ORDER
Lodha, J.
1. Group of these 17 writ petitions filed under Articles 226 and 227 of the Constitution of India arises out of the common judgment dated 20.2.1995 passed by the Industrial Court, Nagpur affirming the common order passed by the Labour Court, Chandrapur on 19.8.1994 in 17 complaints and, therefore, in view of the common question involved, all these writ petitions have been heard together and are disposed to by this common judgment.
2. Respondent No. 2 in each of the writ petitions, filed separate complaint under Section 28 read with Item I of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short, the ‘Unfair Labour Practices Act, 1971’) before the Labour Court, Chandrapur. Respondent no. 2 in each of the writ petitions (for short, the ‘complainants’) were appointed by the petitioner, the Chandrapur District Central Cooperative Bank Limited, Chandrapur (for short, the ‘petitioner-Bank’) by the order dated 23rd/24th November 1990. Some of the complainants wee appointed in the post of Clerk and some of the complainants were appointed on the post of Peon. All these appointments were made for a period of six months on a consolidated salary per month on their terms and conditions mentioned in the appointment letter. According to the appointment order, after a period of six months, the complainants were entitled to permissible pay-scale and admissible allowances. By the order dated 21.3.1991, services of all the complainants were terminated. In the termination order, it was stated that the complainants were appointed on purely temporary basis and their appointment was made by the Ex-Chairman of the petitioner Bank without approval of the Board of Directors and the work of the complainants was not satisfactory and also that the court cases regarding appointments were pending in the court and services were sought to be terminated with effect from 27.3.1991. The termination order dated 21.3.1991 seeking to terminate the services of the complainants with effect from 27.3.1991 led to the filing of complaints by the complainants under the Unfair Labour Practices Act, 1971.
3. The complainants set up the case in their respective complaints that they were appointed by the petitioner Bank pursuant to the advertisement for the posts. The complainants were called for interview and the Selection Committee was constituted as per the directions of the Government and in the Selection Committee, the members included amongst others Social Welfare Officers, District Deputy Registrar (Co-operative Societies), Chandrapur, Special Auditor (Bank), Chairman, Vice-Chairman and Secretary of the Bank. After due selection by the Selection Committee, the appointment was give by the petitioner Bank. According to the complainants, the order of termination dated 21.3.1991 effective from 27.3.1991 was illegal, violative of principles of natural justice, based on non-existing facts, malafide and in colourable exercise of the employer’s right and victimisation. The complainants averred in the complaints that the termination orders were arbitrary and at no point of time, they were hold that their work was unsatisfactory. According to the complainants, the petitioner Bank terminated services of 125 persons including the complainants and excluding 45 employees including the complainants, rest of the employees were re-appointed on that very day. The complainants, thus, submitted that illegal act of the petitioner Bank was covered under item 1 of Schedule IV of the Unfair Labor Practices Act, 1971 and the act of the petitioner Bank in terminating services of the complainants be declared unfair labour practice and the complainants be ordered to be reinstated by the petitioner Bank with full back wages.
4. The petitioner Bank contested the complaints and denied the allegations made in the complaints and set up the defence that the appointments of the complainants were not in accordance with law and in fact, they were appointed by the Ex-Chairman of the Bank Shri Kundojwar who had no power to make appointments. According to the petitioner Bank, appointments of complainants could have been made only by the approval of the Board of Directors and since no approval of the Board of Directors was taken, the appointments were illegal. The petitioner Bank asserted that complainant’s work was not satisfactory. The petitioner Bank also denied that the termination order was by way of victimisation or malafide or in colourable exercise of power. The reasons given in the termination order were reiterated and it was pleaded that since the very appointment of the complainants was illegal, no notice was required to be given before terminating the services of the complainants. In the specific pleadings, the petitioner Bank set up the defence that the advertisement inviting applications for various posts was challenged by union of the employees by filing disputes before the Labour Court and though initially stay was granted to the union, later on the interim stay order was vacated on 20.11.1990, but it revealed that the appointments were finalised much before vacation of the stay order. Relying on Bye-law No. 26 (vi), the petitioner Bank set up a defence that the power of appointments vests in the Board of Directors and Board vide resolution dated 8.6.1990 decided that selection list finally prepared by the said Committee should be first placed before the Board of Directors and further action of appointments may be undertaken only after sanction of the Board and thus the Ex-chairman had no authority to issue appointment orders to the complainants. The petitioner Bank further submitted that the Board in its meeting held on 2.2.1991 resolved to appoint an Investigation Committee to probe into these appointments made by the then chairman. The Investigation Committee accordingly examined the entire record and found that there were several anomalies in the appointments in as much as the candidates who did not apply for the posts or did not send the postal orders or did not hold the requisite educational qualifications or were over-age, were also given appointments and such candidates were 47 in number. According to the petitioner Bank, therefore, decision was taken and services of all such candidates were terminated by the order dated 21.3.1991 and excepting the complainants and some others, fresh appointment orders were issued, to the remaining employees who were appointed by the then Chairman. The petitioner Bank, thus, prayed that they have not indulged in unfair labour practice and the complainants were not entitled to reinstatement or back wages as claimed by them.
5. Except six complainants, all complainants examined themselves and in six complaints in which the complainants did not appear in witness box, adoption pursis were filed that evidence in other complaints be treated as evidence in those six complaint cases. The petitioner Bank filed pursis in Complaint No. 53 of 1991 that it be permitted to lead common evidence and accordingly examined Prabhakar Shridharrao Patil and Madhukar Chintamanrao Bankar. Complainants placed on record and proved advertisement, the application, the interview letter, the appointment order and the termination order.
6. The Labour Court after recording the evidence and hearing the parties, concluded that the appointments of complainants were in accordance with the procedure and the termination orders of the complainants were improper, illegal and by way of victimisation and thus, by the judgment dated 19.8.1994, allowed all the complainants and declared that petitioner Bank had engaged in unfair labour practice by terminating the services of complainants with effect from 27.3.1991 and held that the complainants were entitled to reinstatement with continuity in service and full back wages with effect from 27.3.1991.
7. Seventeen revision applications came to be filed by the petitioner Bank against the common judgment passed by the Labour Court before the Industrial Court, Nagpur. The Industrial Court also heard the arguments of the parties and by the order dated 20.2.1995 dismissed all 17 revision applications filed by the petitioner Bank and affirmed the judgment passed by the Labour Court on 19.8.1994. Thus, all the 17 revision applications came to be dismissed on 20.2.1995 by the Industrial Court, Nagpur giving rise to the present group of 17 writ petitions, as aforesaid.
8. In the writ petitions, though, the petitioner Bank has raised the ground that the complaints under Section 28 of the Unfair Labour Practices Act, 1971 filed by the complainants were not maintainable inasmuch as Bombay Industrial Relations Act, 1946 was a complete code in itself and provided an independent machinery under the said Act for adjudication of the disputes like termination of service and the said Bombay Industrial Relations Act, 1946 being a special Act, supercedes the provisions of the Unfair Labour Practices Act, 1971, no arguments had been advanced by the learned Counsel for the petitioner Bank relating to the maintainability of the complaints during the course of arguments. Mr. Madkholkar, the learned counsel appearing on behalf of the petitioner Bank would urge that the principles of natural justice were not attracted where the initial appointment itself was illegal. According to him, in view of this position, the findings recorded by the Labour Court as well as by the Industrial Court that the show-cause notice was required to be given to the complainants and that principles of natural justice were required to be followed, were not justified. To show that the appointments of complainants were illegal, the learned counsel for the petitioner Bank referred to Bye-law No. 26(vi) of the Bye-laws of the petitioner Bank and submitted that the appointments of the complainants could only have been made by the Board of Directors but the complainants were appointed by the then Chairman who had no authority and power to appoint. Mr. Madkholkar, the learned counsel for petitioner Bank would also contend that all the complainants were appointed temporarily and the principles of natural justice are not required to be followed where the service of temporary employee is terminated, because, according to him, no right is vested in such employees, by temporary appointments. In support of his contention that the initial appointment of the complainants being illegal, principles of natural justice were not required to be followed. Mr. Madkholkar relied upon the decisions of the Apex Court in Shrawan Kumar Jha & Ors. v. Ram Sewak Sharma & Ors. ; Union of India & Others v. Anand Kumar Pandey & Ors. and G. B. Pant Agricultural and Technology University v. Kesno Ram . In the alternative, Mr. C. G. Madkholkar would urge that even if the principles of natural justice were held to be attracted and the termination orders are held bad on that count, the appointments being illegal, reinstatement could not have been ordered by the Labour Court an confirmed in revision applications by the Industrial Court and instead, at best, damages could have been awarded to the complainants. Mr. Madholkar also invited my attention to para 25 of the judgment passed by the Labour Court and submitted that the finding recorded in the said paragraph by the Labour Court that the termination orders were not effected according to Section 25G of the Industrial Disputes Act as well as Rule 77 of the Central Rules and Rule 81 of the Bombay Rules, was uncalled for, because the parties were not at issue on the said point and there was no pleading to that effect even by the complainants in their respective complaints. Mr. Madkholkar submitted that the provisions of Section 25G cannot be said to have not been complied with, because all the 125 persons including the complainants were terminated from service and after terminating the services of all the above persons, except for 45 persons including the complainants, others were given appointments afresh by the petitioner Bank, but from the said act it cannot be said that there was non-compliance of Section 25G of the Industrial Disputes Act or breach of rule 77 of Central Rules and rule 81 of the Bombay Rules. Mr. A. B. Chaudhari who also appeared for petitioner bank in some of the petitions, submitted that award of full back wages was not proper, because there was no finding by the Labour Court or by the Industrial Court that the complainants were not employed during the intervening period after termination order and before passing of the orders of reinstatement. In support of his contention, Mr. Chaudhari relied upon Ratanlal Malviya v. State of M. P. (1994 (1) LLJ 358); Workman, Silver Sands Employees’ Union v. 1st Addl. Labour Court, Madras & Anr. 1994-II-LLN 188) and U.P. State Road Transport Corporation v. Shambhu Dayal & Ors. (1989 Lab. IC 457). Mr. Chaudhari also argued that so far as six complaints giving rise to the writ petitions no. 584/95, 576/95, 571/95, 573/95, 581/95 and 577/95 were concerned, these six complainants did not enter the witness box and, therefore, their complaints were liable to be rejected for want of proof of allegations made in the complaints.
9. Mr. Thengre, the learned counsel who appeared for complainants, supported the findings recorded by the Labour Court as well as by the Industrial Court and the orders passed by the said courts and submitted that the findings recorded by the Court below were finding of fact and based on proper appreciation of evidence and in accordance with the settled principles of law warranting no interference by this Court in the extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India. Mr. Thengre submitted that appointments of all complainants were made in accordance with law pursuant to the advertisement after due selection by the Selection Committee which include the senior Government Officers of the Cooperative Departments and, therefore, termination of the complainants was absolutely arbitrary, illegal and unjustified and has rightly been declared to be so by the Labour Court and confirmed by the Industrial Court. The learned counsel for the complainants also contended that in the same selection process, 125 employees including the complainants were appointed and by the order dated 21.3.1991, all 125 employees were terminated, but on the same date, 80 employees were re-appointed excluding the complainants and thus termination orders of the complainants were based on non-existing facts and were violative of principles of natural justice and, therefore, the courts below have not committed any error either of law or fact much less any error warranting interference by this Court in extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India. In support of his arguments Mr. Thengre relied upon College of Engineering of Yeshwant Rural Education Society v. Mrs. Asmita Basole & Anr. (1987 Mh. L. J. 676) and Shridhar Ram Dular v. Nagar Palika, Jaunpur & Ors. .
10. The case of the complainants is that they were appointed pursuant to the advertisement and having been duly selected by the Selection Committee duly constituted as per the directions of the Government and after they appeared for interview and passed therein. The Selection Committee amongst others included Social Welfare Officer, District Deputy Registrar, Special Auditor of the Bank, Chairman, Vice-Chairman and Secretary of the Bank and, therefore, the appointment made pursuant to the said selection was legal and proper. On the other hand, according to the petitioner bank, the complainants were not duly selected and, therefore, their appointed was illegal. The petitioner Bank’s case, therefore, is that an Investigation Committee was constituted to examine the appointments of all the 125 persons who were appointed including the complainants, and the said Investigation Committee found some discrepancies, anomalies and irregularities in the appointments of 45 candidates inasmuch as some of them were over-age, some of them even did not apply for the post, some of them did not send postal orders and like that and that their appointments were not approved by the Board of Directors. However, it would be seen that in the termination order, four reasons have been assigned that, (i) appointment was made purely on temporary basis; (ii) appointment was made by the ex-Chairman of the bank without approval of the Board of Directors; (iii) work of the employees was unsatisfactory, and (iv) court cases regarding appointments were pending in the court. In the termination order, therefore, there is no mention that the appointments given to the complainants suffered from discrepancies, anomalies and irregularities such as that they were over-age or they did not apply for the posts or did not send postal orders and/or that their appointment was found illegal by the Investigation Committee. Admittedly, no notice was given to any of the complainants before passing of the termination order and all of a sudden by the impugned order dated 21.3.1991, the services of complainants were sought to be terminated with effect from 27.3.1991. It would be pertinent to mention here that along with the complaints in all, by the same selection process and pursuant to the same advertisement, 125 employees were appointed on various posts of Clerk and Peons. Out of 125 employees who were selected by the same process and appointed along with the complainants, 80 employees have been retained by giving fresh appointments by the petitioner Bank on the same date on which their services were terminated along with the complainants. If the entire selection was bad as is being shown by the petitioner Bank, then the question of retaining 80 employees by giving fresh appointment orders to them, on the very day of their termination did not arise. Such act of the petitioner bank negatives, on its face, the plea of the petitioner Bank that the entire selection process in which the complainants were employed, suffered from irregularities or illegalities. The Labour Court rightly held that in this situation, burden lay on the petitioner Bank to prove the illegality in the appointments of the complainants and other candidates, but the petitioner Bank has miserably failed to discharge that burden that there was any illegality in the appointment of the complainants as regards they being over-age or non-supply of postal orders or that there was no application by them or such other grounds. The case of the petitioner Bank is also that appointments of these employees were made without the approval of the Board of Directors and the Board of Directors did not approve their appointments on the ground that irregularities were found in the appointments by the Investigation Committee. Complainants were not informed prior to the termination order about the findings of the Investigation Committee or that there was any illegality or irregularity in their appointments or that the Board of Directors had not accorded any approval. The Labour Court has considered this aspect in the right perspective and thus, held as under :-
“…… However, it is admitted by respondent’s witness as well as in written statement by respondent that on the same day all 125 candidates were terminated with effect from 27.3.1991 vide order dated 21.3.1991. There were some discrepancies, anomalies and irregularities found by Investigation Committee while appointing 47 candidates, including complainants. Hence, they were terminated by retaining other candidates, in services. The grounds for their termination were they were over-aged, some were not applied for the posts and were selected. Some were relatives of officers of respondent bank. Some candidates have not sent postal orders as required in advertisement. Investigation Committee submitted report to Board of Directors and Board of Directors has not consented for approval of these candidates for continuing them in services. Therefore, they were terminated. This admission of respondent proves that there was no irregularity committed by Selection Committee while appointing these 125 candidates in procedure. The procedure adopted by Selection Committee was the same for complainants as well as other candidates who were retained in services even after 27.3.1991. By same procedure, all 125 candidates were selected and on that basis, appointments were given to them. Now respondent came with a case that there were illegal appointments of these complainants. Therefore, burden lies upon respondent to prove that any illegality was committed while appointing these candidates.
Undisputedly, no illegality was pointed out to these complainants prior to their terminations. The reasons disclosed by respondent that there were some irregularity like not submitting application properly, not submitting postal order, over-age of candidates and relations with officers of respondent. These reasons are disclosed by respondent in their written statement as well as by adducing evidence. However, these reasons were not informed to complainants. No evidence is adduced by respondent to prove that for these reasons, complainants were terminated. Only reason given by respondent in termination order that there was no approval of Board of Directors and, therefore, they were terminated. The approval of Board of Directors was not given only on the ground of irregularities found in appointment as described by me above. However, these irregularities were not disclosed in termination orders, not it were proved before court.
17. The Board of Directors approved selection of other candidates but denied continuation of present complaints without any reason and cause. The Board of Directors issued fresh appointment orders to other employees except complainants. No reasons are disclosed by Board of Directors for granting approval to other candidates and terminating the complainants. Merely, stating that Investigation Committee found irregularity in appointment is not sufficient. The report of Investigating Committee is not produced before court to show that while appointment complainants, there was irregularity found. The procedure adopted for appointing all candidates was the same and by the same Committee. Therefore, question of illegality in appointments of complainants cannot be accepted”.
11. The Industrial Court approving the aforesaid finding of the Labour Court, thus, observed as under :-
“…… As stated earlier, all these complainants were interviewed by the Selection Committee constituted for the said purpose by the Board of Directors as per the direction issued by the Commissioner of Cooperation and Registrar of Cooperative Societies. Pune and the Selection Committee had selected these complainants besides others, total strength of 125 candidates, the sanctioned strength which was sanctioned by the said Authority. According to the respondent Bank, the said selection list of these 125 candidates selected by the Selection Committee was not got approved by the Board of Directors of the respondent Bank. Besides, it is the contention of the respondent that the Board of Directors had constituted an investigation committee recommended for termination of all those 125 candidates selected by the Selection Committee was not approved by the Board of Directors of the respondent Bank. Besides, it is the contention of the respondent that the Board of Directors had constituted an investigation Committee recommended for termination of all those 125 candidates selected by the Selection Committee as the investigation committee found several irregularities. Out of those irregularities some are of selection of overage candidates, candidates who did not even apply for the post and came to be selected, not possessing the required qualification, not securing the required marks in the academic qualification and even appointed those who secured less marks than others in the interview. Both the witnesses examined by the respondent have reiterated in respect of these facts to support the contention of the respondent that there were irregularities and illegalities in selection of the 125 candidates and therefore, according to both these witnesses all those 125 candidates came to be terminated with effect from 27.3.1991. However, according to both these witnesses of the respondent, out of those 125 candidates, 80 candidates were retained by giving reappointment to them and 45 fresh candidates came to be appointed by the respondent Bank. According to both these witnesses Shri Jivtode who became the Chairman of the respondent Bank issued the fresh orders to all those 80 candidates and the other 45 fresh candidates without appointing a new Selection Committee. This has been admitted by the witness No. 2 Shri Madhukar Banker, Exhibit 53 examined by the respondent Bank. The respondent Bank has not placed on record that the Board of Directors gave approval for the reappointment of those 80 plus 45 candidates which were appointed by issuing the appointment order by Shri Kundojwar, the then Chairman of the respondent Bank after due selection by the Selection Committee. Both these witnesses examined by the respondent Bank have stated that the selection made by the Selection Committee was to be approved by the Board of Directors and then appointments were to be given. According to witness No. 1 Shri Prabhakar Patil, who was Manager of the respondent Bank, during his cross-examination has stated that there was Appointing Committee including Chairman, Vice-Chairman, Secretary, Registrar of Cooperative Societies, Auditor of Cooperative Societies and others, total 11 members. Shri Kundojwar was the Chairman and Shri Jivtode was the Secretary. The respondent Bank has filed at the time of hearing Revisions a copy of the Bye-law No. 26 about powers of the Board. Besides other powers the Board is conferred upon the powers to appoint such salaried and non-salaried employees, to fix their remuneration and services of the salaried staff shall be governed by the rules framed by the Board of Directors and other matters in connection with appointments. In this bye-law No. 26 there is no condition that the Board of Directors is required to approve the list prepared by the Selection Committee. The respondent Bank has not placed on record any particulars to show that the powers of the Board of Directors in respect of Selection and appointment of the staff is not delegated to the Selection Committee constituted by the Board of Directors as per the direction issued by the Commissioner of Cooperation and Registrar of Cooperative Societies. It is not the contention of the respondent Bank that behind the bank of the Board of Directors Mr. Kundojwar, the men Chairman of the respondent Bank, constituted the Selection Committee and selected all these complainants including others, total 125 in number. Therefore, it cannot be said that there was no approval of the Board of Directors to the selection made by the Selection Committee.”
12. I fully concur with the aforesaid reasons given by the Labour Court and the Industrial Court in holding that the petitioner Bank has failed to show that the appointment of the complainants was in any manner illegal or suffered from irregularity. The Industrial Court has rightly held that the Bank has not been able to show that the Board of Directors gave approval for 80 employees to be given fresh appointments on that very day who were terminated along with the complainants. Before me also, the learned counsel for petitioner Bank could not show that approval was given by the Board of Directors for 80 appointments made afresh after terminating the services of 125 employees. If the selection of these 80 employees suffered from infirmity in the selection process as in the case of present complaints, once the services of 80 employees were also terminated along with the complainants, without holding the fresh selection process in accordance with law, on the very day of their termination, they could not have been reappointed by fresh orders. Such course adopted by the petitioner Bank on its face smacks of malafides. arbitrariness and victimisation of the complainants and the Labour Court as well as the Industrial Court have rightly considered and held that on the face of facts and circumstances of the case and in view of the evidence which has come on record, oral as well as documentary, it cannot be said that the appointments of the complainants were illegal.
13. Bye-law No. 26 of the Bye-laws of the petitioner Bank provides for powers and duties of the Board. Relevant portion of bye-law no. 26 reads as under :-
“26. The powers and duties of the Board shall be as under –
i) …. v ….
ii) To appoint such salaries and non-salaries employees to fix their their remuneration. The services of the salaried staff shall be governed by the rules to be framed by the Board of Directors, as regards appointments, resignation, termination of services, leave, punishment, suspension, dismissal and such other matters subject to the provisions of the Standing Order of the Bank in this behalf…”
14. According to bye-law no. 29 the Board may delegate any of its powers to the Chairman, Vice-Chairman, Hon. Secretary, Manager and other officers and the said bye-law no. 29 reads as under :-
“29. DELEGATION OF POWERS : The Board may delegate to the Chairman, vice-Chairman, Honorary Secretary, Manager and other officers any of the powers”.
15. Before the Labour Court, in the complaint proceedings, the petitioner Bank has not placed on record any material to show that the powers of appointment to salaried and non-salaried staff has not been delegated to the Chairman under bye-law no. 29. The petitioner Bank also did not produce any material before the Labour Court to establish that the Selection Committee to make selection of 125 employees was not appointment by the Board of Directors or that power was not delegated regarding selection of employees to the Selection Committee. The very fact that the Selection Committee comprised of eleven members which not only included the Chairman, Vice-Chairman and Secretary of the petitioner Bank, but also included senior officers of the Cooperative Departments, viz. Registrar of Cooperative Societies, Auditor of Cooperative Societies, Social Welfare Officer and others shows the proper constitution of Selection Committee. Neither before the Labour Court not before the Industrial Court nor before this Court the petitioner bank has disputed about the formation of selection committee for selecting the clerks and the peons in the petitioner Bank. It is also not disputed by the petitioner Bank that Selection Committee constituted for the purpose, did not assemble. There is also no dispute that 125 persons including the complainants who were given appointments as Clerks and Peons have been duly selected by the Selection Committee after holding the interview. No dispute has also been raised by the petitioner Bank that 125 vacancies of Clerks and Peons were not available in the petitioner bank and in the absent of such vacancies, 125 candidates were selected for the post of Peons and Clerks. The fact is that though by the order dated 21.3.1991 services of all 125 employees were sought to be terminated, except 45 persons including the complainants, 80 persons were given fresh appointments on that very day. As observed, if the selection process did not take place or if the Selection Committee was not constituted properly or that the Selection Committee did not enjoy the authority from the Board of Directors, 80 candidates who were selected in the same process, by the same Selection Committee, on their having been terminated along with the complainants, could not have been given fresh appointments on the very day of their termination of their services. In this background, the finding recorded by the Industrial Court and by the Labour Court that it cannot be said that there was no approval from the Board of Directors to the selection made by the Selection Committee, was an erroneous findings or that it suffered from any infirmity. The conclusion reached and the inference drawn by the Industrial Court as well as the Labour Court to the effect that the selection of these complaints along with other who appeared before the Selection Committee and which selected and appointed them were legally appointed, is well founded and, therefore, there is no merit in the contention raised by the petitioner bank that in the absence of any approval by the Board of Directors to the selection list, the appointments of the Complaints were illegal.
16. In Shrawan Kumar Jha’s case (supra) which related to a case where 175 persons were appointed as Assistant Teachers by the District Superintendent of Education, Dhanbad by the Order dated 28th May 1988 and they were required to join the duties within the specific period by July 4, 1988 after having their certificates and other qualification verified from the authorities, the Deputy Development Commissioner by an order dated 2nd November Commissioner by an order dated 2nd November 1988 cancelled their appointments. On challenge having been made to the order dated 2nd November 1988 on the ground that the sad order was liable to be set aside being violative of principles of natural justice, the Apex Court has held as under :-
“By an order dated November 2, 1988, the Deputy Development Commissioner cancelled the appointments of the appellants. Mr. Ashok H. Desai, learned Solicitor General appearing for the respondents has contended that the appointments has contended that the appointments have been cancelled because the District Superintendent of Education has no authority to make the appointments, it was a device of by-passing the reservations and that the conditions which are part of the appointment order were not complied with. Mr. U. R. Lalit and Mr. A. K. Ganguli, learned Senior Advocates appearing for the appellants, have controverted these allegations and have stated that all these teachers were validly appointed and they had joined their respective schools. It is not necessary to go into all these questions. In the facts and circumstances of this case, we are of the view that the appellants should have been given an opportunity of hearing before cancelling their appointments. Admittedly, no such opportunity was afforded to them. It is well settled that no order to the detriment of the appellants could be passed without complying with the rules of natural justice. We set aside the impugned order of cancellation dated November 3, 1988 on this short ground. As suggested by the learned Solicitor General, we directed that the Secretary (Education), Government of Bihar, or to other person nominated by him should given an opportunity of hearing to the appellants and thereafter give a finding as to whether the appellants were validly appointed as Assistant Teachers. He shall also determine as to whether any of the teachers joined their respective schools and for how much duration. In case some of them joined their schools and worked, they shall be entitled to their salary for such period.”
17. The learned counsel for the petitioner Bank has placed strong reliance on the judgment of the Apex Court in the case of Union of India v. Anand Kumar & Ors. (cited supra and in the said judgment, the Supreme Court observed as under :-
“This Court has repeatedly held that the rules of natural justice cannot be put in a strait-jacket. Applicability of these rules depends upon the facts and circumstance relating to each particular given situation. Out of the total candidates who appeared in the written test at the centre concerned only 35 candidates qualified the test. In that situation the action of the railway authorities in directing the 35 candidates of centre No. 115 to appear in a fresh written examination virtually amounts to cancelling the result of the said centre. Although it would have been fair to call upon all the candidates who appeared from Centre No. 115 to take the written examination again but in the facts and circumstances of this case no fault can be found with the action of the railway authorities in calling upon only 35 (empanelled candidates) to take the examination afresh. The purpose of a competitive examination is to select the most suitable candidates for appointment to public services. It is entirely different than an examination held by a College or University to award degrees to the candidates appearing at the examination. Even if a candidates is selected he may still be not appointed for a justifiable reason. In the present case the railway authorities have rightly refused to make appointments on the basis of the written examination wherein unfair means were adopted by the candidates. No candidates had been debarred or disqualified from taking the exam. To make sure that the deserving candidates are selected the respondents have been asked to go through the process of written examination once again. We are of the view that there is no violation of the rules of natural justice in any manner in the facts and circumstances of this case”.
18. In Anand Kumar Pandy’s case (supra), out of the total candidates who appeared in the written test at the centre concerned, only 35 candidates qualified the test and the other candidates at that centre adopted unfair means and as a result thereof, fresh written examinations were ordered of the 35 candidates who qualified the test and the Supreme Court observed that although it would have been fair to call upon all the candidates who appeared at the particular centre to take the written examination again, but in the facts and circumstances of that case, no fault could be found with the action of the railway authorities in calling upon only the 35 candidates who qualified the test to take the examination afresh. The Apex Court held that looking to the purpose of competitive examination, there was no violation of principles of natural justice.
19. The learned counsel for the petitioner Bank relied upon G. B. Pant Agricultural and Technology University’s case (supra) in which the Apex Court has held that it is open to the authorities in terms of the order of appointment or the relevant rules, to terminate the service of a temporary employee without conducting an enquiry. The Apex Court further held that the employee being temporarily employed and the action taken against the employees was because of his remaining irregularly absent without obtaining leave and the termination simpliciter per-se was not by way of punishment not it related to penal consequences and it was held, in the facts and circumstances of the case that it cannot be said that termination of the service of the employee was by way of punishment nor did it visit penal consequence. The Supreme Court further observed that since the authority had got power and had exercised it under condition No. 9 of the conditions of appointment, termination per-se was no legal. The Supreme Court also held that it was open to the Court to lift the veil and find the cause for terminating the temporary employment and if it was by way of punishment, then necessarily an enquiry was got to be made in accordance with the rules. The Supreme Court, thus, did not interfere with the order of reinstatement passed by the High Court.
20. In Governing Council of Kidwai Memorial Institute of Oncology, Bangalore v. Dr. Pandurang Godwalkar & Anr. 1992 I CLR 323), the Apex Court dealt with the question about the motive behind the termination of the service of the employee concerned, whether the reason mentioned in the order of termination could be accepted on its face value or the background in which such order of termination simpliciter has been passed, should be examined, to find out as to whether an officer on probation holding temporary appointment has been, in fact, dismissed without initiating the Departmental Enquiry. The Supreme Court observed that if an employee is on probation or holding an appointment on temporary basis and is removed from the service with stigma because of some specific charge, then a plea cannot be taken that as his service was temporary or his appointment was on probation, there was no requirement of holding any enquiry and affording such an employee an opportunity to show that the charge levelled against him is either not rule or it is without any basis. The Supreme Court further observed that however, if the service of the employee is terminated during the period of probation or while his appointment is one temporary basis, by an order of termination simpliciter after some preliminary enquiry, it cannot be held that as some enquiry had been made against him before the issuance of order of termination it really amounted to his removal from service on a charge and was therefore penal in nature.
21. In Shridhar v. Nagar Palika, Jaunpur & Ors. (supra), the Apex Court held that the order of appointment conferring vested right in an employee should not be taken away without affording an opportunity of hearing to him. The Supreme Court held thus :-
“….. It is an elementary principle of natural justice that no person should be condemned without hearing. The order of appointment conferred vested right in the appellant to hold the post of Tax Inspector, that right could not be taken away without affording opportunity of hearing to him. Any order passed in violation of principles of natural justice is rendered void …..”
22. In College of Engineering of Yeshwant Rural Education Society v. Mrs. Asmita Basole & Anr. (cited supra), the Division Bench of this Court held that if a probationer is sought to be terminated on the ground of being negligent in duties, show-cause notice and enquiry was mandatory. This Court, thus, observed as under :-
“…… Even a probationer’s services cannot be terminated for specified misconducts without a show cause notice and an inquiry. The petitioners contend that these are the cases where only their suitability was judged by quoting their record and the specific misconducts were not the foundation of the termination. It placed reliance on the following cases, viz. (i) The State of Orissa and Another v. Ram Narayan Das , (ii) Dr. T. C. M. Pillai v. Indian Institute of Technology (71 Service Law Reporter 679), (iii) Oil and Natural Gas Commission and others v. Dr. Md. S. Iskander Ali . We do not think that the ratio of any of the above decisions can apply to the present cases. The question whether misconduct is merely the motive and not foundation of the termination order will depend not merely on the language used but also on the whole background and each case will have to be examined on its own merits. In this connection useful reference may be made to the latest decision of the Supreme Court in the case of Anoop Jaiswal v. Government of India (1984 (1) Service Law Reporter 426). In that case also the period of probation was not over, explanation was called regarding the alleged act of indiscipline. The Supreme Court in the whole background held that misconducts were the basis for termination of service of a probation and as the termination was not backed by a show-cause notice and a departmental inquiry, it was bad ….”
23. The legal position which emerges from the aforesaid decisions is that principles of natural justice are flexible and cannot be confined to strait jackets formula and extent of its applicability would depend on facts of each case. If by an order, a person is visited with penal consequences and his civil rights are affected, the rules of natural justice would demand that before passing such an order, he should be informed of the proposed actions and heard. A person who has been appointed after due selection and has been given appointment, his services cannot be terminated at the whims and caprice, without giving any notice or opportunity to that person. The appointment on the post of Clerks and Peons conferred a vested right on the complaints to hold the post an the vested right could not have been taken away without giving them an opportunity of being heard. In fraction of principles of natural justice, in the facts and circumstances of the present which had already been mentioned in details above, and for the reasons given in the termination order, viz. (i) that appointment was made on purely temporary basis; (ii) that appointment was made by the ex-Chairman of the Bank without approval of the Board of Directors of the Bank; (iii) that work was unsatisfactory, and (iv) that the cases regarding appointments were pending in the court, rendered the termination order void and illegal. None of the reasons mentioned in the termination order by itself or collectively were sufficient to terminate the services of the complainants without following the principles of natural justice, even if the appointment of the complainants was on temporary basis. Admittedly, initial appointment was for a period of six months and on competition of six months, they were entitled to be placed in the pay-scale applicable to such posts and whether the work was unsatisfactory or not could have only been assessed on completion of six months. Not only that, at no point of time, the complainants were informed about their unsatisfactory work as also before the Labour Court, no sufficient material has been placed to show about the unsatisfactory work of the complainants. No merit has been found in the contention of the petitioner Bank that the appointment of the complaints was illegal and, therefore, also there is no merit in there reason that the appointment was made by the ex-Chairman of the bank without approval of the Board of Directors. As already observed above, all the complainants were interviewed by the Selection Committee constituted for the purpose which included not only the Chairman, Vice-Chairman and Secretary of the Bank, but also Senior Officers of the Cooperative Department, viz. Registrar of Cooperative Societies, Auditor of Cooperative Societies, Social Welfare Officer etc. and nothing has been produced by the petitioner Bank to show that the said Selection Committee was constituted at the back of the Board of Directors. Similarly, there is no merit in the reasons given in the termination order that the court cases regarding appointments were pending and if that was so, only the present complaints or for that matter, only 45 of appointees from amongst 125 appointees who were appointed together, could not have been picked and chosen. Both the Courts below have considered this aspect at a great length. The Industrial Court while considering this aspect of the matter, held as under :-
“… These complainants including others, total 45, who are not re-appointed by respondents as has been done in the case of 80 candidates, came to be terminated before completion of their probationary period by attacking the stigma that their work is found to be unsatisfactory. The respondent is saying so on the basis of the certificates issued by the Branch Managers of the respondent Bank under whom the complainants were serving. The learned Judge has considered this aspect in his judgment. The learned Judge has observe that no assessment of work report is produced by the respondent Bank to prove unsatisfactory work of the complainants and therefore, the learned Judge observed that the report of the Branch Managers showing unsatisfactory work on the part of the complainants is not a sufficient ground to terminate the services of the complaints. I also find that there is no reliable material on record to say that the work of all these complaints was found to be unsatisfactory. The respondent has not alleged any other misconduct against all these complainants. The other ground which was alleged by the respondent against the complainants that for want of approval of the Board of Directors their services came to be terminated, has already been failed. Therefore, relying on this reported authority, I hold that the termination of services of all these complainants during probationary period, on the ground of unsatisfactory work without proving the same is illegal and the learned Judge has rightly held that the terminations of these complainants are illegal, improper and by way of victimisation. Even the reported authority relied on by Shri De, learned Advocate for the respondent supports the contention of complainants. As per this authority a probationer can be terminated on the ground of being negligent in duties but of the same as a show cause notice and enquiry is mandatory. In the present case, neither show cause notice is issued nor any enquiry came to be initiated against all these complainants. Therefore, this authority supports the contention of the complainants that their termination without issuing any show cause notice during probationary period is illegal. Apart from this, I find that the remark of unsatisfactory work on the part of these complainants including others, total 45 in number, appears to me an after – thought act on the part of the respondent. There is a mass termination of complainants including others on this very ground without substantiating it on the part of the respondent. The main ground for termination of services of the complainants is that their illegal appointments for want of approval of the Board of Directors. As stated earlier, the respondent Bank has failed to prove this first ground. Obviously, the respondent has not shown that any of these complainants re falling in the category of not fulfilling the terms and conditions in the advertisement. Therefore, the respondent bank could not avail this first ground to substantiate the mass termination of complainants’ work was found unsatisfactory which the respondent Bank has also failed to prove …..”
24. I am in full agreement with the reasons given by the Industrial Court and in view of the discussion aforesaid and for the reasons given by the Labour Court as well the Industrial Court, I find no merit in the contention raised by the learned counsel for the petitioner Bank that appointments of the complainants were contrary to law and principles of natural justice were not applicable or that the appointments being temporary, no notice or hearing was required to be given. Once the termination order has been found to be illegal and void, the relief of reinstatement follows as matter of course and unless extraordinary circumstances are shown or exceptional reasons demonstrated for not granting the relief of reinstatement, the reinstatement of such employees should be ordered. The Industrial Court as well as the Labour Court after holding that the termination orders of all the employees/complaints were illegal and threat the action of the petitioner Bank was not only malafide, actuated with ulterior motive, illegal, improper and by way of victimisation but was void and in that background held that the order of reinstatement was justified, for the reasons aforesaid, I am not persuaded to take a different view and in my opinion, the Labour Court and the Industrial Court were fully justified in directing reinstatement of all the complainants with continuity of service and I do not find any merit in the contention of the learned counsel for the petitioner Bank that the reinstatement could not and should not have been ordered and damages would have met the ends of justice.
25. Mr. A. B. Chaudhari, the learned counsel who appeared on behalf of the petitioner Bank in some of the cases, urged that at least away of full back wages were not justified in the absence of any finding that the complainants were unemployed during the intervening period. In this connection, Mr. A. B. Chaudhari relied on U.P. State Road Transport Corporation v. Shambhu Dayal & Ors. (1898 Lab. IC. 457). In the said judgment, the Allahabad High Court has held as under :-
“…… The appointment of Sri Awasthi made as above is purely temporary and his services are liable to be terminated on one month’s notice at any time without assigning any reason thereof. This letter of appointment indicates that the services of Shri Shambhu Dayal Awasthi were only upto 28.2.1974 and it could be terminated with one month’s notice by either side. The termination order of Shambhu Dayal Awasthi also shows that the nature of service was temporary and since his services were no longer required they were being terminated and instead of one month’s salary in lieu of notice. The order of the Tribunal, therefore, suffers from manifest apparent error inasmuch as it reinstated the petitioner with back wags. The Tribunal did not apply its mind to the “term appointment” given to the respondent which was only to last till 28.2.1974. It is also clear that there was no continuity of service as every time fresh appointment was granted to him. The respondent, therefore, could not be placed at par with other regular employees. Therefore, even if the Tribunal came to the conclusion that it was a colourable exercise of power it should not have gone out of its way by adopting a prolabour policy to order reinstatement with back wages. If the Tribunal had only awarded backwages upto 28.2.1974 probably I would not have interfered with its decision. It would also not be out of place to mention that if a Government Corporation or a private Corporation or any industry has to survive then some restrictions will have to be placed on the activities of workmen. If lavishly wages are paid then the day may not be far of when, what to say of private entrepreneur, even Government enterprises will have to think twice before entering the arena of setting up any industry. It is, therefore, necessary that in labour matter these Tribunals should act with care and caution to ensure that there is neither any demoralisation to the industrial employees or to the workmen. It is high time that checks and balance in matters of relationship of master and servant should be struck so as to provide a harmonious working in an organisation, be it a Government Corporation or a private industry. The socialistic pattern of social justice envisaged in the Constitution should not be stretched to such an extreme that it may result in creating a deadlock in future. The instant case is a living example. The tribunal has indulged in extreme vagary in order to thrust the service of Shambhu Nath Awasthi on the Government owned Corporation. I have carefully perused the written statement filed by the Corporation and I have no hesitation in observing that if services of a corrupt employee are thrust, there will be no incentive left for the honest people to work diligently and public exchequer will be put to serious loss and day may come when our national economy may cripple down. These observations should not tend to give an impression that labour should be denied its legitimate right. What actually is intended to convey is that a rational balance has to be struck by Labour Tribunal in order to maintain peace and harmony for the smooth functioning of public owned corporations as well as private industries.”
26. The judgment of the Allahabad High Court in UPSRTC v. Shambhu Dayal (cited supra) has no application in the facts and circumstances of the present case. The said case related to a bus conductor who was previously dismissed twice from service and was given one more chance y the Corporation to improve his conduct and still at the relevant time, which was a third chance for improvement, he was found guilty of misconduct by carrying 43 passengers without tickets and in that background, the Allahabad High Court observed that payment of back wages was not justified.
27. Mr. A. B. Chaudhari also relied upon Ratanlal Malviya v. State of M.P. (1994 (1) LLJ 358) in which the Supreme Court held as under :-
“The question now arises as to the relief which should be granted to the appellant at this stage. We have examined the service record of the appellant produced before us, and referred to I the order of Tribunal, which indicates that he was negligent and repeatedly remained absent for long periods without leave. His services were otherwise also not satisfactory. These were the reasons which compelled the authorities concerned to take steps for terminating the services. Although, the manner in which his services were terminated was not in accordance with law, it is clear that the authorities which took decision to terminate his serves were acting bona fide and there was justification for them to have taken up the question as to whether the appellant should be permitted to continue in the service or not. As we are interfering in the present matter purely on a technical ground, we are of the view that the appellant is not entitled to the salary for the past period. However, since he has been involved in this litigation, we direct a sum of Rs. 5,000/- (Rupees five thousand only) shall be paid to the appellant as a consolidated amount against his dues for the back period. Subject to this, he will not be entitled to claim anything for the past period”.
28. The Supreme Court was of the view in Ratanlal’s case (supra) that the termination order was passed bonafide and there was no justification for the State Authorities to take up the question as to whether the appellant should be permitted to continue in service or not and since the interference was made only on the technical grounds, the Supreme Court, in the facts and circumstances of that case, found that reinstatement would meet the ends of justice without back wages. The appellant in that case was Civil Surgeon and in the facts and circumstances of the case, the back wages were not awarded. The facts of the present case are entirely different and in view of the findings recorded by the Labour Court and confirmed in revision by the Industrial Court and no case for interference having been made out in the extraordinary jurisdiction of this Court, on the face of the findings recorded by the courts below that the termination orders were illegal, malafides and intended to vicitimise the complainants and the said orders being void and the fact that all the complainants were appointed as Clerk or Peon, in the facts and circumstances of the case, order of reinstatement with back wages was fully justified.
29. Yet another decision relied upon by Mr. Chaudhari in Workmen, Silver Sands Employees’ Union v. First Addl. Labour Court, Madras & Anr. (1994-II LLN 188) has no application in the facts and circumstances of the present case. The Madras High Court in the said case, thus, observed :-
“The termination of retrenchment took place in 1979. Of course, ever since then on the question as to whether they had been employed or not in any profitable avocation, there is no evidence available on record. That does not mean that they had been without any employment all along in order to keep their soul in tact, they could have been profitably employed. Taking that aspect into consideration, I do not think that there is any need or justification for ordering payment of back-wages to them till up to their reinstatement. However, their reinstatement shall have the benefit of continuity of service and other attendant benefits, if any”.
30. In Workmen, Silver Sands Employees’ Union’s case (supra), the termination took place in the year 1979 and when the matter came up before the High Court, almost after 15 years, the Madras High Court was persuaded by the fact that during such a long period in order to keep their soul intact, the employees could have been profitably employed and on that basis, thought it fit that there was no justification for ordering back wages. In the present case, the termination orders were passed on 21.3.1991, effective from 27.3.1991 and the Labour Court passed the judgment on 19.8.1994 and the Industrial Court disposed of the revision applications on 20.2.1995 and at no stage, the petitioner Bank has brought any material to the notice of the courts that the complainants were gainfully employed. In my view, there is no justifiable reason to deny back-wages to the complainants and there is no requirement of law that before the back-wages could be awarded or declaring the termination order illegal, finding is required to be recorded that the employee was not gainfully employed. Ordinarily, once the termination order is held bad in law, illegal, void, the consequence would be as if such order never came into existence and as a result of such consequence, the employee would be entitled to all the reliefs as if he was in service unless a case for exception can be made out. In the present case, there is no refuse the complainants award of back-wages and the Labour Court was ell as the Industrial Court having exercised the discretion in favour of the complainants and the said discretion having been exercised in accordance with law and well settled principles, no interference is called for in the order passed by the Labour Court and confirmed in vision by the Industrial Court.
31. Mr. C. C. Madkholkar, the learned counsel for the petitioner Bank contended that finding recorded by the Labour Court in paragraph 25 of its order regarding violation of Section 25G of the Industrial Disputes Act and rules 77 of the Central Rules and rule 81 of the Bombay Rules was uncalled for and, therefore, the said observations should be set aside. Firstly it may be observed that the finding contained in paragraph 25 of the judgment of the Labour Court was not challenged by the petitioner Bank before the Industrial Court during the course of arguments and from the perusal of the judgment of the Industrial Court, it does not reveal that this aspect of the matter was raised by the petitioner Bank during the course of arguments in revision. Besides that, even if the finding recorded in paragraph 25 of the judgment of the Labour Court is exclude from the consideration and even if it is held that there was no violation of Section 25G of the Industrial Disputes Act and rule 77 of the Central rules and rule 81 of the Bombay Rules, the ultimate finding recorded by the Labour Court for the other reasons which have been elaborately dealt with by the Labour Court, and the ultimate conclusion reached by the Labour Court that the termination orders were illegal and void, does not suffer from any infirmity an the said order has rightly been confirmed in revision by the Industrial Court.
32. The argument raised by the learned counsel for the petitioner Bank that six complainants without entering into witness box in the respective complaints got the relief and the relief should not have been given to them, deserves to be brushed aside for the simple reason that in Complaint No. 53 of 1991, a pursis was filed by the petitioner bank that it may be permitted to lead evidence therein and that evidence should be read in other cases, and as regards the six complaints in which complainants did not appear, adoption pursis was filed by those complainants that the evidence recorded in other complainants be treated to be evidence in their case.
33. In the result, all the 17 writ petitions are devoid of any merit and deserve to be dismissed and are hereby dismissed with no order as to costs. Rule is discharged in all these writ petitions.