KESHOTE, J. - (1.) CHALLENGE has been made to the award dated 20. 4. 2001 of the Central Industrial Tribunal, Jaipur in case No. C. I. T. 86/89 by the petitioners in this petition under Article 227 of the Constitution. The industrial dispute raised by the petitioner regarding the termination of the services was referred to the Tribunal by the Central Government. The dispute referred to the Tribunal was in the following terms:- "whether the action of the management of Union Bank of India in terminating the services of Shri R. B. Soni and not considering him for further employment while recruiting fresh hands under Section 25-H of the I. D. Act is justified? If not, to what relief is the workman entitled?"
(2.) THE Industrial Tribunal has framed as many as 7 points for consideration which reads as under:- " (a) Whether R. B. Soni is a workman within the meaning of Section 2 (S) of the Act? (b) Whether the applicant union had no authority or locus standi to sponsor or expouse the cause of workman R. B. Soni? (c) Whether there is unexplained and considerable delay in sponsoring the dispute by the applicant union, if is so what is the effect of it on the reference? (d) Whether the action of the management of the bank in terminating the services of R. B. Soni is in order? (e) Whether reference suffers from the defect of non- joinder of necessary parties, if so what is the effect of it on the reference? (f) Whether the management of Bank has recruited candidates on the post of Peon in violation of Section 25-F of the Act? (g) To what relief R. B. Soni is entitled?" Learned counsel for the petitioner raised only contention that the Central Industrial Tribunal though accepted as a fact that the management has violated the provisions of Section 25-H of the Industrial Disputes Act, 1947 in this case but relief has not been granted to the petitioners. It has next been contended that the grievance made on this point though has been accepted and relief could not have been denied by the Central Industrial Tribunal to the petitioners on the ground of delay in raising the industrial dispute. In support of his contentions Mr. Rajendra Soni learned counsel for the petitioner has relied upon the decision of the Apex Court in the case reported in (JT 1993 (3) SC 38) (1 ). I do not find any the judgment cited by the counsel in this report at the given page number. Mr. Kala learned counsel for the respondents in contra submitted that the finding given by the Central Industrial Tribunal on the point of violation of Section 25-H of the Act by the respondent management is wholly perverse and arbitrary. It is contended that the petitioner has made reference to the cases of Ashok Kumar and six other persons namely Raghuveer Singh, J. P. Mishra, Ganpat Singh, Vasudev, Sardar Singh and Ramesh Lal Bani but so far as other six persons are concerned, the petitioner has failed to furnish their service particular namely when they were appointed, by whom they were appointed and in which branch they were working or they have worked. The Tribunal has not relied upon the case of those six persons. So far as the case of Ashok Kumar is concerned, Mr. Kala learned counsel for the management submitted that his case altogether stands on different footing and his appointment cannot be said to have been made in violation of Section 25-H of the Act. In the rejoinder to the submission made by the learned counsel for the management, Mr. Soni submitted that it is not open to the respondent management to raise this point in this petition for the reason that it has not challenged the award of the Industrial Tribunal. It is further submitted that the finding recorded regarding appointment of Ashok Kumar appointment has not been challenged by filing the petition or by filing cross objections etc. In the reply to the petition of the petitioners these findings cannot be challenged by the management. The management should have filed its own petition if it was aggrieved of this finding of the Industrial Tribunal. I have given my thoughtful consideration to the submissions made by the learned counsel for the parties. The award of the Central Industrial Tribunal is in favour of the management and there was no occasion or necessity for the management to file a writ petition in this Court. I do not find any substance in the contention of the learned counsel for the petitioners that against the adverse findings given on a particular point though ultimately decision is in favour of the litigant still writ has to be filed. In case where the writ petition would have been filed by the respondent management challenging the finding of the Industrial Tribunal regarding the appointment of Ashok Kumar I have my own reservation whether it could have been admitted by the court. The management could not have filed any cross objection as the provisions of Code of the Civil Procedure are not applicable in the proceedings under Article 226 of the Constitution. The petitioners are challenging the award and the management is within its right and competence in the case where ultimate decision of the Industrial Tribunal is its favour to challenge an adverse finding recorded against it on any issue or points. The management also has a right and competence to challenge the finding of the Industrial Tribunal on the point of the appointment of Ashok Kumar in violation of Section 25-H of the Act. Having heard learned counsel for the parties, I am satisfied that by appointment of Ashok Kumar provisions of Section 25-H of the Act have not been violated in this case by the management. Ashok Kumar has been appointed through employment exchange against a regular post. Learned counsel for the petitioners has not produced in the Court the recruitment rules. The petitioner workman has been appointed as a daily wages and that too may also be the case of Ashok Kumar at that stage but daily wager cannot be continued as such. Where the regular post is available the appointment to it has to be made in accordance with the recruitment rules. Here the appointment of Ashok Kumar has been made after calling the names from the employment exchange and this appointment cannot be taken to be an illegal appointment or by this appointment it cannot be taken that the management has violated the provisions of Section 25-H of the Act. The Industrial Tribunal has committed a serious error and its approach is wholly perverse to hold that Section 25-H of the Act speaks only for re-employment of a retrenched workman. That is not correct. Re-employment of retrenched workman of the similar category and the nature. This cannot be equated with the appointments which are to be made on the regular post in accordance with the recruitment rules. In case the regular appointments are equated with the appointment made on daily wages it will result in providing different mode of recruitment to the posts de hors the recruitment rules. It will also result in violation of the provision of Article 16 of the Constitution of India. A daily wager does not have any right to continue on the post. One day the regular appointments are to be made on availability of permanent post and at the most a daily wager may have right to apply for the same and in case they are selected they may be appointed. But by making appointment in accordance with the recruitments rules the post is filled in I do not find that it will be taken to be in violation of Section 25-H of the Act and that too to the extend to replace the regular appointee after selection by the daily wager. It is understandable that daily wager has to make the room for the person regularly appointed after selection. But here the Central Industrial Tribunal has taken as if the daily wagers right stands at higher pedestal than the person who has been regularly appointed after selection on the post. This is totally a perverse approach of the Tribunal, where the employer proposes to make identical appointment as the retrenched employees was holding he shall have to give an opportunity to the retrenched workman to offer themselves for the re-employment and they shall have preference over other persons. This cannot be applied to the appointments made as per the recruitment rules and the constitutional provisions. If it is taken to be the meaning, object and purpose of Section 25-H of the Act then there will never be regular appointment on the post and this daily wages system will continue and it will become a mode of recruitment de hors the recruitment rules. The finding of the Central Industrial Tribunal given on the question of violation of Section 25-H of the Act in the present case is wholly un justified and same cannot be allowed to stand.
(3.) AS a result of the aforesaid discussion, the appointment of AShok Kumar cannot be taken to be in violation of Section 25-H of the Act. No relief can be granted to the petitioners and accordingly this petition fails and same is dismissed. .;