JUDGMENT
1. The respondents in CWJC No. 4653 of 1996 are the appellants in this appeal. The respondent herein, who was the petitioner in the writ petition, was appointed as a typist. His services were terminated. An Industrial Dispute was raised challenging the termination. It was numbered as Reference Case No. 7/1989. The question was whether the termination of the writ petitioner was unjustified and if it was unjustified, whether he was entitled to reinstatement or any other relief. Even though the reference was pending adjudication on 10.7.1989, the writ petitioner was reinstated in the post which he was holding prior to the termination. In the award dated 5.12.1990, the Presiding Officer, Labour Court held that the termination of the writ petitioner was done without complying with the requirements of Section 25F of the Industrial Disputes Act. He, therefore, held that the termination was unjustified and illegal. While taking note of the reinstatement with effect from 10.7.1989 the Labour Court ordered that the writ petitioner was not entitled to any back wages but he was entitled to get all the benefits equal to a regular workman since the date of his reinstatement on 10th July, 1989. Thereafter, on 20.3.1996, the services of the writ petitioner was again terminated after allegedly complying with Section 25F of the Industrial Disputes Act. This time, the workman, (the writ petitioner) without Invoking the remedy available under the Industrial Disputes Act, came tb this Court direct, with the writ petition, CWJC No. 4653 of 1996, challenging his termination on the ground that the second termination was illegal, that in the light of the earlier award of the Labour Court which was binding on the appellants, the services of the writ petitioner could not have been terminated, that the post was available and has not ceased to exist and in the circumstances, the termination was bad in law and the same is liable to be set aside. He also prayed for the issue of a writ of mandamus directing the appellants to regularize his services.
2. According to the writ petitioner, the post was available and he was working in that post that the Executive Engineer was not justified in terminating his services, that he had no authority to do so and that the termination smacks of malafides. It was submitted on behalf of the appellant that the earlier termination was held to be bad in law on the ground that Section 25F of the Industrial Disputes Act had not been complied with. But this time, after complying with Section 25F of the Industrial Disputes Act, the termination was effected, that it was Justified in law and could not be assailed and that too in a writ petition. It was also submitted that the Government has set out a policy not to continue persons like the writ petitioner who is not a regular employee and it was pursuant to the policy decision of the Government as disclosed from Annexure-3 that the termination was effected after compliance with Section 25F of the Industrial Disputes Act, and there was no malafide involved in the case.
3. The learned Single Judge held that there was some delay in paying the emoluments due to the writ petitioner pursuant to the earlier award of the Labour Court and this demonstrated the malafide on the part of the appellants herein. The learned Judge held that the Chief Engineer directed the writ petitioner to be reinstated and the Executive Engineer was not entitled to terminate the services of the writ petitioner. He, therefore, held that the termination was bad in law and directed the reinstatement of the writ petitioner, with all consequential benefits and also observed that it will be desirable for the appellants to fill up the post of typist on regular basis and while doing so, the case of the writ petitioner shall also be considered.
4. Challenging the decision of learned Single judge, it is contended on behalf of the appellants that the finding that the termination was actuated by malafides was totally justified. The termination was based on a policy decision of the Government. The earlier termination was set aside by the Labour Court only on the ground of non compliance with Section 25F of the Industrial Disputes Act. The subsequent termination was effected after duly complying with Section 25F of the Industrial Disputes Act. It was also contended that the learned Single Judge was not correct in taking the view that an inferior authority has directed the termination against the order of a superior authority. It is submitted that the termination was based on of the policy decision of the Government and after taking the necessary legal opinion. It was, therefore, contended that the judgment is liable to be interfered with.
5. The learned counsel for the respondent, the writ petitioner, on the other hand, contended that the learned Judge was justified in granting relief to the writ petitioner on the facts and in the circumstances of the case. There was a post of typist available, it was being held by the writ petitioner and the writ petitioner has adequate experience have held the post since 10.3.1986. In that situation, the writ petitioner should not have been terminated and the termination was only because of animosity towards the writ petitioner. In this context, the learned Single Judge was fully Justified in allowing the writ petition.
6. We find that the learned Single Judge was not justified in finding that the termination of the writ petitioner was actuated by malafide. Annexure-3 discloses that the Government had taken a policy decision to do away with the services of persons like the writ petitioner. The writ petitioner was therefore, removed from services after complying with Section 25F of the Industrial Disputes Act as indicated by the Labour Court in Its award on the earlier occasion when the termination was set aside on the ground of non compliance with Section 25F of the Industrial Disputes Act. Obviously, the writ petitioner was working on daily wages basis from the year 1986. Hence, the employer had the right to terminate the workman in terms of the Industrial Disputes Act, but after complying with the requisite formalities as prescribed. That was done here, by the Executive Engineer. No malafides can be spelt out from the action of the Executive Engineer on the facts and in the circumstances of the case.
7. We also find that the learned Single Judge was not justified in finding that the order was passed by the Executive Engineer as directed by a superior authority. The Chief Engineer had directed the writ petitioner to be taken in service on the prior occasion, even while a dispute regarding the removal was pending before the Labour Court. No doubt one of the communications indicated that a post of typist might be available in the particular department, but that is no ground to find malafide intention. In the situation prevailing, it is open to the Government to take a decision based on a policy. It is based on a direction in their behalf that the Executive Engineer directed the termination of the services of the petitioner. On the materials, we are satisfied that no case of malafides can be found in the order of the Executive Engineer. The plea in the counter affidavit in that behalf cannot be ignored. The finding is liable to be set aside.
8. Before parting with the case, we would like to observe that against a termination of this nature, it would not be proper to entertain a writ petition under Article 226 of the Constitution of India in respect of a workman like the petitioner because, after all the Industrial Disputes Act provides an adequate remedy. The right to reinstatement flows from that statute and that statute has also created a forum for establishing that right. When it is so, it is not for this Court to exercise jurisdiction under Article 226 of the Constitution of India to entertain a challenge to the termination. No special facts exist in this case justifying such exercise. The proper course to such circumstances is to leave the aggrieved person to approach the appropriate Tribunal constituted in that behalf.
9. We, therefore, allow the appeal, set aside the order of learned Single Judge and dismiss the writ petition.