The petitioner is aggrieved by a remand order in so far as it directs the continued reinstatement pending trial of the employee.
2. The services of the respondent No. 2 were terminated by the petitioner on 26-5-1973. A petition was field before the Junior Labour Court which was decided in favour of the respondent ex parte against the petitioner on 12-7-1975. The petitioner went up in appeal, obtained a stay against the re-instatement ordered by the Junior Labour Court but on the expiry of the statutory period prescribed under section 36-D the respondent had to be reinstated near about 17th August 1975.
The appeal came to be decided on 4-9-1975 and the appellate Court while setting aside ex parse proceedings against the petitioner directed the retrial of the matter after notice and its the presence of both the parties. While so ordering the Court made the following additional directions "I am told that the respondent has been re-instated in compliance with the orders of the Junior Labour Court. Matter is pending since 1973 and for these reasons he would remain re-instated during the course of trial and question of back wages would depend upon the result of the case."
It is this portion of the order which has offended the petitioner and amounts for this petition.
3. The argument made is two-fold. Firstly, it is contended that there is no power conferred specifically on the Appellate Court to pass such an order of re-instatement while the anther itself is pending for trial in the Junior Labour Court and is awaiting its decision, the previous decision having been removed from the scenes.
Secondly, it is contended that even the Junior Labour Court had no such power for it could not by way of an interim order while proceedings were on, direct the re-instatement of a petitioner before it. Such an order could be passed only after the matter had been finally dealt with.
4. As an alternative argument it has been contended that even if the Appellate Court had such a power the two considerations which have weighed with it in the matter of exercise of that power are extraneous to the cause.
5. The specific provision of law governing the powers of the Appellate Court finally disposing of the appeal is not imperative. What is stated is that it has to be a decision. Therefore, the powers which are available to a Junior Labour Court would be available to an Appellate Court as well while deciding an appeal. A Junior Labour Court while deciding a cause has the power to grant such relief as it may, in the circumstances 4 of the 'case, think fit. A similar power extended to the Appellate Authority would imply that while deciding an appeal it could grant such relief to the party as in the circumstances of the case was called for. On this view of the matter irrespective of the fact that the Junior Labour Court second (?) final decision is still awaited and the first has been removed from the scene. The decision of the Appellate Court is a fact and with that decision and its conclusiveness follows the power to grant such relief as it thinks fit. The power to grant such a relief therefore was not lacking. The only question is whether it has been properly exercised in the circumstances of the case or its exercise is so perverse as to require interference in the Constitutional Jurisdiction of this Court.
6. The fact that the petitioner was absent when the case was called for before the Junior Labour Court has not been disputed. Certain circumstances accounting for the absence were pleaded.
The Appellate Court took note of it and also noted that 'the respondent No. 2 was also not personally present on that occasion. It was a case where an ex parte order against the petitioner was not found to have been passed justifiably on the facts before the Appellate Court and therefore an ex parte order was set aside. It is a general principle that an ex parse order can be set aside on terms or conditions and a party has no right to contend that either set aside the ex parse order unconditionally or do not at all set aside. The attachment of conditions to the setting aside e of such an order cannot be objected to. The impropriety of the condition has to be judged in the context. The continued re-instatement of the respondent No. 2 was a condition attaching or a term applied for setting aside the order of the Junior Labour Court and it cannot be said to be a perverse order for the fact that he had taken up his employment, may be under the compulsion of the law and had been working in the establishment was a fact which could not be denied. To dislodge him from such a position only because an ex parte order against the petitioner has been set aside may have worked great hardship specially' when the matter had been pending before the Junior Labour Court for about two years.
7. 1 find that the case does not call for an exercise of the powers invoked. The petition is dismissed in limine.