Full Judgment Text
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CASE NO.:
Appeal (civil) 1270 of 2006
PETITIONER:
Branch Manager, M.P. State Agro Industries Development Corpn.Ltd. & Anr
RESPONDENT:
Shri S.C. Pandey
DATE OF JUDGMENT: 24/02/2006
BENCH:
S.B. Sinha & P.K. Balasubramanyan
JUDGMENT:
J U D G M E N T
(Arising out of SLP (C) No. 24842 of 2004)
S.B. SINHA, J.
Leave granted.
The appellant herein is a statutory corporation and, thus, a ’State’
within the meaning of Article 12 of the Constitution of India.
The respondent herein was temporarily appointed as a Typist. He was
appointed by the Branch Manager, Morena Branch of the appellant
whereafter intimation thereto was given to the Regional Manager, stating:
"Shri Vinod Bharga has left the services from this Office
and now Shri S.C. Pandey has been temporarily
appointed as a Typist w.e.f. 16th September, 1985.
The original application of Shri Pandey is enclosed
herewith. Please issue necessary orders."
He appears to have been appointed an daily wages. His services were
terminated by an order dated 18.7.1987 with immediate effect by the
Regional Manager on the ground that his services were no longer required.
On or about 23.8.1987, assailing the said order of termination, he filed
an application before the Presiding Officer, Labour Court No. 2, Gwalior
wherein an interim order was passed not to remove him from services.
Although, the order had been given effect to, but in view of the said interim
order, he was allowed to continue in service.
Before the Labour Court the appellant inter alia raised a contention
that the respondent had been illegally appointed by the then Branch Manager
and, thus, he derived no legal right to continue in service. It was
categorically stated that the employees of the said undertaking are governed
by the Rules and Regulations framed by the Corporation known as Service
Recruitment Selections Regulations, 1976 (hereinafter referred to as ’1976
Regulations’) in terms whereof only the Managing Director was designated
as the appointing authority.
The issues which inter alia arose for consideration before the Labour
Court were:
"(4) Whether the petitioner was appointed on
contingency and due to which he is not entitled to be
regularized?
(6) Whether the order of termination of petitioner is legal
and valid, because his appointment itself was illegal?"
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The Labour Court held that the M.P. Industrial Employment (Standing
Orders) Rules, 1963 framed under M.P. Industrial Employment (Standing
Order) Act, 1961 are applicable to the Corporation. On a finding that the
respondent was appointed against a vacant post, it was held that he had
acquired a right to be appointed as a regular/permanent employee in the post
of typist purported to be in terms of the proviso appended to Rule 2 (4) of
the Standing Orders. The order of termination was also held to be bad in
law, although, no reason therefor was assigned. The Labour Court without
considering the contentions raised by the appellant - Corporation held:
"Since the petitioner is in continuous service of the
respondents in compliance of the interim orders of
this Court and it has already been decided that the
petitioner is entitled to be regularized on the post
of Typist, therefore, the respondents are hereby
directed to regularize/classify the petitioner on the
post of typist within a period of 30 days of this
order with effect from 6 months after 16.9.1985
and will also pay to the petitioner the difference
between regular pay scale of permanent post and
pay scale given to him, from the date of his
regularization along with other consequential
benefits."
An appeal preferred by the appellant herein against the said order
before the Tribunal was dismissed inter alia on the ground that the
respondent was accepted as a working staff in the Morena Office and he
had been transferred to Gwalior by an order of the Regional Manager
himself.
Before the Tribunal reliance was placed on behalf of the appellant-
Corporation upon a decision of a Full Bench of the Madhya Pradesh High
Court in M.P.S.R.T.C v. Narayan Singh Rathor and Ors. [ 1994 MPLJ
959]. The said decision was distinguished by the Tribunal stating that as
therein the employee was claiming the benefit of the Standard Standing
Order in the promotional post, it had no application to the fact of the case.
Despite the fact that before the Labour Court the respondent made a
prayer that his services may not be terminated, although it stood terminated,
the Tribunal opined that the law of pleadings should not be strictly applied
to the labour cases on the purported ground that the services of the
respondent were not terminated legally or properly.
The writ petition filed by the appellant-Corporation herein before the
High Court of Madhya Pradesh at Gwalior was also dismissed. The High
Court applied the principles contained in Section 25B of the Industrial
Disputes Act and opined that the termination of services of the respondent
was illegal.
A Letters Patent Appeal thereagainst was summarily dismissed by a
Division Bench of the High Court.
Ms. Hetu Arora, the learned counsel appearing on behalf of the
appellant-Corporation in assailing the judgment of the High Court, would
contend that as the respondent herein had not been able to establish that he
was appointed in the services of the appellant-Corporation in terms of the
provisions of the regulations governing selection and appointment, the
impugned order cannot be sustained. Reliance, in this behalf, has been
placed on Mahendra Lal Jain & Ors. v. Indore Development Authority &
Ors. [(2005) 1 SCC 639] .
Mr. Ashok Mathur, the learned counsel appearing on behalf of the
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respondent, on the other hand, submitted that as a finding of fact has been
arrived at that there was a clear vacancy, and as he has satisfactorily worked
for a period of more than six months, he was rightly held entitled to be
classified as a permanent employee in terms of the provisions of the
Standing Orders. It was furthermore contended that in view of the fact that
the provisions of the Standing Orders relating to classification were rightly
invoked at the entry point being a case of appointment and not promotion.
Strong reliance has been placed on Dwarika Prasad Tiwari v. M.P. State
Road Transport Corporation & Anr. [(2001) 8 SCC 322].
The Industrial Courts and High Court inter alia proceeded on the basis
that the respondent having completed 240 days of service during the
preceding 12 months, he should have been regularized in service. Section
25-B of the Industrial Disputes Act was also invoked on that premise. The
Labour Court, however, wrongly equated classification with regularization.
The term ’regularization’ does not connote permanence.
The question raised in this appeal is now covered by a decision of this
Court in M.P. Housing Board & Anr. v. Manoj Srivastava [ Civil Appeal
arising out of SLP (Civil) No. 27360/04 disposed of this date] wherein this
Court clearly opined that: (1) when the conditions of service are governed
by two statutes; one relating to selection and appointment and the other
relating to the terms and conditions of service, an endeavour should be
made to give effect to both of the statutes; (2) A daily wager does not hold a
post as he is not appointed in terms of the provisions of the Act and Rules
framed thereunder and in that view of the matter he does not derive any legal
right; (3) Only because an employee had been working for more than 240
days that by itself would not confer any legal right upon him to be
regularized in service; (4) If an appointment has been made contrary to the
provisions of the statute the same would be void and the effect thereof would
be that no legal right was derived by the employee by reason thereof.
The said decision applies on all fours to the facts of this case. In
Mahendra Lal Jain (supra) this Court has categorically held that the Standing
Orders governing the terms and conditions of service must be read subject
to the constitutional and statutory limitations for purpose of appointment
both as a permanent employee or as a temporary employee. An appointment
to the post of a temporary employee can be made where the work is
essentially of temporary nature. In a case where there existed a vacancy,
the same was required to be filled up by resorting to the procedures known
to law i.e. upon fulfilling the constitutional requirements as also the
provisions contained in the 1976 Regulations. No finding of fact has been
arrived at that before the respondent was appointed, the constitutional and
statutory requirements were complied with.
A Constitution Bench of this Court in State of Punjab v. Jagdip
Singh & Ors. [(1964 (4) SCR 964] has categorically held that if an order of
confirmation is passed when no post was available and that too by a person
who was not authorized therefor, the appointment would be void. We have
noticed hereinbefore that the Branch Manager in his letter dated 27.9.1985
addressed to the Regional Manager stated that the respondent had already
been appointed w.e.f. 16.9.1985. Before the Labour Court, the offer of
appointment had not been produced. It had not, therefore, been disclosed as
to on what terms and conditions he was appointed.
A Full Bench of the Madhya Pradesh High Court in Narayan Singh
Rathor (supra) held:
"Service conditions are essentially matters of agreement
between employer and the employee. Where the
employer frames regulations or rules relating to
conditions of service, they are treated as part of the
conditions of service of the employee. M.P. Industrial
Employment (Standing Orders) Act, 1961 was enacted to
provide for rules defining with sufficient precision in
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certain matters the conditions of service of employees in
certain undertakings in the State. It contemplates
statutory interventions in service conditions of employees
in certain undertakings. Rules have been framed under
the Act. There is no doubt that the intention is to
improve the service conditions of the employees and
ensure that they are not adversely affected by unilateral
action of the employers. But the contours of intervention
cannot be extended beyond the statutory frame work\005."
In Dwarika Prasad Tiwari (supra), whereupon Mr. Mathur placed
reliance, a Division Bench of this Court accepted the views of the Full
Bench in Narayan Singh Rathor (supra). However, it was held that the
Standing Order categorizes the nature of employment and it does not classify
individual employees in different posts according to the hierarchy created in
a department and thus the proviso to Rule 2 does not apply to promotions or
regularizations in higher grade.
Such appointments, in our opinion, having regarding to the decisions
in Mahendra Lal Jain (supra) and Manoj Srivastava (supra) must be made
in accordance with extant rules and regulations. It is also a well settled legal
position that only because a temporary employee has completed 240 days of
work, he would not be entitled to be regularized in service. Otherwise also
the legal position in this behalf is clear as would appear from the decision of
this Court in Dhampur Sugar Mills Ltd. v. Bhola Singh [(2005) 2 SCC 470]
apart from Mahendra Lal Jain (supra).
The Industrial Court as also the High Court applied the principles of
estoppel on the finding that the respondent was transferred from Morena to
Gwalior. If his appointment was void, being contrary to regulations, in our
opinion, the procedural provisions like estoppel or waiver were not
applicable. If an appointment made by the Branch Manager was wholly
without jurisdiction, the order of appointment itself was void. Furthermore,
the contention of the appellant had been that in terms of Regulation 16 of
1976 Regulations only the Managing Director of the Corporation could issue
an offer of appointment. It has not been found by the Industrial Courts or
the High Court that the Branch Manager and the Regional Manager were
authorized to make such appointments. The appointment of the respondent,
thus, must be held to have been made only to meet the exigencies of services
and not in terms of the service regulations. The appointment of the
Respondent, thus, could not have been made for filling up a regular vacancy
for the purpose of invoking Rule 2 of the Standing Orders.
However, it has not been contended that the services of the
respondent were not governed by the provisions of the Industrial Disputes
Act. He worked from 16.9.1985 to 19.5.1987. He must have, thus,
completed 240 days of service. The termination of his services without
complying with the provisions of Section 25F of the Industrial Disputes Act
was, thus, illegal. He, however, had unjustly been directed to continue in
service by reason of an interim order. He has been continuing in service
pursuant thereto.
The appellant, in our opinion, cannot be made to suffer owing to a
mistake on the part of the court. The respondent also cannot take advantage
of a wrong order.
In the peculiar facts and circumstances of the case, we, therefore, of
the opinion that interest of justice would be sub-served if, in place of
directing reinstatement of the services of the respondent, the appellant is
directed to pay a sum of Rs. 10,000/- by way of compensation to him. It is
directed accordingly. The orders under challenge are set aside. The appeal
is allowed with the aforementioned directions and observations.
There shall be no order as to costs.