FADHYA PRADESH AT JABALPUR IN THE HIGE-l COURT 'OF M WRIT PETITION :JG.W’Q‘é/MLF/199é PETITIONER : / Nagar Panchayat, Ratanpur, through its ChieaE Executive Officer, rTahsil .Kota, District Eilaspur (DILP). '/ 1. Presiding Officer under the Court, Bil as‘purUbi . P) . 2.Rajes‘n Yadav, S/O Makhanlal Yaciav," —- VersuS- REseorJDETxTs: Inciu stri a1 Di agute Ac t , Labgur /"‘ ' % r/o Baniyapara, Juna Bilaspur,Distt. /- Bil aspur (M . P PETITION UNDER WT...“u.m.mmwm._w,_..,,~W.:MH...‘W..VT_.M..W.“WMMwM ARTICLE 227 OF THE VCO‘NSTETUTIGN OF‘ . ' glam. HIGH COURT OF CHHA’ITISGARH AT BILASPUR Writ Petition No. 4530 of 1996 Petitioner Nagar Panchayat, Ratanpur Versus Rcspondcnts Prcsiding 0m, Labour Oouxt & another Wn‘t Petition No, 4554 of 1996 Pen'tioner Nagar Panchayat, Ratnnpur Venus Respondents Pmsiding OEcer, Labour Court & another Writ Petiu'on No. 461 1 of 199é Nagar Panchayat, Ratanpm‘ Presiding omcer, Labour Oourb& another Petitioner Versus Respondents Writ Penmn No. 4612 of 1996 Petinoner Nagar Panchayat, Ratanpur Versus Respondents Presiding 0m, Labour Couxt 8s another Writ Pcn‘tion No. 1524 of 1997 Petitioner Nagar Panchayat, Ramnpur Versus _ Respondents Shri Ashok Jadhav on another Post for onier on II “July, 2006. Sd/- SATISH K. AGNIHOTRI Judge HIGH COURI‘ OF CHHA’ITISGARH AT BILASPUR Writ Petition No. 4530 of 1996 Peh'tioner : Nagar Panchayat, Ratanpur Versus Respondents z Shri Ashok Jadhav as another SWe Bench: Hon’ble Mr. Justice Satkh K. Agilhoht Shri Manoj Paranjpe, Advocate for the Pen'n'oncr. Shri Ajay Shrivastava, Advocate for the Respomients/employees in four )ytitions and Shri P. S. Koshy, Advocate for the Respondent/employee in WJ-‘XNO. 46 1 1 / 1996. ORDER ( “gum 2006) The following order ofthe Court is passed by Batish K. Apihom, J. 1. The present writ pennons being W.P.No.s 4530/ 1996, 4554/ 1996, 4611] 1996, 4612/ 1996, and 1524/ 1997 invoive common quesn‘on of law as to whether the impugned awards dated 30.8.1996 passed in Petitioner Nagar Panchayat, Ratanpur Vcrsus Respondents : Presiding OM13 Labour Court & another Writ Petition No. 4554 of 1996 Petitioner : Nagar Panchayat, Ratanpur Versus Respondents : Presiding Omoer', Labour Court as another Writ Petitm'n No. 4611 of 1996 ,r’ Petitioner : Nagar Panchayat, Ratanpur Versus Respondents : Presiding omoer, Labour Court & another Writ Petition No. 4612 of 1996 4 " Petitioner Nagar Panchayat, Ratanpur ~. Versus Respondents : Presiding Om, Inhour Court & another Wn't Petition No. 1524 of 1997 a (1') (ii) (iii) Case No.s 16/I.D.A./96 (Reference), 17/I.D.A./96 (Reference), 15/I.D.A./96 (Refemnce), 14/1.D.A./96 (Refemnce), and award dated 6.11.1996 passed in Case No. 10/I.D.A./96 (Refemnce), mspech'vely, by the Labour Court sud'er mm patent lllegalmes The factual matrix of the writ peu'h'ons are as under. Wn‘t Peu'tion No. 4530_L1996 : The respondent/worker was appointed on the post of Mohardr v1de order dated 15.12.1992 (Annexure A] 1) passed by the Chairman, Special Ama Development Authority, Ratanpur (heminaiter referred to as ‘SADA’), for a period of one year on probation on daily wages. By order dated 30.8.1994 (Annexure A/2) passed hy ’ the Chairman, SADA, the appointment of the respondentlemplojee was cancelled on the ground that the respondent/employee was not appointed as per the provisions of Rule 4 of the Madhya Pradesh Special Area Development Authority (Chairman and OEcers and Servants Recruitment and Conditions of Service) Rules, 1976 (hereinaner referred to as ‘the Rules, 1976’) The respondent] employee was paid one month’s salary in lieu of notice and 30 days pay on average pay calculation, as retrenchment compensation. Being aggrieved the respondent/empbyee iilrd a writ petiu’on in the High Court of Madhya Pradesh being W.P.No. 3340/ 1994. The High Court of Judicature at Jabalpur vide order damd 26.4.1995 (Annexure A/4) directed the respondent/employee to raise the industrial dispute. before the appropriate forum. Accordingly the statement of claim was hled on 7.4. 1996 (Annexure AIS). The Labour Court by award dated 30.8.1996 (Annexure A/7) passed in case No. 16/I.D.A./96(Reference) held that the employer had not complied with the provis‘nns of Section 25-F‘ of the. @3 Industrial Disputes Act, 1947 (harem referred to as ‘thc Act, ' ’ 1947’) and as such the respondent/employee was held to be entitled to reinstatement with fun back wages. Wn't Pch‘h'on No. 45541 1996 (Q The mpondent/worker was appoinmd on the post of Moharrir vide order dated 15.9.1992 passed by the Chairman, SADA, for a period of 89 days on daily wages. By order dated 30.8.1994 (Annexum P/ 1) passed by the Chairman, SADA, the appoinmlent of the / respondent/employee was mncelled on the gound that the respondent/employee was not appointed as per the provisions of Rule 4 of the Rube, 1976. The xespondent/empbyce was paid onei month’ssalaryinlienofnotiee and 30dayspayongvera§epéy calculation, as retrenchment compensation. (in Being aggrieved the respondent/employee hbd a writ petition in the High Court of Madhya Pradesh being W.P.No. 3323/ 1994. The High Court of Judicature at Jabalpur vide order dated 26.4.1995 (Annexure A/3) direcbd the tespondent/employee to raise the indusm‘al dispute before the appmpmte'fomm. Accordingly the statement of claim was M on 7.4. 1996 (Annexure PI4). (iii) The Labour Court by award dated 30.8.1996 (Annexum P/6) passed in case No. 17/I.D.A./96(Referenoe) held that the empbyer had not complied with the pmvisbns of Section 25-F of the Industrial Disputes Act, 1947 (hereaher re&rred to ‘the Act, 1947’) and as such the respondent/employee was held to be entitled to reinstatement with full back wages. Writ Petition No. 46111 1996 (i) The respondent/worker was appointed on the post of Brahman vide order dated 20.8.1992 passed by the Chairman. SADA, on temporary basis until further orders. By order dated 30.8.1994 (Anngxure P/ 2) passed by the Chairman, SADA, the appoinhncnt of the respondent/employee was cancelled on the mund that the mspondent/employee was not appointed as per the pmvisions of Rule 4 of the Rules, 1976. The respondent/employee was paid one month’s salaxy in lieu of notice and 30 days pm on average pay calculation, as retmnchment compensation. (m Being agg‘leved the respondent/employee nled a writ petition in the High Court of Madhya Pmdah being W.P.No. 3339/ 1994. The High Court of Judiwture at Jabalpur vide order dated 26.4.1995 (Annexure P/4) direcmd the respondent/employee to misc the indusu'ial dispute befom the appropriate forum. Aoootdingly the ‘ statement of claim was M on 7 4 1996 (Annexum PIS) (iii) The Labour Court by awatd dated 308 1996 (Annexure P/7) passed in case No. 15/I.D.A./96(Reference) has that the employer had not compueti with the provisions or Section 25-h or the Industrial Disputes Act, 1947 (hemaner rcfened to as ‘the Act, 1947’) and as such the respondent/employee was held to be enu‘tled to reinstatement with full hack wages. Writ Petition No. 4612A996 (h The respondent/worker was appointai on the post of ’l‘imekeeper vide order dated 21.4. 1992 passed by the Chairman, SADA, for 89 days ‘on daily wages hxed by the Coketor. By order dated 30.8.1994 ((Annexure P/2) passed by the Chairman, SADA, the appointment of the mpondent/cmployee was caneemd on the gound that the respondent/employee was not appoinmd as per the provisions of Rule 4 of the Rules, 1976. The respondent/employee was paid one month’s salary in lieu of notice and 3O days pay on avemge pay calculation, as Hr retrenchment compensau‘on. (i9 (iii) wm Peiitio'n No. 1524L1997 (i) Being agg'icved thc mpondent/employec Eed a writ pcu‘tion in me High Court of Madhya pmdesh being w.P.No. 3341/1994. The High Court of Judicaturc at Jabalpur vide order damd 26.4.1995 (Annexure P/4) directed the respondent/employee to misc the industrial dispute before the appmptiatc forum. Am&mgy the statement of claim was med on 7.4.1996 (Annexum P/S). The Labour Court by awaxd dated 30.8.1996 (Annexure P/7) passed in case No. 14/1.D.A./96(Refemnoe) held that the employer had not complied with the pmvis'mns of Secu'on 25-F of the Industrial Disputes Act, 1947 (hereaher rem to as»‘the Act, 19473 and as such the respondent/empbyee was held to'be’ entitled to reinstatement with full back wages. ‘ x The xespondent/worker had filed Smtement of Claim (Annexure P/ 1)‘ on 16.8.1995 stating therein that he was appointed on the post of’l‘imekeeper in the month of May, 1992. His attendance was being recanted in the attendance reg‘ster as per the otder dated 12. 10.1992 and he was disengaged by oxal order dated 30.8.1994. Being aggrieved the respondent/employee raised the dispum before the appmpriate Government which vide cider dated 5.8.1995 referred the dispute to the Labour Court for adjudication. The Labour Court by award dated 6.11.1996 (Annexure P/5) passed in ease No. 10/[.D.A./96(Reference) held that the employer had not complied with the pmvisbns of Secn'on 25-F of the Indusnial Dispums Act, 1947 (hereader rekrred to as ‘the Act, 1947’) and as such the mpondent/empbyee was hem to be enh‘tled to reinstatement with full back wages. /’ k] 6 . 1 Since the question of law involved in the above smted writ pcmions is common, all the writ petitions are being disposed of by this common onier. Shri Manoj Paranjpe, leamed counsel appearing for the pctit’xnm in all the above me writ peu'tions, submitmd that the respondents/employees wete appointui without follming the proper procedure of 1aw. The service condiiions of the respondents/wottem were governed by the statutory Rules 1976 which clearly pmmes for method of recruitment The tecruitment to a post or class of posts couki be done through either by direct recruiunent or by promotion of a person employed 'm the authority or by haum or deputatbn of a' petson scrvmg m connectlon wuh the ah‘an‘s of any heal authonty or of the State Government w1th the ptevwus approval of the State Government. lt was submitted that the respondents/works” were not appointed in accordance with the provisions of law by the then Chairman, SADA, on daily wages, in one case on monthly basis and not against regular vacancy but on temporary basis. ARer having come to know that all the appointments were irregular and illegal, the Chairman, SADA by order dated 30.8.1994 in writ pen'tion No.3 4530/1996, 4554/1996; 4611/1996, 4612/1996, and by oral order dated 30.8. 1995 in W.P.No. 1524/ 1997, moved the respondents/workers horn service aher having paid one month’s W in lieu of notioe'and 30 days pay aner calculation the average pay, as retrenchment compen station. Learned counsel for the petitioner further submitted that the appoinnnent of the respondents/works being illegal, they were rightly removed nom service by the Chairman, SADA. There was no megahty or irregularity in terminating the services of the respondents/employees. Learned counsel assails the award on the 5g) F ground that the Labour Conn had complttely ignored the pmvisions i of law, mstly, thc sewicc conditions of the mspondents/employees Were governed by the statutory Rules 1976, and as such the Labour Court had no jurisdiction to entertain the petin‘on. Secondly, before holding that the removal of the respondents/employees horn service amounts to retrenchment and the petitioners had not complied with the provisions of Rule 25-1-7 of the Act, 1947 in its letter and spirit before retrenching the respondents/employees horn industiy, the Labour Court ought to have adjudicated and recorded clear 5ndings ‘ that the respondents] employees were workmen and they had beenm ‘ ‘l continuous service for not less than one year under the employer. The Labour Court has failed to establish that the employee was in continuous service for not less than one year under the employer. The requirement is worldng 240 days in the preceding 12 months period, which was neither adjudicated nor hnding was recorded. 6. It was further contended that the award passed by the Labour Court is bad in law and the Labour Court had committed patent illegality in declaring that the provisions of Secn'on 25-F‘ of the Industrial Disputes Act have not been complied with. Thirdly, learned counsel relying on the dictum of the Supreme Court in the case of Beetetmy, State of Karnatah and othets Vs. Umadevi (3) and othm { (2006) 4 SCC 1) ' submitted that the appointments of the respondents] employees were not in accordance with the constitutional scheme, as the invitanon was not made to the public at large. The provisions of Rule 4 of the statutory Ruks 1976 were not also followed in the case. The Labour Court had not cons‘neted all these facts while passing the impugned award and directing the petitioner to reinstate the respondents/employees with full bmk /’r wages. ,/J,\ On the question ofjurisdiction under Article 227 of the Constitution of India, learned counsel relied upon a decision of the Supieme Couzt in the case of Surya Dev Ra! Vs. Ram Chanda: Ra! and others { (2003) 6 scc 575}. On the contrary, Shri P. S. Kbshy, leamed counsel appearing for the respondent/employee in W.P.No. 46l1/1996 and Slni Ajay Shrivastava, learned counsel appearing for the respondents/ employees in other four petitions, have submitted that it was true that the service conditions of the respondents/employees were governed by the statutory Rules 1976 but the respondents/employees were at hberty to move the lndustrial Court‘ for relief in the event the provisions of the Act, 1947 were not followed in its letter and spirit. Further the High Court of judicature at Jabalpur vide order dated 26.4. 1995 directed the respondents/employees to raise the dispute before the Labour Court. According to learned counsel for the respondents/employees, it was not necessary to establish and record Ending with regard to the working of the employees for 240 days in the preceding 12 months when on the face of it the provisions of Section 25-F‘ ofthe Act, 1976 were not followed. The main objection of learned counsel for the respondents/employees was that the employer had not served notice in the prescribed manner on the appropriate Government before retrenching the respondents/employees horn service. Learned counsel for the respondents/employees further emphatically contended that this Court has limited jurisdiction under Article 226/227 of-ethe Constitution of lndia and there was no patent error in the impugred I order. This Court should not interfere with the award passed by the a Labour Court I 10. Having hard learned counsel for the parties and having perused the racoxds appended to the petition and mturn, it is evident that the respondents/ employees were not appointed under the provisions of Rule 4 of the Rules 1976 which clearly pxovides method of recruitment Rule 4, 5 and 6 of the Rules, 1976 are quoted herein below :- ‘4. Methods of Reaultment. Recruiunent to the Authority service or a post or class of posts may be made by one or more of the following methods:- (a) by direct recruiunent; (b) by promotion of a person employed in the Authority; (c) by nansfer or deputation of a person serving'in connection with the adairs of any local authority or of the State Government with the previous approval of the State Government. Direct Reauitment. - The number of candidates to be recruited at any time shall be determined by the Authority Save when such vacancies relate to posts in the lowest cadre of the Authority service which provide enhy in Authority service by direct recruitment alone, all the vacancies determined to be med in at any time shall as far as may be, filled in by direct recruitment and by promotion of employees already in the service of the authority in the promotion of 50:50. (1) Whenever the Authority has to nil up any post of Class lll or Class W the names of the candidates shall be requisitioned horn the local employment exchange and in the case of Class l and Class ll posts it shall be notihed in one Hindi and one other News Paper. The Appointing Authority shall be competent to consider the applications directly received in the omce of the Authority for such vacant posts. The list of approved candidates shall be prepared in order of merit for such posts, as appointing authority may consmer necessary and as far as possible vacancies shall be hled nom 10 amongst such approved candidates in the oxder in which names stand on the list.’ 11. In the present case, it is admitted posih'on that under Rule 6(1),_¥the post of Class-m or Class-IV has to be filed up by reqmsrtlomng the names of the candidates hum local employment exchange and a list of approved candiiates has to be prepared. The applications received directly in the omce of the authority shall also be considered for direct recruitment. In the instant case on perusal of the papers it is clear that neither has been done. Names were not requisitioned non: the employment exchange, no invitation was made to the public at large for making advertisement of the post and it further appears that there was no selection by the competent authority. All the employees in the above stated four writ petitions were holding class [V posts on temporary basis and the employee in W.P.No. 4611/ 1996 was holding class III post on temporaiy basis. Hence, it is held that the appoinunent of the respondents/employees was irregular, illegal and unconstitution al The Supreme Oourt in the case of Secretary, State of Kmatakl and other: Vs. Um$evi (3) and others { 2006) 4 SCC 1} held in para 43, as under: - “‘43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Consn’tution and since the rule of law is the core of our Constitution, a court would certainly be disabled horn passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme_for public employment, this Court while laying down the law, has necessarily to hold that nnless the appointment is in terms of the relevant rules and after a proper competition among qualitied persons; the same would not confer any right on the appointee. lf it is a contractual appointment, the appointment comes to an end at they r‘r ¥ $9 end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary einployee could not claim to be made permanent on the expily of his term of appointment. It has also to be clan'ned that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appoinnnent was not made by following a due process of selection as envisaged by the relevant rules. lt is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appoinunent, do not acquire any right. The High Courts acting under Arh'cle 226 of the Constitution, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitlnent itself was made regularly and in terms of the consnmtional scheme. Merely because an employee had continued under mver of an order of the court, which we have described as ‘litigious employment” in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justined in issuing interim directions, since, atter all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its adairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates.” 13. With regard to the question as to whether the Labour Court has jurisdiction to entertain the present case when the service conditions of the respondents/employees are govemed by the statutory Rules, 1976, need not be discussed and decided in the present case in view 12 5W of the fact that the High Com ‘of Judicature at Jahalpur in writ petitions M by the respondents/employees had directed the respondents/employms to raise dispute More the appmpriafe Government for reference to the Labour Court. 14. With regard to the objec1ion of the respondents about the limitation of this Court Whfk’ holding that the petitions am hled under Article 226/ 227 of the Constitution of india, it is well settled principle of law that this Court has jurisdiction ofjudicial review of the awards passed t by the Labour Court in the event there is manifest and apparent error on the face of the proceedings based on the clear ignomnce or utter disregard to the provisions of law or there is gave failure‘ofjustice or grave injustice has occasioned thereby. The Supreme Court in the case of Surya Dev Ra! Vs. Ram Chanda Rn! and other: { (2003) 6 SCC 675} held as under.— “38. (3) Oern‘orari, under Aru'cle 227 of the Consu'tution, is issued for conecnng gross errors ofjurisdictbn i.e. when a subordinate court is found to have acted (i) without jurisdiction - by assuming jurisdicu'on where there exists none, or (ii) in excess of its jurisdiction — by overstepping or crossing the limits ofjurisdiction, or (iii) acting in flagant disregard of law or the rules of procedure or acting in violation of principles of natural jusn'ce where there is no procedure specihed, and thereby occasioning failure ofjustice. (4) Sufrervisory jun'sdicu‘on under Am'clc 227 or the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdictbn. When a subordinate court has assumed a jurisdicn‘on which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has ooms‘nned thereby, the High Court may step in to exercise its supervisory jurisdiction. ‘ ‘ 13 (5} Be it a writ of ccrtiorari or the exercise of supervisory jurisdich'on, none is available to correct mere ermm of fmt or of law unless the following requimments are satisoed: (i) the ertor is manifest and apparent on the face of the prooeaiings such as when it is based on clear ignorance or utter disregalo of the provisions of law, and (1Q a gmve injustice or grave fai1ure ofjush’ce has occasioned thereby. (6) A patent error is an error which is self‘evident i.e. which can be perceived or demonsuated without involving into any lengthy or / complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate " court has chosen to take one view, the error cannot be called gross or patent. * (7) The poWer to issue a.,writ of certiomri and the superviso jurisdiction are to be exercised sparingly and only in appropriate cases Where the judicial conscience of the High Court dictates it to act lest a gross failure ofjusn'ce or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the above said two jurisdicn‘ons is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari‘or supervisory jurisdiction of the High Court would obstruct the smooth dow and] or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of oorrech'on at a later stage and refusal to intervene would result in travesty ofjustice or where such