Case: Hindustan Petroleum Corpn. Ltd Vs. Ashok Ranghba Ambre

Short facts giving rise to the present appeal are that appellant-Corporation is a Government Company within the meaning of Section 617 of the Companies Act, 1956. It is the case of the Corporation that the writ petitioner was engaged by the Corporation in 1984 on casual basis as anat its refinery at Bombay. The writ petitioner filed Writ Petition No. 661 of 1992 in the High Court by invoking Article 226 of the Constitution, inter alia, praying that he be declared as permanent workman on the post of Compounder/Dresser with effect from June 6, 1987 in the Corporation. A prayer was also sought to direct the Corporation to extend to the writ petitioner all benefits accrued in his favour by virtue of his permanency with 18% interest. It appears from the record, however, that since the writ petitioner was engaged purely on ad hoc and temporary basis without following proper procedure of law and without there being any right in his favour, the Corporation stopped engaging him from June, 1996. Being aggrieved by the said action, the workman raised an industrial dispute. Failure report was submitted by the Conciliation Officer and the Central Government, in exercise of power under Section 10(d) read with Section 10(2A) of the Industrial Disputes Act, 1947 (hereinafter referred to as) referred the dispute for adjudication to the Central Government Industrial Tribunal,Tribunal vide Award dated April 10, 2003, allowed the Reference. It was held that the workman was not a regularly appointed Compounder/Dresser but was a daily wage employee. But as he had worked for more than 240 days in the calendar year just preceding the date of his oral termination, the action amounted towithin the meaning of Section 25F of the Act and he was entitled to reinstatement with back wages. The Tribunal, however, made it clear that it was not considering the question of regularization of services of the workman because of two reasons;(i) the Reference did not cover the question of regularization; and(ii) the workman had already filed a writ petition for the relief of regularization which was pending in the High Court. The Award passed by the Industrial Tribunal was challenged by the Corporation in the High Court. A Single Judge of the High Court as well as a Division Bench confirmed the said Award. The matter came to an end there and the award attainedwrit petition which was instituted by the writ petitioner-workman then came up for hearing before the Division Bench of the High Court and as stated above, the High Court allowed the petition by making rule absolute and by directing the appellant-Corporation to make the writ petitioner permanent and to grant benefits with effect from the date of filing of the writ petition. The aforesaid order and directions issued in the writ petition by the High Court are challenged by the Corporation in the present appeal.

Reasoning: The High Court observed that the writ petitioner was working as Compounder/Dresser right from 1984. It was not disputed that there was requirement of Compounder/Dresser at the Refinery which was working all throughout seven days in a week. It also noted the observation of the Tribunal in earlier Award that if the policy decision was breached in the appointment of the workman, the appointment could not be said to be illegal or prohibited by law. Such appointment would be merely irregular but notour opinion, the High Court was in clear error in equating reinstatement of employee in service in earlier proceedings with confirmation and granting status of permanency. Continuation in or regularization of service of an employee and extending the benefit of confirmation or making him permanent are two differentto the appellant-Corporation, the workman was appointed on a purely ad hoc and temporary basis, without following due process of law. His name was never sponsored by the Employment Exchange nor an advertisement was issued for the purpose of filling the post to which the writ petitioner was appointed. Cases of other similarly situated persons were not considered and the appointment was not legal and lawful. In industrial adjudication, an order of termination was quashed as it was not in accordance with law. But that did not mean that the workman had substantive right to hold the post. The High Court was, therefore, wrong in directing the Corporation to make the writ petitioner permanent and to extend him all benefits on that basis from 1992. The said direction, therefore, has toappeal is allowed by setting aside the direction issued by the High Court ordering the appellant-Corporation to make the writ-petitioner (respondent herein) permanent employee of the Corporation and to grant all benefits on that basis with effect from the date of filing of writmay, however, observe that since the writ petitioner is working with the appellant-Corporation since 1984 and by now, he has completed more than two decades, his case for permanency be considered by the Corporation sympathetically. If there is age bar in considering the case of the writ petitioner for permanent appointment, the appellant-Corporation will not treat the writ petitioner ineligible on that count in view of the fact that he is already in service of the Corporation since 1984. If there are statutory rules/administrative instructions/guidelines which require minimum educational qualification and/or experience, it is open to the Corporation to insist compliance with such rules/instructions/guidelines. But if there is power of relaxation with the Corporation or any of its Officers, the appellant-Corporation will consider that aspect as well keeping in view the fact that the writ petitioner was appointed in 1984, has completed service of more than twenty years and is having rich experience.