2006 Supreme(SC) 1039

2006(8) Supreme 694
SUPREME COURT OF INDIA
(From Allahabad High Court)
S.B. Sinha and Markandey Katju, JJ.
Regional Manager, SBI - Appellant
versus
Mahatma Mishra - Respondent
Civil Appeal No. 4636 of 2006
(Arising out of S.L.P. (Civil) No. 8064 of 2006)
Decided on 1-11-2006
Counsel for the Parties :
For the Appellant : L. Nageshwara Rao, Sr. Advocate, Sanjay Kapur, Mrs. Shubhra Kapur, Rajiv Kapur and Ms. Arti Singh, Advocates.
For the Respondent : Pramod Swarup, Ms. Pareena Swarup and Arneet Singh, Advocates.

IMPORTANT POINT
It appointment of a workman as a casual labour was for a fixed period and termination of his service was in terms of contract of employment, Section 25-H of Industrial Disputes Act would not have application.

Headnote:Industrial Disputes Act, 1947 - Section 25F, 25H - Respondent was appointed on temporary basis for 88 days in 1982 and his services were terminated - Labour Court found Management guilty of unfair labour practice and noted that another person was appointed after termination of services of respondent - Court ordered reinstatement with full back wages - High Court upheld award but modified it to extent that no further back wages were to be paid - Appeal - If appointment of respondent as casual worker was for a fixed period and termination of his services was in terms of contract of employment, Section 25H of the Act would not be attracted - Labour Court committed illegality in holding that retrenchment was illegal - Impugned judgment could not be sustained.

       Held : The approach of the Labour Court as also the High Court cannot be appreciated. The respondent was appointed only for 88 days. The requirements of Section 6-N of the U.P. Industrial Disputes Act was, thus, not required to be complied with. The Labour Court although proceeded on the basis that Section 25-H of the Industrial Disputes Act would be attracted, no reason has been assigned in support thereof. If the appointment of the respondent as a casual worker was for a fixed period and the termination of his services was in terms of contract of employment, Section 25-H of the Industrial Disputes Act would not have any application. In a case of this nature, Section 25-H of the Industrial Disputes Act is not attracted. It is not in dispute that the appointment of the respondent was made in violation of circular letter issued by the Appellant- Bank. Requirements of law as envisaged under Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 had also not been complied with.(Para 6)

       The appellant is a State within the meaning of Article 12 of the Constitution of India. A constitutional duty was, thus, enjoined to it to comply with the doctrine of equality as enshrined under Articles 14 and 16 thereof.(Para 7)

       The Labour Court committed a serious illegality in proceeding on the basis that retrenchment was illegal. It was not so. As was rightly observed by the High Court, the respondent was not entitled to a permanent status. If he was not entitled to conferment of any permanent status having worked only for 88 days and that too in the year 1982, we fail to understand as to how he was entitled to be reinstated in service and that too with full backwages. The High Court although noticed the recent decisions of this Court in relation to grant of backwages but it failed to consider a vital aspect of the matter, viz., reinstatement in service can be directed provided the termination is illegal. No finding of fact has been arrived at that the termination of the service of the respondent was illegal. The question of directing an award reinstating him in service did not and could not arise.(Para 8)

       For the reasons aforementioned, we are of the opinion that the impugned judgments cannot be sustained which are set aside accordingly. The respondent, however, has obtained idle wages for a long time. Although he was not entitled thereto, keeping in view the fact and circumstances of this case, we do not direct refund of the said amount.(Para 17)

       (ii) Labour Law - Unfair labour practice - Not to be inferred readily.

       Held : Unfair labour practice is not to be readily inferred. Before a conclusion in that behalf is drawn, the conditions precedent therefor must be satisfied. The Labour Court failed to show as to how the appellant can be said to have taken recourse to unfair labour practice. It was not a case where the respondent was being appointed consistently for a number of years with artificial breaks. It was also not a case where the purport and object for such appointment was to violate the provisions of the Industrial Disputes Act. (Para 10)

       (iii) Industrial Disputes Act, 1947 - Section 11-A - Discretionary power with Labour Court to grant appropriate relief - Discretion to be exercised judiciously - An employee after termination of his services can not get a benefit to which he was not entitled to if he had remained in service.

       Held : Section 11-A of the Industrial Disputes Act confers a discretionary power in the Industrial Tribunal or the Labour Court, as the case may be. Although in a given case, the Industrial Tribunal or the Labour Court may grant appropriate relief, its discretion should be exercised judiciously. An employee after termination of his services cannot get a benefit to which he was not entitled to if he remained in service. It is one thing to say that services of a workman was terminated in violation of mandatory provisions of law but it is another thing to say that relief of reinstatement in service with full backwages would be granted automatically. Even in a case where service of an employee is terminated in violation of Section 25-F of the Industrial Disputes Act, he would not be entitled to grant of a permanent status. Regularisation does not mean permanence.(Para 12)