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Judgment
K. Raviraja Pandian, J.—The writ appeal in W.A. Nos. 894 and 920 to 922 of 2007 are filed praying to set aside the order of the learned
single Judge dated 25.4.2007 made in W.P. 12727 of 2007 and the order dated 24.4.2007 made in W.P. Nos. 11455 to 11457 of 2007
reported in K. Kumaran and S. Michael Thason Vs. The State of Tamil Nadu, The Management of Tamil Nadu State Transport Corporation and
The General Manager, The State Transport Corporation (Madurai) Ltd., respectively.
In the batch of writ petitions, one set of writ petitions are filed by persons, who were already disengaged by the respondent Corporation for
issuance of writ of mandamus directing the respondent Corporation to re-employ them by giving preference over the other persons as per Section
25H of the Industrial Disputes Act and other set of writ petitions are filed by persons still in service seeking for a mandamus directing the
respondent Corporation not to terminate them and for further direction to appoint them in the permanent vacancies as drivers/conductors before
appointing any other persons from the open market, as per Section 25H of the Industrial Disputes Act.
Mr. N.G.R. Prasad, learned Counsel for the appellant and some of the petitioners spearheaded the arguments, made submissions in common
questioning the order of the learned single Judge, which is the subject matter of the writ appeals in W.A. Nos. 920 to 922 of 2007 and with
reference to W.P. No. 24728 of 2007. Ms.Vaigai, learned Counsel for some of the petitioners supplemented the argument of Mr. Prasad by
advancing argument with reference to W.P. Nos. 24743 and 24744 of 2007. Mr. Hariparanthaman and Ms. Nagasaila, learned Counsel for some
of the writ petitioners seeking similar relief adopted the arguments of Mr. Prasad and Ms. Vaigai.
Before adverting to the arguments advanced, the factual matrix, which are almost similar in all cases except the relief sought for as stated above
are to be stated as under:
W.A. Nos. 920 to 922 of 2007 are filed against the common order dated 24.4.2007 in W.P. Nos. 11455 to 11457 of 2007, which was
followed for rejecting the writ petition No. 12727 of 2007 by reason of the order dated 25.4.2007, which is the subject matter of W.A. No. 894
of 2007.
In W.P. No. 11455 of 2007, the claim of the petitioner was that he was working as driver with the second respondent Corporation from 2.6.2005
onwards on casual appointment and was retrenched from service on and from 23.7.2006. When all the representations made by the petitioner
were went in vain, he filed a writ petition in W.P. No. 24856 of 2006 and obtained an order dated 7.8.2006 from this Court directing the
Corporation to consider his representation. The Corporation by its order dated 18.9.2006 passed orders by assigning reasons that he had not
worked for 240 days in the Corporation, that he had worked from 19.7.2005 to 6.8.2005 for 14 days and thereafter he had worked from
16.4.2006 to 7.5.2006 and altogether he had worked for 27 days, that his employment was necessitated due to increase in work load during
festivals, absenteeism by workmen and also due to the strike notice issued by some unions. At the time of employment, the petitioner was aware
that he was not eligible for any permanency, no appointment order was given to him, much less and no assurance was given to him for continuance
of his employment after the expiry of the spell for which he was engaged. Further, he was informed that G.O.Ms. No. 41 Transport (C.1)
Department dated 13.7.2006 would not apply to him. The facts of the W.P. No. 11456 of 2007 are also similar to W.P. No. 11455 of 2007
except the difference that the petitioner was worked for a period of 12 days as per the order impugned.
Challenging the said orders of the Corporation, the petitioners in W.P. Nos. 11455 and 11456 of 2007 filed writ petitions praying for issuance
of writ of certiorarified mandamus to call for the records relating to the order passed by the Corporation dated 18.9.2006 and quash the same and
further direct the respondent to implement G.O.Ms. No. 41 Transport (C.1) Department dated 13.7.2006 by following the Division Bench
judgment and re-employ the petitioner to the post of driver in the respondent Corporation. The writ petition No. 11457 of 2007 was filed claiming
that the petitioner had worked for more than 240 days. On direction from this Court in W.P. No. 761 of 1999, his claim was considered and
rejected on the premise that he did not complete 240 days. However, the petitioner once again on the strength of G.O.Ms. No. 41 Transport
(C.1) Department dated 13.7.2006 filed the writ petition seeking for re-employment u/s 25H of the Industrial Disputes Act.
It could be seen from the order of the learned single Judge that during 1997, several writ petitions were filed seeking for re-instatement in
service in the respondent Corporation. The Division Bench in W.A. Nos. 1294 to 1299 of 1997 directed the respondent Corporation to reinstate
the workers, who have completed 240 days of work, but retrenched in violation of Section 25F, disregarding the fact whether they were
sponsored through Employment Exchange or not. That order has become final.
Subsequently, the Government imposed ban on filling up of posts in public sector undertakings by G.O.Ms. No. 27 Finance (BPE) Department
dated 21.1.2002. Thereafter, by G.O.Ms. No. 57 Transport dated 21.7.2005, the Government relaxed the ban of appointment and permitted as a
special case to recruit 2000 drivers and 700 conductors in the respondent Corporation. When that exercise was being carried out by the
respondent Corporation, the general election to the Legislative Assembly was announced and the model code of conduct came into operation.
Hence, the persons selected as per the Government Order in G.O.Ms. No. 57 Transport dated 21.7.2005 were not allowed to join duty. After
the election, another Government Order in G.O.Ms. No. 41 dated 13.7.2006 came to be issued, giving preference in appointment in the
respondent Corporation to the persons, who were retrenched after their original engagement in the year 1997 and obtained orders from this Court
for their re-employment in terms of Section 25H of the Industrial Disputes Act. In addition to that, preference was also given to similarly placed
persons, who have approached this Court, but yet to get orders. Further preference was also given to the persons, who were terminated from
service, but not approached the Court.
The persons, who were selected under G.O.Ms. No. 57 Transport dated 21.7.2005 being aggrieved by the terms of G.O.Ms. No. 41
Transport (C.1) Department dated 13.7.2006, filed a spate of writ petitions challenging the said G.O. The persons, who claimed benefit under the
G.O.41, filed writ petitions for enforcement of the same. The learned single Judge upheld the validity of the G.O. barring the crucial year fixed as
1997. That order was carried on appeal before the Division Bench in W.A. Nos. 345 to 347 of 2007, and disposed of on 12.3.2007 by
recording the statement of the respondent that the appellants in the writ appeals and similarly placed persons would be first considered for
appointment in the respondent Corporation (who were selected under G.O.Ms. No. 57 Transport dated 21.7.2005) subject to their fulfilling of
qualifications prescribed therefor. Thereafter the present writ petitions, which are the subject matter of the writ appeals, were filed before the Court
claiming straight away mandamus to the respondents to implement the G.O.Ms. No. 41 Transport (C.1) Department dated 13.7.2006 by
following the Division Bench judgment of this Court dated 8.12.1997 made in W.A. Nos. 1294 to 1299 of 1997.
While considering these three writ petitions, the learned single Judge considered the scope of Section 25H with reference to the definition of
the term ""retrenchment"" u/s 2(oo), as amended by Act No. 49 of 1984 with effect from 18.8.1984 and held that the right of re-employment u/s
25H of the Industrial Disputes Act would have to be determined only if an employee''s retrenchment comes within the definition of the term
retrenchment"" found in Section 2(oo) of the Industrial Disputes Act and that it was not hit by the exception found in Sub-section (bb). The claim
of the workmen would have to be determined as per Section 25H of the Industrial Disputes Act as observed by the learned single Judge in his
order dated 14.12.2006, wherein the G.O.Ms. No. 41 Transport (C.1) Department dated 13.7.2006 was upheld. The writ petitioners, who came
to the Court with bogus claim, were not entitled for any consideration.
While considering G.O.Ms. No. 41 dated 13.7.2006, the learned single Judge observed that though the object of the first respondent in issuing
G.O.Ms. No. 41 dated 13.7.2006 to accommodate the persons covered by paragraph 4(i) might be inevitable, but the direction given in
paragraph 4(ii) and 4(iii) of the Government Order could not be undertaken by the respondent Corporation either until further orders are passed
by this Court in cases filed by the workers or in other cases, the workmen get a declaration from the appropriate Labour Court. Thus, recording
the finding, the learned single Judge dismissed the writ petitions by holding that the impugned order passed by the respondent Corporation did not
suffer from any illegality or irregularity.
The facts of Writ Petition in W.P. No. 24728 of 2007, which have been filed by as many as 25 petitioners, with reference to which the main
argument has been advanced by Mr. Prasad are as follows:
The petitioners were employed as conductors in the second respondent Corporation. All the petitioners have continuously worked as conductors
for more than 240 days in the second respondent Corporation. The second respondent Corporation operates nearly 3000 buses. As per the man
power norms fixed by the second respondent, there should be 2.5 drivers and 2.5 conductors per bus. Accordingly, the respondents should have
7500 drivers and 7500 conductors. But at the time of filing of the writ petition, the second respondent is having only 6000 drivers and 6000
conductors due to the reason of order of ban on recruitment of drivers and conductors. The second respondent in order to get over the problem of
man power shortage, engaged temporary hands intermittently. As a result, the workers continued to be engaged for years temporarily. Some other
retrenched workmen approached this Court and obtained an order from a Division Bench of this Court in W.A. Nos. 1294 to 1299 of 1997
dated 8.12.1997 to the effect that the retrenched workmen, who had completed 240 days should be reinstated in service with back wages and
continuity of service and in the cases of others, they should be given preference against future vacancies as per Section 25H of the Industrial
Disputes Act, 1947. The petitioners are entitled to the same treatment. The petitioners also entitled to the benefit of the Government Order in
GO.Ms. No. 41 Transport (C.1) Department dated 13.7.2006.
The material facts of the case in W.P. No. 24743 of 2007 with reference to which Ms. Vaigai argued, are as follows:
There are 26 petitioners. One Govindaraj sworn the affidavit. As per the affidavit, the petitioners were appointed on 6.12.2005 and have been
continually working without any brake in service for more than 430 days. As per the relevant clause of the 12(3) settlement reached between the
Union and the respondent Corporation in the year 1992, all temporary/casual/contract workers on daily wages who had come through
Employment Exchange and completed 240 days in a year of service would be permanently absorbed in the respondent Corporation. This clause
was reiterated in the settlement dated 31.8.2005. The petitioners stand on different footing. The stand of the respondent that in order to claim the
benefit sought, the petitioners would come u/s 2 of the Industrial Disputes Act would not applicable to them, as they are engaged with due sanction
of the Government after following rules and procedure. The petitioners are entitled to protection under the settlement.
The Assistant Manager (Legal), Metropolitan Transport Corporation, Chennai filed a common counter affidavit as the relief sought for in all
these cases under consideration are one and the same. In the counter, it is averred that the writ petitions are not maintainable inasmuch as the
petitioners are having effective alternative remedy under the provisions of Industrial Disputes Act, 1947 considering the relief prayed for. It was
further contended that the petitioners have been engaged in casual temporary vacancies on contract basis for a fixed period. The termination would
be only u/s 2(oo)(bb) of the Industrial Disputes Act, 1947 and as such the same could not be regarded as retrenchment. In the vacancies arose
due to unforeseen circumstances like strike, festivals and large scale absenteeism, the Government directed the Corporation to engage persons
temporarily on contract basis for 25 days to cater the needs of the public. Pursuant to the said direction, persons were engaged for the said period
from time to time, the last of such engagement was made as per the circular of the Corporation in Circle No. 26225/PS(7)/1/MTC 2005 dated
12.3.2007 upto 7.4.2007. After 7.4.2007, no such engagement was made. As per the common service rules, respondent Corporation could fill up
the permanent vacancies only through Employment Exchange. As per Rule (3) of the certified standing order, a temporary worker is one, who
holds the post other than permanent post. The casual worker is one who engaged on work of casual nature on a day to day basis for odd periods.
Under the respondent Corporation, nearly 13,300 drivers and conductors are working and out of them, 10% drivers and conductors are availing
leave, indulging sudden absenteeism, and further not available to work on suspension of misconduct. Hence, in such temporary vacancies, persons
are engaged for a fixed period from time to time on temporary basis to cater the needs of general public. It is an uncontroverted and admitted fact
that the petitioners have been engaged on contract basis temporarily for fixed period. Accordingly, the termination cannot be construed as
retrenchment u/s 2(oo) of the Industrial Disputes Act.
After issuance of the Government Order in G.O.Ms. No. 41, the respondent started the process of appointment, however, the said
Government Order was challenged before this Court, which culminated in filing of Writ Appeals in W.A. Nos. 345 to 347 of 2007 and they were
disposed of with a direction to the respondent to consider the case of the persons, who were selected pursuant to the G.O.Ms. No. 57 dated
21.7.2005 and further direction was issued after completing the process of selection out of 2005 panel pursuant to G.O.Ms. No. 57 dated
21.7.2005, the panel prepared for 2006-2007 should be taken up for filling up of the vacancies. In order to comply with the direction of this Court
dated 12.3.2007, the respondent should be allowed to disengage the persons, who are in service under the cover of the interim orders passed.
The Management could not exercise any disciplinary control or any sort of control over the petitioners.
Neither the Writ Appeals nor the writ petitions deserves any consideration.
In the counter filed by the General Manager of the respondent Corporation, it is averred that since the C.L.R. Persons were not regular employees
of the Corporation, there is no question of termination by the Management of the respondent.
Mr. Prasad, learned Counsel appearing for the appellants/petitioners contended that the Division Bench of this Court in a similar set of facts by
its order dated 8.12.1997 in W.A. Nos. 1294 to 1299 of 1997 etc., batch directed the Corporation to reinstate the employees, who have
completed 240 days. In that case also, the only defence taken by the Corporation was that the appellants therein were not drafted from
Employment Exchange and the same was rejected in the said judgment. The SLP filed against that judgment was dismissed as withdrawn on
19.3.1999. The said judgment was further re-affirmed by the Division Bench in W.A. No. 2083 of 1999 dated 26.10.1999. The said judgment
has been subsequently followed in several other cases. When such an issue has been decided by the Division Bench of this Court, the learned
single Judge would not have ventured, rather, it is impermissible for him to take a different view. Even the subsequent Government Order in
G.O.Ms. No. 41 dated 13.7.2006 was tested by this Court and ultimately reached finality by order dated 12.3.2007 in W.A. Nos. 345 to 347 of
2007. The appellants/petitioners were employed in the permanent vacancies, because of the ban order was in force during the relevant period of
time, of course, without any proper appointment order. The non-issuance of the appointment order would not militate the issue as the petitioners
were working continuously for more than 240 days in the respondent Corporation. Hence, they are entitled to preference u/s 25H of the Industrial
Disputes Act in view of the Division Bench Judgment made in W.A. No. 1294 to 1299 of 1997 etc., batch.
Ms. Vaigai, learned Counsel argued with reference to W.P. No. 24743 of 2007 in which 26 petitioners were arrayed as parties. She argued
that the petitioners were employed in the respondent Corporation for more than 430 days. They paid the deposit amount and surrendered their
driver/conductor licence to the Corporation and they are still in the service of the respondent, which shows that the petitioners are engaged in the
permanent vacancies. It is also a fact on record that from the year 1996 onwards, no permanent recruitment was made by the respondent. The ban
order came into existence only in 2002. In 2005, 12(3) settlement has been arrived at between the respondent Corporation and the labour unions
for absorption of employees who put in 240 days of continuous service. The reasoning stated in the counter that the petitioners were employed in
the leave vacancy, festival vacancy is not correct. Though the appointment was styled as contractual employment, in substance, it is an appointment
to the permanent vacancy. The collection payment slips attached to the typed set of papers would prove beyond doubt that the petitioners are in
the employment of the respondent continuously without any brake. As per the Division Bench judgment dated 8.12.1997, the petitioners ought to
have been given preference in the employment and they should have been absorbed in permanent vacancy. She further contended that on a dispute
raised by Unions, who are petitioners in W.P. Nos. 26789 and 26866 of 2007, the Labour Officer on 17.7.2007 issued a notice calling upon the
respondent Corporation for conciliation.
When the dispute is pending for conciliation, conditions of service of the petitioners should not be altered as per the provisions of the Industrial
Disputes Act. She relied on the following judgments.
(1) Central Bank of India Vs. S. Satyam and others, ;
(2) Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal Sharma and Others, ;
(3) Indian Telephone Industries v. Prabhakar H. Manjuare (2003) 1 SCC 320 and
(4) Sonepat Cooperative Sugar Mills Ltd. Vs. Rakesh Kumar, .
She alternatively contended that if this Court comes to the conclusion that the petitioner is not entitled to get any relief in the writ petition under
Article 226 of the Constitution of India, till the petitioners move the appropriate forum under the provisions of the Industrial Disputes Act, their
continuance in the service of the respondent may be protected.
The learned Advocate General Mr. R. Viduthalai appearing for the respondent submitted that none of the petitioners were employed in the
regular service of the respondent Corporation. The proceedings dated 17.2.2005 of the respondent Corporation is very clear that the Government
had permitted the Corporation to engage drivers on contract basis for a period from 25 days from 18.2.2005 to 14.3.2005, both days inclusive on
contract basis only. The subsequent proceedings issued on various dates from 14.3.2005 to 12.3.2007 giving direction to the Managing Director
of the respondent Corporation for engagement of drivers and conductors on contract basis for a period prescribed therein would manifestly make
it clear that none of the petitioners have been appointed on a regular basis. All the appointments were made only on casual and adhoc basis
without reference to the common service rules or certified standing orders. Having regard to the situation prevailing in the respondent Corporation,
the Government thought it fit to issue Government Order in G.O.Ms. No. 41 Transport Department dated 13.7.2006 which was upheld with
certain modification by the Division Bench by its order dated 12.3.2007 in W.A. Nos. 345 to 347 of 2007. The said judgment would not cover
the case of the petitioners before this Court in these writ appeals and writ petitions. Whether the cessation of employment of a person is
retrenchment or not is a question of fact to be decided by the Labour Court or Industrial Tribunal on a properly raised dispute. The cessation of
employment of persons on the expiry of the period for which they were engaged to meet a specific contingency is not ""retrenchment"" since such
case falls under the exclusionary clause contained in Clause (bb) of Section 2(oo) of the Industrial Disputes Act, 1947. The implementation of the
order of the High Court and taking appropriate action for that purpose does not amount to changing the service conditions of the petitioners. The
petitioners are alleged to have employed after 21.7.2005 claiming benefit placing reliance on G.O.Ms. No. 41 dated 13.7.2006 is misconceived in
law.
We heard the argument of the learned Counsel on either side and perused the materials on record.
From the rival contentions, the issues for consideration in these cases are as follows:
Whether the order of the learned single Judge can be regarded as contrary to the Division Bench judgments of this Court in W.A. Nos. 1294 to
1299 of 1997 etc., batch dated 8.12.1997, W.A. Nos. 2083 of 1999 dated 26.10.1999, W.A. No. 2985 of 2003 etc., batch dated 8.12.2005
reported in 2006 (1) LLN 257 M. Sekaran and Ors. v. General Manager, Tamil Nadu State Transport Corporation and W.A. Nos. 345 to 347
of 2007, dated 12.3.2007?
Whether the action of the respondent Corporation disengaging the petitioners after the period for which they were engaged or the non-renewal
of contract of the petitioners would amount to retrenchment or not within the meaning of Section 2(oo)?
Whether the petitioners, who are stated to be in the employment of the respondent Corporation for more than 240 days, are entitled for
regularisation by way of mandamus from this Court?
Whether in the facts and circumstances of the case, the disengagement of the petitioners from service of the respondent Corporation would
contravene Section 33 of the Industrial Disputes Act?, and
Whether G.O.Ms. No. 41 Transport (C.1) Department dated 13.7.2006 is applicable to the case of the petitioners/appellants in the given set of
facts?
Issue No. 1 : A reading of the judgment dated 8.12.1997 madein W.A. Nos. 1294 to 1299 of 1997 etc., shows that the case of the appellants
therein was that the appellants had been in continuous employment of more than 240 days with the respondent Corporation. Their services were
terminated without complying with the provisions of Section 25F. The other category of the appellants were employees who had not completed
240 days and their services had been dispensed with without complying with Section 25F and 25H of the Act. The defence of the Corporation
before the Division Bench was that the employees, who came through the Employment Exchange, claimed preference over the persons, who have
already been employed. Considering the factual situation, the Division Bench directed the appellants to undertake the exercise of deciding each
individual case of the workers whether they had completed 240 days of work and they were terminated without following Section 25F of the
Industrial Disputes Act and if found affirmative directed the respondent to reinstate the workers with back wages and consequential benefits.
Further, the Division Bench has observed that since the workers were taken in service, it was immaterial whether they were taken through
Employment Exchange or directly, unless the authority comes to the conclusion that the workers were employed mala fide or with some other
ulterior consideration.
The writ appeal No. 2083 of 1999 was filed against the order of the learned single Judge allowing the workman''s writ petition by following a
Division Bench judgment of this Court in W.A. No. 143 of 1997 etc., batch. Before the Division Bench, the Corporation/appellant submitted that
the earlier writ appeal was disposed of on the basis of the concession and therefore it could not be regarded as precedent. That contention was
rejected by the Division Bench on the reason that the judgment therein did not disclose any such concession and the writ appeal has been
dismissed by the subsequent Division Bench on the ground that since the learned single Judge has followed the decision of the Division Bench, they
found no reason to interfere with the order. No other points or grounds were taken therein.
In the other Division Bench judgment dated 8.12.2005 reported in 2006 (1) LLN 257 M. Sekaran and Ors. v. General Manager, Tamil Nadu
State Transport Corporation, the facts are totally different. In that case, the Corporation recruited about 75 drivers through Employment Exchange
during March 2001. On completion of necessary training, they were issued orders dated 18.4.2001 appointing them on consolidated wages for
two years describing them as trainee drivers. Then, as per Section 12(3) settlement, which came into force on 1.9.1992, the drivers recruited
through Employment Exchange were made as daily-rated workmen. As per the settlement, on completion of 240 days by those daily rated drivers,
they should be made permanent. On completion of 240 days, the drivers were issued orders, dated 30 January 2003/ 29 March 2003, making
them permanent and bringing them to scale of pay. However, the Transport Corporation cancelled the said orders and made the drivers as daily-
rated with the condition that the drivers would be relieved from service on completion of two years by its orders dated 3 April 2003. That order
was came to be challenged.
From the factual situation of each of the writ appeal stated above, it is clear that the issue as to whether the retrenchment of the workers would
come within the purview of Section 2(oo) of the Industrial Disputes Act was not put in issue before the Division Benches and there was no finding
given to that effect in any one of the Division Bench judgments referred to by the learned Counsel for the appellants. The scope and amplitude of
Section 2(oo) was also neither argued nor taken into consideration in the said judgments so as to come to the conclusion that the appellants therein
were entitled to the benefit of Chapter V-A of the Industrial Disputes Act in general or Section 25H in particular. Of course, in the Division Bench
judgment dated 8.12.1997, there was an observation to the effect that since the workers were taken in service, it is immaterial whether they were
taken through employment exchange or directly. The observation has also not been made after taking into consideration of the common service
rules applicable to the respondent or the certified standing orders, which requires that the permanent vacancy could be filled up only through the
Employment Exchange.
Further, at the time of passing of the above said judgment, the law enunciated by the Supreme Court in the case of A. Umarani Vs. Registrar,
Cooperative Societies and Others, and Secretary, State of Karnataka and Others Vs. Umadevi and Others, were not available. In Umarani''s
case, the Supreme Court without any uncertain terms has declared that the appointments made in contravention of the mandatory provisions of the
Act and statutory rules framed thereunder and in ignorance of essential qualification would be illegal and cannot be regularised. Further, in
Umadevi''s case, the Supreme Court has categorically held that the wide powers under Article 226 are not intended to be used for a purpose to
defeat the concept of social justice and equal opportunity for all, subject to affirmative action in the matter of public employment as recognised by
our Constitution. It was time that the courts desist from issuing orders preventing regular selection or recruitment at the instance of such persons
and from issuing directions for continuance of those who have not secured regular appointments as per procedure established. The passing of
orders for continuance tends to defeat the very constitutional scheme of public employment. That was not the role envisaged for the High Courts in
the scheme of things and their wide powers under Article 226 are not intended to be used for the purpose of perpetuating illegalities, irregularities
or improprieties or for scuttling the whole scheme of public employment. Its role as the sentinel and as the guardian of equal rights protection
should not be forgotten. The Supreme Court further observed that the High Courts acting under Article 226 should not therefore ordinarily issue
directions for absorption, regularisation, 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 the court, under ""litigious employment"" he would not be entitled to
any right to be absorbed or made permanent in the service.
In U.P. Power Corporation Ltd. and Another Vs. Bijli Mazdoor Sangh and Others, , the Supreme Court held as follows:
It is true as contended by learned Counsel for the respondent that the question as regards the effect of the industrial adjudicators'' powers was
not directly in issue in Secretary, State of Karnataka and Others Vs. Umadevi and Others, . But the foundational logic in Secretary, State of
Karnataka and Others Vs. Umadevi and Others, is based on Article 14 of the Constitution of India. Though the industrial adjudicator can vary the
terms of the contract of the employment, it cannot do something which is violative of Article 14. If the case is one which is covered by the concept
of regularisation, the same cannot be viewed differently.
The plea of learned Counsel for the respondent that at the time the High Court decided the matter, decision in Secretary, State of Karnataka
and Others Vs. Umadevi and Others, was not rendered is really of no consequence. There cannot be a case for regularisation without there being
employee-employer relationship. As noted above the concept of regularisation is clearly linked with Article 14 of the Constitution. However, if in a
case the fact situation is covered by what is stated in para 45 of Secretary, State of Karnataka and Others Vs. Umadevi and Others, the industrial
adjudicator can modify the relief, but that does not dilute the observations made by this Court in Secretary, State of Karnataka and Others Vs.
Umadevi and Others, about the regularisation.
On facts it is submitted by learned Counsel for the appellants that Respondent 2 himself admitted that he never worked as a pump operator, but
was engaged as daily labourer on daily-wage basis. He also did not possess the requisite qualification. Looked at from any angle, the direction for
regularisation, as given, could not have been given in view of what has been stated in Secretary, State of Karnataka and Others Vs. Umadevi and
Others, .
Further, the Supreme Court in the case of Ambalal Manibhai Patel Vs. State of Gujarat, observed thus:
The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an
authority for what it actually decides, and not what logically follows from it. See Lord Halsbury in Quinn v. Leathem 1901 AC 495.
In the case of Reserve Bank of India v. Peerless G.F. & I Co. Ltd. AIR 1987 SC 1023 the Apex Court held:
Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is
what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the
contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and
then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the
glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different
than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover
what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a
statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its
place.
In the case of State of U.P. and Another Vs. Synthetics and Chemicals Ltd. and Another, , para 41. it was observed by the Supreme Court as
under:
Does this principle extend and apply to a conclusion of law, which was neither raised nor preceded by any consideration. In other words can such
conclusions be considered as declaration of law? Here again the English courts and jurists have carved out an exception to the rule of precedents.
It has been explained as rule of sub-silentio. A decision passes sub-silentio, in the technical sense that has come to be attached to that phrase,
when the particular point of law involved in the decision is not perceived by the court or present to its mind. (Salmond on Jurisprudence 12th Edn.,
p. 153). In Lancaster Motor Company (London) Ltd. v. Bremith Ltd. (1941) 1 KB 675, the Court did not feel bound by earlier decision as it was
rendered without any argument, without reference to the crucial words of the rule and without any citation of the authority?. It was approved by
this Court in Municipal Corporation of Delhi Vs. Gurnam Kaur, . The bench held that, ''precedents sub-silentio and without argument are of no
moment''. The courts thus have taken recourse to this principle for relieving from injustice perpetrated by unjust precedents. A decision which is
not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have a binding
effect as is contemplated by Article 141. Uniformity and consistency are core of judicial discipline. But that which escapes in the judgment without
any occasion is not ratio decidendi. In B. Shama Rao Vs. The Union Territory of Pondicherry, , it was observed, ''it is trite to say that a decision is
binding not because of its conclusions but in regard to its ratio and the principles, laid down therein''. Any declaration or conclusion arrived without
application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a
precedent. Restraint in dissenting or overruling is for sake of stability and uniformity but rigidity beyond reasonable limits is inimical to the growth of
law.
In the case of Union of India (UOI) and Others Vs. Dhanwanti Devi and Others, the Supreme Court held:
According to the well-settled theory of precedents, every decision contains three basic postulates : (i) findings of material facts, direct and
inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles
of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is only an
authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically
follows from the various observations made in the judgment. Every judgment must be read as applicable to the particular facts proved, or assumed
to be proved, since the generality of the expressions which may be found there is not intended to be exposition of the whole law, but governed and
qualified by the particular facts of the case in which such expressions are to be found. It would, therefore, be not profitable to extract a sentence
here and there from the judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein. The
enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. The concrete decision
alone is binding between the parties to it, but it is the abstract ratio decidendi, ascertained on a consideration of the judgment in relation to the
subject-matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding. It is only the principle laid down
in the judgment that is binding law under Article 141 of the Constitution. A deliberate judicial decision arrived at after hearing an argument on a
question which arises in the case or is put in issue may constitute a precedent, no matter for what reason, and the precedent by long recognition
may mature into rule of stare decisis. It is the rule deductible from the application of law to the facts and circumstances of the case which
constitutes its ratio decidendi.
The Supreme Court in the case of Government of India Vs. Workmen of State Trading Corporation and Others, , while dealing with a case,
wherein an earlier decision of the Supreme Court was sought to be relied upon, which did not set out the facts and circumstances in which the
order came to be passed against the Government, nor did it set out any reasoning to pass such an order, held that such an order was not a binding
precedent. The relevant portion of the order reads as under:
The decision of this Court is virtually a non-speaking order which does not set out the facts and the circumstances in which the direction came to
be issued against the Government. It is not clear as to what was the connection between the respondent-Corporation and the State Government.
In the present case the Government of India had clearly averred that it had nothing to do with the State Trading Corporation and there was no
relationship of master and servant between the petitioners and the Government of India and, therefore, the Government of India was not in any
manner concerned with the closure of the Leather Garment unit of the State Trading Corporation and the consequences thereof. Mr. Usgaocar
rightly emphasised that the decision on which the High Court had relied could not be treated as a precedent and in support of this contention he
drew our attention to a Constitution Bench judgment in the case of Krishena Kumar and Others Vs. Union of India and others, . In paras 18 and
19 the question as to when a decision can have binding effect has been dealt with. We need say no more as it is obvious from the decision relied
on that it does not set out the facts or the reason for the conclusion or direction given. It can, therefore, not be treated as a binding precedent.
In the case of Arnit Das Vs. State of Bihar, the Supreme Court has observed in paragraph 20 as under:
A decision not expressed, not accompanied by reasons and not proceeding on a conscious consideration of an issue cannot be deemed to be a
law declared to have a binding effect as is contemplated by Article 141. That which has escaped in the judgment is not the ratio decidendi. This is
the rule of sub silentio, in the technical sense when a particular point of law was not consciously determined.
The Supreme Court in the case of Indian Drugs and Pharmaceuticals Ltd. Vs. Workman, Indian Drugs and Pharmaceuticals Ltd., , held as
follows:
No doubt, in some decisions the Supreme Court has directed regularisation of temporary or ad hoc employees but it is well settled that a
mere direction of the Supreme Court without laying down any principle of law is not a precedent. It is only where the Supreme Court lays down a
principle of law that it will amount to a precedent. Often the Supreme Court issues directions without laying down any principle of law, in which
case, it is not a precedent. For instance, the Supreme Court often directs appointment of someone or regularisation of a temporary employee or
payment of salary, etc. without laying down any principle of law. This is often done on humanitarian considerations, but this will not operate as a
precedent binding on the High Court. For instance, if the Supreme Court directs regularisation of service of an employee who had put in 3 years
service, this does not mean that all employees who had put in 3 years service must be regularised. Hence, such a direction is not a precedent....
In the present case, as already stated, the learned single Judge, after referring to all the three Division Bench judgments and holding that the
judgments have become final in paragraph No. 9 of his order, having regard to the subsequent development of filing of spate of writ petitions and in
certain cases, with bogus claim, thought it fit to decide the scope and amplitude of Section 2(oo) and virtually decided the issue and rendered a
finding. In that process, the learned single Judge has also taken into consideration of the judgment of the Supreme Court in the case of Central
Bank of India Vs. S. Satyam and others, and the subsequent decision of the Supreme Court in the case of Regional Manager, S.B.I. Vs. Rakesh
Kumar Tewari, , which were rendered prior to the amendment inserted to Section 2(oo) by amending Act No. 49 of 1984. None of the earlier
Division Bench judgments decided the cases with reference to the issue taken up for consideration by the learned single Judge.
Thus, the learned Judge has considered the legal issue whether the petitioners are entitled to the benefit of Section 25H of Industrial Disputes
Act with reference to Section 2(oo) as amended by Act No. 49 of 1984 and held only those petitioners, who are not hit by the exception clause
under (bb) alone are entitled to the benefit u/s 25H and that too, on a proper adjudication made. We are of the view that the said exercise had
never been done by any of the Division Bench Judgments with which petitioners made reliance. We are in complete agreement with the view taken
by the learned single Judge.
Now, coming to G.O.Ms. No. 41 Transport Department dated 13.7.2006, though the learned single Judge has observed that paragraphs 4(ii)
and 4(iii) of G.O.Ms. No. 41 are contrary to the provisions of the Industrial Disputes Act and violative of Articles 14 and 16 of Constitution of
India, the learned single Judge has not set aside the same, which shows the consciousness of the learned single Judge that the G.O.Ms. No. 41 has
been upheld by another learned single Judge and merged with the order of the Division Bench in W.A. Nos. 345 to 347 of 2007 dated 12.3.2007.
Having regard to the above position, the learned single Judge has clarified that though the object of the first respondent-Government in issuing
G.O.Ms.NO.41 Transport Department dated 13.7.2006 to accommodate the persons covered by paragraph 4(i) might be inevitable, but the
exercise directed to be undertaken in paragraphs 4(ii) and 4(iii) of the said G.O. could be undertaken by the second respondent only if further
orders are passed by this Court in the cases which are pending consideration and in other cases the workmen get declaration from the appropriate
Labour Court after establishing that they were actually retrenched in terms of Section 2(oo) of the I.D. Act. This finding is also an invited finding of
the petitioners, as they sought for regularisation u/s 25H and also under G.O.Ms. No. 41 Transport Department dated 13.7.2006. In view of the
reasoning stated above and in the light of the various decisions of the Supreme Court referred supra, we are of the considered view that Issue No.
1 has to be answered in negative against the appellants and petitioners.
Issue Nos. 2 and 3: It is the case of the appellants/petitioners that they have been in employment of the respondent Corporation more than 240
days continuously but temporarily prior to 2002 for no reason and subsequently, in view of the ban order and they are entitled to be regularised.
But it is also an admitted fact that the appellants and the petitioners are not appointed as per the common service rules, which require that the
Corporation has to fill up permanent vacancies only through employment exchange. It is also an admitted case of the appellants and petitioners that
they have been appointed as casual adhoc employee and no appointment order has been issued to them. In that factual situation, they are seeking
the relief of regularisation on the only ground that they have been in the employment of the respondent for more than the prescribed period of 240
days. However, it is the definite stand of the respondent Corporation that the appellants and petitioners are engaged for a period of 25 days as per
the directions of the Government. In order to establish the same, the respondent Corporation has filed as many as 27 proceedings issued by the
Managing Director of the second respondent right from 17.2.2005 after referring to the letter of the Government directing the Branch Managers to
engage the drivers and conductors on contract basis for a period of 25 days. It is the further case of the respondent Corporation that they are not
engaged as against the permanent vacancies but in the place of vacancies arise due to the mass casual leave, strike notice issued by Unions, festival
season and quoting the G.O.Ms. No. 27 dated 21.1.2002, which imposes ban on appointment of conductors. In view of the disputed questions of
facts over the claim, this Court, while exercising the jurisdiction under Article 226, cannot decide the issue and it is for the appellants and
petitioners, who claim that they are entitled to re-appointment u/s 25H to establish before the appropriate forum under the Industrial Disputes Act
that they are retrenched in terms of Section 2(oo) of the Industrial Disputes Act and as such they are entitled to the benefit of Section 25H.
In Gangadhar Pillai Vs. Siemens Ltd., , the Supreme Court held thus:
The question as to whether an employee had intermittently been engaged as casual or temporary for a number of years is essentially a question
of fact. The issue as to whether unfair labour practices had been resorted to by the employer or not must be judged from the entirety of the
circumstances brought on record by the parties.
Only because an employee has been engaged as a casual or temporary employee or that he had been employed for a number of years, the
same by itself may not lead to the conclusion that such appointment had been made with the object of depriving him of the status and privilege of a
permanent employee. Unlike other statutes, the employer does not have any statutory liability to give permanent status to an employee on
completion of a period specified therein. What is, therefore, necessary to be considered for drawing an inference in terms of the said provisions
would be to consider the entire facts and circumstances of the case.
It has furthermore not been denied or disputed that services of the employees engaged on such terms would come to an end on completion of
the period of contract. Such retrenchment would come within the purview of Section 2(oo)(bb) of the Industrial Disputes Act. Once the period of
contract was fixed and the same was done keeping in view the nature of job, it cannot be said that the act of the employer in terminating the
services of the appellant was actuated by any malice. Such an act on the part of the employer cannot be said to have been resorted to for
defrauding an employee. The object of such temporary employment was bona fide and not to deprive the employee concerned from the benefit of
a permanent status. We, having regard to the fact situation obtaining herein, cannot infer that the findings of the Tribunal as also the learned Single
Judge of the High Court were manifestly erroneous warranting exercise of our extraordinary jurisdiction under Article 136 of the Constitution of
India.
When a claim was made by the workman that he has continuously worked for more than 240 days and it was disputed by the employer, the
onus is always on the person claiming the benefit to prove the same by adducing cogent evidence, both oral and documentary. Mere affidavit or
self serving statement made by the workman would not suffice. Useful reference can be had to the 3 Judges Bench judgment of the Supreme Court
in the case of R.M. Yellatti Vs. The Assistant Executive Engineer, . So is the other judgment of the Supreme Court in the case of Chairman, Oil
and Natural Gas Corporation Ltd. and Another Vs. Shyamal Chandra Bhowmik, , wherein the Supreme Court held as follows:
The High Courts should not entertain writ petitions directly when claim of service of more than 240 days in a year is raised. Whether a person has
worked for more than 240 days or not is a disputed question of fact which is not to be examined by the High Court. Proper remedy for the person
making such a claim is to raise an industrial dispute under the Act so that the evidence can be analysed and conclusion can be arrived at. As in the
instant case the legal position has not been analysed in the proper perspective, it would be appropriate if the matter is decided by the forum
provided under the Act.
In a case on comparable facts, the Supreme Court in National Fertilizers Ltd. and Others Vs. Somvir Singh, , after referring to Secretary,
State of Karnataka and Others Vs. Umadevi and Others, , has held that if appointment is made without following rules, same being a nullity,
question of confirmation of an employee upon the expiry of the purported period of probation would not arise.
In the case of Indian Drugs and Pharmaceuticals Ltd. Vs. Workman, Indian Drugs and Pharmaceuticals Ltd., , the Supreme Court has held
that regularisation cannot be a mode of appointment. The Court cannot direct regularisation of temporary employees appointed de hors the rules.
The Supreme Court in the case of Secretary, State of Karnataka and Others Vs. Umadevi and Others, has observed in the context whether a
mandamus could be issued in favour of persons who approach the Court for issuance of writ of mandamus directing the employer, the State or its
instrumentalities, to absorb them in permanent service or to allow them to continue, and after referring to the Constitution Bench judgment in Rai
Shivendra Bahadur Vs. The Governing Body of the Nalanda College, , it was held that the classical enunciation of the law in Rai Shivendra
Bahadur Case still continue and a mandamus could not be issued in favour of the employees directing the Government to make them permanent
since the employees could not show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make
them permanent. In the subsequent judgment of Punjab Water Supply and Sewerage Board, Hoshiarpur Vs. Ranjodh Singh and Others, , the
Supreme Court after referring A. Umarani Vs. Registrar, Cooperative Societies and Others, and Secretary, State of Karnataka and Others Vs.
Umadevi and Others, , has ruled that such mandamus cannot be issued.
In view of the fore-going discussion as to the nature of dispute being disputed question of fact and in the light of the law laid down in cases
referred supra, Issue Nos.2 and 3 are answered that a mandamus as sought for cannot be issued and the petitioners can establish their right before
the appropriate forum under the Industrial Disputes Act.
Issue No. 4: Ms. Vaigai contended that the Union, who are the petitioners in W.P. Nos. 24743 of 2007 raised a dispute and the Labour
Officer issued a notice on 17.7.2007 calling upon the respondent for conciliation. In such circumstances, the conditions of service of the petitioners
cannot be altered. It is the contention of the respondent that the appellants and petitioners are appointed only for a particular period and last of the
period for which they have been appointed are upto 7.4.2007 and thereafter no person has been engaged in the service of the respondent. Some
other respondents, who are in service, are obtained interim orders from this Court. Only under the cover of interim orders, they are continuing in
service.
As already stated, in all these cases, it is the stand of the respondents that the appellants/petitioners are not appointed under the common
service rules or under standing order and they have been engaged as per the direction of the Government by the Branch Managers, who are not
the appointing authority for a limited period of 25 days each and last of such appointment was over by 7.4.2007. Prima facie, we are of the view
that the termination of service by non-renewal of contract cannot be regarded as alteration of conditions of service of the employees u/s 33 of the
Industrial Disputes Act. For our opinion, we can take support of the judgment of the Supreme Court in the case of National Engineering Industries
Ltd. Vs. Hanuman, , wherein it was observed as follows:
Reliance in this connection was placed on certain cases and we shall refer to them now. In Chandrabai Uma v. Elephant Oil Mills Ltd. (1951) I
LLJ 370, the standing order provided that a workman would lose his appointment unless he returned within 8 days of the expiry of the leave and
gave explanation to the satisfaction of the authority granting leave of his inability to return before the expiry of leave. The Labour Appellate Tribunal
held in that case that where a standing order provided for automatic termination of service, Section 23 of the Industrial Disputes (Appellate
Tribunal) Act, 1950 would not apply. That decision in our view lays down the correct law. Section 33 of the Act corresponds to Section 23 of the
Industrial Disputes (Appellate Tribunal) Act, 1950. The position therefore would be the same u/s 33 of the Act. Were therefore workman''s
service terminates automatically under the standing order. Section 33 would not apply and an application u/s 33A would not be maintainable....
Even otherwise the grievance of the petitioners would be taken care u/s 33A, which provides for adjudication.
In the case of Indian Additives Ltd. Vs. Indian Additives Employees Union and Another, , the respondent Union filed a writ petition against the
appellant Company alleging violation of Section 9A of the Industrial Disputes Act while altering the service conditions of its members, when the
dispute relates to the enforcement of right or obligation created under the Act and the Division Bench of this Court held that the only remedy
available to the Union was to raise an industrial Dispute and seek adjudication of the same before the appropriate forum created under the
Industrial Disputes Act, rather than approaching this Court under Article 226 of the Constitution of India. In that judgment, the Division Bench has
followed the judgment of the Supreme Court in the case of Rajasthan State Road Transport Corporation and Another Vs. Krishna Kant and
Others, , U.P. State Bridge Corporation Ltd. and Others Vs. U.P. Rajya Setu Nigam S. Karamchari Sangh, and The Premier Automobiles Ltd.
Vs. Kamlekar Shantaram Wadke of Bombay and Others,
In this case, prima facie, we are of the view that the appellants and petitioners were engaged by the Branch Managers intermittently pursuant to
the order issued by the Managing Director of the respondent Corporation for a fixed period and on expiry of fixed period, the engagement was
automatically severed. The matter has been agitated before this Court right from July 2006 on the date of issuance of Government Order in
G.O.Ms. No. 41 Transport Department dated 13.7.2006. In that factual position, raising a dispute in July 2007 before the Conciliation Officer and
filing a writ petition thereafter in August 2007 is nothing but a calculated abuse of process of law. When the relationship of the petitioner with the
respondent as an employee and employer, much less a regular employee itself is disputed, we are of the view that the petitioner cannot be allowed
to be in service by an order from this Court under Article 226. Hence, this issue is answered in negative.
Issue No. 5: As already stated in the summation of facts, the Government has issued G.O.Ms. No. 41 Transport Department dated 13.7.2006
giving preference to persons already worked for the statutorily prescribed period and retrenched in the employment. Before the Division Bench in
W.A. Nos. 345 to 347 of 2007 dated 12.3.2007, an undertaking has been given that the persons selected under G.O.Ms. No. 57 dated
21.7.2005 would also be considered prior to consideration of the persons entitled to benefit of G.O.Ms. No. 41 Transport Department dated
13.7.2006. Whether the appellants/petitioners come within the purview of G.O.Ms. No. 41 Transport Department dated 13.7.2006 is also a
disputed question of fact that has to be decided by the authorities under the Industrial Disputes Act. Hence, the issue is not answered directly but
the parties are relegated to the authorities under the Act.
Ms. Vaigai, learned Counsel appearing for the petitioners has also raised a supplementary question that a settlement has been arrived between
the Union and the second respondent in the year 2002 and the subsequent settlement also have such a clause for absorption of persons, who have
been employed as adhoc/temporary, and worked more than 240 days. The terms of the settlement have to be complied with.
The question whether the relevant clause in the settlement was applicable to the workmen for providing appointment cannot be adjudicated in a
writ petition. The reasons which are stated in Issue No. 4 are applicable to this issue also. Useful reference can be had to the judgment of the
Supreme Court in the case of Karnataka Power Corporation Limited through its Chairman and Managing Director and Another Vs. K.
Thangappan and Another, .
Mrs. Vaigai has submitted that if this Court relegates the petitioners to the authorities under the Act, till such time the petitioners move the
authorities, the continuation of the petitioners in service may be protected though appears to evoke the sympathy of this Court, but such relief
cannot be granted in view of the judgment of the Supreme court in the case of The State of Orissa Vs. Madan Gopal Rungta, .
Ms. Vaigai, learned Counsel appearing for the petitioners cited across the bar the judgments above referred to in the summation of facts. By
relying on the decision of Central Bank of India Vs. S. Satyam and others, , she contended that Section 25H of the Industrial Disputes Act would
be applicable to all retrenched workmen and not only those covered u/s 25F read with Section 25B and further that the word ""retrenchment
would encompass every retrenchment. The said judgment has been considered by the learned single judge in an elaborate fashion in the order
impugned in these writ appeals and also the subsequent decision of the Supreme Court in the case of Regional Manager, S.B.I. Vs. Rakesh Kumar
Tewari, has also been taken note of. The said two decisions were of no help to advance the case of the petitioners, as they were rendered prior to
the amendment incorporated to Section 2(oo) under Act No. 49 of 1984 dated 21.8.1984 i.e., incorporation of exclusion Clause (bb) in it.
Learned Counsel further relied on Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal Sharma and Others, to contend the
applicability of Section 33(2)(b) to the case on hand. That was a case in which a regular employee appointed in the Bank was dismissed after a
domestic enquiry. Since certain proceedings were pending at the time of passing of the dismissal order, before the Industrial Tribunal, the Bank
submitted an application u/s 33 seeking IT''s approval for the dismissal. In those circumstances of the case, the Supreme Court has held that
because of the non approval of the order of dismissal or discharge, the employee would be regarded as continues to be in service as if no order of
dismissal or discharge was passed. The said case is not applicable to the facts of the present case. So is the other judgment relied on by the
learned Counsel in Indian Telephone Industries v. Prabhakar H. Manjuare (2003) 1 SCC 320, which was also a case wherein the appellant
company moved an application seeking approval for the dismissal order dated 21.1.1986 passed against the employee u/s 33 of the Industrial
Disputes Act. The National Industrial Tribunal by its order dated 1.9.1987 held that the dismissal order was invalid for non-compliance with the
provisions of Section 33(2)(b) of the Act in that wages for one month were not paid. The Tribunal Order was not challenged. However, without
reinstating the respondent and without paying him wages for the period subsequent to 21.1.1986, the appellant paid one month wages and passed
a second dismissal order on 9.10.1987. The Tribunal granted its approval on the Company moving an application seeking for approval. The single
Judge of the High Court upheld the Tribunal''s order but a Division Bench reversed that decision holding that the respondent should be deemed to
be in continuous service of the company and entitled to all consequential benefits. When the matter was taken to the Supreme Court, the Supreme
Court has held that the second order of dismissal was passed on the assumption that non-compliance with the requirements of the proviso to
Section 33(2)(b) was only a technical breach, and therefore by paying one month''s wages, the second order of dismissal could be passed. But,
the order refusing to give approval for dismissal on the ground of non-compliance with the proviso to Section 33(2)(b) rendered it void ab initio
and inoperative and the respondent was deemed to have continued in service as if no order of dismissal was passed. We are of the view that in the
given set of facts, this judgment is also no way applicable to the facts of case on hand.
Learned Counsel further relied on a decision of Sonepat Cooperative Sugar Mills Ltd. Vs. Rakesh Kumar, . That was a case in which the
employer has raised a contention for the first time before the Supreme Court that the appointment of the respondent was for a specific period and
the termination was on account of non-renewal of contract of employment and therefore in view of Section 2(oo)(bb) did not attract Section 25F.
The Supreme Court having found that the contention advanced by the appellant before the Supreme Court was not borne out either by pleading or
evidence, that the appellant did not produce any letter of appointment or other documents showing that the respondent was appointed for the
period from 1.7.1998 to 31.8.1999 or the termination was on account of non-renewal of such term of appointment; that on the other hand, the
specific case of the appellant before the Labour Court and in the writ petition was that there was no sanctioned post of Computer Programmer or
Computer Operator and the respondent was appointed as a Computer Helper. The respondent was informed that the work was of temporary
nature and his service would not be required after the staff of the Mill gained proficiency in computerisation and also from the evidence led, the
finding recorded by the Labour Court that the respondent was employed on daily wage basis and had worked for more than 240 days during the
period of 12 months before the date of termination, the Supreme Court has held that no interference is called for. We are afraid whether the above
said judgment of the Supreme Court is applicable to the facts of the case, as the petitioners herein have not even approached the Labour Court
and adduced evidence about the disputed questions of fact.
Mr. Prasad, learned Counsel appearing for the petitioners/appellants has argued that as the Advocate General has advanced argument when
the G.O.Ms. No. 41 Transport Department dated 13.7.2006 was challenged that the G.O. has been issued taking into consideration of the non-
filling up of the permanent vacancies, he cannot now be allowed to argue otherwise and the argument is hit by the principle of res judicata. We are
surprised whether such an argument can be made or rather it can be accepted. The said argument is rejected at the threshold.
For the fore-going reasons, the writ appeals as well as writ petitions are dismissed. However, there is no order as to costs. Consequently, all
the connected M.Ps are also dismissed.