Letters Patent Appeal No. 28 of 1998,Writ Petition No. 2618 of 1997

22nd March, 2013

Cases Cited:
Executive Engineer Vs. Ananta & Ors., 1998(3) Mah.L.J. 897 [Para 1]
Himanshu Kumar Vidyarthi & Ors. Vs. State of Bihar & Ors., 1997 (4) SCC 391 [Para 4,6,8,11,17]
Central Board of Dawoodi Bohra Community & Anr. Vs. State of Maharashtra & Anr., 2005 (2) SCC 673 [Para 5,16]
Devinder Singh Vs. Municipal Council, Sanaur, 2011(3) ALL MR 1008 (S.C.)=2011 (6) SCC 584 [Para 5,6,14,25,26]
Mohan Lal Vs. Bharat Electronics Ltd., 1981(3) SCC 225 [Para 5,12,13]
State Bank of India Vs. N. Sundara Money, 1976 (1) SCC 822 [Para 5,13]
State of Bombay Vs. The Hospital Mazdoor Sabha, AIR 1960 SC 610 [Para 5,13]
Vemarreddy Kumaraswamy Reddy & Anr. Vs. State of A.P., 2006 (2) SCC 670 [Para 6,15]
State of Assam & Ors. Vs. Kanak Chandra Dutta, AIR 1967 SC 884 [Para 6,15]
Secretary, State of Karnataka Vs. Umadevi, 2008 ALL SCR 134 : AIR 2006 SC 1806 [Para 6,14,19,21,22,24]
BSNL Pune Vs. Bala Saheb Maruti Poojari & Anr., 2006 (5) Mh.L.J. 314 [Para 9,18]
2007 ALL SCR 174 : 2007 (1) SCC 408 [Para 9,19]
Anoop Sharma Vs. Public Health Division, 2010(4) ALL MR 434 (S.C.)=(2010) 5 SCC 497 [Para 14]
Uttar Pradesh State Electricity Board Vs. Rajesh Kumar, (2003) 12 SCC 548 [Para 18]
M.P. Housing Board & Anr. Vs. Manoj Shrivastava, 2006 AIR SCW 1235 [Para 18]
Branch Manager, M.P. State Agro. Industrial Development Corporation Vs. S.C. Pande, 2006 (1) CLR 1066 [Para 18]
State of U.P. Vs. Kaushal Kishore Shukla, 1991 (1) SCC 691 [Para 19]
Bharat Sanchar Nigam Ltd. Vs. Man Singh, 2012 (1) SCC 558 [Para 20,27]
Rajkumar Rohitlal Mishra Vs. Jalgaon Municipal Corporation, 2013(2) ALL MR 438 (S.C.)=(2013) I CLR 676 [Para 21]
Mahendra L. Jain & Ors. Vs. Indore Development Authority & Ors., 2005 (1) SCC 639 [Para 22]
Krishan Singh Vs. Executive Engineer, Haryana State Agricultural Marketing Board, Rohtak (Haryana), 2010 ALL SCR 763 : (2010) 3 SCC 637 [Para 23]
Mahboob Deepak Vs. Nagar Panchayat, Gajraula, (2008) 1 SCC 575 [Para 23,24,25]
GDA Vs. Ashok Kumar, (2008) 4 SCC 261 [Para 24]
Assistant Engineer, Rajasthan Development Corporation Vs. Gitam Singh, 2013(2) ALL MR 440 (S.C.)=2013 I CLR 817 [Para 25]
L. Robert D'Souza Vs. Executive Engineer, Southern Railway, (1982) 1 SCC 645 [Para 25]
Harjinder Singh Vs. Punjab State Warehousing Corporation, 2010 ALL SCR 593 : (2010) 3 SCC 192 [Para 25]
Haryana State Electronics Development Corporation Ltd. Vs. Mamni, (2006)9 SCC 434 [Para 25]
Jagbir Singh Vs. Haryana State Agriculture Marketing Board, (2009) 15 SCC 327 [Para 25]
Senior Superintendent Telegraph (Traffic), Bhopal Vs. Santosh Kumar Seal, 2010(4) ALL MR 413 (S.C.)=(2010) 6 SCC 173 [Para 25]
In-charge Officer Vs. Shankar Shetty, 2011(1) ALL MR 931 (S.C.)=(2010) 9 SCC 126 [Para 25]
Assam Oil Company Ltd., New Delhi Vs. Its Workmen, AIR 1960 SC 1264 [Para 25]
Hindustan Steels Ltd., Rourkela Vs. A.K. Roy, (1969) 3 SCC 513 [Para 25]
Ruby General Insurance Co. Ltd. Vs. Shri P.P. Chopra, (1969) 3 SCC 653 [Para 25]
The Management of Panitole Tea Estate Vs. The Workmen, (1971) 1 SCC 742 [Para 25]
Tulsidas Paul Vs. The Second Labour Court, W.B., , (2011) 6 SCC 584 [Para 25]
Manager, Reserve Bank of India, Bangalore Vs. S. Mani, 2005(5) ALL MR 671 (S.C.)=(2006) 9 SCC 434 [Para 25]
Nagar Mahapalika (Now Municipal Corpn.) Vs. State of U.P., (2006) 5 SCC 127 [Para 25]
Municipal Council, Sujanpur Vs. Surinder Kumar, (2006) 5 SCC 173 [Para 25]
Regional Manager, SBI Vs. Mahatma Mishra, (2006) 13 SCC 727 [Para 25]
Haryana Urban Development Authority Vs. Om Pal, 2008 ALL SCR 48 : (2007) 5 SCC 742 [Para 25]
Uttaranchal Forest Development Corporation Vs. M.C. Joshi, 2007(5) ALL MR 416 (S.C.)=(2007) 9 SCC 353 [Para 25]
Madhya Pradesh Administration Vs. Tribhuban, 2007(3) ALL MR 876 (S.C.)=(2007) 9 SCC 748 [Para 25]
Telecom District Manager Vs. Keshab Deb, (2008) 8 SCC 402 [Para 25]
Talwara Co-operative Credit and Service Society Ltd. Vs. Sushil Kumar, 2008(6) ALL MR 934 (S.C.)=(2008) 9 SCC 486 [Para 25]
Uttar Pradesh State Electricity Board Vs. Laxmi Kant Gupta, (2009) 16 SCC 562 [Para 25]

JUDGMENT

B. P. Dharmadhikari, J. :- By this appeal under Clause 15 of the Letters Patent, the appellantsemployees have questioned the judgment dated 15.10.1997 delivered by the learned Single Judge in Writ Petition No. 2618/1997 since reported at 1998(3) Mah.L.J. 897 (Executive Engineer vs. Ananta and Others). They were the respondents in the said petition. The learned Single Judge has, in said judgment, found that services of present appellants are not covered under the terms of "Kalelkar Award" and hence their termination cannot be faulted. However, they are found to be entitled to compensation as per and under Chapter V-A of the Industrial Disputes Act, as retrenchment compensation. The Labour Court earlier had on 4.6.1994 in ULP (Complaint) Nos. 319/1984 to 322/1984 directed the respondent/employer to reinstate these appellants to their formal posts with continuity of service and full back wages. The Industrial Court has dismissed U.L.P. Revision No. 158/1994 filed by the respondent/employer and maintained the judgment delivered by the Labour Court, Amravati. Thus, the learned Single Judge has set aside the said relief and ordered employer to pay only retrenchment compensation. This judgment of the learned Single Judge has been stayed by this Court on 24.6.1998. It is, however, not in dispute that the present appellants have not been provided work till date. Perusal of the order dated 8.9.1999 show that the respondents were then facing a contempt petition. But then the appellants did not take any further steps to enforce compliance and to secure any interim direction. Thus, they are out of service for last about 28 years.

2. The appellants, except Dashrath, were in employment between 1.7.1982 to 31.8.1984. So far as Dashrath is concerned, the chart of working days revealed that he had put in 207 days but then he had joined service on 1.3.1983 and was terminated on 31.8.1984. The Labour Court as well as the Industrial Court, therefore, found that he too had put in 240 days and continuity in service. His termination with effect from 30.8.1984 was therefore found in violation of Section 25-F of the Industrial Disputes Act. The Industrial Court also noted that employees could have been transferred from one sub division to another within Nagpur Circle and no seniority list of the Circle came to be published or circulated. This, therefore, was sufficient to hold violation of provisions of Sections 25-G and 25-H of the Industrial Disputes Act read with Rule 81 of Bombay Industrial Disputes Rules.

3. We have heard Advocate S.D. Thakur for the appellants and learned Additional Government Pleader Mrs. Dangre for the respondents.

4. Shri Thakur submits that by following judgment of the Hon'ble Apex Court in case of Himanshu Kumar Vidyarthi and others Vs. State of Bihar and other s (1997 (4) SCC 391) , the learned Single Judge has found that daily wagers like appellants do not hold any post. The provisions of "Kalelkar Award" contemplate creation of a post personnel to such daily wager after he puts five years of service. Such posts are treated as post personnel to holders thereof and on converted regular temporary establishment ie CRTE. Hence, those employees, who had not put in five years were not holding any posts and were not entitled to relief of reinstatement with full back wages. He contends that these appellants are aggrieved with this application of mind, which is apparent in paragraph 17 of the impugned judgment. The daily wager is entitled to relief of reinstatement with continuity of back wages moment violation of provisions of Section 25-F of Industrial Disputes Act is established.

5. He invites our attention to Constitution Bench judgment reported at 2005 (2) SCC 673- (Central Board of Dawoodi Bohra Community and another VS. State of Maharashtra and another) and submit that when the judgment delivered by larger bench (Hon'ble 3judges) is available and holds the field, the learned Single Judge should not have applied the law as culled out from the judgments of the Hon'ble Apex Court delivered later by the benches with less strength of Hon'ble Judges. He strongly relies upon the judgment of Hon'ble Apex Court reported at 2011 (6) SCC 584 : [2011(3) ALL MR 1008 (S.C.)] - (Devinder Singh Vs. Municipal Council, Sanaur) to demonstrate how the law on the point of retrenchment has been applied therein. The termination of a workman in violation of Section 25-F is void in law and hence, he is presumed to continue to have in service. His entitlement to reinstatement and full back wages is, therefore, automatic. He draws support from the judgment of Apex Court reported at 1981(3) SCC 225- (Mohan Lal Vs. Bharat Electronics Ltd) for the said purpose. The judgment of Hon'ble 3-Judges reported at 1976 (1) SCC 822- (State Bank of India Vs. N. Sundara Money) and reported at AIR 1960 SC 610- (State of Bombay Vs. The Hospital Mazdoor Sabha) are also pressed in service by him.

6. He relies upon judgment reported at 2006 (2) SCC 670- (Vemarreddy Kumaraswamy Reddy and another Vs. State of A.P.) to submit that concept of a person holding post cannot be introduced in Section 25-F as said section no where uses the word "post". Constitution Bench Judgment reported at AIR 1967 SC 884- (State of Assam and others Vs. Kanak Chandra Dutta) is also relied upon by him to show that a casual labour does not hold any post. He submits that in Devinder Singh Municipal Council, Sanaur, [2011(3) ALL MR 1008 (S.C.)] (supra) this law has been appropriately applied while holding that source of employment is not relevant for finding out whether a person is or is not a workman under Section 2(S) of the Industrial Disputes Act. He further contends that the efforts of respondents-State to rely upon the Constitution Bench judgment reported at AIR 2006 SC 1806 : [2008 ALL SCR 134]- (Secretary, State of Karnataka .vrs. Umadevi) in this background is misconceived as the present matter is not for regularization. Neither before Labour Court nor before the Industrial Court the respondents had urged that the appointment of present appellants was contrary to the Rules. The judgment in Himanshukumar Vidyarthi and others Vs. State of Bihar and others (supra) is, therefore, stated to be not relevant for deciding the present controversy.

7. He further fairly points out that one of the appellants before this Court is a project affected person and was given work for one year. Because of that status but then this contention has not been raised in ULP (Complaint) or in this proceeding at any time before. He submits that said appellant has got original documents to show his status as project affected person and in view of those documents entitlement to reinstatement needs to be recognized.

8. Learned Additional Government Pleader contends that as employment is with the public body, in absence of a post, there cannot be reinstatement and no relief of back wages can be granted. Attention of this Court is invited to questions framed by the learned Single Judge in paragraph 5, particularly to question nos. 3 and 4 and then relevant discussion in para 17. The provisions of Model Standing Order, particularly clauses 4-B and 4-C, as looked into therein is pressed into service. The learned Additional Government Pleader submits that Kalelkar Award regulates service conditions and when that award contemplates creation of post only after five years, no post can be presumed to have been created by operation of Clause 4-C or Clause 4-B of the Model Standing Order. Distinction made by the learned Single Judge between workman because of their C.R.T. status or non C.R.T. status is sought to be justified. The judgment of Hon'ble Apex Court in Himanshukumar Vidyarthi and others Vs. State of Bihar and others (supra) is pressed into service in this background.

9. The judgment reported at 2006 (5) Mh.L.J. 314- (BSNL Pune VS. Bala Saheb Maruti Poojari and another) is relied upon for this purpose. It is submitted that Section 25-F cannot have any application in case of casual employee. The judgment of Hon'ble Apex Court reported at 2007 (1) SCC 408 : [2007 ALL SCR 174]- (Indian Drugs and Pharmaceuticals Ltd. VS . Workmen, Indian Drugs and Pharmaceuticals Ltd). is also pressed into service for very same purpose. As the person working on daily wage as causal does not hold the post, there is no question of granting him any relief except the relief of retrenchment compensation in terms of Section 25-F. The learned Additional Government Pleader, therefore, pressed for dismissal of Letters Patent Appeal.

10. The judgment of learned Single Judge needs to be perused in the background of two questions to which our attention has been invited. Those questions are question Nos. 3 and 4, reads thus:-

"3. Whether the termination of services of casual employee and/or daily rated employees would amount to retrenchment as they are not holding any post?

4. Whether relief of re-reinstatement with back-wages can be granted in respect of employees engaged as casual employees or daily rates employees as even otherwise in course of employment they had not been continuously engaged in the course of the year, but as and when employment was available?"

11. Consideration thereof begins from paragraph 16 onwards. The learned Single Judge has considered the provisions of Model Standing Order and classification of workman as badli or substitute or casual workman. Chapter 5-A of the Industrial Disputes Act and Section 25-J has been looked into, to conclude that the same will prevail notwithstanding inconsistent with any other law including Standing Order. But then, if a workman is entitled to more favourable treatment under award, those favourable provisions prevail various judgments of Hon'ble Apex Court are then looked into and lastly the judgment in case of Himanshukumar Vidyarthi and others Vs. State of Bihar and others (supra) has been noted. The learned Single Judge has also found that appointments to the extent regulated by statutory rules exclude the concept of industry. In facts before the Apex Court workmen were not appointed to the posts in accordance with the Rules but their engagement was need based. Thus, they were temporary employees on daily wages and their disengagement have not been been construed to be retrenchment. The Hon'ble Apex Court has held that concept of retrenchment cannot be stretched to such an extent so as to cover said employees. The learned Single Judge has found that these observations in case of employees of Government therefore reveals that there must be a post available and the workers engaged on daily wages and as temporary employees must be shown to be working against such post. Otherwise their termination or disengagement cannot be construed as retrenchment. The learned Single Judge has concluded that even if employees fall within the definition of workmen, yet their termination cannot be said to be retrenchment within the meaning of Section 25-F as they were not working against any post. We, therefore, find that the learned Single Judge has not held that the appellants are not workmen.

12. In paragraph 17 of the judgment, learned Single Judge then notices clauses 4-B and 4-C of the Model Standing Order mandate that workman has to be made permanent after completing 240 days continuous service. This necessitated a post in temporary or permanent establishment. The learned Single Judge find that post in government service must be sanctioned. If post existed, Rules must be framed for recruitment and where there is vacancy, it should be filled in on regular basis. Such Rules normally are framed under Article 309 of Constitution of India in absence of any legislation. State of Maharashtra for the purpose of Irrigation Department appointed a commission known as "Kalelkar Commission" and its award known as "Kalelkar Award" came to be accepted by the State Government. The same is found to have force in law in absence of any statutory rules by virtue of Article 162 of Constitution of India. A person working on daily wages or causal or work charge establishment is not holding any post while Kalelkar Award created an establishment known as converted temporary establishment. Employee putting in five years continuous service on work charge or daily wages establishment is to be brought on converted temporary establishment as per Kalelkar Award. From said establishment he can then be considered for appointment of regular establishment, subject to fulfillment of certain conditions. Persons brought on C.R.T. hold posts which are personal to them. These posts remain in existence so long as incumbent therein is available and stand abolished thereafter. The learned Single Judge in wake of these provisions has noted that if no post exists, question of reinstatement does not arise. The judgment in case of Mohan Lal Vs. Bharat Electronics Ltd. (supra) has also been looked into in this background. Because of this application of mind a conclusion that employees, whose names are not included in C.R.T.E. would not be entitled to reinstatement with full back wages or wages as awarded by Labour Court has been reached.

13. In State of Bombay vs. Hospital Mazdoor Sabha (supra), the Bench consisting of the Hon'ble three Judges have held that non compliance with the provisions of Section 25-F (b) of the Industrial Disputes Act, 1947, renders the impugned retrenchment invalid and inoperative. In the case of State Bank of India vs. N. Sundara Money (supra), the Hon'ble 3 Judges Bench has laid down that retrenchment compensation must be paid at the time of retrenchment and a weak workman needs to be placed back where he was left out. It is also observed that his new salary will be what he would have drawn in the same post on the date of reinstatement de novo. The relief has been granted in the peculiar facts and circumstances of the case. It is important to note that the Hon'ble Apex Court has also moulded relief and observed that workman will not be allowed to claim any advantages in the matter of seniority or other priority inter-se among temporary employees on the ground that his retrenchment is being declared invalid by it. The Hon'ble Apex Court has also added that it was not laying down any general proposition of law. In the case of Mohan Lal vs. Bharat Electronics Ltd. (supra), the Hon'ble Apex Court through its Bench consisting of two Hon'ble Judges has held that non compliance with Section 25-F renders the termination void ab-initio entitling him to declaration for continuation in service with full back wages.

14. In the case of Devinder Singh vs. Municipal Council, Sanaur, [2011(3) ALL MR 1008 (S.C.)] (supra), the Hon'ble two judges of the Hon'ble Apex Court have observed that when the termination is unsustainable, the High Court could not have interfered with the Labour Court's award though the engagement of appellant before it was not through advertisement and after consideration of other aspirants. The Hon'ble Apex Court has noted that said exercise could not have been undertaken by the employer due to ban on regular recruitment imposed by the State Government. The High Court could not have, therefore, held his appointment contrary to recruitment rules. The Apex Court, therefore, restored the relief given to workman by Labour Court. In this judgment, the source of employment, method of recruitment, terms and conditions of employment/ contract of service, quantum of wages and mode of its payment are held to be not relevant for deciding the status as a workman. The definition of workman in Section 2(s) of the Industrial Disputes Act, does not make any distinction between person employed on Full Time basis or Part Time basis or on contract basis. The Hon'ble Apex Court has held that once the test of employment for hire or reward for doing specified type of work is satisfied, the employee falls within the definition of workman. In this judgment, in para 6, the Hon'ble Apex Court has also made reference to its Constitution Bench judgment in the case of Secretary, State of Karnataka vs. Umadevi, [2008 ALL SCR 134] (supra). In para 18, various judgments laying down mandatory nature of Section 25-F of the Industrial Disputes Act, are noted. In para 19, the Hon'ble Apex Court has also referred to its earlier judgment in the case of Anoop Sharma vs. Public Health Division, (2010) 5 SCC 497 : [2010(4) ALL MR 434 (S.C.)], to note that there it has held that termination of service of a workman without complying with the mandatory provisions contained in Section 25-F should ordinarily result in reinstatement. Thus, in this judgment, the Hon'ble Apex Court has noted the fact that the State Government had imposed ban and, therefore, entry in public employment by following proper channel was not possible. The general rule of granting reinstatement in such circumstances is also noted by it. These judgments do not state it as a universal rule. As Devinder Singh's judgment is considered by Hon. Apex Court itself recently, we find it proper to refer to it little later.

15. In the case of State of Assam vs. Kanak Chandra (supra), the Constitution Bench of the Hon'ble Apex Court has noted that in the context of Articles 309, 310 and 311 of the Constitution of India, a post denotes a office. A post may be created before the appointment or simultaneously with it. A post is an employment but every employment is not a post. A casual labour is not a holder of a post. In Vemareddy Kumaraswamy Reddy vs. State of A.P. (supra),the Hon'ble two judges have held that a statue is an edict of the Legislature and when words are very clear and there is no obscurity and ambiguity, there is no scope for the Court to innovate or take upon itself the task of amending or altering the statutory provision. The Hon'ble Apex Court has pointed out that there is a very thin line which separates the adjudication from legislation and that line should not be crossed. Shri Thakur, learned counsel, has relied upon this ruling to urge that word "post" cannot be read in Section 25-F of the Industrial Disputes Act.

16. The judgment in the case of Central Board of Dawoodi Bohra Community vs. State of Maharashtra (supra), is the Constitution Bench judgment of the Hon'ble Apex Court where the Apex Court has pointed out that law declared by it through a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength. A Bench of lesser strength or quorum cannot disagree or dissent from the view taken by the larger quorum. It is only open for the Bench of co-equal strength to express an opinion doubting the correctness of the view taken by the earlier Bench whereupon the mater should be placed for hearing before a Bench consisting of a larger quorum.

17. The judgment in the case of Himanshu Kumar Vidyarthi vs. State of Bihar (supra), needs to be looked into in this background. The judgment is pronounced by two Hon'ble Judges. The Hon'ble Apex Court in this judgment has on facts, upheld disengagement of a daily wager on completion of work. The challenge was directly before the High Court in writ petition and grievance was of violation of Section 25-F of the I.D. Act. The consideration is in this background. The Hon'ble Apex Court noticed that when appointments are regulated by statutory rules, the concept of industry to that extent stands excluded. Daily wagers before it were not appointed to the post in accordance with rules but were engaged on daily wages on the basis of need of work and were temporary employees. The Hon'ble Apex Court, therefore, did not view their termination as retrenchment. This ruling, therefore, shows that the termination is after work was over and persons were not recruited in accordance with law on any post. In Himanshu Kumar Vidyarthi and others Vs. State of Bihar and others (supra), the Hon'ble Apex Court has again noted the question of propriety of relief and the facts, there do not show availability of work for daily wagers or continuation of juniors in employment was the plea or pointed out to the Hon'ble Supreme Court. The previous judgments looked into by us, therefore, do not militate with the application of law in this judgment.

18. In the case of B.S.N.L. Pune vs. Balasaheb (supra), Division Bench of this Court has considered the question of termination of a Casual Mazdoor not appointed against a vacant post and not appointed after following statutory provisions. It has been held that merely because he had completed continuous service of 240 days, it was not necessary for the employer to issue him a notice and follow the provisions of Section 25-F of I.D. Act. The reference of dispute was also made after about nine years and employee there had worked from 22.05.1984 to 28.02.1985. The discussion in para 11 shows that this conduct of approaching almost after nine years has been found sufficient to hold that worker had intention to abandon the service. The Division Bench of this Court noted that in the case of Uttar Pradesh State Electricity Board vs. Rajesh Kumar, (2003) 12 SCC 548, the worker was regularly appointed and shown on list of workers. It relied upon the judgment in the case of M.P. Housing Board and Anr. vs. Manoj Shrivastava , (2006 AIR SCW 1235) , where the employee was appointed on daily wages but not against a vacant post and his appointment was not made after following statutory law. He was not treated as permanent employee. A daily wager does not hold post unless he is appointed in terms of law and he does not derive any legal right in relation to his employment. Similar view taken by the Hon'ble Apex Court in Branch Manager, M.P. State Agro. Industrial Development Corporation vs. S.C. Pande, (2006 (1) CLR 1066), has been followed.

19. In the case of Secretary, State of Karnataka vs. Umadevi, [2008 ALL SCR 134] (supra), the Constitution Bench of Hon'ble Apex Court has considered basically the question of regularization. In the process, while considering the provisions of Articles 21, 16 and 39(a) of Constitution of India, the Apex Court has observed that right to life does not include right to employment. Daily wager or causal or contractual employee appointed dehors the rules, cannot seek permanent employment by invoking Article 21. The judgment shows how entry in public employment has to be only after following open and competitive selection process. In the case of Indian Drugs and Pharmaceuticals Ltd. vs. Workmen, [2007 ALL SCR 174] (supra), the Hon'ble two Judges of the Hon'ble Apex Court have noted that a temporary or daily rated employee or casual worker have no right to post and for that purpose have relied upon the judgment in the case of State of U.P. vs . Kaushal Kishore Shukla, ( 1991 (1) SCC 691). In para 14, it has been noted that a permanent employee has a right to the post and a right to continue till the age of superannuation. The employees involved in the matter before Hon'ble Apex Court were not appointed by following regular procedure and were given work due to pressure and agitation of union and on compassionate grounds though there were no vacancies. It has been held that regularization cannot be a mode of appointment and rules of recruitment cannot be relaxed. Creation and abolition of posts as also regularization are held to be purely executive functions. In paras 41 and 42, it has been held that only where Supreme Court lays down a principle of law, that it amounts to precedent. The directions issued by the Supreme Court without laying down any principle of law are not precedents.

20. We may note here that a Bench of Hon'ble two Judges of Supreme Court in a judgment reported at 2012 (1) SCC 558- (Bharat Sanchar Nigam Limited .vrs. Man Singh), have considered the effect of noncompliance with the provisions of Section 25-F of the Industrial Disputes Act, in case of a workman engaged on daily wages. The issue squarely looked into is, what should be the proper relief for such violation. The daily wagers were engaged as a casual labour on daily wages during the year 1984-85 and their services were terminated due to non availability of work in the year 1986. No notice or retrenchment compensation was given to them. They had raised a dispute after about 5 years. On 27.05.2005 the Labour Court vide its award dated 27.05.2005 ordered reinstatement on same post which these daily wagers were holding at the time of their termination. The High Court dismissed writ petitions of employer-department and then the matter was taken before the Hon'ble Apex Court. The Hon'ble Apex Court has noted that in catena of its decisions law has been explained and though the order of retrenchment is passed in violation of Section 25-F of the Industrial Disputes Act should be set aside, an award of reinstatement should not be passed. It noted that the Hon'ble Apex Court has distinguished between a daily wager who does not hold a post and a permanent employee. In facts before it as daily wagers had worked for more than 240 days, merely on that ground the Hon'ble Apex Court found that the reinstatement could not have been justified and monetary compensation would meet the ends of justice. The employer-BSNL was directed to pay each workman Rs. 2 lakhs in full and final settlement of the claim.

21. In its recent judgment dated 01.02.2013 in Rajkumar Rohitlal Mishra vs. Jalgaon Municipal Corporation (2013 I CLR 676) : [2013(2) ALL MR 438 (S.C.)], the Hon'ble Apex Court has considered the nature of relief which can be granted to a workman not having right to post. The appeals before it were against the common judgment and order passed by the Division Bench of the Bombay High Court at Aurangabad in Letters Patent Appeals arising out of Writ Petitions whereby the order passed by the Learned Single Judge quashing the award passed by the Labour Court, Jalagaon, has been affirmed. All the appellants were employed with the Respondent Corporation on daily wages or on temporary basis. The Labour Court passed an award holding the termination as illegal and directed reinstatement of the appellants. Aggrieved by the said order the Respondent-Corporation moved the High Court by filing writ petitions. The learned Single Judge, after hearing the parties, allowed the writ petitions and quashed the award passed by the Labour Court. However, the Respondent-Corporation was directed to pay Rs. 10,000/- each to the appellants by way of compensation. The learned Single Judge noticed that out of five, four appellants approached the Labour Commissioner for conciliation after 8 to 10 years from the date of termination of service. Only the 5th appellant approached the Labour Commissioner after three years and ten months from the date of termination of service. All the five appellants dissatisfied with the judgment and order passed by the learned Single Judge filed Letters Patent Appeals which were numbered as 140-144 of 2007. The Division Bench noticed the undisputed facts that all the appellants were temporarily employed on daily wages or temporary basis, and that their services were terminated after they worked for five years. It was further noticed that delay in approaching the conciliation officer was totally unexplained and there is nothing on record to infer that the appellants were continuously approaching the Corporation for their reinstatement in service. The Division Bench, therefore, while dismissing the appeals relied upon ratio laid down by the Constitution Bench of the Hon'ble the Supreme Court in the matter of Secretary, State of Karnataka v.Umadevi, [2008 ALL SCR 134] (supra) and held that the learned Single Judge was justified in holding that no remedy is available to the workers since they were not the workers appointed on regular vacant posts by due process of selection In view of this concurrent finding recorded by both the learned Single Judge and Division Bench in appeal that the appellants were temporarily appointed on daily wages as and when work was available and they were not posted on regular basis against sanctioned post, Hon. Apex Court did not find any reason and justification to interfere with the orders passed by the two courts. However, the appellants who approached for the conciliation after 8 to 10 years from the date of termination are given a sum of Rs. 50,000/- each as compensation whereas one of the appellants namely Rajkumar Rohitlal who approached the Conciliation Officer within 2 to 3 years is given a sum of Rs. 1,00,000/-.

22. In 2005 (1) SCC 639- (Mahendra L. Jain and Ors. .vrs . Indore Development Authority and Ors). the Hon'ble Apex Court has held that a person appointed as daily wager holds no post. Such person cannot claim equal pay for equal work on the ground of parity, as their appointments are not in compliance with the provisions of the statute. The Standing Orders governing the terms and conditions of service are to be read subject to the constitutional limitations wherever applicable. Apex Court states that the Constitution being the suprema lex, shall prevail over all other statutes. This judgment has been followed with approval in Constitution Bench judgment in case of Secretary, State of Karnataka vs. Umadevi, [2008 ALL SCR 134] (supra). The Constitution Bench has rejected the argument that Article 23 of the Constitution of India is breached and the employment on daily wages amounts to forced labour. It is apparent that the Constitution is the supreme law and it has to prevail even over the provisions of such welfare legislations including Section 25J of the Industrial Disputes Act.

23. Hon'ble Apex Court in (Krishan Singh v. Executive Engineer, Haryana State Agricultural Marketing Board, Rohtak (Haryana) (2010) 3 SCC 637 : [2010 ALL SCR 763], has observed that wide discretion is vested in the Labour Court while adjudicating an industrial dispute relating to the discharge or dismissal of a workman and if the Labour Court has exercised its jurisdiction in the facts and circumstances of the case to direct reinstatement of a workman with 50% back wages taking into consideration the pleadings of the parties and the evidence on record, the High Court in exercise of its power under Articles 226 and 227 of the Constitution of India will not interfere with the same, except on well-settled principles laid down by this Court for a writ of certiorari against an order passed by a court or a tribunal. In Mahboob Deepak v. Nagar Panchayat, Gajraula - (2008) 1 SCC 575, Hon'ble Apex Court has mentioned the following factors, which are relevant for determining whether an award of reinstatement should or should not be passed:

"(i) whether in making the appointment, the statutory rules, if any, had been complied with;

(ii) the period he had worked;

(iii) whether there existed any vacancy; and whether he obtained some other employment on the date of termination or passing of the award."

24. The two decisions in Mahboob Deepak v. Nagar Panchayat, Gajraula and GDA v. Ashok Kumar-(( 2008) 4 SCC 261) are held to have no application to the facts as the respondent had not taken any stand before the Labour Court in his objections that the post in which the workman was working was not sanctioned or that his engagement was contrary to statutory rules or that he was employed elsewhere or that there was no vacancy. In the absence of any pleadings, evidence or findings on any of these aspects, the High Court is found to be in error in modifying the award of the Labour Court directing reinstatement of the appellant with 50% back wages and instead directed payment of compensation of Rs 50,000/- to the appellant. State of Karnataka v. Umadevi, [2008 ALL SCR 134] (3) cited by the counsel for the respondent has been found not relevant as it relates to regularization in public employment and has no bearing on an award for reinstatement of a discharged workman passed by the Labour Court under Section 11-A of the Act without any direction for regularization of his services. Thus, again on facts interference in writ jurisdiction is found unwarranted.

25. Hon. Apex Court has in 2013 I CLR 817 : [2013(2) ALL MR 440 (S.C.)] - (Assistant Engineer, Rajasthan Development Corporation vs. Gitam Singh) again reviewed the law. Devinder Singh v. Municipal Council, Sanaur, [2011(3) ALL MR 1008 (S.C.)] (supra) relied upon heavily by Adv. Thakur is also looked into. The question was where the workman had worked for only eight months as daily wager and his termination has been held to be in contravention of Section 25-F of the Industrial Disputes Act, 1947, whether the direction to the employer for reinstatement with continuity of service and 25 per cent back wages is legally sustainable. Contention of workman was that reinstatement must follow where termination has been found to be in breach of Section 25-F of ID Act and he heavily relied upon three decisions of Supreme Court in L. Robert D'Souz a v. Executive Engineer, Southern Railway- ((1982) 1 SCC 645), Harjinder Singh v. Punjab State Warehousing Corporation((2010) 3 SCC 192) : [2010 ALL SCR 593] and Devinder Singh v. Municipal Council, Sanaur, [2011(3) ALL MR 1008 (S.C.)] (supra). Employer had urged that the award of reinstatement with continuity of service and 25 per cent back wages in the facts of the case was unjustified as the respondent was only a daily wager; he worked for a very short period from 01.03.1991 to 31.10.1991 and for last more than 20 years, was not in the service due to interim orders. Reliance was upon the decisions in Haryana State Electronics Development Corporation Ltd . v . Mamni- ((2006)9 SCC 434), Mahboob Deepak v. Nagar Panchayat , Gajraula-((2008) 1 SCC 575), Jagbir Singh v. Haryana State Agriculture Marketing Board- ((2009) 15 SCC 327), Senior Superintendent Telegraph (Traffic), Bhopal v. Santosh Kumar Seal- ((2010) 6 SCC 173) : [2010(4) ALL MR 413 (S.C.)] and In-charge Officer v. Shankar Shetty- ((2010) 9 SCC 126) : [2011(1) ALL MR 931 (S.C.)]. In addition to these judgments, Hon'ble Apex Court considers its decisions in Assam Oil Company Limited, New Delhi v. Its Workmen- (AIR 1960 SC 1264), Hindustan Steels Ltd., Rourkela v. A.K. Roy-(1969) 3 SCC 513), Ruby General Insurance Co. Ltd. v. Shri P.P . Chopra- (1969) 3 SCC 653), The Management of Panitole Tea Estate v . The Workmen-(1971) 1 SCC 742), Tulsidas Paul v. The Second Labour Court, W.B.- (2011) 6 SCC 584), Manager, Reserve Bank of India, Bangalore v. S. Mani- (2006) 9 SCC 434) : [2005(5) ALL MR 671 (S.C.)], Nagar Mahapalika (Now Municipal Corpn.) v. State of U.P.- (2006) 5 SCC 127), Municipal Council, Sujanpur v. Surinder Kumar- (2006) 5 SCC 173), Regional Manager, SBI v. Mahatma Mishra- (2006) 13 SCC 727), Haryana Urban Development Authority v. Om Pal- (2007) 5 SCC 742) : [2008 ALL SCR 48], Uttaranchal Forest Development Corporation v. M.C. Joshi- (2007) 9 SCC 353) : [2007(5) ALL MR 416 (S.C.)], Madhya Pradesh Administratio n v. Tribhuban- (2007) 9 SCC 748) : [2007(3) ALL MR 876 (S.C.)], Telecom District Manager v. Keshab Deb- (2008) 8 SCC 402), Talwara Co-operative Credit and Service Society Limited v. Sushil Kumar- (2008) 9 SCC 486) : [2008(6) ALL MR 934 (S.C.)], Uttar Pradesh State Electricity Board v . Laxmi Kant Gupta- (2009) 16 SCC 562). In paragraph 26, Hon'ble Apex Court concludes as under :-

"26. From the long line of cases indicated above, it can be said without any fear of contradiction that this Court has not held as an absolute proposition that in cases of wrongful dismissal, the dismissed employee is entitled to reinstatement in all situations. It has always been the view of this Court that there could be circumstance(s) in a case which may make it inexpedient to order reinstatement. Therefore, the normal rule that dismissed employee is entitled to reinstatement in cases of wrongful dismissal has been held to be not without exception. Insofar as wrongful termination of daily-rated workers is concerned, this Court has laid down that consequential relief would depend on host of factors, namely, manner and method of appointment, nature of employment and length of service. Where the length of engagement as daily wager has not been long, award of reinstatement should not follow and rather compensation should be directed to be paid. A distinction has been drawn between a daily wager and an employee holding the regular post for the purposes of consequential relief."

26. In this judgment, Devinder Singh, [2011(3) ALL MR 1008 (S.C.)] (supra) on which Adv. Thakur placed strong reliance before us, finds consideration as under :--

"27. We shall now consider two decisions of this Court in Harjinder Singh2 and Devinder Singh upon which heavy reliance has been placed by the learned counsel for the respondent. In Harjinder Singh2, this Court did interfere with the order of the High Court which awarded compensation to the workman by modifying the award of reinstatement passed by the Labour Court. However, on close scrutiny of facts it transpires that-----------, Labour Court passed an award for reinstatement of the workman with 50 per cent back wages. The Single Judge of that High Court did not approve the award of reinstatement on the premise that the initial appointment of the workman was not in consonance with the statutory regulations and Articles 14 and 16 of the Constitution and accordingly, substituted the award of reinstatement with 50 per cent back wages by directing that the workman shall be paid a sum of Rs. 87,582/- by way of compensation. It is this order of the Single Judge that was set aside by this Court and order of the Labour Court restored. We are afraid the facts in Harjinder Singh are quite distinct. That was not a case of a daily-rated worker. It was held that Single Judge was wrong in entertaining an unfounded plea that workman was employed in violation of Articles 14 and 16. Harjinder Singh turned on its own facts and is not applicable to the facts of the present case at all.

28. In Devinder Singh, the workman was engaged by Municipal Council, Sanaur on 01.08.1994 for doing the work of clerical nature. He continued in service till 29.09.1996. His service was discontinued with effect from 30.09.1996 in violation of Section 25-F of ID Act. On industrial dispute being referred for adjudication, the Labour Court held that the workman had worked for more than 240 days in a calendar year preceding the termination of his service and his service was terminated without complying with the provisions of Section 25-F. Accordingly, Labour Court passed an award for reinstatement of the workman but without back wages. Upon challenge being laid to the award of the Labour Court, the Division Bench set aside the order of the Labour Court by holding that Labour Court should not have ordered reinstatement of the workman because his appointment was contrary to the Recruitment Rules and Articles 14 and 16 of the Constitution. In the appeal before this Court from the order of the Division Bench, this Court held that the High Court had neither found any jurisdictional infirmity in the award of the Labour Court nor it came to the conclusion that the award was vitiated by an error of law apparent on the face of the record and notwithstanding these the High Court set aside the direction given by the Labour Court for reinstatement of the workman by assuming that his initial appointment was contrary to law. The approach of the High Court was found to be erroneous by this Court. This Court, accordingly, set aside the order of the High Court and restored the award of the Labour Court. In Devinder Singh, the Court had not dealt with the question about the consequential relief to be granted to the workman whose termination was held to be illegal being in violation of Section 25-F.

29. In our view, Harjinder Singh and Devinder Singh do not lay down the proposition that in all cases of wrongful termination, reinstatement must follow. This Court found in those cases that judicial discretion exercised by the Labour Court was disturbed by the High Court on wrong assumption that the initial employment of the employee was illegal. As noted above, with regard to the wrongful termination of a daily wager, who had worked for a short period, this Court in long line of cases has held that the award of reinstatement cannot be said to be proper relief and rather award of compensation in such cases would be in consonance with the demand of justice. Before exercising its judicial discretion, the Labour Court has to keep in view all relevant factors, including the mode and manner of appointment, nature of employment, length of service, the ground on which the termination has been set aside and the delay in raising the industrial dispute before grant of relief in an industrial dispute."

27. Hon'ble Apex Court also refers to Bharat Sanchar Nigam Limite d v. Man Singh- (supra), which we have already noted above. In light of the above legal position and having regard to the facts of the case, namely, the workman was engaged as daily wager on 01.03.1991 and he worked hardly for eight months from 01.03.1991 to 31.10.1991, Hon'ble Apex Court held that the Labour Court failed to exercise its judicial discretion appropriately and it suffered from serious infirmity. The Single Judge as well as the Division Bench of the High Court are also found to have erred in not considering these aspects. The award dated 28.06.2001 directing reinstatement of the respondent with continuity of service and 25% back wages in the facts and circumstances of the case has been set aside. Compensation of Rs.50,000/- by the appellant to the respondent is held just to meet the ends of justice.

28. In this background when facts of matter at hand are looked into, the appellants have not pointed out to us that there juniors were permitted to continue in employment, though they were terminated. The Labour court had drawn inference of violation of Section 25-G or Rule 81, only because of submission that seniority list of entire circle was not published. It noted that the employees could have been transferred from one project to other project, and hence, while effecting retrenchment seniority list of entire circle was required to be published. Grievance that one of the appellants before us is a project affected person and entitled to preference is not substantiated by pleadings and proof. The appellants are out of service since last 28 years and are also negligent in as much as, they never took any coercive steps to join back or to see that part of their salary is deposited in Court. Thus they appear to be interested in roving effort of recovering wages only. Admittedly the provisions of Kalelkar Award are applicable and binding on the parties. The said award contemplates placement of a workman on Converted Regular Temporary Establishment (CRTE) only after completion of 5 years of service as a daily wager. After such service of 5 years, a post personal to him is deemed to be created on CRTE. It is therefore, obvious that any continuation of less than 5 years duration does not result in creation of a post. A person who has put in less then 5 years as a daily wager, therefore, does not get right to post.

29. Looking to this scheme of Clause 28 of the Kalelkar Settlement, it is clear that mere violation of Section 25-F of the Industrial Disputes Act, will not entitle any workman to a relief of reinstatement either with continuity or with back wages. The aspirant workman in addition is required to prove that though he was terminated, work continued and by his termination, his right to come on CRTE at the end of 5 years has been taken away. There is no such evidence before us in the present matter. There are no such arguments also at this juncture. The finding that each of the appellant has put in 240 days is not in dispute. Their length of tenure as daily wager is little over one year. When there is nothing before us to gather that by breaching the provisions of Section 25 of the Industrial Disputes Act, the appellant have been victimized and their termination is otherwise malafide with some oblique motive, a direction to grant appellant retrenchment compensation in accordance with the provisions of law cannot be said to be unsustainable. The appellants were always aware that unless and until they put in 5 years of service no post is created for them, and their employment on daily wages therefore, remains contingent. The parties have agreed that if the work lasts for 5 years, then only a daily wager who continues during said period can be brought on CRTE. In view of this understanding and settlement, relief of grant of retrenchment compensation only in accordance with the provisions of Section 25-F, cannot be said to be perverse.

30. A workman being retrenched becomes eligible to retrenchment compensation as also notice pay. Here notice pay has not been awarded to the appellants by the learned Single Judge, hence, we direct that they shall also be paid wages for one month in lieu of notice in addition to retrenchment compensation. The impugned judgment delivered by the learned Single Judge is modified to that extent only. Rest of the judgment of learned Single Judge is maintained as it is.

31. Letters Patent Appeal is thus partly allowed by directing the respondents to pay notice pay in accordance with the provisions of Section 25-F of the Industrial Disputes Act, in addition to retrenchment compensation. Rule is made absolute in the aforesaid terms, with no order as to cost.

Appeal partly allowed.