JUDGMENT
B.H. Marlapalle, J.
1. Being aggrieved by the order passed by this Court (Single Bench) in Writ Petition No. 641 of 2001 on July 23, 2001 this Letters Patent Appeal has been filed by the Maharashtra Krishna Valley Development Corporation which is a successor of the Irrigation Department (Kukadi Division) of the State of Maharashtra.
2. The respondent-employee was admittedly appointed on daily wages and purely temporary basis as a typist-cum-clerk under the Kukadi Irrigation Project, Sub-Division No. 26, and a stop-gap arrangement awaiting the appointments to be made pursuant to the regular selection process prescribed for the Class III employees under the State Government. Every time he was so appointed, he was issued an appointment order specifying the period of his appointment. He was not continued on and from October 1, 1984, which is not in dispute. For the first time he issued notice of demand on March 2, 1991 for reinstatement in service on the ground that he was illegally terminated from service and was, therefore, entitled for reinstatement with consequential benefits on various grounds and one of them being non-compliance of the requirements of Section 25-F of the Industrial Disputes Act, 1947 (I.D. Act, for short). As the conciliation proceedings failed a reference was made to the Labour Court for adjudication of the demand raised by the employee and it came to be registered as Reference (I.D.A.) No. 63 of 1992. The employer-department filed written statement and took a preliminary objection stating that the reference was highly belated and stale, e. g. it was made after about eight years and there was no explanation provided by the employee as to why he had kept mum for seven years before he had sent the demand notice on March 2, 1991. It was further submitted that the appointments were made for specific period and one of the terms of appointment (Clause 5) clearly stipulated that it was a stopgap arrangement and the department was awaiting the regularly appointed candidates in which event the requirement of such temporary/ad hoc appointees would cease. It was further submitted that the department had appointed candidates by following the procedure laid down under the Rules applicable for Class III employees and the respondent- employee being not one of them, he could not be continued from October 1, 1984 onwards. As he was not appointed by following the prescribed Rules for appointment to the post of Class III, he could not claim reinstatement in service and no vested right was created in his favour for being continued in the Government service. A plea that the ” irrigation department” not being “industry” within the meaning of Section 2(j) of the Industrial Disputes Act was also raised.
3. The learned Judge of the Labour Court overruled all the objections raised by the department and by his award, dated May 31, 2000, granted reinstatement without back wages but with continuity of service with effect from September 30, 1984. The Labour Court held that:
(a) the employee had completed 240 days of service in a period of one year;
(b) the termination of service with effect from October 1, 1984 was in violation of the requirements of Section 25-F of the I.D. Act and the said termination was, therefore, illegal.
It was also noted that the claim of stale reference or demand for reinstatement would not be considered in view of the decision of the Apex Court in the case of Ajaib Singh v. Sirhind Cooperative Marketing-cum-Processing Service Society Ltd. . The learned single Judge of this Court summarily rejected Writ Petition No. 641 of 2001 by confirming the findings of the Labour Court.
4. Sri Deshmukh, the learned counsel appearing for the respondent-employee has raised two preliminary objections to entertain this Letters Patent Appeal, viz.:
(i) though Writ Petition No. 641 of 2001 was filed under Articles 226 and 227 of the Constitution no writ was prayed for and, therefore, the Letters Patent Appeal is not maintainable; and
(ii) the Labour Court as well as this Court has recorded concurrent findings on the issues raised by the parties and, therefore, no interference is called for by entertaining this intra-Court appeal and, there is no error which requires corrections by us.
5. We will come to the point of limitation a little later. The parties have submitted paper books before us. The appointment orders issued to the employee were at Exhibits U5/1 to U5/11 as well as C8/1 to C8/11. Each of these appointment letters has undoubtedly specified the period of appointment. There is no dispute that in the month of June, 1984 the employee was retained in service for 5 days and in August 1984 he was not retained in service. In the remaining months he was employed for a maximum period of 29 days. Though, undoubtedly, with reference to October 1, 1984 or August 1, 1984 he completed a period of 240 days of working in the preceding twelve months, however, the findings recorded by the Labour Court that the provisions of Section 25-F of the Industrial Disputes Act were required to be complied with and on account of the said failure, which was fatal, the termination order was illegal, cannot be sustained. On one hand there was no order of termination and the employee was not continued from October 1, 1984. Section 2(oo) of the Industrial Disputes Act was amended with effect from August 18, 1984 by incorporating Sub-clause (bb) and as a result of the said amendment (termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or on such contract being terminated, as stipulated in that behalf, do not fall within the ambit of the term “retrenchment”. The said amendment is applicable in the instant case as the alleged illegal termination has been with effect from October 1, 1984. We have no doubt, in our mind, that the discontinuation of the respondent-employee from October 1, 1984 does not amount to retrenchment within the meaning of Section 2(oo) of the Industrial Disputes Act and in this view, we are supported by a recent decision of the Apex Court in the case of Haryana State F.C.C.W. Store Ltd., and Anr. v. Ram Niwas and Ors. 2002-II-LLJ-1153
6. Coming to the issue of reinstatement of such temporary/ad hoc employee in the Government department on the ground that he/she had completed 240 days of service in a period of one year, the law laid down by the Apex Court is against the respondent-employee. There is no dispute that the appointments to the post of Class III under the Government departments are required to be made by following the prescribed procedure and at the relevant time such appointments were made through the Subordinate Services Selection Boards constituted for different revenue divisions. The respondent employee was not one such regularly selected candidate. Shri Deshmukh submitted that he was project affected person. Even if that be so, the post reserved for project affected persons are also required to be filed in by a specific mode of selection which the respondent-employee had never undergone, In the case of Delhi Development Horticulture Employees’ Union v. Delhi Administration, Delhi, and Ors. , the Apex Court set at rest the issue of reinstatement in service solely on completion of 240 days of service. The Supreme Court, in the said case, stated thus at p. 459 of LLJ:
“23. Apart from the fact that the petitioners cannot be directed to be regularised for the reasons given above, we may take note of the pernicious consequences to which the direction for regularisation of workmen on the only ground that they have put in work for 240 or more days, has been leading. Although there is Employment Exchange Act which requires recruitment on the basis of registration in the Employment Exchange, it has become a common practice to ignore the Employment Exchange and the persons registered in the Employment Exchanges, and to employ and get employed directly those who are either not registered with the Employment Exchange or who though registered are lower in the long waiting list in the employment register. The Courts can take judicial notice of the fact that such employment is sought and given directly for various illegal considerations including money. The employment is given first for temporary periods with technical breaks to circumvent the relevant Rules and is continued for 240 or more days with a view to give the benefit of regularisation knowing the judicial trend that those who have completed 240 or more days are directed to be automatically regularised. A good deal of illegal employment market has developed resulting in a new source of corruption and frustration of those who are waiting at the Employment Exchanges for years. Not all those who gain such back-door entry in the employment are in need of the particular jobs. Though already employed elsewhere, they join the jobs for better and secured prospects. That is why most of the cases which come to the Courts are of employment in Government Departments, Public Undertakings or Agencies. Ultimately it is the people who bear the heavy burden of the surplus labour. The other equally injurious effect of indiscriminate regularisation has been that many of the agencies have stopped undertaking casual or temporary works though they are urgent and essential for fear that if those who are employed on such works are required to be continued for 240 or more days have to be absorbed as regular employees although the works are time-bound and there is no need of the workmen beyond the completion of the works undertaken. The public interests are thus jeopardised on both counts.”
7. On the point of limitations, the Labour Court relied upon the decision in the case of Ajaib Singh (supra)). The learned counsel for the respondent employee has, in addition, relied upon another decision in the case of, Mahavir Singh v. Uttar Pradesh State Electricity Board and Ors. . In this regard we may refer to decision of the three-Judge Bench in the case of Inder Singh and Sons, Ltd. v. Their workmen 1961-II-LLJ-89 (SC), wherein it was inter alia, stated thus at p. 92:
“…… It is true that laws of limitation which might bar any civil Court from giving remedy in respect of lawful rights are not and should not be applied by the Industrial Tribunals. On the other hand it is a well-accepted principle of industrial adjudication that over-stale claims should not generally be encouraged or allowed, unless there is a satisfactory explanation for the delay. Apart from the obvious risk to industrial peace from the entertainment of claims after a long lapse of time, it is necessary also to take into account the unsettling effect this is likely to have on the employer’s financial arrangements. Whether a claim has become too stale or not will depend on the circumstances of each case …..”
More recently in the case of Nedungadi Bank Ltd. v. K. P. Madhavankutty and Ors. , two-Judge Bench of the Apex Court stated thus at p. 563 of LLJ:
“6. Law does not prescribe any time-limit for the appropriate Government to exercise its powers under Section 10 of the Act. It is not that this power can be exercised at any point of time and to revive matters which had since been settled. Power is to be exercised reasonably and in a rational manner…..”
Admittedly, in the case of Ajaib Singh (supra)) the respondent-employer did not take the plea of delays in raising the demand or referring the demand for adjudication. In our considered opinion, when the management/ employer opposes the reference on the ground of stale demand or reference the claimant is required to furnish his explanation and if the same is found to be satisfactory the Labour Court may mould the relief but it cannot be said that demand raised at any time can be entertained. In the instant case, the employer had raised the issue of stale demand in its written statement and no explanation was sought to be furnished by the employee regarding a long delay of seven years in raising the demand for reinstatement. Sri Deshmukh, the learned counsel for the respondent- employee stated that the mere fact that the Labour Court refused back wages is a sufficient proof that the Court was mindful of the delays. These submissions do not impress us because the Labour Court has also granted continuity in service with effect from September 30, 1984.
8. On the issue of maintainability of the Letters Patent Appeal it is admitted that the Writ Petition No. 641 of 2001 was filed under Articles 226 and 227 of the Constitution. However, there was no prayer for issuance of a writ. A similar issue was raised before us (B.H. MARLAPALLE and PATIL, JJ.) in the case of Mohammad Hasan Khan v. Mohammad Majidulla and Ors. [2003 (Supp.) B.C.R. 235], We referred to the decision in the case of Vanita M. Khanolkar v. Pragna M. Pai and Ors. , and noted the following observations of the Apex Court:
“It is the internal working of the High Court which splits it into different Benches and yet the Court remains one. A Letters Patent Appeal, as permitted under the Letters Patent, is normally an intra-Court appeal whereunder the Letters Patent Bench, sitting as a Court of Correction, corrects its own orders in exercise of the same jurisdiction as was vested in the Single Bench. Such is not an appeal against an order of a Subordinate Court of Error. So understood, the appellate power under the Letters Patent is quite distinct, in contrast to what is ordinarily understood in procedural language.”
In conclusion we hold that if a case of legal error apparent on the fact of the record was made out, the High Court should be slow in shutting its door for an appeal under the Letters Patent which is an intra-Court appeal for correction of its own orders else, unless of course such a remedy is barred specifically under a special statute, lest it would result in grave miscarriage of justice.
9. In the instant case, an appointee on purely ad hoc basis and continued for less than eleven months has been foisted in Government service in total disregard to the rules of selection as applicable to a Class III post and who has no vested right to such a post. In addition, the provisions of Section 25-F of the Industrial Disputes Act were not applicable to his case of alleged termination with effect from October 1, 1984. The manifest errors on these legal points were required to be corrected and, therefore, we deem it appropriate to entertain this Letters Patent Appeal.
10. In the result, we allow the appeal and quash and set aside the award, dated May 31, 2000, passed by the Labour Court in Reference (I.D.A.) No. 63 of 1992.
11. Costs in cause.