2006 Supreme(SC) 178

2006(2) Supreme 349
Supreme Court of India
(From Madhya Pradesh High Court)
S.B. Sinha & P.K. Balasubramanyan, JJ.
Branch Manager, M.P. State Agro Industries Development Corpn. Ltd. & Anr. —Appellants
versus
Shri S.C. Pandey —Respondent
Civil Appeal No. 1270 of 2006
(Arising out of SLP (C) No. 24842 of 2004)
Decided on 24-2-2006
Counsel for the Parties :
For the Appellants : Ms. Hetu Arora, Advocate.
For the Respondent : Ashok Mathur, Advocate.

Important pointOnly because a temporary employee has completed 240 days of work, he would not be entitled to be regularized in service.

Headnote:Industrial Disputes Act, 1947—Sections 25-B and 25F—Termination of service—Respondent was appointed temporarily as typist by Branch Manager of appellant w.e.f. 16-9-1985—His services were terminated on 18-7-1987 on ground that his services were no more required—Respondent challenged termination before Labour Court—Claim was contested on plea that appellant undertaking was governed by Service Recruitment Selections Regulations, 1976 and only Managing Director was the appointing authority—Labour Court held termination to be bad in law—Appellate Tribunal upheld the order on ground that respondent was accepted as a working staff when he was transferred by order of Regional Manager—High Court dismissed the writ—Appeal—No finding of fact that before respondent was appointed, the constitutional and statutory requirements were complied with—Only because a temporary employee had completed 240 days of work, he would not be entitled to be regularized in service—Appointment of Respondent was only to meet exigencies of services and not in terms of service regulations—Respondent, however, having worked for more than 240 days, termination of his services without complying Section 25F of the Act was illegal but he was unjustly directed to be continued in service by interim order—In place of directing reinstatement, appellant directed to pay Rs.10,000/- by way of compensation.

       Held : The question raised in this appeal is now covered by a decision of this Court in M.P. Housing Board & Anr. v. Manoj Srivastava [Civil Appeal arising out of SLP (Civil) No. 27360/04 disposed of this date] wherein this Court clearly opined that: (1) when the conditions of service are governed by two statutes; one relating to selection and appointment and the other relating to the terms and conditions of service, an endeavour should be made to give effect to both of the statutes; (2) A daily wager does not hold a post as he is not appointed in terms of the provisions of the Act and Rules framed thereunder and in that view of the matter he does not derive any legal right; (3) Only because an employee had been working for more than 240 days that by itself would not confer any legal right upon him to be regularized in service; (4) If an appointment has been made contrary to the provisions of the statute the same would be void and the effect thereof would be that no legal right was derived by the employee by reason thereof. The said decision applies on all fours to the facts of this case. In Mahendra Lal Jain (supra) this Court has categorically held that the Standing Orders governing the terms and conditions of service must be read subject to the constitutional and statutory limitations for purpose of appointment both as a permanent employee or as a temporary employee. An appointment to the post of a temporary employee can be made where the work is essentially of temporary nature. In a case where there existed a vacancy, the same was required to be filled up by resorting to the procedures known to law i.e. upon fulfilling the constitutional requirements as also the provisions contained in the 1976 Regulations. No finding of fact has been arrived at that before the respondent was appointed, the constitutional and statutory requirements were complied with. (Paras 17 and 18)

       The Industrial Court as also the High Court applied the principles of estoppel on the finding that the respondent was transferred from Morena to Gwalior. If his appointment was void, being contrary to regulations, in our opinion, the procedural provisions like estoppel or waiver were not applicable. If an appointment made by the Branch Manager was wholly without jurisdiction, the order of appointment itself was void. Furthermore, the contention of the appellant had been that in terms of Regulation 16 of 1976 Regulations only the Managing Director of the Corporation could issue an offer of appointment. It has not been found by the Industrial Courts or the High Court that the Branch Manager and the Regional Manager were authorized to make such appointments. The appointment of the respondent, thus, must be held to have been made only to meet the exigencies of services and not in terms of the service regulations. The appointment of the Respondent, thus, could not have been made for filling up a regular vacancy for the purpose of invoking Rule 2 of the Standing Orders. However, it has not been contended that the services of the respondent were not governed by the provisions of the Industrial Disputes Act. He worked from 16.9.1985 to 19.5.1987. He must have, thus, completed 240 days of service. The termination of his services without complying with the provisions of Section 25F of the Industrial Disputes Act was, thus, illegal. He, however, had unjustly been directed to continue in service by reason of an interim order. He has been continuing in service pursuant thereto. The appellant, in our opinion, cannot be made to suffer owing to a mistake on the part of the court. The respondent also cannot take advantage of a wrong order. In the peculiar facts and circumstances of the case, we, therefore, of the opinion that interest of justice would be sub-served if, in place of directing reinstatement of the services of the respondent, the appellant is directed to pay a sum of Rs. 10,000/- by way of compensation to him. It is directed accordingly. (Paras 23 to 26)