Ahmed Husain S/O Shaikh Jafar vs Chief Officer, Municipal Council, Tumsar And Another

Heard Shri Alok Upasni, the learned counsel for petitioner, Shri A.S. Deshpande, the learned counsel for respondent 1 and Smt. S.V. Kolhe, the

learned AGP for respondent 2.

2 Rule. Rule made returnable forthwith with consent.

3 The petitioner  employee, whose termination is held illegal by the Labour Court, which finding is confirmed by the Industrial Court, is invoking writ

jurisdiction under Articles 226 and 227 of the Constitution of India being aggrieved by the refusal of the relief of the reinstatement and back wages

and grant of compensation of Rs. 25,000/Â​Â in lieu thereof.

4 The petitioner (hereinafter referred to as “the employeeâ€) instituted complaint 5 of 2003 invoking the provisions of section 28 and 30 of the

Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (“Act) challenging his termination dated

9.7.2001.Â

5 The employee averred that he was appointed as a daily wage employee in the Public Works Department of respondent 1 (hereinafter referred to as

“the employerâ€) in February 1997 and on 5.8.1997 was transferred to the Tree Conservation Department. The employee was issued

appointment order dated 4.10.1997. The appointment was temporary on monthly pay scale of  Rs. 250 â€" 940/and permissible Dearness

Allowance. The employee was deputed to the Octroi Department on 26.12.1997, and on 9.4.1999, the Standing Committee of the employer

Municipal Council passed a Resolution absorbing the employee on vacant post of Coolie in the Tree Conservation Department. The employer issued

a fresh appointment order dated 29.4.1999 and the pay scale fixed was Rs. 250 â€" 940/ and permissible Dearness Allowance. By order dated

20.5.2000, the employee was transferred from the Tree Conservation Department to the post of peon in the primary school of the employer at Tumsar

and worked at the said post till 23.7.2001.

6 The employee asserts that he was granted increments w.e.f. 20.6.2000 and his pay was increased from Rs. 750/Â to Rs. 762/by order dated

26.4.2000. The pay was again increased by order dated 12.6.2001.

7 The employee contended that he completed more than 240 days of service in every calender year and was working in a vacant post. Â However,

the respondent 2 â€" Collector terminated the services of the employee by order dated 9.7.2001. The employee contended that the termination was

effected without complying with the mandatory provisions of section 25ÂF and 25ÂF of the Industrial Disputes Act and Rule 81 of the Rules framed

thereunder. The employee contended, interalia, that since the respondent 2  Collector was not the appointing authority, he could not have

terminated the services of the employee.

8 The employee further contended that in view of the provisions of clause 4ÂC of the model standing orders, he was deemed to be permanent

employee, and his services could not have been terminated abruptly and that too in breach of the provisions of the Industrial Disputes Act, 1947 and

the Rules framed thereunder.

9 The employer, filed written statement rebutting every material averment in the complaint. The employer took a plea that the employee was not

appointed on vacant or sanctioned post. Shri Kumbhare who issued the appointment order dated 4.10.1997, was not authorized to appoint the

employee since he was not then the Chief Officer of the employer â€" Municipal Council. The employer further contended that the appointment

was deÂ​hors the Recruitment Rules and therefore illegal.

10 The employee examined himself and in rebuttal, the Chief Officer of the employer â€" Municipal Council, Shri Ashok Satpute stepped into the

witness box.

11 The Labour Court on appreciation of the oral and documentary evidence, recorded a finding that the termination is contrary to the provisions of

section 25ÂF of the Industrial Disputes Act, 1947. The Labour Court further recorded a finding that the appointment of the employee was on a

vacant post. However, the Labour Court further held that it is not proved that the post on which the employee was appointed was a sanctioned

post. In paragraph 18 of the judgment, the Labour Court, did record a slightly contradictory finding. The Labour Court observed that the fact that

the appointment was made on vacant post may suggest that the post may be sanctioned. The Labour Court then proceeded to hold that since the

employee is not appointed by following the selection process, he is not entitled to reinstatement and continuity of service particularly since it was the

case of the employee himself that his initial appointment was as a daily wager. The Labour Court, by judgment dated 26.3.2013, partly allowed the

complaint and directed the employer to pay one month notice pay and lump sum retrenchment compensation of Rs. 25,000/to the employee in lieu of

reinstatement and back wages.

12 The order of the Labour Court was challenged by the employee in Revision 86 of 2014 and by the employer in Revision 74 of 2013 which are

decided by the Industrial Court by common judgment dated 23.9.2016. Both the revisions are dismissed.Â

13 The Industrial Court concurred with the finding of the Labour Court that the employer did not prove that the appointment order was issued by an

officer who was not authorized to appoint the employee. The Industrial Court then noted that it is not even pleaded much less proved by the

employee that the post was sanctioned. The Industrial Court referred to a catena of decisions of this Court and the Hon'ble Apex Court and held

that reinstatement with back wages would not automatically follow the declaration that the termination of the employee is illegal.

14 Perusal of the averments in the petition and the grounds raised would reveal that it is not specifically and unambiguously asserted even before this

Court that the employee was working in a sanctioned post. The only submission in ground (g) is that the Courts below failed to inquire whether the

post of peon was sanctioned or not.

15 The thrust of the submissions of the learned counsel for the petitioner Shri Alok Upasni, is that the Courts below fell in serious error in refusing the

relief of reinstatement and back wages. Shri Upasni, the learned counsel submits that the termination of the employee in violation of the provisions of

section 25ÂF and Rule 81 of the Industrial Disputes Act, is void and the employee is deemed to be in service and is entitled to every consequent

benefit since the order of termination is a nullity. Shri Alok Upasni, the learned counsel invites my attention to the Resolution dated 9.4.1999 of the

Standing Committee of the employer â€" Municipal Council which purports to absorb the employee in the post of Coolie. Shri Alok Upasni heavily

relies on the decision of the Hon'ble Apex Court in Tapash Kumar Paul ..vs.. BSNL & Anr, reported in 2014 DGLS (SC) 79, in support of the

submission that declaration that the order of termination is illegal must ordinarily lead to the reinstatement of the services of the employee and direction

to pay back wages. Per contra, the learned counsel for the employer Shri A.S. Deshpande relies on the decisions of the Hon'ble Apex Court in

Jagbir Singh ..vs.. Haryana State Agricultural Marketing Board & Anr, reported in 2009(15)SCC 327 and Uttaranchal Forest Development

Corporation...vs.. M.C. Joshi, reported in 2007 (9) SCC 353 to buttress the submission that declaration that the termination is illegal, would not

automatically lead to reinstatement much reinstatement with back wages particularly if the employee is a daily wager. Smt. S.V. Kolhe, the learned

AGP relies on a decision of a learned Single Judge of this Court (Rohit B. Deo, J.) in Writ Petition 5499 of 2015. Shri A.S. Deshpande and Smt.

S.V. Kolhe, the learned counsels would submit in unison that grant of relief of reinstatement is not automatic and the adjudicating fora under the Act,

are entitled to mold the relief considering the mode of recruitment, nature of engagement, the duration of engagement and other relevant factors.

16 I have given my anxious consideration to the material on record, the reasons recorded by the Courts below and the submissions canvased by the

learned counsel for the petitioner Shri Alok Upasni, the learned counsel for the employer Shri A.S. Deshpande and the learned AGP Smt. S.V. Kolhe,

and having done so, I am not persuaded to hold that the Courts below committed an error in refusing the relief of reinstatement and back wages.Â

However, in my opinion, the compensation of Rs. 25,000/Â granted to the petitioner employee is not adequate and needs to be enhanced to Rs. 1

lac. The reasons for arriving at the said conclusion are spelt out infra.

17 The seminal issue which arises for consideration is whether the Courts below have committed an error in exercising discretion against granting

relief of reinstatement and backÂwages and in lieu thereof awarding compensation. The issue fell for consideration before the Apex Court in

several decisions and the overwhelming view appears to be that there is a distinction between a daily wager and an employee holding regular post for

the purpose of consequential relief. In a relatively recent decision in District Development Officer and Another v. Satish Kantilal Amrelia reported in

(2018) 12 SCC 298, the Apex Court referred to the enunciation of law in BSNL v. Bhurumal reported in (2014) 7 SCC 177 and directed that the

terminated employee should pay compensation in lieu of reinstatement and backÂwages. The employee was a daily wager who had rendered

services from 18Â12Â1989 to 12Â2Â1992 and was terminated in violation of the provisions of Section 25ÂG of the Industrial Disputes Act, 1947

(“Actâ€​ for short). The Apex Court observes thus :

“12. Having gone through the entire record of the case and further keeping in view the nature of factual controversy, findings of the Labour Court,

the manner in which the respondent fought this litigation on two fronts simultaneously, namely, one in Civil Court and the other in Labour Court in

challenging his termination order and seeking regularization in service, which resulted in passing the two conflicting orders â€" one in respondent’s

favour (Labour Court) and the other against him (Civil Court) and lastly, it being an admitted fact that the respondent was a daily wager during his

short tenure, which lasted hardly two and half years approximately and coupled with the fact that 25 years have since passed from the date of his

alleged termination, we are of the considered opinion that the law laid down by this Court in the case of BSNL v. Bhurumal would aptly apply to the

facts of this case and we prefer to apply the same for disposal of these appeals.

It is apposite to reproduce what this Court has held in the case of BSNL (SCC p.189, paras 33Â​35):

“33. It is clear from the reading of the aforesaid judgments that the ordinary principle of grant of reinstatement with full back wages, when the

termination is found to be illegal is not applied mechanically in all cases. While that may be a position where services of a regular/permanent workman

are terminated illegally and/or mala fide and/or by way of victimisation, unfair labour practice, etc. However, when it comes to the case of termination

of a dailyÂwage worker and where the termination is found illegal because of a procedural defect, namely, in violation of Section 25ÂF of the

Industrial Disputes Act, this Court is consistent in taking the view that in such cases reinstatement with back wages is not automatic and instead the

workman should be given monetary compensation which will meet the ends of justice. Rationale for shifting in this direction is obvious.

The reasons for denying the relief of reinstatement insuch cases are obvious. It is trite law that when the termination is found to be illegal because

of nonÂpayment of retrenchment compensation and notice pay as mandatorily required under Section 25ÂF of the Industrial Disputes Act, even after

reinstatement, it is always open to the management to terminate the services of that employee by paying him the retrenchment compensation. Since

such a workman was working on dailyÂwage basis and even after he is reinstated, he has no right to seek regularisation [see State of Karnataka v.

Umadevi (3)]. Thus when he cannot claim regularisation and he has no right to continue even as a dailyÂwage worker, no useful purpose is going to

be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated again after

reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay. In such a situation, giving the

relief of reinstatement, that too after a long gap, would not serve any purpose.

We would, however, like to add a caveat here. Theremay be cases where termination of a dailyÂwage worker is found to be illegal on the ground

that it was resorted to as unfair labour practice or in violation of the principle of last come first go viz. while retrenching such a worker daily wage

juniors to him were retained. There may also be a situation that persons junior to him were regularised under some policy but the workman concerned

terminated. In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty reasons for

adopting the course of grant of compensation instead of reinstatement. In such cases, reinstatement should be the rule and only in exceptional cases

for the reasons stated to be in writing, such a relief can be denied.â€​

We have taken note of one fact here that the Labour Court has also found that the termination is bad due to violation of Section 25ÂG of the Act.

In our opinion, taking note of overall factual scenario emerging from the record of the case and having regard to the nature of the findings rendered

and further the averments made in the SLP justifying the need to pass the termination order, this case does not fall in exceptional cases as observed

by this Court in Para 35 of BSNL due to finding of Section 25ÂG of the Act recorded against the appellant. In other words, there are reasons to take

out the case from exceptional cases contained in Para 35 because we find that the appellant did not resort to any kind of unfair practice while

terminating the services of the respondent.

In view of forgoing discussion, we are of the considered view that it would be just, proper and reasonable to award lump sum monetary

compensation to the respondent in full and final satisfaction of his claim of reinstatement and other consequential benefits by taking recourse to the

powers under Section 11Â​A of the Act and the law laid down by this Court in BSNL case.â€​

 18 In Assistant Engineer, Rajasthan Development Corporation and Another v. Gitam Singh reported in (2013)5 SCC 136, the Apex Court

considered the earlier decisions since 1960 (Assam Oil Company Ltd., New Delhi v. Workman) and observes thus :

“26. From the long line of cases indicated above, it can be said without any fear of contradiction that this Court has not held as an absolute

proposition that in cases of wrongful dismissal, the dismissed employee is entitled to reinstatement in all situations. It has always been the view of this

Court that there could be circumstance(s) in a case which may make it inexpedient to order reinstatement. Therefore, the normal rule that dismissed

employee is entitled to reinstatement in cases of wrongful dismissal has been held to be not without exception. Insofar as wrongful termination of

dailyÂrated workers is concerned, this Court has laid down that consequential relief would depend on host of factors, namely, manner and method of

appointment, nature of employment and length of service. Where the length of engagement as daily wager has not been long, award of reinstatement

should not follow and rather compensation should be directed to be paid. A distinction has been drawn between a daily wager and an employee

holding the regular post for the purposes of consequential relief.â€​

19 In Senior Superintendent Telegraph (Traffic) Bhopal v. Santosh Kumar Seal & Another reported in 2010(6) SCC 773, the factual matix which fell

in consideration was thus: The services of casual workers who had worked more than 240 days in a year for nearly three years were retrenched

without following the mandatory provisions of section 25 of the Act. The Tribunal directed the employer to reinstate the workman with back wages.

The question framed by the Hon’ble Apex Court was whether the relief of reinstatement and back wages granted to the workman is justified.Â

The question was answered thus:

“9. In last few years it has been consistently held by this Court that relief by way of reinstatement with back wages is not automatic even if

termination of an employee is found to be illegal or is in contravention of the prescribed procedure and that monetary compensation in lieu of

reinstatement and back wages in cases of such nature may be appropriate, (See U.P. State Brassware Corpn. Ltd. & Anr. v. Uday Narain Pandey1;

Uttaranchal Forest Development Corpn. v. M.C. Joshi2; State of M.P. & Ors. v. Lalit Kumar Verma3; Madhya Pradesh Administration v.

Tribhuban4; Sita Ram & Ors. v. Moti Lal Nehru Farmers Training Institute5; Jaipur Development Authority v. Ramsahai & Anr.6; Ghaziabad

Development Authority & Anr. v. (2006) 1 SCC 479 (2007) 9 SCC 353 (2007) 1 SCC 575 (2007) 9 SCC 748 (2008) 5 SCC 75 (2006) 11 SCC 684

Ashok Kumar & Anr.7 and Mahboob Deepak v. Nagar Panchayat, Gajraula & Anr.8).

In a recent judgment authored by one of us (R.M. Lodha, J.) in Jagbir Singh v. Haryana State Agriculture Marketing Board and Anr.9, the

aforesaid decisions were noticed and it was stated: (SCC pp.330 & 335, paras 7 & 14) ""7. It is true that the earlier view of this Court articulated in

many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back

wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in a long line of cases, this Court has

consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact

situation even though the termination of an employee is in contravention of the prescribed procedure. Compensation instead of reinstatement has been

held to meet the ends of justice.

It would be, thus, seen that by a catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in

violation of Section 25F although may be set aside but an award of reinstatement should not, however, be automatically passed. The award of

reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination,

particularly, daily wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished

between a daily wager who does not hold a post and a permanent employee"".

In view of the aforesaid legal position and the factthat the workmen were engaged as daily wagers about 25 years back and they worked hardly

for 2 or 3 years, relief of reinstatement and back wages to them cannot be said to be justified and instead monetary compensation would subserve the

ends of justice. In our considered view, the compensation of Rs. 40,000/Â to each of the workmen (respondent nos. 1 to 14) shall meet the ends of

justice. We order accordingly. Such payment shall be made within 6 weeks from today failing which the same shall carry interest at the rate of 9 per

cent per annum.â€​

20 In Jagbir Singh v. Haryana State Agriculture Marketing Board and Anr. reported in (2009) 15 SCC 327Â which is referred to by the Apex Court

in Senior Superintendent Telegraph (Traffic) Bhopal v. Santosh Kumar Seal & Another it is articulated that in recent past there has been shift from

the earlier view that if a termination of an employee was found to be illegal, relief of reinstatement with full backÂwages, would ordinarily follow.Â

In Jagbir Singh v. Haryana State Agriculture Marketing Board and Anr., the Apex Court noted that in catena of decisions, the Apex Court took a

view that relief by way of reinstatement with backÂwages is not automatic and even when an order of retrenchment passed in violation of Section

25ÂF of the Act is set aside, award of reinstatement should not be automatically passed. The Apex Court noted and emphasize the distinction

between a dailyÂ​wager who does not hold a post and a permanent employee.

 21. In Municipal Council, Sujanpur v. Surinder Kumar reported in (2006) 5 SCC 173, the observations of the Apex Court read thus :

“15. Apart from the aforementioned error of law, in our considered opinion, the Labour Court and consequently the High Court completely

misdirected themselves insofar as they failed to take into consideration that relief to be granted in terms of Section 11ÂA of the said Act being

discretionary in nature, a Labour Court was required to consider the facts of each case therefor. Only because relief by way of reinstatement with full

back wages would be lawful, it would not mean that the same would be granted automatically.

For the said purpose, the nature of the appointment, the purpose for which such appointment had been made, the duration/tenure of work, the

question whether the post was a sanctioned one, being relevant facts, must be taken into consideration.

It is not disputed that the appointment of the respondent was not in a sanctioned post. Being a 'State' within the meaning of Article 12 of the

Constitution of India, the Appellant for the purpose of recruiting its employees was bound to follow the recruitment rules. Any recruitment made in

violation of such rules as also in violation of the constitutional scheme enshrined under Articles 14 and 16 of the Constitution of India would be void in

law. [See M.V. Bijlani v. Union of India, State of Punjab v. Jagdip Singh and Secy., State of Karnataka v. Uma Devi (3).â€​

 22 In Regional Manager, SBI v. Mahatma Mishra reported in (2006) 13 SCC 727, the Apex Court articulates the legal position thus :

“12. Section 11ÂA of the Industrial Disputes Act confers a discretionary power in the Industrial Tribunal or the Labour Court, as the case may be.

Although in a given case, the Industrial Tribunal or the Labour Court may grant appropriate relief, its discretion should be exercised judiciously. An

employee after termination of his services cannot get a benefit to which he was not entitled to if he remained in service. It is one thing to say that

services of a workman was terminated in violation of mandatory provisions of law but it is another thing to say that relief of reinstatement in service

with full back wages would be granted automatically. Even in a case where service of an employee is terminated in violation of Section 25ÂF of the

Industrial Disputes Act, he would not be entitled to grant of a permanent status. Regularisation does not mean permanence. [See Secretary, State of

Karnataka v. Umadevi (3)]

 13. This aspect of the matter has been considered by this Court in Principal, Mehar Chand Polytechnic & Anr. v. Anu Lumba [SCC pp. 171Â72

Paras 36Â​38)

In Umadevi (supra), it was stated (SCC p.34, para 39)Â

There have been decisions which have taken the cue from the Dharwad case and given directions for regularization, absorption or making

permanent, employees engaged or appointed without following the due process or the rules for appointment. The philosophy behind this approach is

seen set out in the recent decision in The Workmen v. Bhurkunda Colliery of Central

Coalfields Ltd., though the legality or validity of such an approach has not been independently examined. But on a survey of authorities, the

predominant view is seen to be that such appointments did not confer any right on the appointees and that the Court cannot direct their absorption or

regularization or reÂ​engagement or making them permanent

See also State of U.P. v. Neeraj Awasthi.

Yet again in National Fertilizers Ltd. v. Somvir Singh, it was held : (SCC p.498, para 18)Â

Regularization, furthermore, is not a mode of appointment. If appointment is made without following the Rules, the same being a nullity the

question of confirmation of an employee upon the expiry of the purported period of probation would not arise

It was further opined : (SCC p.501, para 26) ""26. It is true that the Respondents had been working for a long time. It may also be true that they

had not been paid wages on a regular scale of pay. But, they did not hold any post. They were, therefore, not entitled to be paid salary on a regular

scale of pay. Furthermore, only because the Respondents have worked for some time, the same by itself would not be a ground for directing

regularization of their services in view of the decision of this Court in Uma Devi (3).

Furthermore, the High Court, in our opinion, committed a serious error in passing an order only on the basis of sympathy although it was held that the

respondent was not entitled to any relief.â€​

23 In Uttaranchal Forest Development Corpn. v. M.C. Joshi reported in (2007) 9 SCC 353, the Apex Court after considering the unreported decision

in Regional Manager, U.P.SRTC v. Kamal Kumar stated thus :

“12. The unreported decision of this Court in Regional Manager, U.P. SRTC v. Kamal Kumar whereupon, Ms Issar had placed strong reliance is

not an authority for the proposition that in each and every case an order of reinstatement is required to be passed. The fact of the said matter is not

known. Furthermore it was passed in a review petition. It appears that one of the questions which arose for consideration was whether services

of a dailyÂwager should be regularised or not and in that situation, while directing that the workman concerned to be reinstated only as a dailyÂwager

but the case of the workman for regularisation was directed to be considered in terms of a purported scheme existing in this behalf.

The legal position has since undergone a change in the light of a Constitution Bench decision of this Court in Secy., State of Karnataka v. Umadevi

(3)10 wherein this Court held that “State†within the meaning of Article 12 of the Constitution of India is under a constitutional obligation to

comply with the provisions contained in Articles 14 and 16 of the Constitution of India.â€​

24 In Uttar Pradesh State Electricity Board v. Laxmi Kant Gupta reported in (2009) 16 SCC 562, the Apex Court observes thus :

“9. In U.P. State Brassware Corpn. Ltd. v. Uday Narain Pandey this Court referred to a large number of its earlier decisions on the question as to

the relief to be granted to the workman when his termination of service is found to be illegal. It was noted that while the earlier view of the Court

was that if an order of termination was found to be illegal, normally the relief to be granted should be reinstatement with full back wages.Â

However, as noted in the various decisions referred to in the above decision, with the passage of time it came to be realised that an industry should not

be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all. This Court after discussing various

earlier decisions held that the relief to be granted is discretionary and not automatic. It was pointed out in the aforesaid decision of this Court in

U.P. State Brassware Corpn. that person is not entitled to get something only because it would be lawful to do so. The changes brought out by

the subsequent decisions of this Court, probably having regard to the changes in the policy decisions of the Government in the wake of prevailing

market economy, globalisation, privatisation and outsourcing was evident. Hence, now there is no such principle that for an illegal termination of

service the normal rule is reinstatement with back wages, and instead the Labour Court can award compensation. The same view was followed by

this Court in Haryana State Electronics Development Corpn. Ltd. v. Mamni (AIR vide Paras 15 to 17).

Thus it is evident that there has been a shift in the legal position which has been modified by this Court and there is no hardÂandÂfast principle

now that on the termination of service being found to be illegal, the normal rule is reinstatement with back wages. Compensation can be awarded

instead, at the discretion of the Labour Court, depending on the facts and circumstances of the case.â€​

25 The decision of the Apex Court in Tapash Kumar Paul v. BSNL & Anr. reported in 2014 DGLS (SC) 79, which is pressed into service by ShriÂ

Alok Upasani indeed strikes a different note. However, as observed supra, the overwhelming enunciation of law by the Apex Court including in

relatively recent decision in District Development Officer and Another v. Staish Kantilal Amrelia reported in (2018) 12 SCC 298 is that the distinction

between a daily wager and a permanent employee who is regularly appointed is a relevant factor in moulding the relief. The declaration that the

termination is illegal need not automatically lead to the relief of reinstatement muchless reinstatement with backÂwages. There cannot be a

straightÂjacket formula. However, some of the factors which are relevant and which the adjudicating fora under Industrial Law must be conscious of

are (1) mode of employment, (2) nature of engagement, (3) the duration of employment, (4) the period which has lapsed between the termination and

the final adjudication and whether the relief of reinstatement with backÂwages will strike a crippling blow to the final health of the employer. If the

employment is a public employment in which the appointments are expected to be consistent with the Constitution Philosophy underlying Articles 14

and 16 of the Constitution of India, even if the termination of the daily wager is held illegal, the mode of recruitment of the employee would assume

significant importance in moulding the relief.

26 Let me now scrutinize the facts on the anvil of the enunciation of law by the Apex Court. The contention of the employer appears to be that the

Collector, Bhandara was constrained to direct the termination of employees who were appointed by the employerMunicipal Council de hors the

regular process of recruitment i.e. recruitment by the Selection Board. It is not even the case of the employee that the post to which he was

appointed is a sanctioned post. The emphasis on the resolution passed by the Standing Committee of the employerÂMunicipal Council purporting to

absorb the employee as Coolie is clearly misconceived. In the absence of a sanctioned post, no sanctity can be attached to the resolution of the

Standing Committee of the employerÂMunicipal Council. Pertinently, it is the case of the employee himself that after the said resolution dated 09Â‐

4Â1999 purporting to absorb the employee as Coolie in the Tree Conservation Department, he was transferred to the Primary School at Tumsar as

Peon till he was terminated on 23Â7Â2001. It is axiomatic, that there was no sanctioned and vacant post of Coolie in the Tree Conservation

Department. The Courts have concurrently held that the termination is illegal, which finding I am not inclined to interfere with in writ jurisdiction.Â

However, the employee was concededly appointed as a daily wager and worked from 04Â10Â1997 to 23Â7Â2001 i.e for three years nine months

and nineteen days. It is irrefutable from the material on record that he was appointed de hors the regular appointment procedure and that the

appointment was not in a sanctioned post. Considering the factual matrix holistically, I do not find any error in refusal of the relief of reinstatement

of backÂwages. However, the compensation of Rs.25,000/Â appears to be inadequate and I am inclined to award compensation of Rs.1,00,000/Â,

which shall be paid to the employee by the employerÂMunicipal Council within four weeks, failing which the compensation amount shall attract

interest at the rate of 9% per annum. The orders impugned are modified to the extent indicated supra.

27 Rule is made absolute in the afore stated terms.