IMPORTANT POINT
Appointments made by Authority in violation of the Act and rules governing such appointment is void though same would not mean that provisions of Industrial Disputes Act were not required to be taken into consideration for determination of question whether termination of workman from service was legal or not but same should have to be considered to be an important factor in matter of grant of relief.

Headnote:Industrial Disputes Act, 1947—Section 2(oo)(bb)—U.P. Nagar Mahapalika Adhiniyam, 1959—Sections 106, 107, 109 and 111—Respondents were appointed as apprentices by Administrator of appellant Municipality but those appointments were not made in terms of the statute—Respondents were appointed on 5-11-1985 on adhoc basis on payment of apprentice allowance per month in the Assessment Department—Tenure of services of respondent came to an end with effect from 31-12-1986 and they challenged their termination—Labour Court holding that workmen had worked for more than 240 days, termination of their service was in violation of provisions of Section 6-N of U.P. Industrial Disputes Act and was illegal and directed their reinstatement—High Court dismissed the writ—Appeal—Respondents were appointed even prior to creation of temporary posts by the State—Appointment of respondents were made in violation of provision of Adhiniyam and such appointments were void—However same would not mean that provisions of Industrial Disputes Act were not required to be considered for adjudicating the order of termination—It was but not a case where relief of reinstatement should have been granted—Interest of justice to be sub-served if compensation of Rs. 30,000/- per person was directed to be paid.
       Held : This is one of those cases which clearly depict as how the officers of the local-self government at their own whims and caprice have been making appointments without following the procedures laid down under the Adhiniyam. The Administrator of a Municipal Corporation is a public servant. He was bound to follow the provisions of the Adhiniyam and the Rules. It is surprising how the Respondents could be appointed even prior to creation of the temporary posts by the State. The Appointed Authority has now taken a stand that the Respondents had been appointed in terms of the order of the sanction dated 19.12.1985. The offers of appointment, precede the said date. The Respondents although purported to have been appointed as apprentices, were appointed as clerk on daily wages in the Assessment Department. Evidently, the provisions of the Apprentice Act, 1961 have also not been followed. The officers appeared to be absolutely ignorant of the provisions of the said Act. They even do not know how offers of appointment should be issued. This Court in a large number of decisions has expressed its concern on how and in what manner appointment on daily basis or by way of ad hoc arrangement are made in flagrant violations of constitutional provisions enshrined under Articles 14 and 16 of the Constitution of India and/or the statutory recruitment rules. This Court has also been noticing that the State or the public sector undertakings or the local self governments themselves are making all endeavours to regularise the services of such employees who have entered the services through the backdoor. The Industrial Tribunals, in some cases the High Courts also, had been generous enough to direct regularisation for the services of such workmen without proper application of mind. Recently, a Constitution Bench of this Court has held that such appointments being contrary to the provisions of Articles 14 and 16 of the Constitution of India are illegal. [See Secy., State of Karnataka and Ors. v. Umadevi and Ors., [(2006(4) SCALE 197]. It is, however, difficult for us to accept that the Respondent have been appointed on temporary basis pursuant to the said GO dated 9.12.1985 or such appointments were made for a fixed tenure within the meaning of the provisions of sub-clause (bb) of clause (oo) of Section 2 of the Industrial Disputes Act. We, however, do not agree with the High Court that as by way of an interim order the award was directed to be implemented, the same should itself form the basis for dismissing the writ petition.(Para 16 to 20)
       It is now well-settled, by reason of a catena of decisions of this Court, that only because the Labour Court may grant the relief of reinstatement with full backwages, the same should be granted as a matter of course. The Appellant herein has clearly stated that the appointments of the Respondents have been made in violation of the provisions of the Adhiniyam. An appointment made in violation of the provisions of Adhiniyam is void. The same, however, although would not mean that the provisions of the Industrial Disputes Act are not required to be taken into consideration for the purpose of determination of the question as to whether the termination of workmen from services is legal or not but the same should have to be considered to be an important factor in the matter of grant of relief. The Municipal Corporation deals with public money. Appointments of the Respondents were made for carrying out the work of assessment. Such assessments are done periodically. Their services, thus, should not have been directed to be continued despite the requirements therefor having come to an end. It is, therefore, in our considered view, not a case where the relief of reinstatement should have been granted.(Para 25)
       However, there cannot be any dispute that provisions of Section 6-N of the U.P. Industrial Disputes Act have not been complied with. We are, however, of the opinion that in stead and in place of issuing a direction for reinstatement of service, interests of justice shall be sub-served if compensation of Rs. 30,000/- per person is directed to be paid.(Para 30)

JUDGMENT

S.B. Sinha, J.—Leave granted.

2. The Appellant herein is a Municipal Corporation. It was constituted under the U.P. Nagar Mahapalika Adhiniyam, 1959 (for short, “the Adhiniyam”).

3. For the purpose of recruitment of employees, the procedures laid down in the Adhiniyam under which it was constituted and the rules framed thereunder were required to be complied with by the Appellant. The appointments of the Respondents indisputably were not made in terms of the statute. They were appointed as apprentices by the Administrator of the Municipality by an order dated 11.12.1985.

4. The Government of Uttar Pradesh created 39 posts for Quinquennial Assessment of tax upto 31st March, 1986 or till the time the same were abolished in the scales of pay enumerated therein which was communicated to the Administration by a letter dated 19.12.1985 subject to the following conditions:

“3. Only ad-hoc appointments are to be made on the aforesaid posts and if there is no work, or if there is no requirement even before the sanctioned period.

4. After 31st March, 1986, all the above posts shall be abolished compulsorily and the appointments should not be extended beyond that period on any condition.”

5. The following facts are not in dispute. The Respondents were appointed on an adhoc basis purported to be as apprentices on payment of apprentice allowance at the rate of Rs. 230/- per month by an order dated 20th October, 1984. Order of sanction for creation of some temporary posts was issued by the State of Uttar Pradesh which was the competent authority therefore, only on 19.12.1985. The Respondents, however, were appointed as apprentices in the Assessment Department by orders of the Administrator dated 5.11.1985 and 6.12.1985 wherefor an office order was issued on 11.12.1985.

6. The tenure of the services of the Respondents came to an end with effect from 31.12.1986. On or about 4.2.1987, they filed an application before the Conciliation Officer. Allahabad questioning the validity or otherwise of the said order of termination. However, the State of Uttar Pradesh made a reference of the following dispute for adjudication by the Labour Court. Allahabad by a notification dated 26.8.1987 in respect of the Respondent Ram Chandra Gupta :

“Whether termination of the service of Shri Ram Chandra Gupta, son of Shri Mithai Lal from the post of clerk by the employer w.e.f. 31.12.1986 is justified the legal? If not, to what benefit/relief, the workman concerned is entitled to receive and with details thereof?”

7. Similar references were made with regard to the other respondents also. By an award dated 30th November, 1998, the Labour Court arrived at a finding that all the workmen had worked for more than 240 days during the period 5.11.1985 and 31.12.1986 and as their services had been terminated in violation of the provisions of Section 6-N of the U.P. Industrial Disputes Act, the termination of their services was illegal. The Appellant was consequently directed to reinstate them in service. Aggrieved by and dissatisfied with the said award, a writ petition was filed by the Appellant before the Allahabad High Court which was marked as CMWP No. 7279 of 1989 wherein the following judgment and order came to be passed :

“I have heard the Ld. Counsels for the parties. During the pendency of the Writ Petition, the operation of the impugned award shall remain stayed subject to the condition that workmen are reinstated and are paid their full salary from the date of the award within two months from today. In addition, the Petitioner shall also deposit half of the arrears of pay and allowances, which can be withdrawn by workmen an adequate security. In case, these conditions are not complied with, this stay order shall automatically stand vacated.”

8. We may hereinafter notice some relevant provisions of the Adhiniyam.

9. Sub-clause (2) of Section 106 of the Adhiniyam provides that qualification of a person to be appointed to the post created under sub-clause (1) thereof

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2006 Supreme(SC) 434

Cases Referred (3)