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SUPREME COURT OF INDIA
K.S.Radhakrishnan, A.K.Sikri, JJ.
Hari Nandan Prasad & Anr. – Appellants
Vs.
Employer I/R to Mangmt.of FCI & Anr. – Respondents
CIVIL APPEAL Nos.2417-2418 /2014 (arising out of S.L.P.(Civil) Nos. 29634-29635/2008)
Decided On : February 17, 2014
(b) Labour Laws – Illegal termination – Relief – termination held illegal on technical ground – Persons engaged as daily wagers – Services terminated in a distant past – Termination held to be illegal only on a technical ground – Not entitled to relief of reinstatement. (Para 17)
2013 (15) SCALE 131 – Relied upon
(c) Service Law – Recruitment – Courts cannot direct creation of posts. (Para 26)
(2001) 7 SCC 346 – Relied upon
(d) Labour Laws – Regularisation – Casual labours appointed without following procedures – Orders for regularization cannot be issued if it tantamount to violation of Article 14 of the Constitution – Applies to industrial employment as well. (Para 22)
(2006) 4 SCC 1; (2007) 5 SCC 755 – Relied upon
AIR 1992 SC 789 – Referred
(e) Labour Laws – Regularisation – In case of unfair labour practice statutory power of industrial forum is not denuded by Uma Devi – However this power is not unbridled and is subject to the facts of the case. (Para 29)
(2005) 6 SCC 751; 1980 Lab IC 1218 (SC); [1961] 1 LLJ 521(SC) – Relied upon
(f) Labour Laws – Regularisation – No posts available – Regularisation cannot be directed – Posts available – No unfair labour practice – Regularisation cannot be directed merely on ground of long length of service as daily wages worker who is not eligible for the post without anything more – Such direction would be violative of Article 14 of the Constitution. (Para 34)
(g) Labour Laws – Regularisation – Appellant 1 raising dispute on basis of a circular issued 4 years after his termination – a Reinstatement not permissible – Worker only entitled to monetary compensation (Para 37)
(h) Labour Laws – Regularisation – Appellant 2 raising dispute promptly – Completing 240 days shortly after issue of circular providing for regularisation – Terminated after three years of the circular – Similarly situated workers regularised – Discriminatory – CGIT rightly directed to reinstate appellant No.2 with 50% back wages and to regularize him in service. (Para 37, 38)
Facts of the case:
The two appellants were working on casual basis with the FCI. After certain time, their services were dispensed with.
Both of them raised industrial dispute alleging wrongful termination which was referred to the Central Government-cum-Industrial Tribunal (CGIT).
These proceedings culminated in two awards dated 12.12.1996 and 18.12.1996 respectively passed by the CGIT. In both these awards, termination of both the appellants was held to be illegal and they were directed to be reinstated with 50% back wages. The CGIT also ordered their regularization in service.
FCI filed Writ Petitions in both the cases challenging these awards. In the meanwhile orders were passed under Section 17-B of the Industrial Disputes Act (ID Act) directing payment of full wages as last wages drawn to the appellants from the date of the award in each case.
These Writ Petitions were dismissed by the Single Judge. The LPAs thereagainst have been allowed by the Division Bench, setting aside the orders of the learned Single Judge as well as awards passed by the CGIT.
Finding of the Court:
Appellant 1 is not entitled to relief of reinstatement or regularization. Appellant 2 is entitled to reinstatement, 50% back wages and regularisation.
JUDGMENT :
A.K.SIKRI,J.
1. Leave granted.
2. The two appellants have filed one combined Special Leave Petition, which arises out of a common judgment dated 27.6.2008 passed by the Division Bench of the Jharkhand High Court in two LPAs which had been filed by the respondent herein viz. Food Corporation of India (FCI). The two appellants were working on casual basis with the FCI. After certain time, their services were dispensed with. Both of them raised industrial dispute alleging wrongful termination which was referred to the Central Government-cum- Industrial Tribunal (CGIT). These proceedings culminated in two awards dated 12.12.1996 and 18.12.1996 respectively passed by the CGIT. In both these awards, termination of both the appellants was held to be illegal and they were directed to be reinstated with 50% back wages. The CGIT also ordered their regularization in service.
FCI filed Writ Petitions in both the cases challenging these awards which were initially admitted sometime in the year 1988 and the operation of the awards was stayed. However, orders were passed under Section 17-B of the Industrial Disputes Act (ID Act) directing payment of full wages as last wages drawn to the appellants from the date of the award in each case. These Writ Petitions were ultimately dismissed by the learned Single Judge vide common judgment and order dated 19.5.2005. As pointed out above, this judgment of the learned Single Judge was challenged by the FCI by filing LPAs. These LPAs have been allowed by the Division Bench, thereby setting aside the orders of the learned Single Judge as well as awards passed by the CGIT. This is how two appellants are before us in this appeal.
3. Before we proceed further, we deem it appropriate to give the details of nature of employment of each of the appellants with the FCI and tenure etc. as well as the gist of the tribunal's awards. Hari Nandan.
4. He was engaged on daily wages basis as Labourer-cum-Workman, in the exigency of the situation, at Food Storage Depot, Jasidih by the Depot In-charge, FCI, Jasidih on 1st June 1980. On the ground that services of appellant No.1 were no more required, he was disengaged w.e.f. 1.3.1983.While doing so, no notice or notice pay or retrenchment compensation was given to him. Appellant No.1 raised industrial dispute which was referred to the CGIT by the Central Government vide reference order dated 1.10.1992, with the following terms of reference: "Whether the action of the management of Food Corporation of India, in retrenching Shri Hari Nandan Prasad, Ex-Casual Workman, in contravention of Section 25-F of the I.D. Act, 1947 and denying reinstatement with full back wages and regularization of his service is legal and justified? If not to what relief the concerned workman is entitled to?"
5. The CGIT gave its award dated 12.12.1996 holding that the termination was in contravention of Section 25-F of the Industrial Disputes Act. The CGIT also, while ordering reinstatement of appellant No.1, held that he was also entitled to regularization of his services from the date of his stoppage from service dated 1.3.1983. Back wages to the extent of 50% were awarded. As far as direction for regularization is concerned, it was based on Circular issued by the FCI whereby any temporary worker employed for more than 90 days was entitled for regularization of his service. It was noted that as per the said Circular the Management had regularized the services of 70-75 similarly situated casual workers and therefore denying the same benefit to appellant No.1 amounted to discrimination. Gobind Kumar Choudhary.
6. Appellant No.2 was engaged on daily wages as casual Typist at the District Office, FCI, Darbhanga against a vacancy of Class-III post on5.9.1986. He worked in the capacity till 15.9.1990 when his name was struck off the rolls. He also raised industrial dispute which was referred to CGIT with following terms of reference: "Whether the action of the Management of Food Corporation of Indi
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