- (1.) By way of the present petition, the petitioner has challenged the award dated 13.4.2006 passed by the Labour Court, Bhavnagar in Reference (LCB) No. 253 of 1994 whereby the Labour Court directed the petitioner to reinstate the respondent workman in service with 50% back wages. The facts of the present petition are that the respondent workman was working as Rojamdar and he was paid wage of Rs. 32.20 paise per day. He was given appointment for 29 days. After completion of 29 days, the petitioner Nagar Palika used to extend the appointment order for further period of 29 days after passing appropriate resolutions. On 9.1.1993 the services of the workman came to be terminated. The respondent workman raised industrial dispute in the year 1994 by filing statement of claim before the Labour Court, Bhavnagar. He claimed reinstatement with full back wages. The petitioner denied the claim of the workman by filing written statement. It is stated in the written statement that the workman was appointed on ad hoc basis for 29 days and if work was available, the said period was extended from time to time. Therefore, there was no question of issuing notice pay before retrenchment of the workman. The Labour Court, after considering the evidence available on record, passed the award as aforesaid which is under challenge in this petition.
(2.) Heard learned advocate Mr. D.M. Thakkar for the petitioner and learned advocate Mr. T.R. Mishra for the respondent workman. Learned advocate for the petitioner has vehemently contended that on the basis of the evidence produced by the petitioner, the Labour Court failed to consider that the workman was a daily rated employee appointed for a fix period of 29 days and his service came to an end on the expiry of the said period of employment. Therefore, in the present case, when the services of the workman came to an end by virtue of contract, provision of Section 25F, G and H of the Industrial Disputes Act shall not be attracted to the facts of the present case. In support of this contention, he has relied on the decision of the Apex Court in the case of Reserve Bank of India v. Gopinath Sharma, 2006 6 SCC 221, more particularly, paragraph Nos. 17, 22 and 27 which are reproduced hereinafter: "17. In our opinion, the High Court has committed a patent error in allowing the writ petition filed by the respondent herein who is a daily wage worker when it was not established that he was working on regular basis. The High Court, in our opinion, is not justified in directing that respondent No. 1 must be reinstated and appointed to similar post. The High Court has also clearly erred in examining the legality of the policy and giving relief solely on the ground that it found the policy and actions of the appellant contrary to Arts. 14 and 16 of the constitution. It is pertinent to notice that the High court has taken into consideration an entirely new aspect which was neither pleaded by the petitioner in the writ petition before the High Court nor was claimed in the claim statement filed before the Tribunal without giving an opportunity to the parties to effectively reply to the same. Likewise, the High Court also failed to consider that the system of engagement of 'Ticca Mazdoors' has since been abolished in November, 1993, while this fact was brought on record of High Court in the counter affidavit filed on behalf of the Bank. 22. In our view, respondent No. 1 was not appointed to any regular post but was only engaged on the basis of the need of the work on day to-day basis and he has no right to the post and that his dis-engagement cannot be treated as arbitrary. The High Court, in our view, has totally misdirected itself in holding that non-consideration of the name of respondent No. 1 on acquiring higher qualification is not misconduct, hence, dismissal of the workman on this ground is wrongful within the meaning of Item 3, Schedule II to the Industrial Disputes Act, 1947 without giving any reason as to how non-inclusion of name for day to-day appointment amounts to wrongful dismissal. The High Court completely erred in relying on Section 25G of the I.D. Act while not holding that the workman has been retrenched within the meaning of Section 25F and thus misdirected itself about the applicability of provisions of Section 25G of the I.D. Act even if it does not involve retrenchment. The High Court also failed to consider that the inclusion of the name in the waiting list for appointment as 'Ticca Mazdoor' on day to-day basis does not confer any right for regular appointment or to hold any post. As already noticed, no relief can now be given to respondent No. 1 especially when the system of keeping waiting list for Ticca Mazdoor has been dispensed with since 23.7.1993 and at present the Bank does not maintain any list. The High Court, therefore, wrongly proceeded on the basis as if the daily wage appointment is for a regular post on which a person can be reinstated. The High Court has also committed an error in giving the relief of reinstatement with back wages without considering whether the concerned workman was gainfully employed from 1976 till date of judgment, there being no evidence on record. Likewise, the High Court ought to have seen that respondent No. 1 was not entitled to any back wages on the basis of the well settled principle "No work/026 No Pay". In our opinion, the High Court has completely erred in ordering an appointment to a similar post on which a person just before the name of respondent No. 1 is at present working without considering the fact that such person must be senior to the workman concerned and was already promoted to the next cadre in Class III. 27. In paras 34 and 35 (JT) of Secy., State of Karnataka v. Umadevi, 2006 4 SCC 1, this Court held as under: (SCC pp 35-37, paras 42-44): "42(34) While answering an objection to the locus standi of the writ petitioners in challenging the repeated issue of an ordinance by the Governor of Bihar, the exalted position of rule of law in the scheme of things was emphasized, Chief Justice Bhagwati speaking on behalf of the Constitution Bench in D.C. Wadhwa (Dr) v. State of Bihar, 1987 1 SCC 378 stated: (SCC p. 384, para 3) "The rule of law constitutes the core of our Constitution of India and it is the essence of the rule of law that the exercise of the power by the State whether it be the Legislature or the Executive or any other authority should be within the constitutional limitations and if any practice is adopted by the Executive which is in flagrant and systemic violation of its constitutional limitations, petitioner No. 1 as a member of the public would have sufficient interest to challenge such practice by filing a writ petition and it would be the constitutional duty of this Court to entertain the writ petition and adjudicate upon the validity of such practice." 43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It is also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment do not acquire any right. High Courts acting under Article 226 of the Constitution of India should not ordinarily issue directions for absorption, regularization or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because an employee had continued under cover of an order of court, which we have described as 'litigious employment' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the state the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of constitutional and statutory mandates. 44 (35). The concept of 'equal pay for equal work' is different from the concept of conferring permanency on those who have been appointed on ad hoc basis, temporary basis or based on no process of selection as envisaged by the rules. This court has in various decisions applied the principle of equal pay for equal work and has laid down the parameters for the application of that principle. The decisions are rested on the concept of equality enshrined in our Constitution in the light of the Directive Principles in that behalf. But the acceptance of that principle cannot lead to a position where the court could direct that appointments made without following the due procedure established by law, be deemed permanent or issue directions to treat them as permanent. Doing so would be negation of the principle of equality of opportunity. The power to make an order as is necessary for doing complete justice in any cause or matter pending before this court, would not normally be used for giving the go-by to the procedure established by law in the matter of public employment. Take the situation arising in the cases before us from the State of Karnataka. Therein, after the Dharwad decision, the Government had issued repeated directions and mandatory orders that no temporary or ad hoc employment or engagement be given. Some of the authorities and departments had ignored those directions or defied those directions and had continued to give employment specifically interdicted by the orders issued by the Executive. Some of the appointing officers have even been punished for their defiance. It would not be just or proper to pass an order in exercise of jurisdiction under Article 226 or 32 of the Constitution or in exercise of power under Article 142 of the Constitution of India permitting those persons engaged, to be absorbed or to be made permanent based on their appointments or engagements. Complete justice would be justice according to law and though it would be open to this court to mould the relief, this court would not grant a relief which would amount to perpetuating an illegality."
(3.) He has further relied on the decision of this Court in the case of Purshottambhai R. Kachhadia v. State of Gujarat and Others, 2000 2 GLR 1793 in which it is held at paragraph No. 9 as under: "Sub-clause (bb) which was added with effect from 18.8.1984 in clause (oo) of Section 2 of the said Act reads as under: "(bb) - termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or There is no dispute about the fact that the petitioners were from time to time, appointed for a fixed period and given breaks. It also appears that they were from time to time posted on different works while working as a work-charge employees. The petitions relate to terminations which have taken place after the coming into force of sub-clause (bb) of clause (oo) of Section 2 of the Act. It is therefore obvious that the earlier authorities on the question of retrenchment and violation of Section 25F for its non-compliance cannot be invoked by the petitioners who were appointed for a specific period and their contract of employment was terminated under a stipulation in that behalf contained therein. Sub-clause (bb) of clause (oo) of Section 2 speaks only of contract of employment being terminated under a stipulation in that behalf or termination of service as a result of nonrenewal of contract of employment on its expiry and does not spell out any period of such contract. Therefore, irrespective of the length of the period that may have been stipulated in the contract, if there is a provision under such contract for termination of employment of the persons who were appointed, sub-clause (bb) of clause (oo) of Section 2 would apply and the termination would not amount to retrenchment. Even if under some mistaken belief while terminating the employment as per the stipulation of the contract of the employment, the authority has referred to payment of compensation under Section 25F of the Act, that cannot create any rights in favour of such employees dehors the provisions of sub-clause (bb) of clause (oo) of Section 2 of the Act. If a person whose termination of service does not amount to retrenchment and therefore, is not entitled to retrenchment compensation under Section 25F of the Act, is erroneously offered retrenchment compensation, that would not improve his legal position under sub-clause (bb) of clause (oo) of Section 2 of the Act. The Hon'ble Supreme Court, in the case of Himanshu Kumar Vidyarthi and Ors. Vs. State of Bihar, 1997 4 SCC 391, has held that in a case where services of daily wagers who were temporary employees were terminated, their disengagement from services cannot be construed to be a retrenchment under the Industrial Disputes Act. It was held that since they were only daily-wage employees and had no right to the posts, their disengagement from service was not arbitrary. In Escorts Limited Vs. Presiding Officer and anr., 1997 11 SCC 521, where a temporary appointment was made for a specified period and the terms of appointment enabled the employer to terminate the services at any stage, it was held by the Hon'ble Supreme Court that the termination of services of such workmen did not constitute retrenchment in view of sub-clause (bb) of clause (oo) of Section 2 of the Act. The provision of sub-clause (bb) of clause (oo) of Section 2 was earlier considered in the case of Venugopal v. Divisional Manager, LIC, 1994 2 SCC 323, in which it was held that since the termination of the employee who was appointed on probation for one year, which probation was extended for a further period, before expiry of which his services were terminated in accordance with the terms of the contract, it did not constitute retrenchment.";