( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3309 OF 1996 WITH CIVIL APPLICATION NO. 2436 OF 2008 The State of Maharashtra .. Petitioner through the Executive Engineer, Public Works Division, Jalgaon. Versus 1. Vishwas Bhaskar Patil .. Respondents R/o. Sadavan, Tal. Amalner, Dist. Jalgaon. 2. The Learned Presiding Officer, Labour Court, Jalgaon. Shri S.P. Dound, A.G.P. for the petitioner. Shri S.K. Shelke, Advocate for respondent Nos.1. CORAM : P.R. BORKAR,J. RESERVED ON : 06.08.2009 PRONOUNCED ON : 07.08.2009 J U D G M E N T :- 1. This Writ Petition is filed by the State of Maharashtra through the Executive Engineer, Public Works ( 2 ) Division, Jalgaon, being aggrieved by the judgment and award passed by the Presiding Officer, Labour Court, Jalgaon in Reference I.D.A. No. 3 of 1987, decided on 31.05.1995. 2. Briefly stated facts giving rise to this Writ Petition may be stated as below:- . The Dy. Commissioner of Labour, Nasik Division, Nasik, referred the industrial dispute for adjudication between the appellant and respondent No.1 as per demand of the respondent. Briefly stated it is case of respondent No.1 that he was engaged to work on daily wages of Rs. 10.60 on maintenance and repair work of Amalner-Parola road as Mile Majdoor w.e.f. 01.04.1981. He was orally terminated w.e.f. 29.02.1983. He was in continuous employment. He had completed 240 days during last preceding 12 months from the date of alleged termination. He was not given any notice or any compensation in lieu of notice, nor any charge-sheet was served on him, nor any enquiry was held. Hence, according to him, the retrenchment was wrong and sought reinstatement with back wages. ( 3 ) 3. The petitioner – Board filed written statement at Exh.21 and denied all the averments in the application made by the respondent. According to the petitioner, the respondent No.1 was given purely temporary work. The respondent No.1 was engaged purely on temporary basis. There was no termination w.e.f. 29.03.1983, but it is alleged that respondent No.1 remained absent from work and therefore there was no necessity of complying with Sections 25-F & 25-G of the Industrial Disputes Act and no unfair labour practice was committed and respondent No.1 is not entitled to any relief. 4. The Labour Court has held that the appellant had completed 249 days in proceeding year and therefore the respondent No.1 was in continuous employment. He also held that the necessary requirements of Sections 25-F of the Industrial Disputes Act, were not complied with and therefore he ordered reinstatement with back wages w.e.f. 31.03.1986 onwards. It is this order which is challenged in this writ petition. 5. In this case it is not disputed that the respondent No.1 was working on daily wages. He was working as Mile ( 4 ) Majdoor. It is not his say that he was regularized in the employment or that he was given permanent employment after due selection. So, he was temporary employee working on daily wages. No doubt, he had completed 249 days of work during 12 preceding months prior to his termination and therefore there is breach of Section 25-F of the Industrial Disputes Act. The statement regarding the days on which the respondent No.1 worked is given on record. Said statement is at Exh.52. It is signed by Sub-Divisional Engineer, P.W.D., Parola. 6. The learned A.G.P. Shri S.P. Dound argued that even if there was breach of Section 25-G f the Industrial Disputes Act, still the order of reinstatement with back wages is incorrect. He relied upon case of Secretary, State of Karnataka vs. Umadevi (2006) 4 SCC 1. The learned advocate for respondent No.1 relied upon case of Gaurishankar Vishwakarma V/s.Eagle Spring Industries Pvt.Ltd.,& Ors., 1988 I CLR 38. In para 3 the following observations are made :- “3. .......................... Their case is that the petitioner workman had abandoned the service by refusing to come and to resume the work. It is difficult to accept this case. It is now well settled that even in the ( 5 ) case of the abandonment of service, the employer has to give a notice to the workman calling upon him to resume his duty and also to hold an enqiry before terminating his service on that ground. ........” 7. In said case the worker was in employment for 6-7 years prior to refusal as a Miller. The Court considered so called abandonment as termination on the ground of absentism and made above-said observations. He also further relied upon Rambhau Sadashiv Jawalkar, Pune V/s. Dy. Conservator of Forests, Pune Forest Division, Pune and Ors., 2007 I CLR 354, in which in para 7 the case of Gaurishankar (Supra) was referred and same ratio is followed. 8. According to the learned counsel for respondent No. 1, since the abandonemnt of job was not proved, the appellant is entitled to reinstatement. In this case the Labour Court has held that the workman had completed 249 days in the year prior to the termination and he was in continuous service within the meaning of Section 25-B of the Industrial Disputes Act and as such before termination there should have compliance of Section 25-F of the Industrial Disputes Act. Since, admittedly no notice of 30 days was given and no pay in lieu was granted, order of reinstatement with back wages ( 6 ) was passed. 9. 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 scheme 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 public employment cannot give them right of regularly recruited employees. The Supreme Court has held that such casual, temporary, contractual, daily wage workers ( 7 ) or adhoc employees cannot get right of regularization or permanency which is granted by the Labour Court in the present case. 10. 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 to which daily-rated workers are not subjected to. ( 8 ) 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. ........." 11. In Rajasthan Lalit Kala Academy vs Radhey Shyam (2008) 13 SCC 248, 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." 12. 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. ( 9 ) "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 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." 13. In Mahboob Deepak vs. Nagar Panchayt, Gajraula (2008) 1 SCC 575 , 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 ( 10 ) 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 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." 14. Thus, it is abundantly clear that though case of abandonment is not proved and there was breach of Section 25- F of the Industrial Disputes Act, in view of the law laid down by the Supreme Court in the cases cited above the respondent No.1 is not entitled to regular employment or permanent employment. Since it is not his case that he was employed after following due procedure, and since he was a temporary, daily wages worker, the benefit of reinstatement with back wages could not have been conferred on him. At the most respondent No.1 is entitled to compensation of breach of Section 25-F of the Industrial Disputes Act. ( 11 ) 15. In my opinion, the ends of justice would be met by awarding compensation of Rs.10,000/- instead of reinstatement with back wages. In the result the writ petition is allowed as under:- (i) The judgment and award passed by the Labour Court is hereby set aside. (ii) It is directed that the appellant shall pay respondent No.1 an amount of Rs.10,000/- towards breach of Section 25-F of the Industrial Disputes Act. The compensation be paid within two months from today. In case, such amount is not paid, it shall carry interest at the rate of 9% p.a. from today till actual realization. 16. Rule made absolute accordingly and the petition is disposed of. 17. In view of disposal of this Writ Petition, Civil Application No. 2436 of 2008 does not survive. The Civil Application stands disposed of. [P.R. BORKAR,J.] snk/2009/AUG09/wp3309.96