012 passed by the Labour Court rejecting his T. Application as well as the order passed by the Industrial Court rejecting his appeal in the captioned writ petition, which has been allowed by the learned Single Judge, which has been assailed in the present Letters Patent Appeal. SUBMISSIONS ON BEHALF OF THE APPELLANT-COMPANY 11. Learned senior advocate Mr. Mihir Joshi appearing for the appellant-company at the outset, has submitted that the learned Single Judge has not considered the facts relating to the litigation between the parties in its true perspective. It is submitted that the learned Single Judge ought to have considered the vital aspect that after the Labour Court had restored T. Application No. 248 of 1992, the same was allowed by the award dated 28.11.1997 and thereafter, in review application filed by the appellant-company, the earlier orders, which were passed in favour of the respondent-workman in light of the pursis reinstating him, will get diluted since the review application was allowed by the Industrial Court on 14.02.2003. It is submitted that in the review application, the Industrial Court has set aside the award dated 28.11.1997 and also the award dated 25.05.2001 and hence, the respondent-workman cannot be granted benefits of earlier awards, by which he was reinstated in the service. 12. It is submitted by learned senior advocate Mr. Joshi that the pursis, which was given by the appellant-company on 16.03.1994 was conditional and was subject to the rights and contentions of all the parties in T. Application No. 248 of 1992. He has submitted that ultimately, since the Industrial Court in the review application has set aside the earlier awards and it is specifically observed that no relief is required to be granted to the respondent-workman, his reinstatement to the lower post of Security Inspector will have direct bearing on his subsequent promotion to the post of Section In-charge. He has submitted that ultimately, since the Industrial Court in the review application has set aside the earlier awards and it is specifically observed that no relief is required to be granted to the respondent-workman, his reinstatement to the lower post of Security Inspector will have direct bearing on his subsequent promotion to the post of Section In-charge. He has submitted that since the termination of the respondent-workman from the post of Security Inspector is upheld, as a natural consequence, his promotion to the post of Section Incharge would get affected and hence, there was no other option left for the appellant- company but to discontinue him from the post of Section In-charge. 13. It is submitted by learned senior advocate Mr. Mihir Joshi that ultimately, when the controversy landed before the Apex Court in Special Leave to Appeal (Civil) Nos. 24173- 24174 of 2007, the Apex Court did not interfere or comment upon the termination of the respondent-workman from the post of Security Inspector, but it was only confined to the discontinuation of the service of the respondent-workman from the post of Section In-charge. Thus, it is submitted that the respondent-workman thereafter, has precisely challenged the letter dated 27.02.2003 discontinuing his services from his promotional post and ultimately, he has failed in that litigation also. 14. Learned senior advocate Mr. Mihir Joshi has submitted that the learned Single Judge ought not to have set aside the orders passed by the Labour Court in T. Application No. 88 of 2011 and also of the Industrial Court in Appeal (IC) No. 15 of 2012 since Labour Court after examining the facts, has precisely rejected the application filed by the respondent-workman challenging his discontinuance of service to the subsequent promotional post. 15. Learned senior advocate Mr. Mihir Joshi has submitted that before the Labour Court and also before the learned Single Judge, a specific contention was raised by the appellant-company that respondent No. 1 is not covered under the definition of “Employee” as defined under the provisions of Section 3(13) of the Bombay Industrial Relations Act, 1946 (For short “the Act”); since, he was employed in “supervisory capacity” and was drawing basic pay exceeding Rs.1,000/-. He submitted that Labour Court, after considering the nature of duties of the respondent-workman, has ultimately held that he cannot be considered as an “Employee” under the Act and hence, the proceedings before the forum was not maintainable. However, it is urged that this important aspect is ignored by the learned Single Judge and no finding in this regard has been recorded. 16. It is contended by learned senior advocate Mr. Joshi that the learned Single Judge was impressed upon the fact that since no opportunity of hearing was granted to the respondent-workman before discontinuing him from the post of Section Incharge, such order has been quashed and set aside. It is submitted that the opportunity of hearing to the respondent-workman in this regard would be exercise in futility since he was promoted to the post of Section In-charge from the post of Security Inspector and once his termination from the lower post was held to be valid and is not interfered with by any court of law, the respondent-workman would not have any right to continue in the promotional post. He has further submitted that the second communication/letter dated 27.02.2003 is in fact, not a termination order but the respondent No. 1 is discontinued in view of his termination on the lower post having been upheld by the Labour Court and also by this Court. It is thus, submitted that since the respondent No. 1 has been discontinued due to the order passed by the Industrial Court in Review Application, there was no need to further give notice or retrenchment compensation before discontinuing him from the promotional post. 17. Learned senior advocate Mr. Mihir Joshi has further submitted that learned Single Judge has also ignored the observations made by the Division Bench in the judgment and order dated 18.06.2007 passed in Letters Patent Appeal No. 1205 of 2006, wherein it is categorically held that the Industrial Court has rightly entertained the review application and has precisely intervened and set aside the earlier order in appeal and the order of the Labour Court. He has submitted that categorical observation has been made by the Division Bench that service of the respondent-workman was terminated, while he was on probation and being a probationer, he did not acquire any vested rights to be continued on the post after his work was found unsatisfactory. He has submitted that categorical observation has been made by the Division Bench that service of the respondent-workman was terminated, while he was on probation and being a probationer, he did not acquire any vested rights to be continued on the post after his work was found unsatisfactory. Thus, it is submitted that since the termination of the respondent-workman in the lower post having become final, there was no purpose in continuing the respondent-workman on the higher post and it is urged that the observations made by the learned Single Judge in the impugned judgment may be quashed and set aside. 18. Learned senior advocate Mr. Mihir Joshi has submitted that despite the direction issued by the Apex Court to the respondent-workman to approach the Labour Court within a period of four weeks, he did not file an application within such limit and hence, it is hit by the provisions of the Section 79(2)(a) of the Act. In support of his submission, he has placed reliance on the decision rendered by the Apex Court in the case of Raipur Manufacturing Company Ltd. vs. Okhabhai Devrajbhai, 1976 (1) SCC 346 . SUBMISSIONS BY THE PARTY-IN-PERSON-RESPONDENT 19. In response to the aforesaid submissions advanced by learned senior advocate Mr. Mihir Joshi, party-in-person-respondent-workman has submitted that he was appointed by the appellant-company, after following due process of law on both the posts. It is submitted by him that initially, he was appointed on the post of Security Inspector and thereafter, he was appointed on six months’ probation on said post and in fact, his services were not terminated on the ground of unsatisfactory service, but since his honesty and integrity caused inconvenience to a particular higher officer, whose activities were prejudicial to the interest of the company, he was discharged from service. It is submitted that the appellant-company in fact, had promoted him to the post of Section Incharge, after following regular selection process. It is submitted by him that in fact, after he was appointed on such post, he would be construed as an “Employee” as defined under Section 3(13) of the Act. It is submitted that the appellant-company in fact, had promoted him to the post of Section Incharge, after following regular selection process. It is submitted by him that in fact, after he was appointed on such post, he would be construed as an “Employee” as defined under Section 3(13) of the Act. He has submitted that in fact, the appellant-company did not produce any evidence whatsoever before the Labour Court to show that he was employed on managerial, administrative and supervisory capacity and Clause 3 of appointment order dated 30.06.1997 specifically mentions that he has to do the work of Security Inspector. Thus, it is submitted that he falls within the definition of “Employee” as defined under Section 3(13) of the Act. The Party-in-person has further submitted that he was pursuing his matter before this Court and also before the Apex Court and ultimately, the Apex Court vide order dated 26.08.2011 directed him to approach the Labour Court within a period of four weeks, which he did. 20. It is further contended by the party-in-person that the selection and appointment on the higher post of Section Incharge was not dependent on the outcome of the proceedings pertaining to discontinuation of service on the post of Security Inspector since neither the appointment order dated 30.06.1997 nor the order dated 29.12.1997 confirming respondent-workman on the post of Section In-charge mention such condition. He has submitted that no reference is made by the Labour Court that his promotion would be made subject to outcome of T. Application No. 248 of 1992, which was pending before the Labour Court. He has submitted that in fact, both, the Labour Court and the Industrial Court has recorded that since he was already reinstated in service, no order was required directing the employer to reinstate him by setting aside the termination order. He has submitted that the order dated 14.02.2003 of the Industrial Court in review application filed by the appellant- company was in fact, passed in absence of him and his advocate and hence, the very foundation of discontinuation of service, is required to be quashed and set aside, which is precisely done by the learned Single Judge. 21. He has submitted that the order dated 14.02.2003 of the Industrial Court in review application filed by the appellant- company was in fact, passed in absence of him and his advocate and hence, the very foundation of discontinuation of service, is required to be quashed and set aside, which is precisely done by the learned Single Judge. 21. The party-in-person has further submitted that the true intent and purport of filing pursis at Exh.10 is reflected in the letter/order dated 18.03.1994 passed by the company reinstating him in service and hence, the Company cannot be allowed to approbate and reprobate to suit as per its convenience. 22. It is submitted by the party-in-person that the Apex Court in the order dated 26.08.2011, has not finally decided the issue on merits, but the matter has been relegated to the Labour Court to decide the issue of discontinuation of service in the higher post. It is submitted that as observed by the learned Single Judge, the appellant-company has taken advantage of the change of the Presiding Officer in the Industrial Court and immediately after this change, the appellant-company moved Review Application No. 64 of 2001 before the new Presiding Officer and on the same day, obtained the stay on the judgment and orders of the Labour Court dated 28.11.1997 and 25.05.2001, which shows mala fide intention of the appellant-company. Thus, it is urged by him that the present appeal may not be entertained and the judgment passed by the learned Single Judge is required to be sustained. ANALYSIS OF FACTS AND PLEADINGS 23. In the order dated 18.06.2024, we had recorded that the appellant-company is ready and willing to pay an amount of Rs.15,00,000/- (fifteen thousand) to the respondent-workman towards full and final settlement, whereas the respondent-party-in-person has refused to accept the same and he has submitted that he is entitled to get an amount of Rs.55,00,000/- (fifty five lacs). 24. The short issue, which falls for deliberation of this Court, is that whether the respondent-workman, who was promoted on a higher post, can be discontinued from such post, in case his termination from the lower post (feeder post) stands confirmed. The issue stems out from the checkered history of litigation. 25. The following facts are established from the pleadings. 26. The short issue, which falls for deliberation of this Court, is that whether the respondent-workman, who was promoted on a higher post, can be discontinued from such post, in case his termination from the lower post (feeder post) stands confirmed. The issue stems out from the checkered history of litigation. 25. The following facts are established from the pleadings. 26. The respondent-workman was an ex-service man, who was initially appointed as the Security Inspector vide order dated 26.11.1990 on the fixed pay for temporary period of six months. Thereafter, it was extended and by the order dated 27.12.1991, he was appointed on the said post of Security Inspector on probation for a period of further six months. The appellant-Company terminated him on the ground of unsatisfactory work by resorting to Clause 3 of the appointment order dated 27.12.1991. He assailed the said order by filing T. Application No. 248 of 1992 before the Labour Court, wherein an ex-parte award was passed by Labour Court on 26.11.1992 directing the appellant-company to reinstate him on service with continuity and also with back wages. 27. Since the said award was ex-parte, the appellant company filed Misc. Application No. 223 of 1992 seeking recall of the said award. It appears that in the said award, a pursis - Exh.10 was filed by the Manager of the appellant-company on 16.03.1994. The contents of the pursis reveal that the Company had agreed to reinstate the respondent-workman by keeping all the rights and contentions open in T. Application No. 248 of 1992. By the order dated 16.03.1994, the Labour Court allowed the said application on the basis of pursis and restored T. Application No. 248 of 1992 to its original file. It is recorded by the Labour Court in the order that the respondent-workman had informed the Labour Court that he is ready and willing to be reinstated in service by keeping his rights and contentions open including that of back wages. Accordingly, by the order dated 18.03.1994, the respondent-workman was reinstated in service by the appellant-company w.e.f. 21.03.1994 with certain conditions. 28. It appears that during the pendency of T. Application No. 248 of 1992, the appellant-company invited applications to fill up the post of Section In-charge by issuing notice dated 09.05.1997. Accordingly, by the order dated 18.03.1994, the respondent-workman was reinstated in service by the appellant-company w.e.f. 21.03.1994 with certain conditions. 28. It appears that during the pendency of T. Application No. 248 of 1992, the appellant-company invited applications to fill up the post of Section In-charge by issuing notice dated 09.05.1997. The requisite experience prescribed by the Company for filling up the post of Section In-charge is “minimum 5 years” on the post of Security Inspector as on 30.06.1994. 29. The respondent-workman applied for such post and vide order dated 30.06.1997/ 07.07.1997 (Page No. 67), the respondent-workman was promoted to the post of Section Incharge. The Condition No. 2 of the said promotion order stipulates that he would be on probation for a period of six months and if his work is found to be satisfactory, he will be confirmed, otherwise he will be reverted to his substantive post and salary. Thus, by the said order, the respondent-workman was in fact “promoted” to the post of Section Incharge and he was not “appointed”, which is sought to be canvassed by the respondent-workman. The Condition No. 2 in fact, will further clarify that in case his probation for six months starting from 01.07.1997 is not found satisfactory, he will be reverted to his substantive post and salary. Thus, in fact, the respondent-workman was “promoted” to the post of Section In-charge and not “appointed.” 30. Keeping in mind the aforesaid facts, it is pertinent to note at this stage that in the Clause of “Experience” of the notice dated 09.05.1997 (Annexure-‘I’), minimum 5 years’ experience as on 30.06.1994, on the post of Security Inspector was stipulated for getting promoted to the post of Section Incharge. 31. After the respondent-workman was promoted, the T. Application No. 248 of 1992 was decided by the award dated 28.11.1997 by the Labour Court in his favour. The Labour Court directed the appellant- company to reinstate the respondent in service. Further, it was directed that the wages for the period from 13.04.1992 to 16.04.1994 shall also be paid. However, it is pertinent to note that no order regarding termination was passed. 32. The appellant-company assailed the said award dated 28.11.1997 by filing an appeal being Appeal (IC) No. 1 of 1998 before the Industrial Court. Further, it was directed that the wages for the period from 13.04.1992 to 16.04.1994 shall also be paid. However, it is pertinent to note that no order regarding termination was passed. 32. The appellant-company assailed the said award dated 28.11.1997 by filing an appeal being Appeal (IC) No. 1 of 1998 before the Industrial Court. The Industrial Court rejected the appeal filed by the Company on 25.05.2001 and maintained the award dated 28.11.1997 passed by the Labour Court. Thereafter, the appellant-company filed Review Application No. 64 of 2001 seeking review on rejection of his appeal. It appears that the Industrial Court confirmed the stay granted vide order dated 20.07.2001, against the execution and implementation of the award of the Labour Court dated 28.11.1997 and on the order of the Industrial Court dated 25.05.2001 passed in Appeal (IC) No. 1 of 1998. Thus, by an interim order dated 18.06.2002, the reliefs, which were in favour of the respondent-workman and granted by the Labour Court and confirmed by the Industrial Court, were stayed. 33. Ultimately, the said Review Application No. 64 of 2001 was decided by the Industrial Court by the order dated 14.02.2003. The Industrial Court, Ahmedabad quashed and set aside the award dated 28.11.1997 passed by the Labour Court and also the order dated 25.05.2001 passed by the Industrial Court, Ahmedabad in Appeal (IC) No. 1 of 1998. It was further observed as “The Workman Shri Dilipbhai Maneklal Vyas is not entitled to any relief.” Thus, the award of the Labour Court dated 28.11.1997 confirmed by the Industrial Court vide order dated 25.05.2001 were set aside by the Industrial Court, Ahmedabad in the review application filed by the appellant-company. Hence, the action of the Company terminating the respondent-workman w.e.f 13.04.1992, from the post of Security Inspector stood confirmed. The direct impact of setting aside of the afore-noted award and order passed in favour of the respondent-workman was on his promotion. The fatal consequence of the confirmation of termination of the respondent from the lower post was his discontinuance from the promotional post. Thus, the appellant-company discontinued the respondent vide communication dated 27.02.2003 from the promotional post of Section In-charge since his termination from the post of Security Inspector was upheld by the Industrial Court. 34. As recorded hereinabove, the respondent-workman filed two writ petitions. Thus, the appellant-company discontinued the respondent vide communication dated 27.02.2003 from the promotional post of Section In-charge since his termination from the post of Security Inspector was upheld by the Industrial Court. 34. As recorded hereinabove, the respondent-workman filed two writ petitions. He filed writ petition being Special Civil Application No. 2819 of 2003 challenging the communication/ letter dated 27.02.2003 discontinuing his service as Section Incharge. The said writ petition was rejected by the order dated 23.06.2004 by the learned Single Judge on the ground of availability of alternative remedy. The learned Single Judge also recorded a fact that the respondent-workman had also filed a writ petition being Special Civil Application No. 2113 of 2003 challenging the order dated 14.02.2003 passed by the Industrial Tribunal in Review Application No. 64 of 2001 also and there would be a duplicity of the proceedings. Based on these two grounds, the learned Single Judge rejected the writ petition filed by the respondent-workman by reserving liberty in favour of the respondent-workman to challenge the communication/ letter dated 27.02.2003 before the Labour Court. 35. In the parallel proceeding of writ petition being Special Civil Application No. 2113 of 2003, wherein the respondent-workman had assailed the order dated 14.02.2003 passed by Industrial Court in Review Application No. 64 of 2001, the learned Single Judge, by the judgment dated 13.01.2006, rejected the said petition also. The learned Single Judge in the judgment dated 13.01.2006 has observed thus: “5. I have considered the arguments of both the sides. As a result of hearing and perusal of records, I am of the opinion that the petitioner ought to have challenged the order of the Labour Court though the Labour Court has observed that the question of reinstatement does not exist. However, there is no declaration regarding setting aside the order of retrenchment which was passed and subsequent to which the petitioner was restored in service. 7. It is required to be noted that there is no declaration by the Labour Court in respect of setting aside the order of retrenchment. The said order was challenged neither by way of appeal or cross-objection nor review was filed by the petitioner. In fact, the order of the Labour Court was accepted by the petitioner wherein the order of retrenchment is not set aside.” 36. The said order was challenged neither by way of appeal or cross-objection nor review was filed by the petitioner. In fact, the order of the Labour Court was accepted by the petitioner wherein the order of retrenchment is not set aside.” 36. Being aggrieved by the judgment dated 13.01.2006, the respondent-workman filed Letters Patent Appeal No. 1205 of 2006 before the Division Bench and by comprehensive judgment and order dated 18.06.2007, the Division Bench rejected the Letters Patent Appeal by observing thus: “35. In view of the aforesaid discussion, we are of the view that the communication dated 27.2.2003 cannot be challenged in the present proceeding, as it provides separate cause of action for which the appellant is having a statutory remedy. Even otherwise, the learned Single Judge has rightly observed while disposing of the said Special Civil Application No. 2819 of 2003 that many disputed questions of facts are involved and hence the appellant should have approached the Labour Court for ventilating his grievance against communication dated 27.2.2003. As far as challenge against the order of Industrial Tribunal passed in Review Application is concerned, the Industrial Tribunal has rightly intervened and set aside its earlier order in Appeal as well as order of Labour Court as the Labour Court has granted only back wages, without quashing and setting aside termination order. The said order of Labour Court was not challenged further by the appellant. The appellant did not have any declaration in his favour from any Court which entitles him to continue in service. There is no dispute about the fact that his services have been terminated while he was on probation and being a probationer, he did not acquire any vested right in his favour. Considering the legal submissions and the authorities referred to herein above, we are of the view that the order passed by the Industrial Tribunal in Review Application, which is confirmed by the learned Single Judge while disposing of the petition, does not require any interference by us.” 37. Thereafter, the respondent-workman challenged the aforesaid judgment and order of the Division Bench by filing Special Leave to Appeal (Civil) Nos. 24173-24174 of 2007. The same was disposed of by the order dated 26.08.2011 by reserving liberty in favour of the respondent-workman to challenge his termination order dated 27.02.2003 before the Labour Court. 38. Thereafter, the respondent-workman challenged the aforesaid judgment and order of the Division Bench by filing Special Leave to Appeal (Civil) Nos. 24173-24174 of 2007. The same was disposed of by the order dated 26.08.2011 by reserving liberty in favour of the respondent-workman to challenge his termination order dated 27.02.2003 before the Labour Court. 38. Ultimately, after exhausting all the remedies, the Apex Court has only confined the dispute to challenge the communication/order dated 27.02.2003 discontinuing the respondent-workman from the higher post of Section In-charge. The respondent-workman thus, assailed his discontinuation of service by filing T. Application No. 88 of 2011. The said T. Application No. 88 of 2011 was also rejected by the order dated 23.03.2012 by the Labour Court. The same was assailed by the respondent-workman by filing Appeal (IC) No. 15 of 2012 before the Industrial Court, Ahmedabad and it was also rejected by the order dated 10.01.2024, which was subject matter of challenge before the learned Single Judge. The learned Single Judge has set aside both the orders and issued further direction to the appellant-company to reinstate him in service with all the benefits including back wages. 39. From the aforesaid facts, it is manifest that termination of the respondent-workman from the lower post of Security Inspector vide order dated 13.04.1992 attained finality and the issue was only confined to discontinuance of service of the respondent-workman from the promotional post of Section Incharge. These facts are not disputed by the respondent-workman. Once the termination of the respondent-workman from the lower post of Security Inspector on 13.04.1992 has attained finality, the consequence there would be that promotion to the post of Section In-charge, which stipulates a specific condition of fulfilling 5 years’ experience, will be directly affected and fatal for promotional post. 40. At this stage, the most vital aspect, which requires deliberation, is non-fulfillment of criterion of experience by the respondent-workman for the promotional post of Section Incharge. The appellant-company has precisely promoted the respondent-workman to the post of Section In-charge by the letter dated 30.06.1997/07.07.1997 since during the proceedings of T. Application No. 248 of 1992, he was reinstated in the lower post of Security Inspector and he had gained 5 years’ experience. However, the subsequent order passed by the Industrial Court allowing the review application filed by the Company proved fatal for his promotional post. 41. However, the subsequent order passed by the Industrial Court allowing the review application filed by the Company proved fatal for his promotional post. 41. We have already referred to the notice dated 09.05.1997 inviting applications for filling up the post of Section Incharge, which specifies the requisite experience of 5 years on the lower post of Security Inspector. Even if the initial appointment of the respondent on the lower post of Security Inspector w.e.f 26.11.1990 is taken as it is, his experience on the said post will only be counted till 13.04.1992 i.e. the date of termination, which falls short of five years. Once the termination of the respondent from such date has attained finality, the subsequent experience on the post of Security Inspector will get wiped out. It is not open for the respondent to contend that since he satisfies the criterion of five years experience on the lower post, he cannot be discontinued from the higher post. The learned Single Judge has also fallen in error in ignoring such a vital aspect. The experience gained by the respondent-workman subsequent to 13.04.1992, on the post of Section In-charge will be of no consequence. The subsequent confirmation of his termination w.e.f. 13.04.1992 by the Industrial Court will always relate to such date, and the experience gained on lower post will get diluted. The respondent-workman cannot be allowed to take benefit of the service, which is rendered during pendency of T. Application No. 248 of 1992 and that too, on a pursis, which was tendered by the appellant-company allowing him to be reinstated subject to all the rights and contentions, which was kept open by the Labour Court in T. Application No. 248 of 1992. 42. From the aforesaid facts, it is established that the termination of the respondent from the lower post of Security Inspector vide order dated 13.04.1992 attained finality with the rejection of the writ petition and the Letters Patent Appeal and the issue was only confined to discontinuance of service of the respondent from the promotional post of Section In-charge. These facts are not disputed by the respondent-workman. 43. In wake of the aforementioned established and undisputed facts, once the substratum of the appointment of lower post of Security Inspector is demolished, the edifice of promotional post of Section In-charge will collapse. 44. These facts are not disputed by the respondent-workman. 43. In wake of the aforementioned established and undisputed facts, once the substratum of the appointment of lower post of Security Inspector is demolished, the edifice of promotional post of Section In-charge will collapse. 44. We may at this stage record that by the order dated 29.12.1997, the respondent- workman was also confirmed on the post of Section In-charge with effect from 01.01.1998. However, in wake of the subsequent development, when his termination from the lower post was confirmed, the appellant-company has discontinued him from service vide order dated 27.02.2003. For sake of conveyance, the said order/ communication dated 27.02.2003 is reproduced as under: “Regd. A.D. February 27, 2003 Shri Dilip M. Vyas (M-2028), Mains Department, B/6, Staff Quarters, Naranpura Zonal Office Premises, Sola Road, Ahmedabad. Thru' Assistant General Manager (Security) Dear Sir, You are aware of the fact that you had challenged your termination order in Labour Court. The Said order of termination has been upheld by the order passed by the Hon'ble Industrial Court in its latest decision. A copy of the said decision is enclosed herewith along with pursis. In view of the aforesaid facts, you are discontinued. You are requested to handover the vacant possession of our residential quarter No. B/6 at our Naranpura Zonal Office Premises allotted to you by virtue of your employment with the company. Kindly acknowledge receipt of this letter. Yours faithfully, For, the Ahmedabad Electricity Co. Ltd. Sd/- R. Hari VICE PRESIDENT (P. & A.) Encl: (a) Court’s Order (b) Pursis” 45. We do not find any infirmity or illegality in the action of the appellant-company in discontinuing the respondent from the promotional post of Section In-charge in wake of the fact that his termination in the lower post had attained finality. 46. The aforementioned facts about the litigation between the parties more particularly, the proceedings relating to T. Application No. 248 of 1992 and the subsequent proceedings before the Industrial Court and also before this Court, have been considered and dealt with by the Labour Court, while answering the issue No. 6 in T. Application No. 88 of 2011. The Labour Court, after considering these facts, has rejected the T. Application No. 88 of 2011 filed by the respondent-workman challenging his subsequent discontinuance of service from the promotional post. The Labour Court, after considering these facts, has rejected the T. Application No. 88 of 2011 filed by the respondent-workman challenging his subsequent discontinuance of service from the promotional post. The appeal filed against the order dated 23.03.2012 passed by the Labour Court being Appeal (IC) No. 15 of 2012 before the Industrial Court is also rejected by recording all these facts. 47. At this stage, we have noticed that the learned Single Judge, while allowing the writ petition, has recorded that the issue of discontinuance of the respondent-workman from the post of Security Inspector was not gone into by the Labour Court at the relevant time since he was already appointed on the higher post, and the only question, which remained to be adjudicated, was grant of back wages. It appears that the attention of the learned Single Judge was not invited to the foregoing observations made by the Division Bench in the judgment dated 18.06.2007 passed in Letters Patent Appeal No. 1205 of 2006 regarding the proceedings of T. Application No. 248 of 1992. The Division Bench has categorically recorded that the Industrial Court had rightly intervened and set aside the earlier award of the Labour Court and Industrial Court in the Review Application No. 64 of 2001, filed by the appellant-company as the Labour Court had only granted back wages, without quashing and setting aside the termination order. It is recorded that the respondent- workman did not challenge that award further and he did not have any declaration in his favour from any Court, which entitle him to continue in service. It is also held that the respondent being a probationer, did not acquire vested right to continue. Thus, the learned Single Judge has failed to notice that the termination of the respondent from the lower post of Security Inspector had attained finality. 48. It is contended by the respondent-workman that his promotion to the post of Section In-charge was not conditional and was not made subject to the proceedings of T. Application No. 248 of 1992 hence, his discontinuance of service from the promotional post was illegal. The learned Single Judge was impressed with such submission however, we do not find it worthy of acceptance. The learned Single Judge was impressed with such submission however, we do not find it worthy of acceptance. Even if the promotional order does not record the pendency of the proceedings of T. Application No. 248 of 1992 or his promotion was not made subject to such proceedings, the same by itself cannot override the ultimate effect of conclusion/finding rendered by the Court of law in such proceedings and further proceedings. Ultimately, the respondent-workman failed to get any relief against his termination from the lower post. The proceedings of T. Application No. 248 of 1992 got merged with the further proceedings before the Industrial Court and this Court. The relief, which he got in the award passed in T. Application No. 248 of 1992, was ultimately set aside by the Industrial Court in review application filed by the company by specifically observing that “The Workman Shri Dilipbhai Maneklal Vyas is not entitled to any relief.” This order was confirmed by the High Court in subsequent proceedings. 49. The learned Single Judge was also impressed with the submission advanced by the respondent-workman that he was not afforded any opportunity of hearing before he was discontinued from the lower post of Section In-charge and it would be gross violation of principles of natural justice. 50. In our considered opinion, the issue of affording any opportunity of hearing to the respondent-workman will pale into insignificance and will be an exercise in futility since the fact of his termination from the lower post having become final, could not have been altered in any manner and the outcome would have remained the same. The respondent-workman has exhausted all the remedies challenging his termination from the feeder post of the Security Inspector hence, hearing him on the issue of discontinuance from the promotional post will not reap any fruits, and it will be a useless formality. The appellant-company did not find any fault in the service rendered by the respondent on the promotional post, but the sole reason for discontinuance was upholding his termination from the lower post in judicial proceedings. In wake of this undisputed and admitted fact, the opportunity of hearing will not have altered the final outcome. The appellant-company has acted in accordance with law since there was no other option left. In wake of this undisputed and admitted fact, the opportunity of hearing will not have altered the final outcome. The appellant-company has acted in accordance with law since there was no other option left. The aspect of opportunity of hearing could have been viewed with different angle, in case, the respondent was directly appointed to the post of the Section In-charge instead of promotion, and he was “dismissed, removed or terminated” from service for any other reason other than the one before us. 51. Though there are other grounds, which have weighed upon by the Labour Court i.e. delay with regard to filing of T. Application No. 88 of 2011, within time specified by the Apex Court in the order dated 26.08.2011 directing the respondent-workman to challenge the communication/letter dated 27.02.2003 discontinuing him from the promotional post, we are not inclined to comment upon other issues since the respondent-workman even otherwise was not entitled to be continued on the promotional post. We have also noticed that the both the Courts below, the Labour Court and the Industrial Court in the later proceedings arising from T. Application No. 88 of 2011, have recorded a specific finding that the respondent-workman is not covered within the definition of “Employee”, as defined under Section 3(13) of the Act however, the learned Single Judge has not delved into the issue. We are not inclined to further examine the same in view of the foregoing reasons and analysis. 52. Under the circumstances and in light of the aforesaid observations, the present Letters Patent Appeal merits acceptance. The impugned judgment and order passed by the learned Single Judge is hereby quashed and set aside. 53. It appears that pursuant to the interim relief granted by the Co-ordinate Bench, the entire amount of back wages were deposited before the Registry of this Court in a Fixed Deposit in the Nationalized Bank initially for a period of one year and periodical interest was directed to be paid to the respondent-workman. 54. The details of the service rendered by the respondent is as under: 1. 26.11.1990 - Appointed as Security Inspector on fixed pay. 2. 27.12.1991 - Appointed on probation for 6 months on same post. 3. 13.04.1992 - Terminated. 4. 18.03.1994 - Reinstated w.e.f. 21.03.1994 in view of pursis 5. 07.07.1997 - Promoted to the post of Section In-charge 6. 54. The details of the service rendered by the respondent is as under: 1. 26.11.1990 - Appointed as Security Inspector on fixed pay. 2. 27.12.1991 - Appointed on probation for 6 months on same post. 3. 13.04.1992 - Terminated. 4. 18.03.1994 - Reinstated w.e.f. 21.03.1994 in view of pursis 5. 07.07.1997 - Promoted to the post of Section In-charge 6. 27.02.2003 - discontinued from the post of Section In-charge 55. We appreciate the willingness shown by the Appellant-company for paying an amount of Rs.15,00,000/- (fifteen lac) to the respondent-workman. The things could have been sorted out in the earlier proceedings amicably. After the termination, the respondent-workman has worked on the lower post from 21.03.1994 to 06.07.1997, i.e. for 3 yrs and 3 months approx. Thereafter, he has worked on the promotional post from 07.07.1997 to 27.02.003, i.e. for the period of 5½ years approx. During this service period nothing adverse has been found against the respondent. He was promoted to the post of Section In-charge after considering his entire service of 5 years including the service prior to his termination. The respondent-workman succeeded in his reference proceedings challenging his termination on the feeder post however, to his misfortune he failed in the Review proceedings filed by the appellant-company before the Industrial Court which travelled to this Court and the Apex Court, sealing his fate. We cannot ignore these facts while issuing the final directions. On an overall appreciation of the facts and keeping in mind, how the legal proceedings has shaped the fate of the respondent-workman, and in order to meet with the ends of justice, it will be apposite that the respondent-workman is paid an amount of Rs.18,00,000/- as a solatium, over and above the amount of PF, in case it is not paid. It is also further directed that the accrued interest on the Fixed Deposit and the amount, which is being paid to the respondent-workman during the pendency of the present appeal, shall not be recovered or adjusted towards the amount of Rs.18,00,000/-. 56. The present Letters Patent Appeal is allowed to the aforesaid extent.