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Tuesday, February 18, 2014

Sec. 24 -F and sec.30 of INDUSTRIAL DISPUTES ACT- unfair labour practice - as per the circular the employment of the casual labours regularised as permanent - SCHEME- but only two persons are not given such benefit - Tribunal ordered infavour of workers, High court confirmed the same but the D.B. bench reversed the same basing on Umadevi Case which is not decided under sec.30 of Industrial Disputes Act with out considering the dissented judgement of Apex court in Maharashtra Road Transport case - Apex court in appeal against D.B. held that Hari Nandan. case not fall under the scheme so his appeal was dismissed where as Gobind Kumar Choudhary. case falls under the scheme and as such his appeal was allowed as held by tribunal and single judge of High court and set aside the orders of D.B.= Hari Nandan Prasad & Anr. …Appellants Vs. Employer I/R to Mangmt.of FCI & Anr. …Respondents = 2014 ( Feb.Part) judis.nic.in/supremecourt/filename=41232

  Sec. 24 -F and sec.30 of INDUSTRIAL DISPUTES ACT- unfair labour practice - as per the circular the employment of the casual labours regularised as permanent - SCHEME- but only two persons are not given such benefit - Tribunal ordered infavour of workers, High court confirmed the same but the D.B. bench reversed the same basing on Umadevi Case which is not decided under sec.30 of Industrial Disputes Act with out considering the dissented judgement of Apex court in Maharashtra Road Transport case - Apex court in appeal against D.B. held that Hari Nandan. case not fall under the scheme so his appeal was dismissed where as  Gobind Kumar Choudhary. case falls under the scheme and as such his appeal was allowed  as held by tribunal and single judge of High court and set aside the orders of D.B.=

The  two
appellants were working on casual basis with the FCI.  After  certain  time,
their services were dispensed with.  
Both of them raised industrial  dispute
alleging wrongful termination which was referred to the Central  Government-
cum- Industrial  Tribunal  (CGIT).   
These  proceedings  culminated  in  two
awards dated 12.12.1996 and 18.12.1996 respectively passed by the CGIT.   
In both these awards, termination  of  both  the  appellants  was  held  to  be
illegal and they were directed to be reinstated with 50%  back  wages.   
The CGIT  also  ordered  their  regularization  in  service.   =

 We may record here that the Division Bench  accepted  that  there  was
infraction of Section 25-F of the I.D.Act   in  both  the  cases.   
However,
they were held not entitled to reinstatement  because  of  the  reason  that
they were employed strictly as temporary workers,  without  any  stipulation
or promise that they would be made permanent and therefore reinstatement  of
such workers was not warranted  and  they  were  entitled  to  get  monetary
compensation only. 
 As far as compensation  is  concerned,  since  both  the
appellants were paid the money equivalent to wages last  drawn,  for  number
of years when the Writ Petitions were pending, under Section 17  -B  of  the
I.D. Act, the High Court felt that the  appellants   were  duly  compensated
and no further amount was payable.

 13.  Challenging the validity of  the  approach  of  the  High  Court,  the
learned counsel for the appellants submitted that the entire thrust  of  the
judgment of the High Court rests on  the  decision  of  this  Court  in  Uma
Devi’s case which was impermissible as the said  judgment  is  clarified  by
this Court subsequently in the case  of  Maharashtra  State  Road  Transport
Corporation &  Anr.  vs.  Casteribe  Rajya  Parivahan  Karmchari  Sanghatana
(2009) 8 SCC 556, 
wherein it is held, in categorical terms, that in  so  far
as Industrial and Labour Courts are concerned, they enjoy wide powers  under
Section 30(1)(b) of the Industrial Disputes Act to take  affirmative  action
in case of unfair labour practice and these powers include  power  to  order
regularization/permanency. 
The Court has, further, clarified  that  decision
in Uma Devi limits the scope of powers of Supreme  Court  under  Article  32
and High Courts under Article 226 of the Constitution  to  issue  directions
for regularization in the matter of public employment,  but  power  to  take
affirmative action under section 30(1)(b) of the I.D.Act  which  rests  with
the Industrial/Labour Courts, remains intact.  
It  was,  thus,  argued  that
entire edifice of the   impugned judgment of the High Court erected  on  the
foundation of Uma Devi (supra) crumbles.

we are of the opinion that when there are posts available,  in  the  absence
of any unfair labour practice the Labour Court would not give direction  for
regularization  only  because  a  worker  has  continued   as   daily   wage
worker/adhoc/temporary worker for number of years. Further, if there are  no
posts  available,   such   a   direction   for   regularization   would   be
impermissible.  In  the  aforesaid  circumstances  giving  of  direction  to
regularize such a person, only on the basis of number of  years  put  in  by
such a worker as daily wager etc. may amount  to  backdoor  entry  into  the
service which is an anathema to Art.14 of the Constitution. Further, such  a
direction would not be given when the concerned worker  does  not  meet  the
eligibility requirement of the post  in  question  as  per  the  Recruitment
Rules. However, wherever it is found that  similarly  situated  workmen  are
regularized by the employer itself under some scheme or  otherwise  and  the
workmen  in question who have approached Industrial/Labour Court are at  par
with them,  direction  of  regularization  in  such  cases  may  be  legally
justified, otherwise, non-regularization of the  left  over  workers  itself
would amount to invidious discrimination qua them in such  cases  and  would
be  violative  of  Art.14  of  the  Constitution.   Thus,   the   Industrial
adjudicator would be achieving the equality by  upholding  Art.  14,  rather
than violating this constitutional provision.
In the aforesaid backdrop, we revert the facts of  the  present  case.
The grievance of the appellants was  that  under  the  Scheme  contained  in
Circular dated 6.5.1997 many similarly placed workmen have been  regularized
and, therefore, they were also entitled to this benefit. It is  argued  that
those who had  rendered  240  days  service  were  regularized  as  per  the
provision      in      that      Scheme/Circular       dated       6.5.1987.


 37.  On consideration of the cases before us we find  that  appellant  No.1
was not in service on the date  when  Scheme  was  promulgated  i.e.  as  on
6.5.1987 as his services were dispensed with 4 years  before  that  Circular
saw the light of the day.  Therefore, in our view, the  relief  of  monetary
compensation in lieu of reinstatement would be more appropriate in his  case
and the conclusion in the impugned judgment qua him is unassailable,  though
for the difficult reasons (as recorded by us above) than those  advanced  by
the High Court.  However, in so far as appellant No.2 is concerned,  he  was
engaged on 5.9.1986 and continued till  15.9.1990  when  his  services  were
terminated.  He even raised the Industrial dispute  immediately  thereafter.
Thus, when the Circular dated 5.9.1987 was issued, he  was  in  service  and
within few months of the issuing of that Circular he had completed 240  days
of service.

 38.  Non-regularization of appellant No.2, while giving the benefit of that
Circular  dated  6.5.1987  to   other   similar   situated   employees   and
regularizing them would, therefore, be  clearly  discriminatory.   On  these
facts, the CGIT rightly held that he was entitled to the benefit  of  scheme
contained in Circular dated 6.5.1987.  The Division Bench  in  the  impugned
judgment has failed to notice this pertinent and material fact  which  turns
the scales in favour of appellant  No.2.   High  Court  committed  error  in
reversing the direction given by the CGIT, which  was  rightly  affirmed  by
the learned Single Judge as well, to reinstate appellant No.2 with 50%  back
wages and to regularize him in service.  He was entitled  to  get  his  case
considered in terms of that Circular. Had it been done,  probably  he  would
have been regularized. Instead, his  services  were  wrongly  and  illegally
terminated in the year 1990. As an upshot of the  aforesaid  discussion,  we
allow these appeals partly. While dismissing the appeal qua appellant  No.1,
the same is accepted in so far as  appellant  No.2  is  concerned.   In  his
case, the judgment of the Division Bench is set aside and the award  of  the
CGIT is restored.  There shall, however, be no order as to costs.


 2014 ( Feb.Part) judis.nic.in/supremecourt/filename=41232
K.S. RADHAKRISHNAN, A.K. SIKRI
                                                   [REPORTABLE]

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                      CIVIL APPEAL Nos.2417-2418 /2014
            (arising out of S.L.P.(Civil) Nos. 29634-29635/2008)


 Hari Nandan Prasad & Anr.                                     …Appellants

                  Vs.

 Employer I/R to Mangmt.of FCI & Anr.                  …Respondents




                               J U D G M E N T

 A.K.SIKRI,J.

 1.   Leave granted.

 2.   The two appellants have filed one  combined  Special  Leave  Petition,
which arises out  of  a  common  judgment  dated  27.6.2008  passed  by  the
Division Bench of the Jharkhand High Court in two LPAs which had been  filed
by the respondent herein viz. Food Corporation  of  India  (FCI).  
The  two
appellants were working on casual basis with the FCI.  After  certain  time,
their services were dispensed with.  
Both of them raised industrial  dispute
alleging wrongful termination which was referred to the Central  Government-
cum- Industrial  Tribunal  (CGIT).   
These  proceedings  culminated  in  two
awards dated 12.12.1996 and 18.12.1996 respectively passed by the CGIT.   
In both these awards, termination  of  both  the  appellants  was  held  to  be
illegal and they were directed to be reinstated with 50%  back  wages.   
The CGIT  also  ordered  their  regularization  in  service.  
FCI  filed   Writ
Petitions in both the cases challenging these awards  which  were  initially
admitted sometime in the year 1988 and  the  operation  of  the  awards  was
stayed.  However, orders were passed under Section 17-B  of  the  Industrial
Disputes Act (ID Act) directing payment of full wages as  last  wages  drawn
to the appellants from the date of the  award  in  each  case.  
These  Writ
Petitions were ultimately dismissed by the learned Single Judge vide  common
judgment and order dated 19.5.2005.  As pointed out above, this judgment  of
the learned Single Judge was challenged by the FCI by  filing  LPAs.   These
LPAs have been allowed by the Division  Bench,  thereby  setting  aside  the
orders of the learned Single Judge as well as awards  passed  by  the  CGIT.
This is how two appellants are before us in this appeal.

 3.   Before we proceed further, we deem it appropriate to give the  details
of nature of employment of each of the appellants with the  FCI  and  tenure
etc. as well as the gist of the tribunal’s awards.

      Hari Nandan.

 4.   He was engaged on daily wages basis as  Labourer-cum-Workman,  in  the
exigency of the situation, at Food Storage Depot, Jasidih by the  Depot  In-
charge, FCI, Jasidih on 1st June 1980.   On  the  ground  that  services  of
appellant No.1 were no more required, he  was  disengaged  w.e.f.  1.3.1983.
While doing so, no notice or notice pay  or  retrenchment  compensation  was
given to him.  Appellant No.1 raised industrial dispute which  was  referred
to the CGIT by the Central Government vide reference order dated  1.10.1992,
with the following terms of reference:

                  “Whether the action of the management of Food  Corporation
          of India,  in  retrenching  Shri  Hari  Nandan  Prasad,  Ex-Casual
          Workman, in contravention of Section 25-F of the I.D.Act, 1947 and
          denying reinstatement with full back wages and  regularization  of
          his service is legal and justified? 
If  not  to  what  relief  the
          concerned workman is entitled to?”




 5.   The CGIT gave its award dated 12.12.1996 holding that the  termination
was in contravention of Section 25-F of the Industrial  Disputes  Act.  
The
CGIT also, while ordering reinstatement of appellant No.1, held that he  was
also entitled to regularization  of  his  services  from  the  date  of  his
stoppage from service dated 1.3.1983.  Back wages to the extent of 50%  were
awarded.  
As far as direction for regularization is concerned, it was  based
on Circular issued by the FCI whereby  any  temporary  worker  employed  for
more than 90 days was entitled for regularization of his  service.   It  was
noted that as per the said  Circular  the  Management  had  regularized  the
services of 70-75 similarly situated casual workers  and  therefore  denying
the same benefit to appellant No.1 amounted to discrimination.

      Gobind Kumar Choudhary.

 6.   Appellant No.2 was engaged on daily wages  as  casual  Typist  at  the
District Office, FCI, Darbhanga against  a  vacancy  of  Class-III  post  on
5.9.1986. He worked in the capacity till 15.9.1990 when his name was  struck
off the rolls.  He also raised industrial  dispute  which  was  referred  to
CGIT with following terms of reference:

                 “Whether the action of the Management of Food  Corporation
           of India, Laaherisarai,  Darbhanga  is  legal  and  justified  in
           retrenching Shri Govind  Kumar  Chaudhary,  who  was  working  as
           Casual Typist, arbitrarily and in violation of  Section  25-F  of
           the I.D.Act, and denying reinstatement with full back  wages  and
           regularization of service is legal and justified?
 If not to  what
           relief the concerned workman is entitled to?”

      In his case, the award dated 18.12.1996 was made by the CGIT on almost
identical premise, as in the case of appellant No.1,  supported  by  similar
reasons.

 7.   The learned Single Judge while  dismissing  both  the  Writ  Petitions
filed by the FCI concurred with the findings and reasons given by the CGIT.

 8.   In the LPAs before the Division Bench, the primary contention  of  the
FCI was that there could not have been any direction  of  regularization  of
services even on the admitted case of both the workmen, viz. merely  on  the
ground that they had worked for more than 240 days in  a  calendar  year  as
casual employees.  It was also submitted that  though the  District  Manager
of the FCI was authorized to employ persons as temporary  workers,  such  an
authority was given for employing them for 7 days only and no more,  and  in
case of violation of this  strict  stipulation  contained  in  the  Circular
issued by  the  FCI,  the  concerned  officer  could  be  proceeded  against
departmentally.  It  was  further  argued  that  even  if   such   temporary
employment was to continue beyond stipulated period of 7 days,  since  these
two workmen had worked on daily wages basis, that too  for  a  period  of  3
years or so, there could not have been any regularization of  these  workmen
in view of the judgments of this Court in  the  case  of  Delhi  Development
Horticulture Employees Union vs. Delhi Administration AIR 1992  SC  789  and
Constitution Bench judgment in the case of  Secretary,  State  of  Karnataka
vs. Uma Devi & Ors.  (2006) 4 SCC 1.  These contentions have  impressed  the
Division Bench of the High Court, and accepted by it, giving  the  following
reasons:

                 “The Tribunal has apparently misconceived the principles of
           law laid down in this context. In the case of Delhi  Development
           Horticulture Employees Union vs. Delhi Administration (AIR 1992)
           SC 789) the Supreme  Court  has  categorically  laid  down  that
           temporary employees, even if they have worked for more than  240
           days,  cannot  claim  any  right  or   benefit   for   automatic
           regularization of their services. Similar view has been taken in
           the case of Post Master General, Kolkata  &  Ors  vs.  Tutu  Das
           (Dutta), reported in 2007 (5) SCC 317. More so, where  no  posts
           are created or no vacancies to sanctioned posts exists, only  on
           the ground of working for more  than  240  days,  regularization
           cannot be directed. Even in cases where there are regular  posts
           and vacancies, the procedure laid down for appointment has to be
           followed.”




 9.   In so far as contention of the appellant predicated on Circular  dated
6.5.1997 is concerned, on  the  basis  of  which  they  claimed  that  70-75
persons had been regularized  and  discriminatory  treatment  could  not  be
meted to them, this contention has been brushed aside by the High  Court  in
the impugned judgment in the following manner:

                  “The,  contention  of  Mrs.Pal  that   there   has   been
           discrimination as several persons were regularized on  the  basis
           of the Circular of  the  Management  dated  6.5.1987,  cannot  be
           accepted. Reliance for this purpose on the  case  of  U.P.  State
           Electricity Board vs. Pooran Chandra Pandey reported in (2007) 11
           SCC 92, is also of no help to her. Firstly,  there  were  several
           conditions and criteria in the said Circular for  regularization,
           but there is no finding that the  respondents  workmen  in  these
           appeals  fulfilled  such  criteria.  Secondly,  in  the  case  of
           U.P.State Electricity Board matter (supra) the employees  of  the
           Co-operative Society who were taken over by the Electricity Board
           claimed  that  the  decision  of  the  Electricity  Board   dated
           28.11.1996 permitting regularization  of  the  employees  working
           from before 4.5.1990, will also apply to them as they  were  also
           appointed prior to 4.5.1990 in the  Society.  It  was  held  that
           since the taken over employees  were  appointed  in  the  Society
           before 4.5.1990, they could not be denied the benefit of the said
           decision of the Electricity Board.  There is nothing to show that
           the appointment of the taken  over  employees  was  made  by  the
           Society without following the procedure in that  behalf,  whereas
           in the present case, the respondents workmen were  not  appointed
           against  vacant  and  sanctioned  posts   after   following   the
           procedure of appointment.

                 Furthermore,  in  paragraph  6  of  the  judgment  of  the
           Constitution Bench in the case of Secretary, State  of  Karnataka
           vs. Uma Devi (2006) 4 SCC 1,  it  was  held  that  no  Government
           order, notification  or  circular  can  be  substituted  for  the
           statutory rules framed under the authority of law. In para 16  of
           the judgment in the case of R.S.Garg vs. State of U.P. (2006  (6)
           SCC 430), it has been held that even the Government  cannot  make
           rules  or  issue   any   executive   instructions   by   way   of
           regularization. Similar view has been taken in the  case  of  the
           Post Master General (supra). Therefore,  the  respondent  workmen
           cannot claim regularization on the basis of the said Circular  of
           the Management dated 6.5.1987, nor the said judgment of the  U.P.
           Electricity Board (supra) is of any help to them.”




 10.  Heavily relying upon the judgment in the case of Uma Devi (supra), the
High Court has held that as both the appellants did not render  10  or  more
years of service, their cases do not come even in the exception  carved  out
by the Constitution Bench in Uma Devi’s case.

 11.  Another contention raised by the appellants before the High Court  was
that the ratio of  Uma  Devi’s  case  had  no  relevance  in  the  cases  of
industrial adjudication by the Labour Courts/Industrial Tribunals.  However,
even this submission was found to be meritless  by  the  High  Court  taking
support of the judgment of this Court in U.P. Power  Corporation  Vs.  Bijli
Mazdoor Sangh & Ors. (2007) 5 SCC 755.

 12.  We may record here that the Division Bench  accepted  that  there  was
infraction of Section 25-F of the I.D.Act   in  both  the  cases.   
However,
they were held not entitled to reinstatement  because  of  the  reason  that
they were employed strictly as temporary workers,  without  any  stipulation
or promise that they would be made permanent and therefore reinstatement  of
such workers was not warranted  and  they  were  entitled  to  get  monetary
compensation only. 
 As far as compensation  is  concerned,  since  both  the
appellants were paid the money equivalent to wages last  drawn,  for  number
of years when the Writ Petitions were pending, under Section 17  -B  of  the
I.D. Act, the High Court felt that the  appellants   were  duly  compensated
and no further amount was payable.

 13.  Challenging the validity of  the  approach  of  the  High  Court,  the
learned counsel for the appellants submitted that the entire thrust  of  the
judgment of the High Court rests on  the  decision  of  this  Court  in  Uma
Devi’s case which was impermissible as the said  judgment  is  clarified  by
this Court subsequently in the case  of  Maharashtra  State  Road  Transport
Corporation &  Anr.  vs.  Casteribe  Rajya  Parivahan  Karmchari  Sanghatana
(2009) 8 SCC 556, wherein it is held, in categorical terms, that in  so  far
as Industrial and Labour Courts are concerned, they enjoy wide powers  under
Section 30(1)(b) of the Industrial Disputes Act to take  affirmative  action
in case of unfair labour practice and these powers include  power  to  order
regularization/permanency. The Court has, further, clarified  that  decision
in Uma Devi limits the scope of powers of Supreme  Court  under  Article  32
and High Courts under Article 226 of the Constitution  to  issue  directions
for regularization in the matter of public employment,  but  power  to  take
affirmative action under section 30(1)(b) of the I.D.Act  which  rests  with
the Industrial/Labour Courts, remains intact.  It  was,  thus,  argued  that
entire edifice of the   impugned judgment of the High Court erected  on  the
foundation of Uma Devi (supra) crumbles.

 14.  The learned counsel for the FCI, on the other hand,  referred  to  the
judgment in U.P. Power Corporation (supra)  wherein  this  Court  has  taken
unambiguous view that the law  laid  down  in  Uma  Devi  is  applicable  to
Industrial Tribunals/Labour Courts as  well.   It  was  submitted  that  the
judgment in U.P. Power Corporation (supra) was not  taken  note  of  in  the
subsequent judgment in Maharashtra State Road Transport Corporation  (supra)
and this Court should follow the  earlier  judgment  rendered  in  U.P.Power
Corporation’s case.   The  learned  counsel  also  relied  upon  the  recent
judgment of  this  Court  in  the  case  of  Assistant  Engineer,  Rajasthan
Development Corporation & Anr. vs. Gitam Singh  (2013) 5 SCC 136 to  contend
that even when there is a wrongful termination of services of a daily  wager
because of non-compliance of the provisions of Section 25-F of the  I.D.Act,
such an  employee  is  not  entitled  to  reinstatement  but  only  monetary
compensation.  On the aforesaid  basis,  the  learned  counsel  pleaded  for
dismissal of the appeal.

 15.  We have given considerable thoughts to the  submissions  made  by  the
learned counsel for the parties on  either  side.   It  is  clear  from  the
aforesaid narratives that this case has  two  facets,  which  are  reflected
even in the terms of references as well on which the disputes were  referred
to the CGIT. First refers to the validity of the termination and  the  other
one pertains to the regularization. Twin issues, which  have,  thus,  to  be
gone into, are:                                    (1)  whether  termination
of service of the appellants was illegal?

            Related issue here would be that if it is illegal, then  whether
in the facts and  circumstances  of  this  case,  the  appellants  would  be
entitled to reinstatement in service or monetary  compensation  in  lieu  of
reinstatement would be justified?

      (2) whether the appellants are entitled  to  regularization  of  their
services?

              We would also record that both the issues,  in  the  facts  of
this case, are somewhat overlapping which would become  apparent,  with  the
progression of our discussion on these issues.

            Reg.:  Validity of termination.

 16.  This issue hardly poses any problem.  Admitted facts are that both the
appellant had worked for more than 240  days  continuously  preceding  their
disengagement/termination.  At the time of their  disengagement,  even  when
they had continuous service for more than 240 days (in fact about  3  years)
they were not given any  notice  or  pay  in  lieu  of  notice  as  well  as
retrenchment compensation.  Thus, mandatory  pre-condition  of  retrenchment
in paying the aforesaid dues in accordance with Section  25-F  of  the  I.D.
Act was not complied with.  That is sufficient to render the termination  as
illegal.  Even the High Court in the impugned  judgment  has  accepted  this
position and there was no quarrel on this aspect before us  as  well.   With
this, we advert to the issue of relief  which  should  be  granted  in  such
cases, as that was the topic of hot debate before us as well.

 17.  Admittedly, both the workmen were engaged on daily wages basis.  Their
engagement was also in exigency of situation.  In so far as  appellant  No.1
is concerned, he was disengaged way back in the year 1983.  The  dispute  in
his case was referred for adjudication to CGIT in 1992  only.   There  is  a
time lag of 9 years.  Though no reasons are appearing on record for such  an
abnormal delay, it seems that he  had  raised  the  industrial  dispute  few
years after his disengagement which can be inferred from the reading of  the
award of the CGIT as that reveals that after his disengagement  he  kept  on
making representations only and he took  recourse  to  judicial  proceedings
only after Circular dated 6.5.1997 was issued  as  per  which  the  FCI  had
decided to regularize the services of all casual workmen who  had  completed
more than 90 days before 1996. Be that as it may, at this juncture  what  we
are highlighting is that appellant No.1 had worked on daily wages basis  for
barely 3 years and he is out of service for last 30 years.   Even  when  the
Tribunal rendered his  award  in  1996,  13  years  had  elapsed  since  his
termination.  On these facts, it would be difficult to give  the  relief  of
reinstatement to the persons who were engaged  as  daily  wagers  and  whose
services were terminated in a distant past.  And, further where  termination
is held to be illegal only on a technical ground  of  not  adhering  to  the
provisions of Section 25-F of the Act.  Law on  this  aspect,  as  developed
over a period of time by series  of  judgments  makes  the  aforesaid  legal
position very eloquent.  It is not necessary to traverse through  all  these
judgments.  Our purpose would be served by referring to  a  recent  judgment
rendered by this very Bench in the case  of  BSNL  vs.  Bhurumal  2013  (15)
SCALE 131 which has taken note of the  earlier  case  law  relevant  to  the
issue.  Following passage from the said judgment would reflect  the  earlier
decisions of this Court on the question of reinstatement:

             “The  learned  counsel  for  the  appellant  referred  to  two
        judgments  wherein  this  Court  granted  compensation  instead  of
        reinstatement. In the  case of BSNL vs. Man Singh (2012) 1 SCC 558,
        this Court has held that when the termination is set aside  because
        of violation of Section 25-F of the Industrial Disputes Act, it  is
        not necessary that relief of  reinstatement  be  also  given  as  a
        matter of right. In the case of Incharge Officer & Anr. vs. Shankar
        Shetty (2010) 9 SCC 126, it was held that  those  cases  where  the
        workman had worked on daily wage basis, and  worked  merely  for  a
        period of 240 days or 2-3 years and where the termination had taken
        place many years ago, the recent trend was to grant compensation in
        lieu of reinstatement. In this judgment  of  Shankar  Shetty,  this
        trend was reiterated by referring to various judgments, as is clear
        from the following discussion.

           Should an order of reinstatement automatically follow in a  case
        where the engagement of a daily wager has been brought  to  end  in
        violation of Section 25-F of the Industrial Disputes Act, 1947 (for
        short “the ID Act”)? The course of the decisions of this  Court  in
        recent years has been uniform on the above question.

           In Jagbir Singh vs. Haryana State Agriculture Mktd. Board (2009)
        15 SCC 327 delivering  the  judgment  of  this  Court,  one  of  us
        (R.M.Lodha,J.) noticed some of the recent decisions of this  Court,
        namely, U.P.State Brassware Corpn.  Ltd.  Vs.  Uday  Narain  Pandey
        (2006)  1  SCC  479,  Uttaranchal  Forest  Department  Corpn.   Vs.
        M.C.Joshi (2007) 9 SCC 353, State of M.P.  vs.  Lalit  Kumar  Verma
        (2007) 1 SCC 575, M.P.Admn. vs. Tribhuban (2007) 9  SCC  748,  Sita
        Ram vs. Moti Lal Nehru Farmers Training Institute (2008) 5 SCC  75,
        Jaipur Development Authority vs. Ramsahai (2006) 11  SCC  684,  GDA
        vs. Ashok Kumar (2008) 4 SCC  261  and  Mahboob  Deepak  vs.  Nagar
        Panchayat, Gajraula (2008) 1 SCC 575 and stated as follows: (Jagbir
        Singh case, SCC pp.330 & 335 paras 7 & 14).

           It is true that the earlier view of this  Court  articulated  in
        many decision reflected the legal position that if the  termination
        of an employee was found to be illegal, the relief of reinstatement
        with full back wages would ordinarily follow.  However,  in  recent
        past, there has been a shift in the legal position and  in  a  long
        line of cases, this Court has  consistently  taken  the  view  that
        relief by way of reinstatement with back wages is not automatic and
        may be wholly inappropriate in a given fact situation  even  though
        the  termination  of  an  employee  is  in  contravention  of   the
        prescribed procedure. Compensation  instead  of  reinstatement  has
        been held to meet the ends of justice.

           It would be, thus, seen that by a catena of decisions in  recent
        time,  this  Court  has  clearly  laid  down  that  an   order   of
        retrenchment passed in violation of Section 25-F  although  may  be
        set aside but  an  award  of  reinstatement  should  not,  however,
        automatically passed. The award of  reinstatement  with  full  back
        wages in a case where the workman has completed 240 days of work in
        a year preceding  the  date  of  termination,  particularly,  daily
        wagers has not been found to be proper by this  Court  and  instead
        compensation has been awarded. This Court has distinguished between
        a daily wager who does not hold a post and a permanent employee.

           Jagbir Singh has been applied very recently in Telegraph  Deptt.
        Vs. Santosh Kumar Seal (2010) 6 SCC 773, wherein this Court stated:
        (SCC p.777, para 11)

           In view of the aforesaid legal position and the  fact  that  the
        workmen were engaged as daily wagers about 25 years back  and  they
        worked hardly for 2 or 3 years, relief of  reinstatement  and  back
        wages to them cannot be said to be justified and  instead  monetary
        compensation would subserve the ends of justice.




 Taking note of the judgments referred to in the  aforesaid  paragraphs  and
also few more cases in  other  portion  of  the  said  judgment,  the  legal
position was summed up in the following manner:

           “It is clear from the reading of the  aforesaid  judgments  that
        the ordinary principle of grant of  reinstatement  with  full  back
        wages, when the termination is found to be illegal is  not  applied
        mechanically in all cases.  While that  may  be  a  position  where
        services of a regular/permanent workman  are  terminated  illegally
        and/or malafide and/or  by  way  of  victimization,  unfair  labour
        practice etc.  However, when it comes to the case of termination of
        a daily wage worker and where  the  termination  is  found  illegal
        because of procedural defect, namely in violation of  Section  25-F
        of the Industrial Disputes Act, this Court is consistent in  taking
        the view in  such  cases  reinstatement  with  back  wages  is  not
        automatic  and  instead  the  workman  should  be  given   monetary
        compensation which will meet the ends  of  justice.  Rationale  for
        shifting in this direction is obvious.

           Reasons for denying the relief of reinstatement  in  such  cases
        are obvious.  It is trite law that when the termination is found to
        be illegal because of non-payment of retrenchment compensation  and
        notice pay as  mandatorily  required  under  Section  25-F  of  the
        Industrial Disputes Act, even after  reinstatement,  it  is  always
        open to the management to terminate the services of  that  employee
        by paying him the retrenchment compensation. Since such  a  workman
        was working on daily wage basis and even after he is reinstated, he
        has no right to seek regularization (See: State  of  Karnataka  vs.
        Uma Devi (2006) 4 SCC 1). Thus when he cannot claim  regularization
        and  he has no right to continue even as a daily  wage  worker,  no
        useful purpose is going to be served in reinstating such a  workman
        and he can be given  monetary  compensation  by  the  Court  itself
        inasmuch as if he is terminated again after reinstatement, he would
        receive monetary compensation only  in  the  form  of  retrenchment
        compensation and notice pay.   In  such  a  situation,  giving  the
        relief of reinstatement, that too after a long gap, would not serve
        any purpose.

            We would, however, like to add a caveat  here.   There  may  be
        cases where termination of a daily  wage  worker  is  found  to  be
        illegal on the ground it was resorted to as unfair labour  practice
        or in violation of the principle of last come first go  viz.  while
        retrenching such a worker daily wage juniors to him were  retained.
        There may also be a  situation  that  persons  junior  to  him  wee
        regularized under some policy but the concerned workman terminated.
         In such circumstances, the terminated worker should not be  denied
        reinstatement unless there  are  some  other  weighty  reasons  for
        adopting  the  course  of  grant   of   compensation   instead   of
        reinstatement.  In such cases, reinstatement should be the rule and
        only in exceptional cases for the reasons stated to be in  writing,
        such a relief can be denied”.




 18.  We make it  clear  that  reference  to  Uma  Devi,  in  the  aforesaid
discussion is in  a  situation  where  the  dispute  referred  pertained  to
termination alone.  Going by the principles carved out above, had it been  a
case where the issue  is  limited  only  to  the  validity  of  termination,
appellant No.1 would not be entitled to reinstatement.  This  could  be  the
position in respect of appellant No.2 as well. Though the factual matrix  in
his case is slightly different, that by itself would not have made  much  of
a difference.  However, the matter does not end here. In the  present  case,
the reference of dispute to the CGIT was not  limited  to  the  validity  of
termination. The terms of reference also contained the  claim  made  by  the
appellants for their regularization of service.

 19.  We have already  pointed  out  that  the  two  aspects  viz.  that  of
reinstatement and regularization  are  intermixed  and  overlapping  in  the
present case.  If  the  appellants  were  entitled  to  get  their  services
regularized, in that case it would have been axiomatic to grant  the  relief
of reinstatement as a natural corollary.  Therefore, it  becomes  necessary,
at this stage, to examine as to whether the order of CGIT,  as  affirmed  by
the learned Single Judge of  the  High  Court  directing  regularization  of
their service, was justified or the approach of the Division  Bench  of  the
High Court in denying that relief is correct.

      Re: Relief of Regularization

 20.  Before we advert to this question, it would be necessary to examine as
to  whether  the  Constitution  Bench  judgment  in  Uma  Devi   case   have
applicability in the matters concerning industrial  adjudication.   We  have
already pointed out above the contention of the counsel for  the  appellants
in this behalf, relying upon Maharashtra State Road Transport case that  the
decision in Uma Devi would be binding the Industrial or Labour  Courts.   On
the other hand, counsel  for  the  FCI  has  referred  to  the  judgment  in
U.P.Power Corporation for the submission that law  laid  down  in  Uma  Devi
equally applies to Industrial Tribunals/Labour  Courts.  It,  thus,  becomes
imperative  to  examine  the  aforesaid  two  judgments  at  this  juncture.


 21.  A perusal of the judgment in U.P. Power Corporation would  demonstrate
that quite a few  disputes  were  raised  and  referred  to  the  industrial
tribunal qua the alleged termination of  respondent  Nos.2  and  3  in  that
case.  Without giving the details of those cases, it would be sufficient  to
mention that in one of the cases the tribunal held that  after  three  years
of their joining in service both respondents 2 and 3  were  deemed  to  have
been regularized.  The appellants filed the Writ  Petition  which  was  also
dismissed. Challenging the order of  the  High  Court,  the  appellants  had
approached this Court.  It was argued that there could  not  have  been  any
regularization order passed by the Industrial Court in view of the  decision
in Uma Devi.  Counsel for the workmen had taken a  specific  plea  that  the
powers of the industrial adjudicator were not  under  consideration  in  Uma
Devi’s case and that there was a difference between  a  claim  raised  in  a
civil suit or a Writ Petition on the one hand and  one  adjudicated  by  the
industrial adjudicator. It was also argued that the labour court can  create
terms existing in the contract to maintain industrial  peace  and  therefore
it had the power to vary the terms of the  contract.   While  accepting  the
submission of the appellant therein viz. U.P. Power Corporation,  the  Court
gave the following reasons:

                 “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 Umadevi case.  But
        the foundation logic in Umadevi case is based on Article 14  of  the
        Constitution of India. Though the industrial  adjudicator  can  very
        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 regularization, 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 Umadevi case was
        not rendered is really of no consequence.  There cannot be a case of
        regularization without there being  employee-employer  relationship.
        As noted above the concept of regularization 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  Umadevi  case
        the industrial adjudicator can modify the relief, but that does  not
        dilute the observations made by this Court in Umadevi case about the
        regularization.

           On facts, it is submitted by learned counsel for the  appellants
        that Respondent No.2 himself admitted that he never worked as a pump
        operator, but was engaged as daily  wage  basis.  He  also  did  not
        possess the requisite qualification. Looked at from any  angle,  the
        direction for regularization, as given, could not have been given in
        view of what has been stated in Umadevi case.”




 22.  It is clear from the above that the  Court  emphasized  the  underline
message contained in Umadevi’s case to the effect that regularization  of  a
daily wager, which has  not  been  appointed  after  undergoing  the  proper
selection procedure etc. is impermissible as it was violative of  Art.14  of
the Constitution of India and this principle  predicated   on  Art.14  would
apply to the industrial tribunal as well inasmuch as  there  cannot  be  any
direction to regularize the services of a workman in violation of Art.14  of
the Constitution.  As we would explain hereinafter,  this  would  mean  that
the industrial court would  not  issue  a  direction  for  regularizing  the
service of a daily wage worker in  those  cases  where  such  regularization
would  tantamount  to  infringing  the   provisions   of   Art.14   of   the
Constitution.   But  for  that,  it   would   not   deter   the   Industrial
Tribunals/Labour Courts from issuing such direction,  which  the  industrial
adjudicators  otherwise  possess,  having  regard  to  the   provisions   of
Industrial Disputes  Act  specifically  conferring  such  powers.   This  is
recognized   by   the   Court    even    in    the    aforesaid    judgment.


 23.  For detailed discussion on this aspect,  we  proceed  to  discuss  the
ratio in the case of Maharashtra State Road Transport  Corporation  (supra).
In that case the  respondent  Karamchari  Union  had  filed  two  complaints
before the Industrial Court, Bombay alleging that the  appellant-Corporation
had indulged in unfair  labour  practice  qua  certain  employees  who  were
engaged by the appellant as casual labourers for cleaning the buses  between
the years 1980-1985. It was stated in the complaints  that  these  employees
were made to work every day at least for 8 hours at the depot  concerned  of
the Corporation; the work done by them was  of  permanent  nature  but  they
were  being  paid  a  paltry   amount;   and   even   when   the   post   of
sweepers/cleaners were available in the  Corporation,  these  employees  had
been kept on casual and temporary basis for years together denying them  the
benefit of permanency.  After adjudication, the Industrial Court  held  that
the Corporation had committed unfair labour practice under items 5 and 9  of
Schedule IV to the Maharashtra Recognition of Trade  Unions  and  Prevention
of Unfair Labour Practice Act, 1971 (MRTU and PULP Act).  As a  consequence,
it directed the Corporation to pay equal wages to  the  employees  concerned
which was being paid to Swachhaks and also pay arrears  of  wages  to  them.
In the second complaint, the Industrial Court returned the finding that  the
Corporation was  indulging  in  unfair  labour  practice  under  Item  6  of
Schedule IV, by continuing these employees  on  temporary/casual/daily  wage
basis for  years  together  and  thereby  depriving  them  the  benefits  of
permanency.  The direction in this complaint was to cease  and  desist  from
the unfair labour practice by giving them the status, wages  and  all  other
benefits of permanency applicable to the post of cleaners, w.e.f.  3.8.1982.
The Corporation challenged these two orders of the Industrial  Court  before
the High Court of Judicature at Bombay  in  five  separate  Writ  Petitions.
These were disposed of by the learned  Single  Judge  vide  common  judgment
dated 2.8.2001 holding that complaints were maintainable and the finding  of
the Industrial Court that the Corporation  had  indulged  in  unfair  labour
practice was also correct.  The Corporation challenged the decision  of  the
learned Single Judge by filing LPAs which were  dismissed  by  the  Division
Bench on 6.5.2005.  This is how the matter came before  the  Supreme  Court.
One of the contentions raised by the appellants before this  Court was  that
there could not have been a direction by the Industrial Court to give  these
employees status, wages and other benefits of permanency applicable  to  the
post of cleaners as this direction was contrary to the ratio  laid  down  by
the Constitution Bench of this Court in Umadevi (supra).   The  Court  while
considering this argument went into the scheme of the  MRTU  and  PULP  Act.
It was, inter-alia,  noticed  that  complaints  relating  to  unfair  labour
practice could be filed before the Industrial Court.  The Court  noted  that
Section 28 of that Act provides for the  procedure  for  dealing  with  such
complaints and Section 30 enumerates the powers given to the Industrial  and
Labour Courts to decide the matters before it including  those  relating  to
unfair labour practice. On the reading of this section, the Court held  that
it gives specific power to the Industrial/Labour Courts to declare  that  an
unfair labour practice has been engaged and  to  direct  those  persons  not
only to cease and desist from such unfair labour practice but also  to  take
affirmative action.
Section 30(1)  conferring  such  powers  is  reproduced
below:

            “30. Powers of Industrial and Labour Courts.-
(1)Where  a  court
      decides that any person named in the complaint has engaged in,  or  is
      engaging in, any unfair labour practice, it may in its order-

            (a)declare that an unfair labour practice has been engaged in or
      is being engaged in by that person, and specify any other  person  who
      has engaged in, or is engaging in the unfair labour practice;

            (b) direct all such persons to cease and desist from such unfair
      labour practice, and take such affirmative action  (including  payment
      of reasonable compensation to the employee or  employees  affected  by
      the unfair labour  practice,  or  reinstatement  of  the  employee  or
      employees with or without back wages, or  the  payment  of  reasonable
      compensation), as may in the opinion of  the  Court  be  necessary  to
      effectuate the policy of the Act;

            (c) where a recognized union has engaged in or is  engaging  in,
      any unfair labour practice,  direct  that  its  recognition  shall  be
      cancelled or that all or any of its  rights  under  sub-section(1)  of
      Section 20 or its right under Section 23 shall be suspended.”




24.   It was further noticed that Section 32 of the Act  provides  that  the
 Court shall have the power to decide all connected matters arising  out  of
 any application or a complaint referred to it for decision under any of the
 provisions of this Act. The Court then extensively quoted from the judgment
 in Uma Devi in order to demonstrate the exact ratio laid down in  the  said
 judgment and thereafter proceeded to formulate the following  question  and
 answer thereto:

                       “The question that arises for consideration is:  have
           the provisions of the MRTU and  PULP  Act  been  denuded  of  the
           statutory status by the Constitution Bench decision  in  Umadevi?
           In our judgment, it is not.”




 25.  Detailed reasons are given in support of the conclusion  stating  that
 the MRTU and PULP Act  provides  for  and  empowers  the  Industrial/Labour
 Courts to decide about the unfair labour practice committed/being committed
 by any person and to declare a particular  practice  to  be  unfair  labour
 practice if it so found and also to direct such person  ceased  and  desist
 from unfair labour practice. The provisions contained in Section 30  giving
 such a power to the Industrial and Labour Courts vis-à-vis the ratio of Uma
 Devi are explained by the Court in the following terms:

            “The power given to  the  Industrial  and  Labour  Courts  under
         Section 30 is very  wide  and  the  affirmative  action  mentioned
         therein is inclusive and not exhaustive. Employing 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
         employees is an unfair labour practice on the part of the employer
         under Item 6 of Schedule IV. Once such unfair labour practice   on
         the part of the employer is  established  in  the  complaint,  the
         Industrial and Labour Courts are empowered to issue preventive  as
         well as positive direction to an erring employer.

            The provisions of the MRTU and PULP Act and the  powers  of  the
         Industrial and Labour Courts provided  therein  were  not  at  all
         under consideration in Umadevi.  As a matter of  fact,  the  issue
         like the present one pertaining to unfair labour practice was  not
         at all referred to,  considered  or  decided  in  Umadevi.  Unfair
         labour practice on the part of the employer in engaging  employees
         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  employees  as  provided  in  Item  6  of
         Schedule IV and the power of  the  Industrial  and  Labour  Courts
         under Section 30 of the Act  did  not  fall  for  adjudication  or
         consideration before the Constitution Bench.

            Umadevi does not denude the  Industrial  and  Labour  Courts  of
         their statutory power under Section 30 read with Section 32 of the
         MRTU and PULP Act to order permanency of the workers who have been
         victims of unfair labour practice on  the  part  of  the  employer
         under Item 6 of Schedule IV where the posts  on  which  they  have
         been working exist. Umadevi cannot be held to have overridden  the
         powers of the Industrial and Labour Courts in passing  appropriate
         order under Section 30 of the  MRTU  and  PULP  Act,  once  unfair
         labour practice on the part  of  the  employer  under  Item  6  of
         Schedule IV is established.”




 26.  The Court also accepted  the  legal  proposition  that  Courts  cannot
 direct creation of posts, as held in Mahatma Phule Agricultural  University
 vs. Nasik Zilla Sheth Kamgar Union (2001) 7 SCC  346.   Referring  to  this
 judgment, the Court made it clear that inaction on the part  of  the  State
 Government to create posts would not mean an  unfair  labour  practice  had
 been committed by the employer (University in that case) and as there  were
 no posts, the  direction  of  the  High  Court  to  accord  the  status  of
 permanency was set aside.  The Court also noticed that this legal  position
 had been affirmed in State of Maharashtra vs. R.S.Bhonde (2005) 6 SCC  751.
 The  Court  also  reiterated  that  creation  and  abolition  of  post  and
 regularization are  purely  Executive  functions,  as  held  in  number  of
 judgments and it was not for  the  Court  to  arrogate  the  power  of  the
 Executive or the Legislature by directing creation of  post  and  absorbing
 the workers or continue them in service or pay salary of regular employees.
 This legal position is summed up in para 41 which reads as under:

                  “Thus, there is no doubt that creation  of  posts  is  not
           within the domain of judicial functions which obviously  pertains
           to the executive.  It is also true that the status of  permanency
           cannot be granted by the Court where no such posts exist and that
           executive functions and powers with regard  to  the  creation  of
           posts cannot be arrogated by the courts.”




 27.  However, the Court found that factual position was  different  in  the
case before it. Here the post of  cleaners  in  the  establishment  were  in
existence.   Further,  there  was  a  finding  of  fact  recorded  that  the
Corporation had  indulged  in  unfair  labour  practice  by  engaging  these
workers on temporary/causal/daily wage basis and paying them  paltry  amount
even when they were discharging duties of eight  hours a day and  performing
the same duties as that of regular employees.

 28.  In this backdrop, the Court was of the opinion that direction  of  the
Industrial Court to accord permanency to these employees against  the  posts
which  were  available,  was  clearly  permissible  and  with  the   powers,
statutorily conferred upon the Industrial/Labour  Courts  under  Section  30
(1)(b) of the said Act which enables the  Industrial  adjudicator   to  take
affirmative action against the erring employees and as those powers  are  of
wide amplitude abrogating within its fold a direction to accord permanency.

 29.  A close scrutiny of the two cases, thus, would  reveal  that  the  law
laid down in those cases is not contradictory to each other. In  U.P.  Power
Corporation, this Court has recognized the powers of the  Labour  Court  and
at the same time emphasized that the Labour Court is to keep  in  mind  that
there should not be any direction of  regularization  if  this  offends  the
provisions of Art.14 of the Constitution, on which judgment  in  Umadevi  is
primarily founded.  On the  other  hand,  in  Bhonde  case,  the  Court  has
recognized the principle that having regard to  statutory  powers  conferred
upon the Labour Court/Industrial Court  to  grant  certain  reliefs  to  the
workmen, which includes the relief of giving the  status  of  permanency  to
the contract employees, such statutory power does not  get  denuded  by  the
judgment in Umadevi’s case. It is clear from the reading  of  this  judgment
that such a power is to be exercised  when  the  employer  has  indulged  in
unfair labour practice by not  filling  up  the  permanent  post  even  when
available and continuing  to  workers  on  temporary/daily  wage  basis  and
taking the same work from them and  making  them  some  purpose  which  were
performed by the regular workers but paying them much  less  wages.   It  is
only when a particular practice is found to be  unfair  labour  practice  as
enumerated in Schedule IV of MRTP and PULP Act and  it  necessitates  giving
direction under Section 30 of the said Act, that the Court would  give  such
a direction.

 30.  We are conscious of the fact that the aforesaid judgment  is  rendered
under MRTP and PULP Act  and  the  specific  provisions  of  that  Act  were
considered  to  ascertain  the  powers   conferred   upon   the   Industrial
Tribunal/Labour Court by the said Act.  At the same  time,  it  also  hardly
needs to be emphasized the powers of the industrial  adjudicator  under  the
Industrial Disputes Act are equally wide.  The  Act  deals  with  industrial
disputes, provides  for  conciliation,  adjudication  and  settlements,  and
regulates the rights of the parties and the enforcement of  the  awards  and
settlements. Thus, by empowering the adjudicator authorities under the  Act,
to  give  reliefs  such  as  a  reinstatement  of  wrongfully  dismissed  or
discharged workmen, which may not be permissible in common law or  justified
under the terms of the contract between the employer and such  workmen,  the
legislature has attempted to  frustrate  the  unfair  labour  practices  and
secure the policy of collective bargaining as a road to industrial peace.

 31.  In the language of Krishna Iyer, J:

            The Industrial Disputes Act is a benign measure, which seeks  to
          pre-empt industrial tensions, provide for the mechanics of dispute-
          resolutions and set up the necessary infrastructure, so  that  the
          energies of the partners in production may not  be  dissipated  in
          counter-productive battles and the assurance of industrial justice
          may create a climate of  goodwill.”   (Life  Insurance  Corpn.  Of
          India v. D.J.Bahadur 1980  Lab  IC  1218,  1226(SC),  per  Krishna
          Iyer,J.).




       In  order  to  achieve   the   aforesaid   objectives,   the   Labour
Courts/Industrial Tribunals are given wide powers not only  to  enforce  the
rights but even to create new  rights,  with  the  underlying  objective  to
achieve social justice.  Way back in the year 1950  i.e.  immediately  after
the  enactment  of  Industrial  Disputes  Act,  in  one  of  its  first  and
celebrated judgment in the case of Bharat Bank Ltd. V. Employees  of  Bharat
Bank Ltd. [1950] LLJ 921,948-49 (SC) this  aspect  was  highlighted  by  the
Court observing as under:

           “In settling the disputes between the employers and the  workmen,
           the function of the tribunal is not confined to administration of
           justice  in  accordance  with  law.  It  can  confer  rights  and
           privileges on either party  which  it  considers  reasonable  and
           proper, though they may not be within the terms of  any  existing
           agreement. It has not merely to interpret or give effect  to  the
           contractual rights and obligations of the parties. It can  create
           new rights  and  obligations  between  them  which  it  considers
           essential for keeping industrial peace.”




 32.  At the same time, the aforesaid  sweeping  power  conferred  upon  the
Tribunal is not unbridled and is circumscribed by this Court in the case  of
New Maneckchowk Spinning &  Weaving  Co.Ltd.v.  Textile  Labour  Association
[1961] 1 LLJ 521,526 (SC) in the following words:

           “This, however, does not mean that an industrial  court  can  do
           anything and everything when dealing with an industrial  dispute.
           This power is conditioned by the subject matter with which it  is
           dealing and also by the existing industrial law  and it would not
           be open to it while dealing with a particular matter before it to
           overlook the industrial law relating to the matter as  laid  down
           by the legislature or by this Court.”




 33.  It is, thus, this fine balancing which  is  required  to  be  achieved
while  adjudicating  a  particular  dispute,  keeping  in  mind   that   the
industrial disputes are settled by industrial adjudication on  principle  of
fair play and justice.

 34.  On harmonious reading of the two judgments discussed in detail  above,
we are of the opinion that when there are posts available,  in  the  absence
of any unfair labour practice the Labour Court would not give direction  for
regularization  only  because  a  worker  has  continued   as   daily   wage
worker/adhoc/temporary worker for number of years. Further, if there are  no
posts  available,   such   a   direction   for   regularization   would   be
impermissible.  In  the  aforesaid  circumstances  giving  of  direction  to
regularize such a person, only on the basis of number of  years  put  in  by
such a worker as daily wager etc. may amount  to  backdoor  entry  into  the
service which is an anathema to Art.14 of the Constitution. Further, such  a
direction would not be given when the concerned worker  does  not  meet  the
eligibility requirement of the post  in  question  as  per  the  Recruitment
Rules. However, wherever it is found that  similarly  situated  workmen  are
regularized by the employer itself under some scheme or  otherwise  and  the
workmen  in question who have approached Industrial/Labour Court are at  par
with them,  direction  of  regularization  in  such  cases  may  be  legally
justified, otherwise, non-regularization of the  left  over  workers  itself
would amount to invidious discrimination qua them in such  cases  and  would
be  violative  of  Art.14  of  the  Constitution.   Thus,   the   Industrial
adjudicator would be achieving the equality by  upholding  Art.  14,  rather
than violating this constitutional provision.

 35.  The aforesaid examples are only illustrated.  It would depend  on  the
facts of each case as to whether order of regularization is necessitated  to
advance justice or it has to  be  denied  if  giving  of  such  a  direction
infringes upon the employer’s rights

 36.  In the aforesaid backdrop, we revert the facts of  the  present  case.
The grievance of the appellants was  that  under  the  Scheme  contained  in
Circular dated 6.5.1997 many similarly placed workmen have been  regularized
and, therefore, they were also entitled to this benefit. It is  argued  that
those who had  rendered  240  days  service  were  regularized  as  per  the
provision      in      that      Scheme/Circular       dated       6.5.1987.


 37.  On consideration of the cases before us we find  that  appellant  No.1
was not in service on the date  when  Scheme  was  promulgated  i.e.  as  on
6.5.1987 as his services were dispensed with 4 years  before  that  Circular
saw the light of the day.  Therefore, in our view, the  relief  of  monetary
compensation in lieu of reinstatement would be more appropriate in his  case
and the conclusion in the impugned judgment qua him is unassailable,  though
for the difficult reasons (as recorded by us above) than those  advanced  by
the High Court.  However, in so far as appellant No.2 is concerned,  he  was
engaged on 5.9.1986 and continued till  15.9.1990  when  his  services  were
terminated.  He even raised the Industrial dispute  immediately  thereafter.
Thus, when the Circular dated 5.9.1987 was issued, he  was  in  service  and
within few months of the issuing of that Circular he had completed 240  days
of service.

 38.  Non-regularization of appellant No.2, while giving the benefit of that
Circular  dated  6.5.1987  to   other   similar   situated   employees   and
regularizing them would, therefore, be  clearly  discriminatory.   On  these
facts, the CGIT rightly held that he was entitled to the benefit  of  scheme
contained in Circular dated 6.5.1987.  The Division Bench  in  the  impugned
judgment has failed to notice this pertinent and material fact  which  turns
the scales in favour of appellant  No.2.   High  Court  committed  error  in
reversing the direction given by the CGIT, which  was  rightly  affirmed  by
the learned Single Judge as well, to reinstate appellant No.2 with 50%  back
wages and to regularize him in service.  He was entitled  to  get  his  case
considered in terms of that Circular. Had it been done,  probably  he  would
have been regularized. Instead, his  services  were  wrongly  and  illegally
terminated in the year 1990. As an upshot of the  aforesaid  discussion,  we
allow these appeals partly. While dismissing the appeal qua appellant  No.1,
the same is accepted in so far as  appellant  No.2  is  concerned.   In  his
case, the judgment of the Division Bench is set aside and the award  of  the
CGIT is restored.  There shall, however, be no order as to costs.







                                        …………………………………..J.
                                                   (K.S.Radhakrishnan)








                                        ……………………………………J.
                                                                           (
A.K.Sikri)
 New Delhi,
 February  17, 2014






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