IN THE HIGH COURT OF CHATTISGARH AT BILASPUR
WP NO.59 OF 2003
Steel Authority of India Ltd
...Petitioner
VERSUS
Member Judge Industrial Court and others
...Respondents
! Mr N K Vyas counsel for the petitioner
^ Mr Anoop Majumdar counsel for respondent No 3
HONBLE MR SATISH K AGNIHOTRI J
Dated: 15/12/2006
: Order
ORDER
(Passed on 15th Day of December, 2006)
By this petition filed under Articles
226/227 of the Constitution of India, the petitioner
impugns the order dated 10-7-2002 (Annexure P-1)
passed by the Industrial Court, Bench at Raipur and
the order dated 28-11-1996 (Annexure P-2) passed by
the Labour Court, Durg.
2. Respondent No.3 filed an application before
the Labour Court on 24-8-1981 (Annexure P-3) claiming
reappointment and back wages pleading mainly that he
was enrolled as Casual Mazdoor in Blooming and Billet
Mill, Bhilai Steel Plant, Bhilai in the year 1974.
He was absorbed as N.M.R. (Nominal Muster Roll)
Mazdoor in Power Plant with effect from 24-7-1978 and
continued upto 7-3-1980. According to the worker,
i.e., respondent No.3, he was retrenched by the
petitioner on 7-3-1980 due to closure of work.
Juniors to him in the N.M.R. have been either taken
in regular service or are working as N.M.R. worker in
Power Plant and other departments of Bhilai Steel
Plant.
3. The petitioner filed a written statement
before the Labour Court dated 30-4-1982 (Annexure P-
4) denying the case of respondent No.3. The Labour
Court, vide its order dated 21-8-1982 (Annexure P-5),
rejected the application of respondent No.3 dated 24-
8-1981 (Annexure P-3) treating as barred by
limitation. Respondent No.3 filed a review
application dated 2-9-1982 (Annexure P-6) for review
of the order dated 21-8-1982, which was also rejected
by the Labour Court, vide its order dated 18-10-1982
(Annexure P-7).
4. Being aggrieved, respondent No.3 filed an
appeal before the Industrial Court, Indore,
challenging the order dated 21-8-1982 (Annexure P-5)
and the order dated 18-10-1982 (Annexure P-7). The
Industrial Court, Indore, vide its order dated 21-3-
1985 (Annexure P-8), rejected the appeal against the
order dated 21-8-1982 (Annexure P-5), and against the
order dated 18-10-1982 (Annexure P-7), the appeal was
partly allowed and the matter was remanded back to
the Labour Court for a fresh decision on the review
application of respondent No.3 dated 2-9-1982
(Annexure P-6).
5. During pendency of the review application
before the Labour Court, respondent No.3 filed
another application dated 15-4-1991 (Annexure P-9)
before the Labour Court claiming reappointment as
N.M.R. worker. The petitioner submitted a written
statement dated 10-7-1991 (Annexure P-10) denying the
case of respondent No.3.
6. The Labour Court, vide its impugned order
dated 28-11-1996 (Annexure P-2), allowed the
application of respondent No.3 dated 15-4-1991
(Annexure P-9) and directed the petitioner to
reinstate respondent No.3 as N.M.R. worker.
7. Being aggrieved by the said order of the
Labour Court, the petitioner filed an appeal before
the Industrial Court, Bench at Raipur on 27-12-1996
(Annexure P-11). The Industrial Court, Bench at
Raipur allowed the appeal of the petitioner by order
dated 31-1-2000 (Annexure P-12) with an observation
that the petitioner should consider the case of
respondent No.3 sympathetically for re-employment.
8. In the meantime, the Labour Court referred
the matter to a Division Bench of the Industrial
Court, Indore for decision on a question of law with
regard to the review application pending before the
Labour Court. The Division Bench of the Industrial
Court, Indore, vide its order dated 10-3-2000
(Annexure P-13), decided the reference and directed
the Labour Court to decide the review application as
per earlier order of the Industrial Court, Indore
dated 21-3-1985 (Annexure P-8), in accordance with
law.
9. Against the order dated 31-1-2000 (Annexure
P-12) passed by the Industrial Court, Bench at
Raipur, respondent No.3 filed a review application.
The Industrial Court, Bench at Raipur allowed the
review application of respondent No.3 by order dated
5-1-2002 (Annexure P-14) observing that the order
dated 31-1-2000 (Annexure P-12) passed in the appeal
filed by the petitioner on 27-12-1996 (Annexure P-11)
stands stayed/rejected for the time being, and fixed
the said appeal of the petitioner for re-hearing.
10. After re-hearing, the Industrial Court,
Bench at Raipur, by the impugned order dated 10-7-
2002 (Annexure P-1), rejected the said appeal of the
petitioner, which was earlier filed on 27-12-1996 for
quashing the impugned order dated 28-11-1996
(Annexure P-2).
11. Having regard to the admitted facts of the
case that respondent No.3 was employed as daily rated
worker on Nominal Muster Roll and the Labour Court
has not recorded a clear finding that respondent No.3
had worked for more than 240 days, respondent No.3
has no right to the post as the appointment of
respondent No.3 was not in accordance with the
constitutional scheme of employment or under any
rules framed under proviso to Article 309 of the
Constitution of India inviting applications from all
the eligible candidates.
12. A Constitution Bench of the Supreme Court
has settled the legal position with regard to the
right of the daily wager, ad hoc, casual, temporary
employees not appointed in accordance with the
constitutional scheme of employment and not in
accordance with law.
13. In the case of Secretary, State of
Karnataka and others vs. Umadevi (3) and others1, the
Supreme Court observed as under :-
“45. While directing that appointments,
temporary or casual, be regularised or made
permanent, the courts are swayed by the fact
that the person concerned has worked for some
time and in some cases for a considerable
length of time. It is not as if the person
who accepts an engagement either temporary or
casual in nature, is not aware of the nature
of his employment. He accepts the employment
with open eyes. It may be true that he is
not in a position to bargain – not at arm’s
length – since he might have been searching
for some employment so as to eke out his
livelihood and accepts whatever he gets. But
on that ground alone, it would not be
appropriate to jettison the constitutional
scheme of appointment and to take the view
that a person who has temporarily or casually
got employed should be directed to be
continued permanently. By doing so, it will
be creating another mode of public
appointment which is not permissible.”
“47. When a person enters a temporary
employment or gets engagement as a
contractual or casual worker and the
engagement is not based on a proper selection
as recognised by the relevant rules or
procedure, he is aware of the consequences of
the appointment being temporary, casual or
contractual in nature. Such a person cannot
invoke the theory of legitimate expectation
for being confirmed in the post when an
appointment to the post could be made only by
following a proper procedure for selection
and in cases concerned, in consultation with
the Public Service Commission.”
14. Therefore, the reliance placed by learned
counsel appearing for respondent No.3 on the decision
in the case of Central Bank of India vs. S. Satyam
and others2, wherein the Supreme Court has held that
all cases of retrenchment shall be governed under the
provisions of Section 25H of the Industrial Disputes
Act, 1947, may not be applicable to the facts of the
present case.
15. The Supreme Court, in the case of Mineral
Exploration Corpn. Employees’ Union vs. Mineral
Exploration Corpn. Ltd. and another3, has directed
the Industrial Tribunals to decide the claim of the
workmen strictly in accordance with and in compliance
with the directions given in the judgment by the
Constitution Bench in the case of Secretary, State of
Karnataka and others vs. Umadevi (3) and others
(Supra).
In view of aforementioned reasons, it is
not necessary to decide the question of applicability
of principle of res judicata in the present case.
16. In the result, in view of the foregoing,
this petition is allowed. The impugned orders dated
10-7-2002 (Annexure P-1) passed by the Industrial
Court, Bench at Raipur and dated 28-11-1996 (Annexure
P-2) passed by the Labour Court, Durg are quashed.
No order as to costs.
JUDGE