important point
Continuation in or regularization of service of an employee and extending the benefit of confirmation or making him permanent are two different concepts.

Headnote:(a)Judicial Review – When an order attains finality, the point decided cannot be argued. (Para 10)
       (b)Industrial Disputes Act, 1947 – Section 25F – Once it is held that there was breach of Section 25F, it necessarily follows that the order of termination was in violation of law – Therefore direction was required to be issued in the form of reinstatement of the workman – High Court rightly confirmed the award. (Para 11)
       (c)Service Law – Permanency of service – Setting aside an action of termination of services being violative of Section 25F of the Act does not necessarily follow that the workman must be held entitled to the status of permanency and claim of regular pay scales and other benefits based on permanency – The two things are distinct, different and operate in different areas – It could not be claimed on the basis of setting aside of the order of termination by Industrial Tribunal and confirmed by High Court that ipso facto, one ought to be treated as permanent employee of the Corporation with al benefits – To that extent, therefore, the order passed by the High Court is not in consonance with law. (Para 11)
       (d)Service Law – Regularisation and confirmation – Continuation in or regularization of service of an employee and extending the benefit of confirmation or making him permanent are two different concepts – Impugned order set aside. (Para 16)
       (1967) 1 SCR 128; (1979) 4 SCC 507 – Relied upon.
       Facts of the case:
       1.It is the case of the Corporation that the writ petitioner was engaged by the Corporation in 1984 on casual basis as an ‘unskilled workman’ at its refinery at Bombay. The writ petitioner filed Writ Petition No. 661 of 1992 in the High Court praying that he be declared as permanent workman on the post of Compounder/Dresser with effect from June 6, 1987 in the Corporation with consequential benefits.
       2.It appears from the record, however, that since the writ petitioner was engaged purely on ad hoc and temporary basis without following proper procedure of law and without there being any right in his favour, the Corporation stopped engaging him from June, 1996.
       3.Being aggrieved by the said action, the workman raised an industrial dispute which was referred for adjudication to the Central Government Industrial Tribunal, Mumbai.
       4.The Tribunal allowed the Reference. The Tribunal, however, made it clear that it was not considering the question of regularization of services of the workman because of two reasons; (i) the Reference did not cover the question of regularization; and (ii) the workman had already filed a writ petition for the relief of regularization which was pending in the High Court.
       5.The Award passed by the Industrial Tribunal was confirmed by the High Court. The award attained finality.
       6.The High Court allowed the petition by making rule absolute and by directing the appellant-Corporation to make the writ petitioner permanent and to grant benefits with effect from the date of filing of the writ petition.
       Findings of the Court:
       High Court erred in equating reinstatement with permanency.
       Result : Appeal allowed with observations.

judgment

C.K. Thakker, J. —

1.Leave granted.

2.The present appeal is filed by the Hindustan Petroleum Corporation Ltd. (Corporation for short) against judgment and final order dated January 28, 2005 in Writ Petition No. 661 of 1992 by the High Court of Judicature at Bombay. By the impugned order, the High Court allowed the writ petition filed by the respondent-writ petitioner and ruled that he was entitled to the status of permanent employee of the Corporation with effect from the date of filing of the petition i.e. March 16, 1992 and all the benefits accruing by virtue of such permanency.

3.Short facts giving rise to the present appeal are that appellant-Corporation is a Government Company within the meaning of Section 617 of the Companies Act, 1956. It is the case of the Corporation that the writ petitioner was engaged by the Corporation in 1984 on casual basis as an unskilled workman at its refinery at Bombay. The writ petitioner filed Writ Petition No. 661 of 1992 in the High Court by invoking Article 226 of the Constitution, inter alia, praying that he be declared as permanent workman on the post of Compounder/Dresser with effect from June 6, 1987 in the Corporation. A prayer was also sought to direct the Corporation to extend to the writ petitioner all benefits accrued in his favour by virtue of his permanency with 18% interest. It appears from the record, however, that since the writ petitioner was engaged purely on ad hoc and temporary basis without following proper procedure of law and without there being any right in his favour, the Corporation stopped engaging him from June, 1996. Being aggrieved by the said action, the workman raised an industrial dispute. Failure report was submitted by the Conciliation Officer and the Central Government, in exercise of power under Section 10(d) read with Section 10(2A) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) referred the dispute for adjudication to the Central Government Industrial Tribunal, Mumbai.

4.The Tribunal vide Award dated April 10, 2003, allowed the Reference. It was held that the workman was not a regularly appointed Compounder/Dresser but was a daily wage employee. But as he had worked for more than 240 days in the calendar year just preceding the date of his oral termination, the action amounted to retrenchment within the meaning of Section 25F of the Act and he was entitled to reinstatement with back wages. The Tribunal, however, made it clear that it was not considering the question of regularization of services of the workman because of two reasons; (i) the Reference did not cover the question of regularization; and (ii) the workman had already filed a writ petition for the relief of regularization which was pending in the High Court. The Award passed by the Industrial Tribunal was challenged by the Corporation in the High Court. A Single Judge of the High Court as well as a Division Bench confirmed the said Award. The matter came to an end there and the award attained finality.

5.The writ petition which was instituted by the writ petitioner-workman then came up for hearing before the Division Bench of the High Court and as stated above, the High Court allowed the petition by making rule absolute and by directing the appellant-Corporation to make the writ petitioner permanent and to grant benefits with effect from the date of filing of the writ petition. The aforesaid order and directions issued in the writ petition by the High Court are challenged by the Corporation in the present appeal.

6.Notice was issued on May 11, 2005 and affidavit in reply and rejoinder were filed thereafter. The Registry was then directed to place the matter for final hearing and that is how the matter has been placed before us.

7.We have heard learned counsel for the parties.

8.The learned counsel for the appellant-Corporation submitted that the High Court was in grave error in directing the appellant-Corporation to make the writ petitioner permanent by granting a

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2008 Supreme(SC) 62

2008(1) Supreme 256Supreme Court of india(From Bombay High Court)C.K. Thakker & J.M. Panchal, JJ.Hindustan Petroleum Corpn. Ltd. — PetitionerversusAshok Ranghba Ambre — RespondentAppeal (civil) 391 of 2008Arising Out of Special Leave Petition (Civil) No. 10819 of 2005Decided on : 15-01-2008

important pointContinuation in or regularization of service of an employee and extending the benefit of confirmation or making him permanent are two different concepts.

Cases Referred (2)

important point
Continuation in or regularization of service of an employee and extending the benefit of confirmation or making him permanent are two different concepts.