NON REPORTABALE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.229 OF 2005

M.D. HINDUSTAN PHOTO FILMS  AND ANR.                                                 … APPELLANTS

VERSUS

H.B. VINOBHA AND ORS.              …RESPONDENTS

J U D G M E N T

TARUN CHATTERJEE, J.

1. In our  view,  this  appeal  shall  succeed on a  very short  

question.  Order of termination issued against the respondents  

was quashed in writ application filed by the respondents before  

the High Court of Judicature at Madras.  Accordingly, a learned  

Single Judge of the High Court directed reinstatement of the  

respondents in service and also a direction was issued to revoke  

the order of termination passed against them.  The appellants  

filed an appeal before the Division Bench of the High Court.  

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The Division Bench, however, dismissed the appeal.  Feeling  

aggrieved, the appellants  filed a special  leave petition in this  

Court, which on grant of leave, was heard in the presence of  

learned counsel for the parties.

2. The  Division  Bench  in  the  impugned  order  made  the  

following observations:

“14.  The action taken by the employer can by no   means could be regarded as lacking in bonafides.   The  facts  in  relation  to  this  company  already  referred  to  make  it  abundantly  clear  that  the   company was so sick that it could not complete in   the  market.   Had  it  not  been  a  public  sector   company,  the  company  would  probably  have  closed  down  long  ago.   The  mere  fact  that  the   company  is  not  liquidated  as  of  today  does  not   imply that the company is financially sound or is   capably  of  being  revived.   The  company having  become  a  sick  company  long  ago  the  formal   declaration of sickness was only a recognition of   the sickness that had set in much earlier by reason  of which the termination of the services of these  trainees had become necessary.

15. The inevitable conclusion, therefore, is that   the termination of these trainees was lawful  and  did not call for any interference.  Moreover, this   was a case where the persons, could approach the  court  claim  to  be  the  workman  covered  by  the   definition  of  workmen under  Section  2[s]  of  the  Industrial  Disputes  Act.   The  union  had  also  sought  to  raise  and industrial  dispute  regarding  the termination.  The proper course for this Court   would have been to direct the workmen to pursue   their  remedy  under  the  Industrial  Disputes  Act,   

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and  not  proceed  to  adjudicate  on  contested   questions  of  fact  and  proceed  to  compel  the   employer to re-employ as many as 109 trainees,   who had undergone training for a period of less  than two years.  On this ground also, we must hold   that the order of the learned Single Judge is not   sustainable.   We  have  examined  the  claim  on  merits  in  the  light  of  the  arguments  advanced  before us.”  

3. A reading of these findings of the Division Bench clearly  

shows  that  the  order  of  the  learned  single  judge  was  not  

sustainable and the claim of the respondents on merit could not  

be sustained.  In spite of such findings made by the Division  

Bench, it affirmed the order of the learned Single Judge only on  

the ground that since an interim order granted by the learned  

Single Judge during the pendency of the writ petition continued  

for  the  last  ten  years,  it  would  be  inequitable  and  unjust  to  

deprive them of their employment at this stage.  Only on this  

ground, the judgment of the learned Single Judge was affirmed  

and the services of the respondents, who were taken as trainees,  

were directed to be regularized.  We are unable to accept these  

findings  of  the  Division  Bench  of  the  High Court  when the  

Division Bench itself had come to the conclusion that the order  

of  regularization  of  the  respondents  who  were  appointed  as  

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trainees could not be sustained because the respondents were  

appointed as trainees for a particular period and at a fixed salary  

and that period had also expired.  Only because of an interim  

order,  the  services  of  the  respondents  were  directed  to  be  

continued, which cannot be a ground to hold that they should be  

regularized as regular employees of the appellants.

4. For the reasons aforesaid, the impugned order is set aside  

and  the  order  of  termination  is  upheld.   The  appeal  is  thus  

allowed to the extent indicated above.  There will be no order as  

to costs.

………….……………….J. [ TARUN CHATTERJEE ]

NEW DELHI   ……..………………………J. MAY 13, 2009 [V.S. SIRPURKAR ]

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