1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 132 OF 1997
1. The State of Maharashtra
2. District Maleria Officer, Petitioners/
District Dhule. ori.Resps.
versus
r/of Dhule.
Shri Kishor Shivdas Chaudhari Respondent/ori
complainant
-------
Shri D.V. Tele, A.G.P. for the Petitioners.
Shri S.P.Shah, Advocate, holding for Shri
P.M. Shah, Senior Counsel, for Respondent.
Coram: P.R. Borkar J.
Judgment reserved on : 24.07.2009
Judgment pronounced on : 29.07.2009
JUDGMENT
01. This writ petition is filed by the State
Government and the District Malaria Officer, Dhule,
being aggrieved by the judgment and order passed by
learned Labour Judge, Dhule in ULP complaint No.366 of
1992 decided on 24.2.1994.
2. Brief facts giving rise to this petition may
be stated as below;
::: Downloaded on – 09/06/2013 14:50:42 :::
2
The Respondent-complainant approached the
Labour Court with a complaint that from June 1987 he
was serving as a driver in the office of present
appellant No. 2 District Malaria Officer, and orally
his services were terminated on 4.7.1989. It is
stated that every time appellant No.2-District
Malaria Officer used to issue appointment order for 29
days and giving 1 or 2 days break in service and
again used to appoint him for next 29 days. According
to the Respondent-complainant, during the period June
1987 to 3.7.1989 various appointment orders were
issued to him and thus he completed more than 240 days
service in the year preceding the date of termination.
There was no complaint against him. His work was
unblemished. At the time termination the respondent-
complainant was not paid any retrenchment compensation
nor any notice was issued to him as required by
Section 25-F of the Industrial Disputes Act, 1957
(“The ID Act” for short). Thus, according to the
complainant, there is violation of Section 25(C),(G)
and (N) of the I.D. Act and Rule 81 of the Industrial
Disputes Rules 1957 (“I.D. Rules” for short).
It is also stated that work was available
with appellant No.2-District Malaria Officer and he
was also in need of services of driver. The
termination was in colourable exercise of employer’s
right, in undue haste and in violation of principles
of natural justice and hence, complaint of unfair
labour practice was filed under items (a), (b), (c)
and (f) of The Maharashtra Recognition of Trade
Unions & Prevention of Unfair Labour Practices Act,
::: Downloaded on – 09/06/2013 14:50:42 :::
3
1971 (“MRTU & PULP Act” for brevity’s sake).
3. Appellant No.2-District Malaria Officer
filed written statement at Exhibit C-5 and denied the
claim of the respondent-complainant. It is contended
that the driver’s post should be filled in through
Regional Selection Board (“RS Board” for short). The
Civil Surgeon had no authority to recruit the persons
on the said post. The complainant was appointed on
temporary basis for 29 days till availability of
candidate from RSB. In the circumstances, appellant
No.2-District Malaria Officer prayed that the
complaint be dismissed.
4. Learned Labour Judge while deciding the
complaint ULP No.366/1994 came to the conclusion that
every time the appointment orders/letters each of 29
days were issued; then there was some break in
service; the provisions of Section 25(F) of the I.D.
Act were not followed prior to termination. There was
no notice of one month or payment of salary for one
month in lieu of notice. According to the learned
Labour Judge, the respondent-complainant has rendered
continuous service and, therefore, it is held that the
District Malaria Officer has engaged into unfair
labour practice. The Learned Judge, therefore,
directed reinstatement of the respondent-complainant
with immediate effect. Benefit of continuity in
service with full back wages was also granted. It is
this order which is challenged in this petition.
5. Shri D.V.Tele, learned A.G.P. on behalf of
the appellants submitted that it is nowhere disputed
::: Downloaded on – 09/06/2013 14:50:42 :::
4
by the respondent-complainant that the RS Board is the
appropriate authority to appoint a peron on the post
of driver, permanently. According to him, it is also
not disputed that the Civil Surgeon or the District
Malaria Officer has no authority to appoint any
permanent employee. It is not the case of the
respondent-complainant that regular procedure for
appointment to the post as laid down in the rules was
followed in his case and so, his appointment was
necessarily of temporary or adhoc nature. Learned
A.G.P. Shri Tele relied upon various authorities in
support of his submissions.
6. In Secretary, State of Karnataka vs. Umadevi
(2006) 4 SCC 1 it is laid down that, as per the scheme
provided under the Constitution and laws made
thereunder, adherence to the rule of equality in
public employment is the basic feature of the
Constitution and since the rule of law is the core of
the Constitution, recruitment to services in the Union
Government and State Governments and their
instrumentalities is governed by Acts, Rules and
Regulations made in that behalf. Equality of
opportunity is a hallmark and under the circumstances
any employment which is not according to the rules
cannot be protected. The Apex Court has also
considered in paragraphs 46 and 47 of the judgment
that temporary, contractual, casual, daily wager or
adhoc appointees dehors of the schme of public
employment, have no right to be absorbed as regular
appointees or granted permanency or continuance in
public employment. There is no question of legitimate
expectations. Long continuance of such employees in
::: Downloaded on – 09/06/2013 14:50:42 :::
5
public employment cannot give them right of regularly
recruited employees.
The Supreme Court has held that such casual,
temporary, contractual, daily wage workers or adhoc
employees cannot get right of regularisation or
permanency which is granted by the Labour Court in the
present case.
7. In the case of State of Himachal Pradesh vs.
Ravinder Singh 2009 AIR SCW 452 the Respondent was
daily rated worker in the State Government. He worked
for ten years. His name was neither sponsored by
Employment Exchange nor appointment was as per proper
procedure for regular appointees. It is held that the
respondent cannot claim regularization of his
services. After quoting in paragraph 7 of its
judgment paragraphs 22, 27, 36, 39, 42 and 43 from
Unmadevi’s case (supra), ultimately in paragraphs 8
and 9 the Supreme Court observed as follows;
“8. In addition it has to be noted
that the Labour Court had observed that the
name of the respondent claimant was not
sponsored by the employment exchange; therewas no appointment order; the requirements
relating to procedure to be followed at the
time of recruitment were also not fulfilled.
There was a mere back-door entry. it was
further noted that they were not selected in
the manner as applicable to regular
employees who are liable to be transferred
and are subject to disciplinary proceedings::: Downloaded on – 09/06/2013 14:50:42 :::
6to which daily-rated workers are not
subjected to.
9. In the background of what has been
stated above the directions given for
regularization in the post of clerk being
indefensible are set aside. ………”
8. Further case relied upon by learned A.G.P.
Shri D.V. Tele for the appellants is Rajasthan Lalit
Kala Academy vs Radhey Shyam (2008) 13 SCC 248. In
that case, there was no compliance of Section 25-F of
the ID Act as in the present case. It is observed in
paragraph 19 thus;
“19. Once the termination of service of
an employee is held to be illegal, the
relief of reinstatement is ordinarily
available to the employee. But the relief of
reinstatement with full back wages need notbe granted automatically in every case where
the Labour Court/Industrial Tribunal records
the finding that the termination of services
of a workman was in violation of theprovisions of the Act. For this purpose,
several factors, like the manner and method
of selection; nature of appointment-ad-hoc,
daily wage, temporary or permanent etc.,
period for which the workman had worked and
the delay in raising industrial dispute, are
required to be taken into consideration.”
::: Downloaded on – 09/06/2013 14:50:43 :::
7
9. In the present case appointment of the
respondent-complainant was of temporary nature. He
was not appointed by following due process or
procedure of selection by the RSBoard. Civil Surgeon
or the District Malaria Officer had no authority or
power to appoint the complainant on permanent basis
and the said aspect is not disputed even before this
court. Under the circumstances, merely because the
respondent-complainant worked for two years by virtue
of various orders each of 29 days at a time and thus
completed 240 days service in the year preceding
termination by itself is not sufficient to hold that
he is entitled to be reinstated with full back wages.
If that is done, the same will amount to giving back-
door entry to such employees which is disapproved by
the Supreme Court in the case of Umadevi (supra).
10. In the case of Rajasthan Lalit Kala Academy
referred to above the respondent employee continued in
service for over 27 years. But, in stead of granting
reinstatement or regularizing his services, following
directions were given.
“22. In the light of the observations
referred to supra and having regard to thenature and the period of services rendered
by the respondent and the fact that his
services were terminated initially on
4-4-1981 and then on 31-1-1985 and the
vicissitudes of long-drawn litigation the
respondent has undergone for over 27 years,
interest of justice would be met if instead
and in place of directions for reinstatement::: Downloaded on – 09/06/2013 14:50:43 :::
8and back wages, a sum of Rs.3 lakhs is
directed to be paid to the respondent by wayof compensation. We direct accordingly. The
payment shall be made within eight weeks
from today, failing which it shall carry
interest @ 9% per annum from the date of
this judgment till the date of actualpayment.”
11. The last case cited by Shri D.V.Tele,
learned AGP for the appellants, is Mahboob Deepak vs.
Nagar Panchayt, Gajraula (2008) 1 SCC 575. In that
case, the appellant was a casual labour/daily
wager/temporary employee who had completed 240 days of
continuous service in a year was terminated without
following without procedure as per Section 6-N of the
U.P. Industrial Disputes Act. It was held that the
ends of justice would be sub served if payment of Rs.
50,000/- is made to the appellant-employee by way of
damages.
In paragraph 9 it is observed thus;
“9. Due to some exigency of work,
although recruitment on daily wages or on anad-hoc basis was permissible, but by reason
thereof an employee cannot claim any right
to be permanently absorbed in service or
made permanent in absence of any statute or
statutory rules. Merely because an employee
has completed 240 days of work in a year
preceding the date of retrenchment, the same
would not mean that his services were liable::: Downloaded on – 09/06/2013 14:50:43 :::
9to be regularized. ”
In paragraph 12, it is further observed;
“12. It is now well settled by a catena
of decisions of this Court that in asituation of this nature instead and in
place of directing reinstatement with full
back wages, the workmen should be grantedadequate monetary compensation.”
12.
Learned Counsel Shri S.P.Shah, on behalf of
the Respondent, submitted that in the present case
complaint is not under the I.D. Act and the case of
Umadevi (supra) is relating to the I.D. Act. On both
counts, this submission is wrong and thus not
sustainable. The principles laid down in the case of
Umadevi go to the root of the entire issue of public
employment, absorption, regularization or permanent
continuation of the casual or temporary or daily
wagers or ad-hoc appointees or recruits and their
continuation for longer period in the public
employment dehors the Constitutional scheme of public
employment. The Judgment does not refer only to the
cases under the I.D. Act but it deals with the issue
as a whole under various provisions of the
Constitution and the constitutional scheme. Secondly,
the judgment and order of the learned Labour Judge in
the present case itself shows that it was the case of
the respondent-complainant that he had completed 240
days in the year preceding to termination and as such
was in continuous service within Section 25-B of the
::: Downloaded on – 09/06/2013 14:50:43 :::
10
I.D. Act and his termination was in violation of
Section 25F of the Act. It is also also contended
before the Labour Court that there was violation of
Section 25(C), (G) and (N) of the I.D. Act and Rule 81
of the I.D. Rules. Merely because instead of the
I.D. Act, the Respondent has filed complaint under
MRTU & PULP Act, he cannot disown the contents of his
own complaint as reproduced by the Labour Court.
13. Learned Counsel Shri S.P. Shah submitted
that in this case, there is a complaint of unfair
labour practice as defined under Section 26 and the
relief claimed was under Section 30 of the MRTU & PULP
Act. Section 30 reads thus;
“30. Powers of Industrial and Labour Courts.
(1) Where a Court decides that any
person named in the complaint has engaged
in, or is engaging in, any unfair labour
practice, it may in its order-
(a) …………………..
(b) direct all such person to cease
and desist from such unfair labour practice,and take such affirmative action (including
payment of reasonable compensation to the
employee or employees affected by the unfair
labour practice, or reinstatement of the
employee or employees with or without back
wages, or the payment of reasonable
compensation), as may in the opinion of the
Court be necessary to effectuate the policy::: Downloaded on – 09/06/2013 14:50:43 :::
11of the Act.”
So, it is not that every time employer engaged into
unfair labour in respect of dismissal or otherwise
there should be reinstatement with back wages. There
could be even payment of reasonable compensation as
laid down in Section 30(1)(b) of the MRTU & PULP Act.
14. Learned counsel Shri S.P.Shah also submitted
that the case falls under item 1(a), (b), (d) and (f)
of Schedule IV to the MRTU & PULP Act. Those items
read as follows;
“General Unfair Labour Practices on the part
of Employers.
1. To discharge or dismiss employees-
(a) by way of victimization;
(b) not in good faith, but in colourable
exercise of employer’s rights;
(d) for patently false reasons;
(f) in utter disregard of the principles of
natural justice in the conduct of domestic
enquiry or with undue haste;
15. In my considered opinion, looking to the law
laid down by the Supreme Court in various cases
referred to above, in present case, the order passed
by learned Labour Court, directing reinstatement of
the respondent-complainant with back wages and benefit
of continuity of service is contrary to the
::: Downloaded on – 09/06/2013 14:50:43 :::
12
principles laid down in the case of Umadevi and other
cases cited above. If the impugned order is
sustained, that would amount to granting
regularisation or permanency to a person appointed
temporarily and appointed without following due
process or procedure for selection.
16. In the facts and circumstances as above,
ends of justice would be served by awarding reasonable
compensation to the respondent-complainant as per
Section 30(1)(b) of the MRTU & PULP Act and as
observed in cases referred to above.
16. Writ Petition is allowed. The judgment and
order dated 24.2.1994 passed by the Labour Court,
Dhule in ULP No.366/1992 is hereby set aside. It is
directed that the appellants shall pay to the
respondent-complainant Rs.25,000/= as compensation
under Section 30(1)(b) of the Maharashtra Recognition
of Trade Unions & Prevention of Unfair Labour
Practices Act, 1971, towards termination within a
period of three months from today. In case amount is
not paid in time, the same shall carry interest at the
rate of 9 per cent per annum from today till actual
payment.
pnd/wp132.97 (P.R.BORKAR,J.) ::: Downloaded on - 09/06/2013 14:50:43 ::: 13 ::: Downloaded on - 09/06/2013 14:50:43 :::