Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6
CASE NO.:
Appeal (civil) 5873 of 2007
PETITIONER:
C.S. Azad Krishi Evem Prodyogiki Vishwa.
RESPONDENT:
United Trades Congress & Anr.
DATE OF JUDGMENT: 13/12/2007
BENCH:
S.B. Sinha & Harjit Singh Bedi
JUDGMENT:
J U D G M E N T
[Arising out of SLP (Civil) No. 4677 of 2007]
S.B. SINHA, J :
1. Leave granted.
2. This appeal is directed against the judgment and order dated
7.03.2006 passed by a learned Single Judge of the Allahabad High Court
dismissing the writ petition filed by the appellant from an award dated
30.05.1998 passed by the Presiding Officer, Industrial Tribunal (3) U.P.
Kanpur.
3. Appellant is a University created under the Uttar Pradesh (Krishi
Evam Prodyogik Vishwavidyalaya Adhiniyam) Act, 1958 (for short \023the
Act\024). The service conditions of the employees of the University are
governed thereby as also by the statute framed thereunder. Its basic object
was to undertake various training and projects for the betterment of
agriculture. For the said purpose, it employs persons from time to time;
sometimes project-wise.
4. Admittedly, Respondent No. 2 herein was appointed on daily-wages
by the University on 1.07.1980. He was being paid wages on a daily basis.
He worked as a Laboratory Assistant \026 cum \026 Attendant which is a Class IV
post. The job of Assistant Clerk, however, was being taken from him on and
from 1.11.1991. His remuneration was being paid at the rate of Rs. 40/- per
day.
5. Respondent No. 1 which is a trade union, raised an industrial dispute
on behalf of the respondent No. 2 on the premise that his services had not
been regularized by the University. Pursuant thereto, a reference was made
by the appropriate Government which reads as under:
\023Whether the employer by not declaring the
employment of its employee Kalyan Sharan, S/o
Shiv Dutt working as a clerk permanent did
commit illegality? If yes whether the concerned
employee is the rightful claimant to the benefits
(reliefs) and from which date and with what
reason?
6. The Presiding Officer, Industrial Tribunal (3), UP, to whom the said
reference was made, inter alia having regard to an order passed by the High
Court on a concession made by the learned counsel for the University in a
writ petition filed by other employees of the University, by an award dated
30.05.1998 directed:
\023\005Thus it is being completely proved that the
employer has been taking work from the
concerned worker from 1.11.91 continuously as a
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6
Clerk however he is being paid salary on a daily
wage basis as a daily wage employee which is
highly unfortunate, improper and illegal and the
concerned worker as per the nature of his work is
rightly entitled to be made permanent and
regularized in the post of Clerk/ typist keeping in
view the nature of the work which he is doing
now.
After having considered the written
statements, counter replies, documents, and
deposition of witnesses and after hearing the
arguments of both the sides I have come to the
conclusion finally that the employer of the
concerned worker Kalyan Sharan S/o Shiv Dutt,
post \026 Clerk having not declared the concerned
worker as regularized and permanent is an
illegality and is wrong. Thus, it is my decision in
this dispute is that the employer while declaring
the concerned worker permanent should extend
him all the benefits due to him from the day of this
Order.\024
7. Validity of the said award was questioned by the appellant before the
Allahabad High Court which by reason of the impugned judgment has been
dismissed by a learned Single Judge of the Court, holding:
\023After perusal of the judgment passed by the
Labour Court it is clear that the Labour Court has
considered each and every aspect and has come to
the conclusion that in spite of the fact that
respondent workman is working from 1980 and is
being treated as daily wager, this clearly amounts
to unfair labour practice. The finding recorded by
the Labour Court is a finding of fact in view of the
judgment reported in 2005 (3) SCC 193,
Management of Madurakantam Cooperative Sugar
Mills Ltd. Vs. S. Vishwanathan, the Apex Court
has clearly held that there is very little scope of
interference in the finding recorded by the Labour
Court. The finding recorded by the Labour Court
is a finding of fact and unless and until it is proved
beyond doubt that the Labour Court has exceeded
its jurisdiction and the finding recorded by the
Labour Court is against the evidence on record and
is perverse then the High Court while exercising
the jurisdiction under Article 226 of the
Constitution of India has the jurisdiction to
interfere otherwise there is very little scope for
interference.\024
8. Dr. R.G. Padia, learned senior counsel appearing on behalf of the
appellant, in support of this appeal, would submit that the impugned award
as also the judgment and the order of the High Court are wholly
unsustainable inasmuch as :
(i) The appointment of the respondent No. 2 having been made
de\022hors the statutory rules, no direction for regularization could
have been issued.
(ii) The Industrial Tribunal could not direct regularization of a Class
III employee, particularly, when the respondent No. 2 had not
worked for a long time in the said post.
(iii) The Industrial Court cannot grant a declaratory decree.
9. Mr. S. Chandra Shekhar, learned counsel appearing on behalf of the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6
respondents, on the other hand, would submit:
(i) Respondent No. 2 having been working against a permanent
vacancy both as a Laboratory Assistant which is a Class IV post
and as an Assistant Clerk which is a Class III post for a long time,
the Industrial Court acted within its jurisdiction in passing the
impugned award.
(ii) As pursuant to the order passed by the High Court in another writ
petition, the services of those who were junior to the respondent
No. 2 were regularized, he was also entitled to a similar benefit.
10. Concededly, Appellant is a University constituted by a statute. Who
would be the officers and authorities of the University is specified in Section
8 of the Act. The competent authority of the University has made \021Statutes\022
in terms of the provisions of the Act. The matter relating to appointment of
staff is governed by Chapter XIII of the Statutes framed by the University,
providing that all appointments shall be made strictly on the basis of merit.
For the purpose of appointing different categories of employees, provisions
have been made for constitution of selection committees.
Statute 10 reads as under:
\02310. Appointments of all other staff not
specifically provided for in the Act of these
Statutes shall be made by the Kulpati with the
approval of the Board except the following posts
which may be filed by the Kulpati without
reference to the Board namely;
(a) The non-teaching posts carrying a scale the
maximum of which does not exceed Rs. 450/-
including those which are filled by obtaining
services of a person on deputation for a period
upto three years from a regularly constituted
service of State or Central Government or an
autonomous body constituted by the State or
Central Government. The upper limit of Rs. 450/-
will be subject to alteration from time to time, by
the resolutions of the Board of management, on the
basis of rationalization or enhancement occurring
on the basis of the decision of the Government.
(b) The posts for which the Kulpati is the
appointing authority under the provisions of the
Act.\024
11. The University Statute does not provide for appointment on daily-
wages or on an adhoc basis. Respondent No. 2 in his written statement filed
before the Industrial Court did not make any averment that he had been
appointed in terms of the provisions of the statute or prior thereto any
advertisement therefor was made. According to him, he being a hard
working, honest, efficient and eligible employee, was \021entrusted\022 with the
work of a Clerk from 1.11.1991. In his written statement, it was averred:
\0235. That though the worker was working against a
permanent vacant post as a clerk in a permanent
manner, however, the employer is not giving him
the actual scale of pay and other allowances and
benefits as that of a permanent clerk. However, he
is still considered as a daily wager inspite of
having worked since last 14 years continuously,
which is illegal and wrong.\024
12. A feeble attempt, however, was made by the learned counsel
appearing on behalf of Respondent No. 2 to state that he had been appointed
against a permanent vacancy. In his written statement, he did not raise any
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6
such contention. It does not also appear from the records that any offer of
appointment was given to him. It is inconceivable that an employee
appointed on a regular basis would not be given an offer of appointment or
shall not be placed on a scale of pay. We, therefore, have no hesitation in
proceeding on the premise that Respondent No. 2 was appointed on daily-
wages. The Industrial Court in passing the impugned award proceeded on
the premise that Respondent No. 2 had been working for more than 240 days
continuously from the date of his engagement. It is now trite that the same
by itself does not confer any right upon a workman to be regularized in
service. Working for more than 240 days in a year was relevant only for the
purpose of application of Section 6N of the U.P. Industrial Disputes Act,
1947 providing for conditions precedent to retrench the workmen. It does
not speak of acquisition of a right by the workman to be regularized in
service.
13. In Executive Engineer, ZP Engg. Divn. And Another v. Digambara
Rao and Others [(2004) 8 SCC 262], it was held:
\023It may not be out of place to mention that
completion of 240 days of continuous service in a
year may not by itself be a ground for directing an
order of regularisation. It is also not the case of the
respondents that they were appointed in
accordance with the extant rules. No direction for
regularisation of their services, therefore, could be
issued.
[See also Madhyamik Shiksha Parishad, U.P. v. Anil Kumar Mishra
and Others, (2005) 5 SCC 122 and State of U.P. v. Neeraj Awasthi and
Others, (2006) 1 SCC 667]
14. A similar question came up for consideration in a large number of
decisions before this Court. We will, however, refer only to some of them.
In A. Umarani v. Registrar, Cooperative Societies and Others [(2004)
7 SCC 112], this Court held:
\02439. Regularisation, in our considered opinion, is
not and cannot be the mode of recruitment by any
\023State\024 within the meaning of Article 12 of the
Constitution of India or any body or authority
governed by a statutory Act or the Rules framed
thereunder. It is also now well settled that an
appointment made in violation of the mandatory
provisions of the statute and in particular, ignoring
the minimum educational qualification and other
essential qualification would be wholly illegal.
Such illegality cannot be cured by taking recourse
to regularisation. (See State of H.P. v. Suresh
Kumar Verma)
40. It is equally well settled that those who come
by back door should go through that door. (See
State of U.P. v. U.P. State Law Officers Assn.)
41. Regularisation furthermore cannot give
permanence to an employee whose services are ad
hoc in nature.\024
A Constitution Bench of this Court in Secretary, State of Karnataka
and Others v. Umadevi (3) and Others [(2006) 4 SCC 1] clearly held that an
appointment de\022hors the statutory rules would render the appointment a
nullity, stating:
\02418. Without keeping the above distinction in mind
and without discussion of the law on the question
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6
or the effect of the directions on the constitutional
scheme of appointment, this Court in Daily Rated
Casual Labour v. Union of India directed the
Government to frame a scheme for absorption of
daily-rated casual labourers continuously working
in the Posts and Telegraphs Department for more
than one year. This Court seems to have been
swayed by the idea that India is a socialist republic
and that implied the existence of certain important
obligations which the State had to discharge.
While it might be one thing to say that the daily-
rated workers, doing the identical work, had to be
paid the wages that were being paid to those who
are regularly appointed and are doing the same
work, it would be quite a different thing to say that
a socialist republic and its executive, is bound to
give permanence to all those who are employed as
casual labourers or temporary hands and that too
without a process of selection or without following
the mandate of the Constitution and the laws made
thereunder concerning public employment. The
same approach was made in Bhagwati Prasad v.
Delhi State Mineral Development Corpn. where
this Court directed regularisation of daily-rated
workers in phases and in accordance with
seniority.
22. With respect, it appears to us that the question
whether the jettisoning of the constitutional
scheme of appointment can be approved, was not
considered or decided. The distinction emphasised
in R.N. Nanjundappa v. T. Thimmiah was also not
kept in mind. The Court appears to have been
dealing with a scheme for \023equal pay for equal
work\024 and in the process, without an actual
discussion of the question, had approved a scheme
put forward by the State, prepared obviously at the
direction of the Court, to order permanent
absorption of such daily-rated workers. With
respect to the learned judges, the decision cannot
be said to lay down any law, that all those engaged
on daily wages, casually, temporarily, or when no
sanctioned post or vacancy existed and without
following the rules of selection, should be
absorbed or made permanent though not at a
stretch, but gradually. If that were the ratio, with
respect, we have to disagree with it.\024
It was further held that no person who was temporarily or casually
employed could be directed to be continued permanently. It was also opined
that by doing so it would be creating another mode of public employment
which is not permissible in law. [See also Punjab Water Supply & Sewerage
Board v. Ranjodh Singh and Others, (2007) 2 SCC 491]
15. The High Court has relied upon a decision of this Court in Mahendra
L. Jain and Others v. Indore Development Authority and Others [(2005) 1
SCC 639]. Therein it is stated:
\02319. The question, therefore, which arises for
consideration is as to whether they could lay a
valid claim for regularisation of their services. The
answer thereto must be rendered in the negative.
Regularisation cannot be claimed as a matter of
right. An illegal appointment cannot be legalised
by taking recourse to regularisation. What can be
regularised is an irregularity and not an illegality.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6
The constitutional scheme which the country has
adopted does not contemplate any back-door
appointment. A State before offering public
service to a person must comply with the
constitutional requirements of Articles 14 and 16
of the Constitution. All actions of the State must
conform to the constitutional requirements. A
daily-wager in the absence of a statutory provision
in this behalf would not be entitled to
regularisation.\024
[See also M.P. Housing Board and Another v. Manoj Shrivastava (2006) 2
SCC 702, M.P. State Agro Industries Development Corpn. Ltd. and Another
v. S.C. Pandey (2006) 2 SCC 716, Indian Drugs & Phrmaceuticals Ltd. v.
Workmen, Indian Drugs & Pharmaceuticals Ltd. (2007) 1 SCC 408 and
Gangadhar Pillai v. Siemens Ltd. (2007) 1 SCC 533].
16. The Industrial Court, therefore, in our opinion, committed a serious
error in passing the impugned award. The High Court unfortunately did not
pose unto itself a right question. It referred to a large number of decisions.
Although most of the decisions referred to by the High Court should have
been applied for upholding the contention of the appellant herein, without
any deliberation thereupon, the learned Judge has proceeded to determine
the question posed before it on a wholly wrong premise. As noticed
hereinbefore, it relied upon Mahendra L. Jain (supra) which in no manner
assists Respondent No. 2.
17. What was necessary to be considered was the nature of work
undertaken by the University. It undertakes projects. For the said purpose,
it may have to employ a large number of persons. Their services had to be
temporary in nature. Even for that the provisions of Articles 14 and 16 are
required to be complied with. In the event, the constitutional and statutory
requirements are not complied with, the contract of employment would be
rendered illegal.
18. Services of Respondent No. 2 were not terminated. He has been
continuing to serve the University. We have noticed hereinbefore that in a
writ petition filed by other employees on a concession made by the counsel
for the University, a purported scheme dated 24.04.2000 has been
formulated. Dr. Padia in that view of the matter stated before us that despite
the legal position, as noticed hereinbefore, in the event the case of
Respondent No. 2 comes within the purview of the said Scheme, his services
shall be regularized when his turn comes therefor.
19. We place on record the aforementioned statement made by Dr. Padia
that as and when Respondent No. 2 becomes entitled to be considered for
being absorbed in the services of the University pursuant to the said scheme,
his case may be considered. If his turn for consideration for regularization
has already come, a decision thereupon shall be taken as expeditiously as
possible.
20. The impugned judgment is set aside. The appeal is allowed with the
aforementioned observations and directions. However, in the facts and
circumstances of this case, there shall be no order as to costs.