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 Shri Kishor Shivdas Chaudhari Respondent/ori r/of Dhule. 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; 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, 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 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 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; there was 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 6 to 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 not be 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 the provisions 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." 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 the nature 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 8 and back wages, a sum of Rs.3 lakhs is directed to be paid to the respondent by way of 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 actual payment." 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 an ad-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 9 to 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 a situation of this nature instead and in place of directing reinstatement with full back wages, the workmen should be granted adequate 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 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 11 of 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 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.) 13