The Executive Engineer, No. 1, Hemavathi Right Bank, Nala Division, The Chief Engineer, Hemavathi Project and The Government of Karnataka and Others vs B.N. Sheshagiri Rao and Others

Subhash B. Adi, J.—W.P. No. 31935/2004 is by the State Government assailing the award dated 20th December 2000 in I.D. No. 79/1993, W.P. No. 16469/2004 is filed by the workman seeking modification of the very same award against disallowing of the backwages, continuity of service and consequential service benefits. In other cases also, similar relief is sought In all these writ petitions, a common question is raised:

as to whether, the daily wages employee, employed by the State within the meaning of Article 12 of the Constitution of India against the sanctioned or non-sanctioned poet, are entitled for reinstatement on the ground that he had completed 240 days of continuous service in a calendar year?

In one of the writ petitions, the workman claims that, he was employed on dairy wages in the year 1985 and had worked continuously till 1989 as a Typist and was terminated from service w.e.f. 25.3.1989 and claimed that, he having worked for more than 240 days continuously in the preceding year, and is entitled for reinstatement with backwages, continuity of service and consequential benefits. The Labour Court allowed the reference and directed the respondents to reinstate the workman in the original post within two months from the date of publication of the award. However, did not award backwages or continuity of service.

State has challenged the award, directing reinstatement of the workman with continuity of service and backwages and in some cases, only reinstatement.

The Case of the State is that, in the matter of public employment, whether by the State or the instrumentality of the State, the recruitment and service conditions are governed by the Rules and Regulations framed under Article 309 of the Constitution of India, and any appointment made temporarily or contractually or on daily wages, would be in violation of provisions of Article 309 of Constitution of India, and direction to reinstate the workman against such post would be illegal.

It is urged that, title award of reinstatement in the matter of public employment would run contrary to scheme of the public employment and is opposed to public policy as the, workman do not carry any right in the post, even in case of exigency, if the appointment is made on daily wages, his employment would be only for a day and it is days'' contract, which will come to an end by the end of the day. In case of the temporary employment, it will come to an end at the end of the said period, if, it is contractual, it will come to an end after the completion of the contract, if it is for a project, it will come to an end by the competition of the project.

Issuing direction for reinstatement amounts to denial of equal rights and equal protection in the matter of public employment and amounts to overlooking the scheme of public employment under the Constitution. Unless the appointment is in terms of rules and with proper competition and scrutiny, it will not confer any right on the appointee, whether his appointment under contract or daily wages.

State, local bodies i.e., self-governments and other instrumentality of the State, have raised these questions in the light of the decision of the Constitutional Bench of the Supreme Court, reported in ILR 2006 Kar page 2607 in the matter Secretary, State of Karnataka and Ors. v. Umadevi (3) and Ors. wherein the Constitutional Bench on interpretation of the scheme of the constitution in the matter of public employment has observed:

Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued Similarly, a temporary employee could not claim to be made permanent on the expiry of ms term of appointment It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the Court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Court acting under Article 226 of the Constitution should not, 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, which we have described as "litigious employment" in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified for issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The Courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the by passing of the constitutional and statutory mandates.

It has further observed that:

It is 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. It has to be emphasised that this is not the role envisaged for the High Courts in the scheme of things and their wide powers under Article 226 of the Constitution 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.

In the light of the explanation of constitutional scheme in the matter of public employment by the Constitutional Bench of the Apex Court, it became necessary to consider the interest of large number of employees working on dairy wages or temporarily, in this regard, I had requested learned Senior Counsel, Sri. M.C. Narasimhan, Sri K. Subbarao, Sri S.N. Murthy, Sri. K. Kasturi, learned Senior Counsel and Sri P.S. Rajagopal, Sri. V.S. Naik. Sri. S.B. Mukkannappa. Sri Raghavendra Rao and other Counsel to assist in the matter. On behalf of State, learned Advocate General Sri Udaya Holla made submissions.

Sri M.C. Narasimhan referred to the history of the industrial dispute and pointed out that, industrial adjudication is more usually spoken of, in connection with the adjustment of existing controversies, while commercial arbitration is said more often to include the disposition of controversies which may arise in the future out of agreements between parties. The Industrial arbitration may involve the extension of an existing agreement, or the making of a new one or creation of new obligations or modification of old ones, while commercial arbitration concerns itself with interpretations of existing obligations and disputes relating to existing agreements. He submitted that industrial adjudication thus is not confined to the terms of the agreement of the contract It may in general, may create new obligation in modification of the terms of the contract He further submitted that the Industrial Tribunal has a power to settle the dispute and these powers are not fettered by the limitation of any law or contract and it is not confined to the administration of justice in accordance with law. It can confer rights and privileges on either of the party, which it considers reasonable and proper, though they may not be within the terms of an existing agreement It has power to create rights and obligations between the parties which it considers essential for the keeping of the industrial peace.

He further submitted that, the industrial laws axe legislated even before the independence of the country and those laws have been adopted under Article 372 of the Constitution. In order to deal with industrial disputes, it provides for conciliation, adjudication, settlements and regulates rights of the parties for enforcement of awards, settlements empower the adjudicatory authority to give relief, such as reinstatement against wrongful dismissal or discharge of workman, which is not permissible in common law or not justified under the terms of the contract between the parties. He further submitted that the I.D. Act envisages collective bargaining of the contracts between the Union representing the workmen and the Management, which is outside the realm of common law or law of contract. Further, submitted that, the social justice is not narrow or one-sided or pedantic and is not confined to industrial adjudication alone. The object of socio-economic equality and its aim is to assist the removal of socio-economic disparities and inequalities, nevertheless in dealing with industrial matters, it does not adopt a doctrinaire approach and refuses to yield blindly to abstract approach, He further submitted that, therefore, endeavour to resolve the competing claims of employers and employees finding out a solution, which is just and fair to both the parties with the object of establishing harmony between capital and labour and for the good relationship. The ultimate object of the industrial adjudication is to help growth and progress of national economy and it is with that, ultimate object in view, the industrial disputes are settled by adjudication on principles of lair play and justice. It is always open to the Industrial Tribunal to consider the conditions of employment of labour and to vary them if it is found necessary, unless the employer can justify an extra-ordinary condition. It is not an absolute freedom of an employer to impose any condition, which he likes on the labour.

He also emphasized that, the theory of ''hire and fire'' as well as the theory of ''supply and demand'' which are allowed in free scope under the doctrine of laissez faire, no longer hold the field. In construing a wage-structure, industrial adjudication does take into account to some extent the consideration of right and wrong propriety and impropriety, fairness and unfairness.

The argument of Sri M.C. Narasimhan, learned Senior Counsel is that, harmony and industrial peace and good relation between the employer and employee or Management and the workman can be arrived only if the interest of the workman is protected and that is the primary object of the Industrial Disputes Act and it is in this regard, the Industrial Tribunal is conferred with adjudicatory power, where it can go into all the questions regardless of the contract or agreement between the parties.

Referring to Rajappa''s case reported in 1978 (2) SCC page 213, he submitted that the definition of Industry'' is elaborately considered by the Apex Court and, the State, and its instrumentalities will come under the purview of the definition of industry irrespective of profit motive. He submitted that it is the nature of work that decides the issue as to whether it is industry or not within the meaning of definition of Section 2(j) of the Act u/s 2(k) of the Act the ''industrial dispute'' is defined and all disputes between the employer and employee or Management and the workmen are covered under the definition of Section 2(k) of the Act Retrenchment of workman other than by way of punishment by the Disciplinary Authority as defined u/s 2(oo) of the Act, mils within the jurisdiction industrial dispute. He submitted that in the light of the 7 Judges'' Constitutional Bench judgment in Rajappa''s case, the State, its instrumentalities are covered within the meaning of definition of Industry'' and once it is an industry, any dispute that arises between the employer and employee, the same has to be referred to the conciliation and on failure of the conciliation, the State Government has power to refer the dispute to the Industrial Tribunal. On reference, the Industrial Tribunal, if finds that the retrenchment is illegal, it has power to award reinstatement and consequential benefits and such right cannot be taken away by any weans.

He submitted that, in Umadevi''s case, the question of industrial dispute or adjudication of dispute relating to workman and the Management or employer and employee, was not the issue for consideration. Umadevi''s case does not refer to the industrial dispute under the Act He further submitted that, the Industrial Disputes Act being special legislation protecting the rights of the employer and employee or workman and the Management for the peace of the industry, the principle enunciated in Umadevi''s case has no application and all the disputes between the employer and the employee, the Management and the workman, whether it is State or instrumentality of the State, such disputes have to be adjudicated only by the Industrial Tribunal and the Industrial Tribunal has power to grant interim relief and final award.

Sri K. Subba Rao, learned Senior Counsel adopted the arguments of Sri M.C. Narasimhan and further submitted that, the Industrial Tribunal has power to settle the dispute irrespective of the terms and conditions of the contract and can lay down a new policy, normally, which is not permissible for ordinary Civil Court He further submitted that, the Industrial Tribunal has wider power and can decide or settle the issues between the Management and the workman for industrial peace. He relied on a decision reported in AIR 1949 Federal Court 111 and submitted that the Industrial Tribunal''s rights are not fettered by any limitation. He submitted that the point raised in Umadevi''s case is not relating to industrial dispute or a dispute between the workmen and Management or employer and employee of an industry. He further submitted that instrumentalities of the State, which are industry within the meaning of Section 2(j) are not governed by the provisions of Article 309 and the rights and the liabilities of the Management or the workmen, employer and employee of the industry are all governed by their Standing Orders. There is no distinction between the temporary employee or the workman or permanent employee. The definition of ''workman'' u/s 2(s) does not distinguish a temporary employee or a dairy wage employee, it only says,

any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment he express or implied, and for the purposes of any proceeding under this Ad in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute.

It only excludes employment in the Police service or Officer or other employees of Prison, Managerial or administrative post and employment mainly for the supervisory post He also referred to a decision reported in 1990 LAB.I.C. 301 in the matter of Karnal Leather Karamchari Sanghatan (Regd.) v. Liberty Footwear Co. (Regd.) and Ors. and submitted that, the industrial dispute is a collective bargaining for the industrial peace and national economic and it has nothing to do with Article 309. He also referred to another decision reported in B.N. Nagarajan and Others Vs. State of Mysore and Others, and submitted that, the employment in industry is not governed by any rules under Article 309 and the rules made there under are not applicable to the industrial employment. He also relied on another decision reported in Karnal Leather Karamchari Sanghatan (Regd.) Vs. Liberty Footwear Company (Redg.) and others, and submitted that the industrial dispute is a collective bargaining and not governed by any rules or regulations. In this connection, he referred to Schedule-V of the Industrial Disputes Act, to submit that, a deprival of the workmen''s privilege to permanent post for long time would amount to an unfair labour practice and in this regard, he also referred to the Industrial Employment Standing Order 1946.

He further submitted that Umadevi''s case is required to be understood in the light of the issue raised in that case. Since industrial dispute was not subject matter before the Constitutional Bench and it cannot be treated as precedent and binding on this Court and in this connection, he also relied on a decision of the Apex Court reported in B. Shama Rao Vs. The Union Territory of Pondicherry, at para-5 and Krishena Kumar and Others Vs. Union of India and others, at paras-18 and 19 to submit that, it is not a precedent for the disputes arising under the provisions of the I.D. Act.

Sri Kasturi, learned Senior Counsel submitted that the decision of the Apex Court in Rajappa''s case is referred to larger Bench by the other Constitutional Bench by a judgment reported in State of U.P. Vs. Jai Bir Singh, He further submitted that, the Constitutional Bench has referred the matter to the Hon''ble Chief Justice of India for referring the matter to the larger Bench consisting of more than 7 Judges as the ratio laid down in Rajappa''s case requires reconsideration.

He submitted that Umadevi''s case is concerned, it is binding on this Court though the said decision has not considered the provisions of the I.D. Act, nevertheless, the Apex Court has gone into the question of the scheme of the Constitution in the matter of public employment particularly in reference to basic features of the Constitution to provide equality and equal opportunity in the matter of public employment by considering Articles 14 and 16. The said decision having been rendered on the interpretation of the provisions of the Constitution, in relation to the employment made by State and its instrumentalities, it is binding to the extent of any employment made by State or its instrumentalities for which a procedure is contemplated under the rules framed under Article 309, such employment cannot be made or continued in disregard to the rules framed under Article 309 or Regulations made thereunder or in contravention of Article 14 and 16 of the Constitution of India. He said Umadevi''s case is law of the land and is binding on this Court

Sri S.N. Murthy, learned Senior Counsel also submitted that, though by virtue of Rajappa''s case, many of the organizations and institutions of the State and even the Departments of the State have been covered under the definition of Industry'' u/s 2 Clause (j), but in view of the Umadevi''s case, it is now not open to employer or workman to claim any right for absorption or continuity in the service only on the ground that, he has completed 240 days'' continuous service in a year in the light of law declared by the Apex Court in Umadevi''s case on interpretation of the Constitution, no appointment in the public employment could be made dehors to the provisions of Article 14 and 16 of the Constitution of India and submitted that the said decision is binding on this Court.

Sri P.S. Rajagopal, learned Counsel referring to Umadevi''s case, submitted that reinstatement of a workman in the public employment only on the ground that he had completed 240 days of his service in the preceding year of his termination, or discharge, as the case may be, will not entitle him to seek continuity of service in the same post or otherwise as, such a reinstatement would defeat the provisions of Article 14 and 16 of the Constitution of India. He further submitted that in Umadevi''s case, the Apex Court has laid down the law, on interpretation of the scheme of the Constitution in the matter of public employment, by the State or its instrumentalities and in categorical terms, it is held that, no appointment or regularisation or absorption can be made by the State or its instrumentalities, dehors to the Rules and Regulations under Article 309. He also submitted that, employment by the State and its instrumentalities, have to be in consonance with the requirement of Article 14 and 16 and submitted that in Umadevi''s case, on interpretation of Article 14 and 16 in the matter of public employment, the Apex Court has declared a law, holding that the basic feature of the Constitution is to protect equality and equal participation and, no appointment could be made dehors to the provisions of Article 14 and 16 of the Constitution of India. He further submitted that, after Umadevi''s case, the Supreme Court had occasion to refer to the Umadevi''s case particularly under the provisions of Industrial Disputes Act and the Supreme Court has held that order of reinstatement is not permissible. He referred to a decision reported in 2006 AIR SCW 2979 in the matter of Haryana State Electronics Development Corporation Limited v. Mamni and by referring to para-12 submitted that, any ad hoc appointment made, cannot be regularised in view of Umadevi''s case and in that case, the Apex Court only granted compensation without awarding reinstatement and backwages. He also relied on another decision reported in Municipal Council, Sujanpur Vs. Surinder Kumar, and pointed out from paras-15, 17 and 20 that, the State within the meaning of Article 12 of the Constitution of India, for the purpose of recruiting employees is bound to follow the recruitment rules and any recruitment made in violation of such rules, is violation of the constitutional scheme enshrined under Articles 14 and 16 of the Constitution of India, and would be void in law, even though the post is not sanctioned post He further submitted that, in the said case, the Labour Court had passed an award on the premise that, the workman had worked for more than six months satisfactorily and had acquired the right to become a permanent employee. He also submitted that the Apex Court referring to Umadevi''s case has declined to grant reinstatement, and granted monetary compensation. He referred to another decision reported in Nagar Mahapalika (Now Municipal Corpn.) Vs. State of U.P. and Others, He also pointed out that in the said decision, Umadevi''s case was considered and pointed out from para-17:

This Court in a large number of decisions has expressed its concern on how and in what manner appointments on daily basis or by way of ad hoc arrangement are made in flagrant violations of constitutional provisions enshrined under Articles 11 and 16 of the Constitution of India and/or the statutory recruitment rules. This Court has also been noticing that the State or the public sector undertakings or the local self-governments themselves are making all endeavours to regularise Vie services of such employees who have entered the services through the back door. The Industrial Tribunals, in some cases the High Courts also, had been generous enough to direct regularisation of the services of such workmen without proper application of mind.

He pointed out that an appointment made in violation of the Rules is void and he also pointed out from para-25 of the said judgment that

25...An appointment made in violation of the provisions of the Adhiniyam is void The same, however, although would not mean that the provisions of the Industrial Disputes Act are not required to be taken into consideration for the purpose of determination of the question as to whether the termination of workmen from services is legal or not but the same should have to be considered to be an important factor in the matter of grant of relief. The Municipal Corporation deals with public money. Appointments of the respondents were made for carrying out the work of assessment. Such assessments are done periodically. Their services, thus, should not have been directed to be continued despite the requirements therefore having come to an end. It, therefore, in our considered view, is not a case where the relief of reinstatement should have been granted.

He also pointed out from para-23 of the said judgment, which reads as under:

Non-compliance with the provisions of Section 6-N of the U.P. Industrial Disputes Act, although, may lead to the grant of a relief of reinstatement with full book wages and continuity of service in favour of the retrenched workmen, the same would not mean mat such a relief is to be granted automatically or as a matter of course.

He also referred to another decision of the Supreme Court in the case of Municipal Council, Sujanpur (supra) and submitted that, any appointment for a scheme or project will not confer right on the workman to continue in service.

I heard the other Counsels also.

The recruitment and conditions of service of a person appointed in the public employment are governed by the provisions of Articles 309 to 311 of the Constitution of India. Article 309 reads as under:

Article 309. Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with (he affairs of the Union or of any state:

Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor...of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of such Act.

By leading of this provision, it is clear that, such appointments are subject to the provisions of Constitution, Acts made by the Union or the State Legislature. In most of the cases, the State in exercise of power under Article 309 has framed the rules and regulations in the matter of recruitment and conditions of service of the persons appointed to the post in the public employment Such recruitments are subject to the provisions of Articles 14, 16 of the Constitution of India.

The Apex Court while considering the matter relating to regularisation of daily rate employees working in various departments and organisations of State, has observed that, such employees have no light to seek for regularisation and has also held that, if their appointments at the inception itself is illegal, it does not confer any right to seek regularisation,

The Apex Court in a decision reported in State of M.P. and Others Vs. Arjunlal Rajak, has held that:

It is beyond any doubt or dispute than a daily-wager does not hold a post The Forest Department is a wing of the Stale. Its employees hold a status. For acquiring that status and for obtaining the constitutional protection in terms of Article 311 of the Constitution, all appointments must be made in conformity with the constitutional scheme as laid down under Articles 14 and 16 of the Constitution as well as the rules made in terms of the proviso to Article 309 of the Constitution or in terms of a legislative Act Concededly, white appointing the respondent, the constitutional provision or the statutory provisions had not been followed. The rights and liabilities of the parties are, therefore, governed by the terms of the contract and/or the provisions of the statute applicable in relation thereto. The respondent was not given any offer of appointment in writing. He admittedly worked in different departments of me Stale. His last posting was in the production division of the Forest Department in the district of Guna which as noticed above stood abolished It is, however, true that while terminating the services of the respondent the appellants had not complied with the mandatory requirements of Section 25-F of the Industrial Disputes Act and, thus, ordinarily, the workman could have been directed to be reinstated with or without back wages, but it is also well settled mat when a project or a scheme or an office itself is abolished, relief by way of reinstatement is not granted.

Further, the Apex Court in a judgment reported in (2006) 5 SCC 493 in the matter of National Fertilizers Ltd. and Ors. at para-13 has observed that:

The respondents herein were appointed only on applications made by them. Admittedly, no advertisement teas issued in a newspaper not was the employment exchange notified as regards existence of vacancies. It is now trite taw that "State" within the meaning of Article 12 of the Constitution is bound to comply with the constitutional requirements as adumbrated in Articles 14 and 16 thereof. When the Recruitment Rules are made, the employer would be bound to comply with the soma. Any appointment in violation of such Rules would render them as nullities. It is also well settled that no recruitment should be permitted to be made through back door.

However, under the provisions of the I.D. Act, the definition of ''workman'' does not require the recruitment or appointment of the workman in terms of the rules or regulations framed under Article 309. The definition of workman reads as under:

2(s) "workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to mat dispute, but does not include any such person-

(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or

(ii) who is employed in the police service or as an officer or other employee of a prison; or

(iii) who is employed mainly in a managerial or administrative capacity; or

(iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.

The definition of the workman does not call for appointment in terms of any rules or regulations, it covers every person employed in an industry.

Several departments and organizations of the State Government, which are State within the meaning of Article 12 and are also ''industry'' within the meaning of Section 2(j) of the Act, and have employed the workmen. These employees are workmen within the meaning of the definition of ''workman'' u/s 2(s) of the Act and are also employees under the public employment The definition of the ''industry'' u/s 2(j) is as under:

2(j) "industry" means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen.

Since several departments of the Government being treated as the industries within the meaning of Section 2(j) and the persons working being the workmen. Once the workman fulfills the requirement in terms of Section 25-B of the Act, he claims the benefits under the provisions of the I.D. Act These workmen cannot be retrenched without complying with the provisions of Section 25-F of the Act, any violation would result in reinstatement, continuity of service, consequential benefits and backwages. Though Section 25-F of the Act does not provide for reinstatement in the matter of retrenchment, but on interpretation of Section 25-F of the Act, it is held that, in case of illegal termination of the services of the workmen, workmen not only would be entitled for the benefit u/s 25-F, but would be entitled for reinstatement in the same post with all the consequential service benefits, which means that his services would be continued in the same post in which he was working.

The recruitment rules or regulations in respect of departments of Government and the organizations and other undertakings of the State do not confer any right on such department make any appointment in contravention of rules made under Article 309 of the Constitution of India. However, for exigencies, the appointments are made and the consequence of such appointments, the daily rate employees are continued in service for long time with all consequential benefits though they are not regularized.

The Apex Court in Umadevi''s case on interpretation of Article 14, 16, 21, 309 has held that, any appointment made by the State in contravention of the provisions of the Act, Rules and Regulations made under Article 309 are void and they would be violative of Article 14 and 16 of the Constitution of India. It is also observed that, the scheme of the Constitution requires that, all the appointments are made in consonance with the rules framed under Article 309 subject to Articles 14 and 16 of the Constitution of India. Now in respect of sanctioned post also, the vacancies are filled by appointing daily rate employees resulting non-filling of the vacancies in terms of the Rules under Article 309 and by virtue of the provisions of Section 25-F of the Act, such employees have been continued for long period. This has resulted in denial of regularisation of the services of daily wage employees on one hand and on the other hand, it has defeated the constitutional scheme in the matter of public employment, by denying equal opportunity and equal protection and participation to the qualified unemployed youth for want of regular recruitment being made by the State. Dairy wage employees are engaged by the official, who is not the appointing authority. These appointments on dairy wages are not made with due process of law, nor the dairy wage employees are paid the regular pay scale or benefits. The engagement of dairy wage employees may give some financial help for his livelihood, but it is at the cost of denial of opportunity to the more eligible person. Though these dairy wage employees are engaged in exigency, but are continued for longer period. In the name of exigencies, unqualified person is engaged as daily wage employee and is continued in the said post permanently, thereby blocking the regular recruitment The law which abrogates or abridges right guaranteed by Part-Ill of the Constitution may violate the basic structure of the Constitution, If the law becomes invalid on the ground of violation of Part-Ill of the Constitution, how an appointment even on dairy wages made by an incompetent person and continued for long time would confer right in him, that too in violation of Articles 14 and 16 of the Constitution. Effect of continuing in the post without regular recruitment would amount to denial of equal rights and equal protection in the public employment.

The Apex Court did consider the appointment of daily rate employees, contractual employees and temporary employees and has held that, if a person is appointed as a daily wage employee or casual employee, his appointment would come to an end, moment he is discontinued. In case of contractual employment, the said employment would come to an end by the completion of the contract In case of temporary appointment, it would come to an end by the expiry of the period, that in case of appointment for a particular project, the appointment would come to an end by the completion of the project and such workman has no right to claim regularization, or even for reinstatement irrespective of he completing 240 days of continuous service in a year.

If the appointment of daily rate employees or casual employees come to an end, the moment they are discontinued, it may not amount to retrenchment u/s 2(oo) of the Act If the workman engaged in a project who had worked for more than 240 days continuously in a year, if he is not entitled for the relief u/s 25-F, then how daily rate employee would be entitled for the same?

No doubt, the Apex Court in Umadevi''s case, as a onetime measure has allowed the State Government to regularise the services of the daily wage employees, who have been working for 10 years in a duly sanctioned post, however, has directed to ensure that regular recruitments are undertaken to fill up those vacancies that are required to be filled up, in cases where temporary employees or dairy wagers are being now employed and has directed the process must be set in motion within six months from the date of judgment The observation of the Apex Court for one time measure and for further recruitment according to rules, show that continuing the daily wage employees is not accepted. Apex Court did not permit the continuation of daily wage employees or the temporary employees and in turn, direction is issued for commencement of the process of regular recruitment.

Even in case of casual employee or dairy wages employee, the Apex Court has observed that, such employment comes to an end the moment they are discontinued. If the appointment is not valid and is in contravention of Article 14 and 16 and which blocks the regular recruitment will defeat the constitutional provisions and also rules and regulation framed under Article 309 of the Constitution of India.

The Apex Court time and again, has held that no authority can depart from the constitutional and statutory provisions in the making of the appointment and any appointment in violation of the provisions of Constitution or statutory provisions would be void. As the State being the model employer requires to provide employment in consonance with Article 14 and 16 of the Constitution by giving equal opportunity and equal protection subject to reservation provided therein.

The Apex Court in Umadevi''s case has observed as under:

It is 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 It has to be emphasised that this is not the role envisaged for the High Courts in the scheme of things and their wide powers under Article 226 of the Constitution 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 rote as the sentinel and as the guardian of equal rights protection should not be forgotten.

In this regard, even in case of temporary employment, contractual employment, the Apex Court observed that, there should not be continuance or perpetuity, which would have effect of denial of an equal opportunity to the eligible candidate. The Apex Court in the matter of Executive Engineer ZP Engg. Divn. and Another Vs. Digambara Rao etc. etc., has observed thus:

It may not be out of place to mention mat completion of 240 days of continuous service in a year may not by itself be a ground for directing an order of regularisation. It is also not the case of the respondents that they were appointed in accordance with the extant rules. No direction for regularisation of their services, therefore, could be issued.

In view of the decision of the Apex Court that, in the matter of engaging daily wage employee for 240 days, that by itself would not confer any right on the employee to continue in service and continuing such employee for longer period would also have the effect of denying of opportunity to eligible candidate. It deprives the equal right and equal opportunity in the public employment

In all these cases the claimants an engaged on daily wages and they are claiming that they have worked for more than 240 days. It is also not in dispute that, the employment claimed by them is against the State and the employment under the State are governed by rules and regulations framed under Article 309 of the Constitution of India. The continuation of such employees would not only defeat the provisions of the rules made for recruitment of such employees, but amounts to scuttling the whole scheme of public employment. In the matter of public employment, merely because the workman had worked for 240 days, that by itself will not confer any right to continue in service and if the post is sanctioned post it has to be filled by regular recruitment in terms of the rules and regulations and if it is not sanctioned post, no right is conferred on the workmen. Under these circumstances, at the best, they would be entitled only for compensation for having retrenched from the service.

In all these writ petitions, the workmen are engaged on daily wage, most of the posts are not sanctioned post, no proper authority has issued an order of appointment, there is no criteria for appointment No eligibility or qualification are verified.

In all these cases, the workmen are engaged either orally or by issue of receipt of wages. In view of these engagements, whole scheme of public employment under the Constitution is rendered redundant.

In all these writ petitions, the workmen have been engaged either temporarily or casually, against non-sanctioned post and they all relate to temporary engagement connected with project work, which has existence till the completion of the project. In some cases, for exigency the workmen are engaged on daily wages. In all these cases, the workmen cannot claim lien on the post In some of the cases, there is delay also in seeking reference, references are sought nearly after 10 years or more from the date of refusal of employment, if reinstatement is ordered, it would be asking the State to keep the post vacant or create the post.

In these circumstances and also in view of the Apex Court decision, I pass the following orders:

In W.P. No. 31935/2004

The workman claims that, he was appointed as temporary dairy wage employee between 2.12.1985 to 23.3.1989 as a Typist However, the Labour Court taking into consideration that, the workman had worked for more than 240 days, has directed the reinstatement without even taking into consideration whether it is sanctioned post or whether post is in existence. Admittedly, these employments are made at the instance of the Assistant Executive Engineer or Project Engineer for temporary period. In my opinion, the post which is not a sanctioned post and which are temporary connected with particular project work, no right is conferred on the workman, or no lien is created on the post. In such circumstances, directing reinstatement after lapse of nearly 11 years would be asking the Government to create a post to accommodate the workman. Granting reinstatement only on the basis that the workman had worked for 240 days is not justifiable. However, taking into consideration the length of engagement of the workman on daily wages, if compensation of Rs. 50,000/- is awarded as against reinstatement, it would justify.

Accordingly W.P. No. 31935/2004 is allowed. The award dated 20.12.2000 in I.D. Ref. No. 79/1993 is modified for only payment of compensation of Rs. 50,000/-.

In W.P. No. 16469/2001

As against reinstatement, the workman would be entitled for compensation of Rs. 50,000/-. Since the workman has filed this writ petition against the same award, in the light of the findings in W.P. No. 31935/2004, this writ petition also stands disposed of accordingly.

In W.P. No. 12331/2006

The Labour Court has directed the Department of Collegiate Education to reinstate Group ''D'' employee only on the ground that, he had worked from 1991 till 1999. The Collegiate Education Department being a department under the State, the post is required to be filled only by regular employment and not by means of reinstatement. The continuation of the employees for a long time in the post without regular recruitment would have an effect of defeating the constitutional scheme. As such, this writ petition is required to be allowed with a direction to pay compensation of Rs. 50,000/-.

Accordingly, the writ petition is allowed. The award dated 23.3.2004 in Ref. No. 56/1999 is quashed.

In W.P. No. 16211/2006

The Labour Court has passed an award directing the petitioners to reinstate the respondent - claimant The award is passed on the basis that the respondent has completed 240 days of his employment from November 1981 till May 1989 whereas, the dispute is referred in the year 2000 nearly after 11 years. Respondent has sought for reference of the dispute irrespective of the feet as to whether such a post is existing or not, whether the work is available or not, these are all engagements in respect of irrigation projects, which will have a seasonal employment, on completion, they become surplus employees. In such circumstances, in my opinion, merely because the workman has completed 240 days, he is not entitled for the reinstatement, however, he would be entitled for the compensation of Rs. 50,000/-.

Accordingly, the Writ Petition No. 16211/2006 is allowed. The judgment and award dated 5.6.2006 in Ref. No. 731/2000 & Ref. No. 660/2000 is quashed.

In W.P. No. 16212/2006

In this case also, a direction is issued by the Labour court to reinstate the workman with 50% backwages. In this case, the respondent has sought for reference of dispute on the ground that the workman was engaged from 5.10.1988 and he worked till 15.5.1989 whereas the reference is sought in the year 1997 i.e., after nearly 8 years. The Labour Court without considering as to whether the said post is sanctioned post or not, has directed the reinstatement In my opinion, the continuation of such employee in respect of public employment without adhering to the regular recruitment in terms of the rules and regulations is not sustainable. However, the workman is entitled for the compensation of Rs. 50,000/-.

Accordingly, the Writ Petition No. 16212/2006 is allowed. The judgment and award dated 26.10.2005 in Ref. No. 55/1997 is quashed.

In W.P. No. 2095/2005

In this case, the Labour Court has directed the reinstatement of the workman on the ground that workman had worked continuously from 1992 to 1996. The reinstatement is in respect of a post in the Department of National Highways. The direction to reinstate the workman only on the ground that he had worked for 240 days is not justifiable. However, in the place of reinstatement, he should be given compensation of Rs. 50,000/-.

Accordingly, the Writ Petition No. 2095/2005 is allowed. The award dated 15.7.2003 in K.I.D. No. 1/1997 is quashed.

In W.P. No. 22191/2005

In this case also, a direction is issued for reinstatement in respect of employee, who claims to be a Civil Engineer and engaged on dairy wages from 1.12.1993 to 25.5.2001. The daily wage engagements are in respect of non-sanctioned post, no lien could be claimed on the said post. Even otherwise, the sanctioned post is also required to be filled according to rules. In my view, the approach of the Labour Court in granting reinstatement only on the ground that he had worked for 240 days is not justifiable, in turn, the workman can be awarded the compensation of Rs. 50,000/-.

Accordingly, the Writ Petition No. 22191/2005 is allowed. The award dated 14.6.2005 in I.D. No. 118/2001 is quashed.

In W.P. No. 5139/2006

The Labour Court in this case also has directed the Zilla Panchayat for reinstatement of the workman only on the ground that the workman had worked from 6.9.1983 to 16.5.1985. The reference is sought only for the year 1997 i.e., after 12 years.

Without considering the delay and without even considering as to whether such an employment could be continued or not, the Labour Court has passed an award to reinstate. In the circumstances, in the place of reinstatement, the workman is entitled for compensation of Rs. 50,000/-.

Accordingly, the Writ Petition No. 5139/2006 is allowed. The award dated 27.12.2005 in I.D.R. No. 20/1997 is quashed.