SUPREME COURT OF INDIA
Regional Manager, Sbi
Vs
Mahatma Mishra
Appeal (Civil) 4636 of 2006 (Arising Out of S.L.P. (Civil) No. 8064 of 2006)
(S. B. Sinha and Markandeya Katju (Cj), JJ)
01.11.2006
S. B. SINHA, J.
Leave granted.
Respondent was appointed on a temporary basis in the year 1982 for a period of
88 days. His services were terminated. An industrial dispute was raised by him
which was referred to for adjudication before the Presiding Officer, Central
Government Industrial Tribunal cum Labour Court, Kanpur by the State of Uttar
Pradesh in the following terms:
"Whether the action of the management of State Bank of India, Region
III, the Mall Kanpur, in relation to their Jhanstongang Branch, Allahabad in
terminating the services of Shri Mahatma Mishra, Ex-messenger with effect from
4.9.1982 and not considering him for further employment as provided under
section 25-H of the Industrial Disputes Act, is justified. If not to what
relief is the workman concerned entitled?"
Before the Industrial Court, the respondent inter alia relied upon a purported
circular issued by the Personnel Department of the Appellant - Bank wherein
direction was issued that temporary appointments were to be made for a maximum
period of 90 days in the case of sub staff and 180 days in case of temporary
staff upon obtaining suitable number of names from the concerned employment
exchange(s). Engagement of casual labour was directed to be resorted to for
work of casual nature only and such casual employees were not to be engaged as
members of subordinate staff.
Inter alia on the premise that the respondent was engaged as temporary
messenger which, according to the Labour Court, was not of a casual nature but
of permanent one and, furthermore, having regard to the fact that he was
appointed on 3.5.1982 and his services were terminated on 3.9.1982, it was
opined that unfair labour practice had been resorted to by the management. The
Labour Court further noticed that one Basudeo was appointed after termination
of the services of the respondent. The Labour Court inter alia held that as no
written notice was served on the respondent before terminating his services,
the same was illegal and upon referring to the bipartite settlement by and
between the Bank and the workmen, it was held:
"In the instant case before termination of Mahatma Misra two other
persons worked as temporary messenger and after his termination several others
were also appointed to work as temporary messenger. Thus, there was vacancy of
permanent nature and had the workman allowed to be continued after 88 days he
could have acquired the status of permanent messenger and it was on that count
that his services were terminated two days before which was an unfair (sic) on
the part of the management bank.
Thus, in view of the discussion made above and the law discussed, I hold that
the action of the management bank of the State Bank of India in terminating the
service of the workman concerned w.e.f. 4.9.1983 which in reality and
admittedly 3.9.1982 and not considering him for further employment as provided
under Section 25H of the I.D. Act is illegal. The effect is that he will be
reinstated in service with full back wages."
A writ petition was filed before the High Court. A learned Single Judge although
opined that the respondent was not entitled to be granted a permanent status
after having worked only for a period of 88 days but in purported interest of
justice having regard to the fact that he had been paid idle wages for a period
of 20 years, it was directed:
"Thus, the sum and substance of the matter is that it is not the
absolute consequence of reinstatement that in every case, full back wages are
to be granted, but that the issue of grant of back wages must be gone into and
the grant, if any, of back wages must be given proper consideration which shall
of course vary from case to case.
In view of the above discussion, the writ petition is partly allowed. I modify
the award of the Labour Court to the extent that no further back wages shall be
paid to the respondent workman. However, his reinstatement shall
continue."
The approach of the Labour Court as also the High Court cannot be appreciated.
The respondent was appointed only for 88 days. The requirements of Section 6-N
of the U.P. Industrial Disputes Act was, thus, not required to be complied
with. The Labour Court although proceeded on the basis that Section 25-H of the
Industrial Disputes Act would be attracted, no reason has been assigned in
support thereof. If the appointment of the respondent as a casual worker was
for a fixed period and the termination of his services was in terms of contract
of employment, Section 25-H of the Industrial Disputes Act would not have any
application. In a case of this nature, Section 25-H of the Industrial Disputes
Act is not attracted. It is not in dispute that the appointment of the
respondent was made in violation of circular letter issued by the Appellant -
Bank. Requirements of law as envisaged under Employment
Exchanges (Compulsory Notification of Vacancies) Act, 1959 had also not
been complied with.
The appellant is a State within the meaning of Article 12 of the Constitution
of India. A constitutional duty was, thus, enjoined to it to comply with the
doctrine of equality as enshrined under Articles 14 and 16 thereof.
The Labour Court committed a serious illegality in proceeding on the basis that
retrenchment was illegal. It was not so. As was rightly observed by the High
Court, the respondent was not entitled to a permanent status. If he was not
entitled to conferment of any permanent status having worked only for 88 days
and that too in the year 1982, we fail to understand as to how he was entitled
to be reinstated in service and that too with full backwages. The High
Court although noticed the recent decisions of this Court in relation to grant
of backwages but it failed to consider a vital aspect of the matter, viz.,
reinstatement in service can be directed provided the termination is illegal.
No finding of fact has been arrived at that the termination of the service of
the respondent was illegal. The question of directing an award reinstating him
in service did not and could not arise.
The question came up for consideration before a Division Bench of this Court in
Regional Manager, State Bank of India v. Raja Ram 5
wherein it was held:
"It appears that the High Court as well as the Labour Court had
proceeded on a fundamental misconception as to the nature of the right available
to the respondent. The respondent was employed for a fixed period of 91 days.
Assuming that such an employee could be called a temporary employee for the
purposes of the Sastry Award, the requirement as to service of notice of 14
days, would, in cases where an employee has been appointed for a fixed tenure,
amount to an embargo on the employer terminating the services prior to the
expiry of such period without giving a 14 days' notice. The non-giving of the
notice would not mean that the employee would thereby continue to serve beyond
the period for which he was originally appointed. The exception to this
principle is when an employee is appointed temporarily for successive fixed
tenures with artificial breaks in between so as to deny the employee the right
to claim permanent appointment. This action would be an unfair labour practice
within the meaning of the phrase in Section 2(ra) of the Act. Section 2(ra)
says that unfair labour practice means any of the practices specified in the
Fifth Schedule to the Act. The Fifth Schedule to the Act contains a list of
unfair labour practices which have been classified under two heads, namely: (I)
on the part of the employer and trade unions of employers, and (II) on the part
of the workmen and trade unions of workmen. The principle that we have referred
to earlier finds place in Item 10 of Part I under which "to employ workmen
as 'badlis', casuals or temporaries and to continue them as such for years,
with the object of depriving them of the status and privileges of permanent
workmen" is an unfair labour practice. In other words, before an action
can be termed as an unfair labour practice it would be necessary for the Labour
Court to come to a conclusion that the badlis, casuals and temporary workmen
had been continued for years as badlis, casuals or temporary workmen, with the
object of depriving them of the status and privileges of permanent workmen. To
this has been added the judicial gloss that artificial breaks in the service of
such workmen would not allow the employer to avoid a charge of unfair labour
practice. However, it is the continuity of service of workmen over a period of
years which is frowned upon. Besides, it needs to be emphasised that for the
practice to amount to unfair labour practice it must be found that the workman
had been retained on a casual or temporary basis with the object of depriving
the workman of the status and privileges of a permanent workman. There is no
such finding in this case. Therefore, Item 10 in List I of the Fifth Schedule
to the Act cannot be said to apply at all to the respondent's case and the
Labour Court erred in coming to the conclusion that the respondent was, in the
circumstances, likely to acquire the status of a permanent employee.
Furthermore, both the High Court and the Labour Court appeared to have
proceeded on the basis that the appointment of Ram Kumar after the employment
of the respondent ceased, also on casual basis, was an unfair labour practice.
If this view is to be upheld the respondent's appointment in place of Sooraj
would equally be an unfair labour practice and therefore
unsustainable."
Unfair labour practice is not to be readily inferred. Before a conclusion in
that behalf is drawn, the conditions precedent therefor must be satisfied. The
Labour Court failed to show as to how the appellant can be said to have taken
recourse to unfair labour practice. It was not a case where the respondent was
being appointed consistently for a number of years with artificial breaks. It
was also not a case where the purport and object for such appointment was to
violate the provisions of the Industrial Disputes Act.
The question again came up for consideration before this Court in Regional
Manager, SBI v. Rakesh Kumar Tewari 2006 (1) SCC 530 wherein Raja Ram (supra)
was followed.
Section 11-A of the Industrial Disputes Act confers a discretionary power in
the Industrial Tribunal or the Labour Court, as the case may be. Although in a
given case, the Industrial Tribunal or the Labour Court may grant appropriate relief,
its discretion should be exercised judiciously. An employee after termination
of his services cannot get a benefit to which he was not entitled to if he
remained in service. It is one thing to say that services of a workman was
terminated in violation of mandatory provisions of law but it is another thing
to say that relief of reinstatement in service with full backwages would be
granted automatically. Even in a case where service of an employee is
terminated in violation of Section 25-F of the Industrial Disputes Act, he
would not be entitled to grant of a permanent status. Regularisation does not
mean permanence. [See Secretary, State of Karnataka and Others v. Umadevi (3)
and Others, 2006 (4) SCC 1
This aspect of the matter has been considered by this Court in Principal, Mehar
Chand Polytechnic & Anr. v. Anu Lumba & Ors. 2006 (7) SCALE 648
wherein it was observed:
"In Umadevi (supra), it was stated :
"There have been decisions which have taken the cue from the Dharwad case
and given directions for regularization, absorption or making permanent,
employees engaged or appointed without following the due process or the rules
for appointment. The philosophy behind this approach is seen set out in the
recent decision in The Workmen v. Bhurkunda Colliery of Central Coalfields
Ltd., though the legality or validity of such an approach has not been
independently examined. But on a survey of authorities, the predominant view is
seen to be that such appointments did not confer any right on the appointees and
that the Court cannot direct their absorption or regularization or
re-engagement or making them permanent"
See also State of U.P. v. Neeraj Awasthi and Others 2006 (1) SCC 667.
Yet again in National Fertilizers Ltd. & Ors. v. Somvir Singh 2006
(6) SCALE 101, it was held:
"Regularization, furthermore, is not a mode of appointment. If
appointment is made without following the Rules, the same being a nullity the
question of confirmation of an employee upon the expiry of the purported period
of probation would not arise"
It was further opined :
"It is true that the Respondents had been working for a long time. It
may also be true that they had not been paid wages on a regular scale of pay.
But, they did not hold any post. They were, therefore, not entitled to be paid
salary on a regular scale of pay. Furthermore, only because the Respondents
have worked for some time, the same by itself would not be a ground for
directing regularization of their services in view of the decision of this
Court in Uma Devi (supra).""
Furthermore, the High Court, in our opinion, committed a serious error in
passing an order only on the basis of sympathy although it was held that the
respondent was not entitled to any relief.
In Maruti Udyod Ltd. v. Ram Lal and Others it was observed :
"While construing a statute, "sympathy" has no role to play.
This Court cannot interpret the provisions of the said Act ignoring the binding
decisions of the Constitution Bench of this Court only by way of sympathy to
the workmen concerned.
In A. Umarani v. Registrar, Coop. Societies this Court rejected a similar
contention upon noticing the following judgments: (SCC pp.
131-32, paras 68-70)
"68. In a case of this nature this Court should not even exercise its
jurisdiction under Article 142 of the Constitution of India on misplaced
sympathy.
69. In Teri Oat Estates (P) Ltd. v. U.T., Chandigarh18 it is stated: (SCC p.
144, paras 36-37)
'36. We have no doubt in our mind that sympathy or sentiment by itself cannot
be a ground for passing an order in relation whereto the appellants miserably
fail to establish a legal right. It is further trite that despite an
extraordinary constitutional jurisdiction contained in Article 142 of the
Constitution of India, this Court ordinarily would not pass an order which
would be in contravention of a statutory provision.
37. As early as in 1911, Farewell, L.J. in Latham v. Richard Johnson &
Nephew Ltd. observed: (All ER p. 123 E)
"We must be very careful not to allow our sympathy with the infant plaintiff
to affect our judgment. Sentiment is a dangerous will o' the wisp to take as a
guide in the search for legal principles."
70. Yet again, recently in Ramakrishna Kamat v. State of Karnataka this Court
rejected a similar plea for regularisation of services stating: (SCC pp.
377-78, para 7)
'We repeatedly asked the learned counsel for the appellants on what basis or
foundation in law the appellants made their claim for regularisation and under
what rules their recruitment was made so as to govern their service conditions.
They were not in a position to answer except saying that the appellants have
been working for quite some time in various schools started pursuant to
resolutions passed by Zila Parishads in view of the government orders and that
their cases need to be considered sympathetically. It is clear from the order
of the learned Single Judge and looking to the very directions given, a very
sympathetic view was taken. We do not find it either just or proper to show any
further sympathy in the given facts and circumstances of the case. While being
sympathetic to the persons who come before the court the courts cannot at the
same time be unsympathetic to the large number of eligible persons waiting for
a long time in a long queue seeking employment.' "
[See also State of Bihar & Ors. v. Amrendra Kumar Mishra, 2006 (9)
SCALE 549
For the reasons aforementioned, we are of the opinion that the impugned
judgments cannot be sustained which are set aside accordingly. The respondent,
however, has obtained idle wages for a long time. Although he was not entitled
thereto, keeping in view the fact and circumstances of this case, we do not
direct refund of the said amount. The appeal is allowed. No costs.