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2006 (2) JLJ 24
(SUPREME COURT)
S.B. Sinha and P.K. Balasubramanyan, JJ.
State of M.P. and others v. Arjunlal Rajak
Civil Appeal No. 1266 of 2006: against the order of M. P. High Court
passed in Writ Petition No. 599 of 2000;
Decided on 24.2.2006.
The respondent was appointed as a chowkidar by the appellants. Admittedly no offer of appointment was issued to him nor the recruitment rules applicable for filling up of a permanent or temporary post have been followed. The appellants contend that the respondent was engaged in the production division of Forest Department of District Guna which has since been wound up. His services were thereafter terminated. Contending inter alia that he had worked in different departments of the State from August 1984 to July 8.1992.his services were terminated without complying with the requirements of section 25F of the Industrial Disputes Act, 1947, a complaint petition was filed by the respondent before the Presiding Officer, Labour Court No.3, Gwalior. By reason of an award dated 12.7.1999 on a finding that the respondent had worked for more than 240 days in a calendar year and having regard to the fact that no retrenchment compensation was paid. he was directed to be reinstated in service with full back wages.
The Labour Court does not appear to have taken into consideration the pleas raised by the appellant herein that the production division at Guna was wound up by an order dated 3.7.1992 of the State of Madhya Pradesh, even while considering the relief which was required to be given in the facts and circumstances of the case. The High Court, on a writ petition filed by the appellant although noticed the said fact, dismissed the same petition. [Paras 2 & 3
Held: It is beyond any doubt or dispute that a daily wager does not hold a post. The Forest Department is a wing of the State. Its employees hold a status. For acquiring that status and for obtaining the Constitutional protection in terms of Article 311 of the Constitution of India, all appointments must be made in conformity with the Constitutional Scheme as laid down under Articles 14 and 16 of the Constitution of India as well as the rules made in terms of the proviso to Article 309 of the Constitution of India or in terms of a Legislative Act. Concededly, while appointing the respondent, the Constitutional provision or the statutory provisions had not been followed. The rights and liabilities of the parties are therefore governed by the terms of the contract and/or the provisions of the statute applicable in relation thereto. The respondent was not given any offer of appointment in writing. He admittedly worked in different departments of the State. His last posting was in the production division of Forest Department in the District of Guna which, as noticed above, stood abolished. It is, however, true that while terminating the services of the respondent, the appellants had not complied with the mandatory requirements of section 25F of the Industrial Disputes Act and, thus, ordinarily, the workman could have been directed to be reinstated with or without back wages, but it is also well settled that when a project or a scheme or an office itself is abolished, relief by way of reinstatement is not granted. 2005 (3) JLJ 233 (SC) relied on. [Para 6
Keeping in view the fact that the services of the respondent were terminated on the ground that the production unit in which he was working itself had been closed, we are of the opinion that interest of justice would be sub-served if a monetary compensation of Rs. 10,000/- is granted to him. [Para 11
(2) Civil Servant -- employee employed for purpose of scheme -- does not acquire any vested right to continue after scheme is over. 2005 (3) JLJ 233 (SC), (2000) 10 SCC 179 and (2003) 5 SCC 388 relied on. [Para 7
(3) Civil Servant -- reinstatement -- full back wages cannot be granted automatically -- there should be application of mind of the Court concerned before such grant. (2006) SCC 479 relied on. [Para 8
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Sinha. J. -- 1. Leave granted.
2. The respondent was appointed as a chowkidar by the appellants Admittedly no offer of appointment was issued to him nor the recruitment rules applicable for filling up of a permanent or temporary post have been followed. The appellants contend that the respondent was engaged in the production division of Forest Department of District Guna which has since been wound up. His services were thereafter terminated. Contending inter alia that he had worked in different departments of the State from August 1984 to July 8, 1992, his services were terminated without complying with the requirements of section 25F of the Industrial Disputes Act, 1947, a complaint petition was filed by the respondent before the Presiding Officer, Labour Court No.3, Gwalior. By reason of an award dated 12.7.1999 on a finding that the respondent had worked for more than 240 days in a calendar year and having regard to the fact that no retrenchment compensation was paid, he was directed to be reinstated in service with full back wages.
3. The Labour Court does not appear to have taken into consideration the pleas raised by the appellant herein that the production division at Guna was wound up by an order dated 3.7.1992 of the State of Madhya Pradesh, even while considering the relief which was required to be given in the facts and circumstances of the case. The High Court, on a writ petition filed by the appellant although noticed the said fact, dismissed the same petition stating:
"Even though on behalf of the employer, statement of one Ashok Kumar was recorded but the aforesaid witness could not dispute the fact with regard to working of the employee. On the contrary, the said witness, in his cross-examination admitted that the certificates have been issued to the respondent-employee by the competent authority of the employer and he had worked for more than 240 days in a calendar year. Considering the fact that no show cause notice was issued or retrenchment compensation was paid or enquiry was conducted before terminating the service of respondent-employee, a finding has been recorded that the respondent No.1 was in employment since 1.8.1984 and he had completed more than 240 days continuous service in a calendar year. That being so. in view of the provisions of section 25B of the Industrial Disputes Act. 1947 service of respondent-employee had been terminated without following the mandatory provisions of section 25F, no show cause notice was issued or retrenchment compensation paid to him. Therefore, the finding recorded is based on appreciation of evidence and material available on record. The said finding is neither perverse nor warrant interference in any manner whatsoever by this Court."
4. Mr. B.S. Banthi, the learned counsel appearing on behalf of the appellants would submit that having regard to the fact that the respondent was appointed on daily wages and the unit in which he was working had been wound up, the respondent could not have been directed to be reinstated with full back wages.
5. Mrs. K. Sarada Devi, learned counsel appearing on behalf of the respondent, on the other hand, would contend that the appellants had not made out any case before the Labour Court that the respondent was appointed under a scheme. He, according to the learned counsel, might have been shifted from one department to the other but the same would not mean that he was appointed to work in a particular project/scheme. It was pointed out that by reason of the order of reinstatement, the respondent continues to be a daily wager and there is, thus, no reason as to why after he having been reinstated and having worked in one or the other department of the State from 2001, this Court should exercise its jurisdiction under Article 136 of the Constitution' of India.
6. It is beyond any doubt or dispute that a daily wager does not hold post. The Forest Department is a wing of the State. Its employees hold status. For acquiring that status and
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