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Tuesday, September 22, 2015

to consider the respondents for regularisation of their services as and when the vacancies arise and till that time they be paid the emoluments, which are being paid by university authorities to similarly situated workmen against the unsanctioned posts.=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.” 17. In the light of the above discussion, the impugned judgment of the High Court is modified and keeping in view the fact that the respondents are facing hardship on account of pending litigation for more than two decades and the fact that some of the respondents are over aged and thus have lost the opportunity to get a job elsewhere, interest of justice would be met by directing the appellant-university to pay compensation of rupees four lakhs to each of the respondents. By order dated 11.07.2011, this Court directed the appellant to comply with the requirements of Section 17B of the Industrial Disputes Act, 1947 and it is stated that the same is being complied with. The appellant-university is directed to pay the respondents rupees four lakhs each within four months from the date of receipt of this judgment. The payment of rupees four lakhs shall be in addition to wages paid under Section 17B of the Industrial Disputes Act, 1947. 18. In the result, the impugned judgment is modified and these appeals are partly allowed in the above terms. No order as to costs.

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.5731 OF 2011

VICE-CHANCELLOR, LUCKNOW UNIVERSITY
LUCKNOW, U.P.                                               ..Appellant

                                   Versus

AKHILESH KUMAR KHARE & ANR.                       ..Respondents

                                    WITH
   C.A.NO.5732/2011, C.A.NO.5733/2011, C.A.NO.5736/2011, C.A.NO.5737/2011,
                     C.A.NO.5738/2011, C.A.NO.5739/2011,
  C.A.NO.5740/2011, C.A. NO.5741/2011, C.A.NO.5742/2011, C.A.NO.5743/2011,
                    C.A. NO.5744/2011, C.A.NO.5745/2011,
           C.A.NO.5746/2011,  C.A.NO.5747/2011, C.A. NO.5748/2011,
                   C.A. NO.5749/2011 AND C.A.NO.5750/2011


                               J U D G M E N T

R. BANUMATHI, J.

This batch of appeals arise out of the common judgment of the High Court  of
Judicature  at  Allahabad,  Lucknow  Bench  dismissing  the  writ  petitions
[W.P.No.6690 of 1996 (S/S) and batch] dated  14.09.2009,  whereby  the  High
Court upheld the award passed by the Industrial Tribunal  and  directed  the
appellant-university to  consider  the  respondents  for  regularisation  of
their services as and when the vacancies arise and till that  time  they  be
paid the emoluments, which are  being  paid  by  university  authorities  to
similarly situated workmen against the unsanctioned posts.
2.          Before  we  advert  to  the  contentious  points,  it  would  be
appropriate to highlight the factual background of the case.   In  the  year
1989,   the   Finance   Officer    of    the    University    of    Lucknow,
Mr.R.S.Vishvakarma engaged the respondents  in  this  batch  of  appeals  as
Routine Grade Clerk (RGC)/Peon by oral engagement as daily  wagers  for  the
Central  Accounts  Office  and  they  were  being  paid  from  out  of   the
contingency fund. In order to prevent the abuse of power in  engaging  daily
wagers,  the then Vice-Chancellor of the  Lucknow  University  issued  Order
No.VC/1932/90 dated 03.08.1990 notifying that the daily wagers would not  be
allowed to continue in  any  case  after  31.12.1990  unless  prior  written
approval was obtained from the  Vice-Chancellor.  It  was  further  directed
that if there was any need of any extra hand, the Section Heads must send  a
demand for creation of posts to the Deputy Registrar  (Admn.)  with  details
justifying the need so that a consolidated statement  for  sanction  of  new
posts in the university be  sent  to  the  State  Government.   As  per  the
appellant-university,  the  Finance  Officer  neither  dispensed  with   the
respondents/daily wagers nor did he obtain written approval from  the  Vice-
Chancellor. The engagement of the respondents came to  an  end  with  effect
from 01.01.1991.
3.          The  terminated  workers  sent  a  legal  notice  on  28.01.1992
through Mazdoor Sabha to the Vice-Chancellor stating that  they  served  the
university till  31.12.1990  continuously  and  that  they  were  terminated
without assigning any reason and put forth the demand for  reinstatement  in
service and backwages.   All the ex-daily wagers  further  filed  individual
applications to the Deputy Labour Commissioner, Lucknow for conciliation  of
the dispute raised by them in February 1992. As  no  conciliation  could  be
achieved, on the recommendation of the  Conciliation  Officer,   the  Deputy
Labour Commissioner by his order dated 18.08.1992 referred all the cases  to
the  Labour  Court,  Lucknow  for  adjudication  of  the   dispute   between
respondents and the appellant-university.   The  Presiding  Officer,  Labour
Court vide order dated 30.01.1996 held that termination of the workmen  from
01.01.1991 by the university is illegal and directed  the  reinstatement  of
respondent No.1 with  full  back  wages.  Being  aggrieved,  the  appellant-
university filed a Writ Petition  before  the  High  Court  challenging  the
award.   The  High  Court  disposed  of  the  writ  petition  and  connected
petitions vide a common order dated 14.09.2009 affirming  the  award  passed
by the Labour Court and  inter  alia  issued  direction  as  aforesaid.  The
university has filed this batch of appeals assailing  the  order  passed  by
the High Court.
4.           Learned  counsel  for  the  appellants  contended  that  merely
because a casual wage worker or a  temporary  employee  worked  continuously
for more than 240 days in a year, he would not be entitled  to  be  absorbed
in regular service or made permanent on the strength  of  such  continuance,
if the original appointment was made without following the  due  process  of
selection as envisaged by the rules. It was submitted the  respondents  were
not engaged as against any sanctioned post and the impugned judgment of  the
High Court directing regularisation is  violative  of  the  principles  laid
down by this Court in Secretary, State of Karnataka and Others  vs.  Umadevi
(3) and Others,         (2006) 4 SCC 1.
5.          Per contra, learned Senior Counsel Ms. Shobha  Dikshit  for  the
respondents submitted that the services of the respondents  were  terminated
without giving any notice or retrenchment compensation and is  contravention
of Section 6-N of the U.P. Industrial Disputes Act,  1947.   It  was  argued
that the respondents were out of employment since 1991 and they are  finding
it difficult to survive along with their families with the meagre amount  of
Rs.650/- awarded to them under Section 17B of the Industrial  Disputes  Act,
1947.  It was further submitted that the respondents’ juniors were  retained
and continued in service and subsequently, even new hands have been  engaged
and while so, the  respondents  were  discriminated  and  the  courts  below
rightly directed their regularisation.
6.           We  have  given  our  thoughtful  consideration  to  the  rival
contentions of both the  parties  and  perused  the  impugned  judgment  and
material on record.
7.          Lucknow University is a statutory body and is  governed  by  the
U.P. State Universities Act, 1973.  The  Vice-Chancellor  is  the  Principal
Executive and  exercises  general  supervision  and  control  over  all  its
affairs including appointments of non-teaching staff. The Registrar  of  the
University is the administrative head who issues orders of appointment  duly
made and approved by the Vice-Chancellor.  The appointments are to  be  made
by the university against the sanctioned posts  created  by  the  Government
and  the  Government  determines  the  pay  scale  and  allowances  of   the
employees. The Finance Officer by  himself  had  no  right  to  appoint  any
person and university has not created extra post of Routine Grade  Clerk  or
Record Boy or Peon.  In  the  present  case,  the  Finance  Officer  in  the
university engaged the respondents as daily wagers for his Central  Accounts
Section. Admittedly, the  respondents were  not  engaged  by  following  due
procedure and their engagement was not  against  any  sanctioned  posts.  In
order  to  curb  the  illegal  practice  of  engaging  daily  wagers,  Vice-
Chancellor of the University issued an  order  dated  03.08.1990  clarifying
that the daily wagers will not  be  allowed  to  continue  after  31.12.1990
until prior written approval is accorded by the  Vice-Chancellor.   No  such
approval  was  taken  qua  the  respondents  for  their   continuance.   The
respondents  were  terminated  w.e.f.  01.01.1991.  When  the   respondents’
appointments were illegal, the respondents would  not  be  entitled  to  any
right to be regularized or absorbed.
8.          As noticed earlier, there is no  appointment  letter  issued  to
the  respondents  by  the  Registrar  on  which  they  were  engaged.    The
respondents have based their claim on  service  certificate  issued  by  Mr.
R.L. Shukla, the then Finance Officer of the  University  of  Lucknow.   Mr.
R.L. Shukla in his evidence has stated that the daily  wagers  were  engaged
by the then Finance Officer,  Mr. R.S. Vishvakarma as daily  wage  employees
in the accounts section as per their need  and  they  were  terminated  when
their services were not required.  He  further  stated  that  no  particular
nature of work was assigned to the respondents in the accounts  section  and
the respondents were being paid out of “recurring expenditure item”. So  far
as the certificate issued to the respondents, Mr.  Shukla  has  stated  that
those certificates issued to the respondents-workmen only to enable them  to
seek other job.
9.          Learned Senior Counsel for the respondents  has  submitted  that
after removal of the  respondents,  similarly  placed  employees  have  been
regularized and drawn our attention to regularisation of one  such  Narendra
Pratap Singh.  Evidence of   Mr. Brij Pal Das Mehrotra, former Registrar  of
the University would show that the persons  who  are  regularized  are  only
those who were appointed by  following  due  procedure.  The  said  Narendra
Pratap Singh was also appointed by following due procedure.   As  seen  from
Annexure (P-5) filed with rejoinder  affidavit,  the  said  Narendra  Pratap
Singh was appointed by the Registrar of  the  University  as  Routine  Grade
Clerk (RGC) on daily wage basis, the respondents were not  so  appointed  by
the Registrar  of  the  university.  The  respondents  have  admittedly  not
produced any document to show that they were  appointed  by  the  university
against  sanctioned  posts  in  accordance  with  statutory  rules.  If  the
original appointment was not made following  due  process  of  selection  as
envisaged   by   the   relevant   rules,   the   respondents   cannot   seek
regularisation. The Labour Court and the High Court, in our  view,  fell  in
error in directing the regularisation of the respondents.
10.         In the rejoinder-affidavit filed  by  the  appellant-university,
it is stated that the university has  requested  the  State  Government  for
sanction of 755 posts in various  categories  in  order  to  regularise  the
persons working in the various departments  of  the  university.  The  State
Government sanctioned only 330 posts in various categories, as a  result  of
which regularisation/samayojan of 330 persons  were  made  strictly  on  the
basis of their seniority.  A  bare  perusal  of  letter  No.26/C.S./70-4-99-
3(27)/99 dated 29.09.1999 by Special Executive Officer, Government  of  U.P.
regarding absorption of non-teaching posts in the  Lucknow  University,   it
is clearly mentioned that if there is any disruption in the service  of  any
employee, then the services of the prior period  from  the  said  disruption
may  not  be  calculated.  A  perusal  of  minutes  of   the   Sub-Committee
constituted by the Executive Committee held on 16.01.2001, it is clear  that
employees  who  were  continuously  working  in  the  university  were  only
regularised.  The respondents have been out of  employment  from  01.01.1991
and at the time of regularisation/Samyojan,  the  respondents  were  not  in
service and, therefore, they cannot seek parity with the  persons  absorbed.

11.         In Umadevi’s case, this Court  settled  the  principle  that  no
casual workers should be regularised by the Courts or the  State  Government
and as per constitutional provisions all the citizens of this  country  have
right to contest for the employment and temporary or casual workers have  no
right to seek for regularization.  In para (47), this Court held as under:
“47. When a person enters a temporary employment or  gets  engagement  as  a
contractual or casual worker and the engagement is not  based  on  a  proper
selection as recognised by the relevant rules or procedure, he is  aware  of
the consequences of the appointment being temporary, casual  or  contractual
in nature. Such a person cannot invoke the theory of legitimate  expectation
for being confirmed in the post when an appointment to  the  post  could  be
made only by following  a  proper  procedure  for  selection  and  in  cases
concerned, in consultation with the Public  Service  Commission.  Therefore,
the theory of legitimate expectation  cannot  be  successfully  advanced  by
temporary, contractual or casual employees. It cannot also be held that  the
State has held out any  promise  while  engaging  these  persons  either  to
continue them where they are or to make them  permanent.  The  State  cannot
constitutionally make such a promise. It is also  obvious  that  the  theory
cannot be invoked to seek a positive relief of being made permanent  in  the
post.”

12.         In para (53) of Umadevi’s case, the  Constitution  Bench  carved
out an exception to the general principles enumerated above and it reads  as
under:
“53. One aspect needs to be clarified. There may be  cases  where  irregular
appointments (not illegal appointments) as  explained  in  S.V.  Narayanappa
(1967) 1 SCR 128, R.N. Nanjundappa (1972)  1  SCC  409  and  B.N.  Nagarajan
(1979) 4 SCC 507 and referred  to  in  para  15  above,  of  duly  qualified
persons in duly sanctioned  vacant  posts  might  have  been  made  and  the
employees have continued to work for ten  years  or  more  but  without  the
intervention of orders of the  courts  or  of  tribunals.  The  question  of
regularisation of the services of such employees may have to  be  considered
on merits in the light of the principles settled by this Court in the  cases
abovereferred to and in the light of this judgment.  In  that  context,  the
Union of India, the State Governments  and  their  instrumentalities  should
take steps to regularise  as  a  one-time  measure,  the  services  of  such
irregularly appointed, who have  worked  for  ten  years  or  more  in  duly
sanctioned posts but  not  under  cover  of  orders  of  the  courts  or  of
tribunals  and  should  further  ensure  that   regular   recruitments   are
undertaken to fill those vacant sanctioned posts that require to  be  filled
up, in cases where  temporary  employees  or  daily  wagers  are  being  now
employed. The process must be set in motion  within  six  months  from  this
date. We also clarify that regularisation, if any already made, but not  sub
judice, need not be reopened based on this judgment, but there should be  no
further bypassing of the  constitutional  requirement  and  regularising  or
making permanent,  those  not  duly  appointed  as  per  the  constitutional
scheme.”

13.         As the respondents worked as casual workers only for  about  one
and half years and not against any sanctioned posts, be it noted  that  even
the benefit of para (53)  of  Umadevi’s  case  cannot  be  extended  to  the
respondents.
14.         In Satya Prakash & Others vs. State of Bihar & Others  (2010)  4
SCC 179, this Court held as under:
“7. We are of the view that the appellants  are  not  entitled  to  get  the
benefit of regularisation of their services since they were never  appointed
in any sanctioned posts. The appellants were only engaged on daily wages  in
the Bihar Intermediate Education Council.
8.  In Umadevi (3) case (2006) 4 SCC 1, this Court held that the courts  are
not  expected  to  issue  any  direction  for  absorption/regularisation  or
permanent continuance of temporary, contractual, casual, daily  wage  or  ad
hoc employees. This Court held that such  directions  issued  could  not  be
said  to  be  inconsistent  with  the  constitutional   scheme   of   public
employment. This Court held 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. In view  of  the  law  laid  down  by  this
Court, the directions sought for  by  the  appellants  cannot  be  granted.”
(Underlining added)

15.         The respondents were merely casual workers and they do not  have
any vested right to be regularised against the posts. The  High  Court  fell
in error in affirming  the  award  passed  by  the  Labour  Court  directing
regularisation.  In  the  facts  and  circumstances  of  the  case,  as  the
respondents were out of employment for more than twenty years and  now  they
are over aged and cannot seek for regular  appointment,  in  our  view,  the
interest of justice will be subserved if the judgment of the High  Court  is
modified to the extent by directing payment  of  monetary  compensation  for
the damages to the respondents.
16.         In considering the violation of Section 25F  of  the  Industrial
Disputes Act, 1947 in Incharge Officer & Anr. vs. Shankar  Shetty  (2010)  9
SCC 126 and after referring to the various decisions, this Court  held  that
the relief by way of back wages is not automatic  and  compensation  instead
of reinstatement has been held to meet the ends of justice and it  reads  as
under:-
“2.  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.

3.   In Jagbir Singh v. Haryana State Agriculture  Mktg.  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. v. Uday Narain Pandey, (2006) 1 SCC  479,  Uttaranchal
Forest Development Corpn. v. M.C. Joshi, (2007) 9 SCC 353, State of M.P.  v.
Lalit Kumar Verma (2007) 1 SCC 575, M.P. Admn. v.  Tribhuban  (2007)  9  SCC
748, Sita Ram v. Moti Lal Nehru Farmers Training Institute (2008) 5 SCC  75,
Jaipur Development Authority v. Ramsahai (2006) 11 SCC  684,  GDA  v.  Ashok
Kumar (2008) 4 SCC 261 and  Mahboob  Deepak  v.  Nagar  Panchayat,  Gajraula
(2008) 1 SCC 575  and stated as follows: (Jagbir Singh case  (2009)  15  SCC
327, SCC pp. 330 & 335, paras 7 & 14)
“7.  It is true that the earlier view of  this  Court  articulated  in  many
decisions reflected the  legal  position  that  if  the  termination  of  an
employee was found to be illegal, the  relief  of  reinstatement  with  full
back wages would ordinarily follow. However, in recent past, there has  been
a shift in the legal position and in a long line of cases,  this  Court  has
consistently taken the view that relief by way of  reinstatement  with  back
wages is not automatic and may be  wholly  inappropriate  in  a  given  fact
situation even though the termination of an employee is in contravention  of
the prescribed procedure. Compensation instead  of  reinstatement  has  been
held to meet the ends of justice.
*        *  *
14.  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, be automatically  passed.  The  award  of
reinstatement with  full  back  wages  in  a  case  where  the  workman  has
completed 240 days of work in a year  preceding  the  date  of  termination,
particularly, daily wagers has not been found to be  proper  by  this  Court
and instead compensation has been  awarded.  This  Court  has  distinguished
between a daily wager who does not hold a post and a permanent employee.”

4. Jagbir Singh (2009)  15  SCC  327  has  been  applied  very  recently  in
Telegraph Deptt. v. Santosh Kumar Seal (2010) 6 SCC 773, wherein this  Court
stated: (SCC p. 777, para 11)
“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.”

17.         In the light of the above discussion, the impugned  judgment  of
the  High  Court  is  modified  and  keeping  in  view  the  fact  that  the
respondents are facing hardship on account of pending  litigation  for  more
than two decades and the fact that some of the  respondents  are  over  aged
and thus have lost the opportunity to  get  a  job  elsewhere,  interest  of
justice  would  be  met  by  directing  the  appellant-university   to   pay
compensation of rupees four lakhs to each  of  the  respondents.   By  order
dated 11.07.2011, this Court directed  the  appellant  to  comply  with  the
requirements of Section 17B of the Industrial Disputes Act, 1947 and  it  is
stated that the same is being complied with.   The  appellant-university  is
directed to pay the respondents rupees four lakhs each  within  four  months
from the date of receipt of this judgment. The payment of rupees four  lakhs
shall be in addition to wages paid  under  Section  17B  of  the  Industrial
Disputes Act, 1947.
18.         In the result, the  impugned  judgment  is  modified  and  these
appeals are partly allowed in the above terms.  No order as to costs.

                                                                 ………………………J.
     (DIPAK MISRA)


                                                                 ………………………J.
     (R. BANUMATHI)
New Delhi;
September  8, 2015

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