important point
Direction for reinstatement cannot be issued when there does not exist any post.

Headnote:(a)Service Law – Reinstatement – When existence of the relationship of employer and employee is disputed, the same was required to be determined in presence of all the parties who are interested in the subject matter of reference – The Special Land Acquisition Officer was not made a party to the reference – Labour court neither went into the question as regards the nature of duties required to be performed by the first respondent and also other relevant factors, namely, who had issued the offer of appointment; who used to supervise and control the work of the respondent; or who was the authority to grant leave and take disciplinary action etc. – The said questions were relevant – Impugned order hence held not sustainable. (Para 12)
       (2004) 3 SCC 514 – Relied upon.
       (b)Service Law – Reinstatement – Direction for reinstatement cannot be issued when there does not exist any post – Requirement of the Special Land Acquisition Officer to have the services of some employees was for a short period – No such post was created by the competent authority – Even in a case where the workman is appointed on contractual basis, the industrial court would ordinarily not direct for reinstatement – Subject to statutory interdict, the agreement between the parties in this behalf must be given due weight – Impugned order cannot be sustained. (Para 13)
       Facts of the case :
       1.The State of Uttar Pradesh acquired land for the appellant company. Various land acquisition proceedings therefor were initiated. The Special Land Acquisition Officer, the acquiring authority, expressed its intention to engage some daily wagers to look after the pending acquisition cases and asked the appellant to meet the said expenses or depute one of its staff for the said purpose. Appellant agreed for one person on daily wages. The Special Land Acquisition Officer, however, engaged three persons on daily wages. Their wages were paid from the fund provided for by the appellant. Appointments of the said employees were for a temporary period and so long as their services were necessary for the purpose of looking after the land acquisition cases, services of the said employees were necessary for the period 1.5.1981 to 6.3.1982.
       2.The services of the respondent having been terminated with effect from 6.3.1982, an industrial dispute was raised which was referred to the Labour Court, Lucknow.
       3.The Labour Court, however, was of the opinion that as the salary of the first respondent was made available to the Land Acquisition Officer from the funds provided for by the appellant, a relationship of employer and employee came into being,
       4.Opining that the first respondent worked for more than 240 days during the aforementioned period and as no notice pay as also retrenchment compensation had been paid to the workman, he was directed to be reinstated with back wages.
       5.The writ petition filed by the appellant was dismissed on the premise that the disputed question of fact could not be determined by the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India.
       Findings of the Court:
       Labour Court erred in directing reinstatement and High Court erred in not interfering.
       Result : Appeal allowed.

JUDGMENT

S.B. Sinha, J.—

1.Leave granted.

2.The State of Uttar Pradesh acquired land for the appellant company. Various land acquisition proceedings therefor were initiated. The Special Land Acuqisition Officer, the acquiring authority, expressed its intention to engage some daily wagers to look after the pending acquisition cases and asked the appellant to meet the said expenses or depute one of its staff for the said purpose. Appellant agreed to the proposal of the Special Land Acquisition Officer that a person on daily wages may be appointed on an ad hoc basis. The Special Land Acquisition Officer, inter alia, engaged three persons on daily wages. Their wages were paid from the fund provided for by the appellant. Appointments of the said employees were for a temporary period and so long as their services were necessary for the purpose of looking after the land acquisition cases, services of the said employees were necessary for the period 1.5.1981 to 6.3.1982.

3.The services of the respondent having been terminated with effect from 6.3.1982, an industrial dispute was raised. The State of Uttar Pradesh referred the following dispute for adjudication to the Presiding Officer, Labour Court, Lucknow :

“Whether the termination/removal of Shri Jai Prakash Srivastava, Case-Clerk, son of Shri Gomti Prasad Srivastava, from services by the Management w.e.f. 6.3.1982, is just and legal ? If not, then to what benefit/relief the workman is entitled entitled?”

4.Whereas the contention of the first respondent was that there existed a relationship of employer and employee by and between the appellant and himself; the contention raised on the part of the petitioner was that there did not exist any such relationship. The validity of the reference made by the State was also questioned.

5.In its award dated 30.9.1996, the Presiding Officer, Labour Court, UP, Lucknow, in Award Dispute No.28 of 1985 recorded that the first respondent was appointed by the Special Land Acquisition Officer for conducting pairvi on behalf of the project in the cases of land acquisition. The learned Labour Court, however, was of the opinion that as the salary of the first respondent was made available to the Land Acquisition Officer from the funds provided for by the appellant, a relationship of employer and employee came into being, holding :

“From the documents available on record, it is very well proved that although the appointment of the applicant-workman Shri Jai Prakash was not made on the basis of any appointment letter issued independently by the Chief Project Manager of Tanda Thermal Power Project, but was made by the Special Land Acquisition Officer on daily wages on the basis of the approval given by the Chief Project Manager on the request/proposal made by the Special Land Acquistiion Officer. The Management had also approved extension of the above appointment from time to time and also came to a decision for not continuing the services of the applicant-workman and the Chief Project Manager had duly informed the Special Land Acquistiion Officer for discontinuing the services of the applicant-workman. Finally the services of the applicant-workman were terminated. It is also proved from the evidence that the applicant-workman was doing the work of pairvi in the cases relating to the Tanda Thermal Power Project and the payment of his salaries was also made from the funds made available by Management. In the circumstances, it is proved that the appointment of the applicant-workman was made on the basis of approval given by Management.”

6.Opining that the first respondent worked for more than 240 days during the aforementioned period and as no notice pay as also retrenchment compensation had been paid to the workman, he was directed to be reinstated with back wages.

7.The writ petition filed by the appellant thereagainst before the Lucknow Bench of Allahabad High Court which was marked as Writ Petition No. 222 of 1998, was dismissed on the premise that the disputed qu

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2007 Supreme(SC) 1322

important pointDirection for reinstatement cannot be issued when there does not exist any post.

Cases Referred (1)

important point
Direction for reinstatement cannot be issued when there does not exist any post.