Nagar Mahapalika Vs. State of U.P. & Ors  Insc 264 (2 May 2006)
Sinha & P.K. Balasubramanyan
S.L.P. (CIVIL) NO. 23732 OF 2004) S.B. SINHA, J :
Appellant herein is a Municipal Corporation. It was constituted under the U.P. Nagar
Mahapalika Adhiniyam, 1959 (for short, "the Adhiniyam").
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.
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.
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
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.
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." 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.
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 Concilliation
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:
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 and
legal? If not, to what benefit/ relief, the workman concerned is entitled to
receive and with details thereof?" 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.
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:
have heard the Ld. Counsels for the parties.
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 on adequate security. In case,
these conditions are not complied with, this stay order shall automatically
stand vacated." We may hereinafter notice some relevant provisions of the Adhiniyam.
(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 shall be such as
may be prescribed by the State Government. Section 107 of the Adhiniyam deals
with the appointment to the post. Section 108 of the Adhiniyam provides that
notwithstanding anything contained in Section 107, officiating and temporary
appointments to posts mentioned in sub-sections (1), (2) and (3) thereof may be
made by the appointing authorities specified in those sub-sections without
consulting the State Public Service Commission or obtaining the recommendations
of the Selection Committee but no such appointment shall continue beyond the
period of one year or shall be made where it is expected to last for more than
a year without consulting the State Public Service Commission or otherwise than
in accordance with the recommendations of the Selection Committee, as the case
109 of the Adhiniyam provides that the emoluments and other conditions of
services of officers, staff and other servants of the Nagar Mahapalika shall be
such as may be prescribed by the State Government. Section 111 of the Adhiniyam
confers power on the State Government to make appointments where any authority
specified in Section 107 fails within a reasonable time to make appointment to
any post specified in Section 106 or created thereunder.
112-A of the Adhiniyam reads as under:
anything contained in Sections 106 to 110 the State Government may at any time
by rule provide for one or more services of such officers and servants as the
State Government may deem fit common to the Mahapalikas or to the Municipal
Board, Jal Sansthan of the State.
that when any
such service is created, officers and servants serving on the post included in
the service as well as the officers and servants performing duties and
functions of those posts under sub-clause (1) of clause (ee) of Section 577 may
if found suitable be absorbed in the service provisionally or finally and the
services of others shall stand determined in the prescribed manner.
prejudice to the generality of the provision of sub- sections (1) and (2) such
rule may also provide for consultation with the State Public Service Commission
in respect of any of the matters referred to in the said sub-section.
the High Court, a contention was raised that appointment of the Respondents
being for a fixed period as envisaged under Section 2(oo)(bb) of the Industrial
Disputes Act, 1947 and furthermore in view of the fact that their appointments
being governed by the provisions of the U.P. Municipal Corporation Adhiniyam,
1959, the award of reinstatement was unwarranted in law.
furthermore urged that in any event, the said Respondents having been appointed
only on an adhoc basis and not in terms of the provisions of the said Adhiniyam
and the rules framed thereunder, had no legal right to continue in service.
Moreover, they having been appointed on daily wages, their disengagement from
services cannot be construed to be 'retrenchment' under the provisions of the
U.P. Industrial Disputes Act.
High Court, however, did not go into the aforementioned questions at all. The
High Court dismissed the said writ petition only on the premise that the
workmen having completed 240 days of continuous service and as they had been
reinstated in service pursuant to the interim order passed by the High Court,
it would not be appropriate to displace the workmen from employment and to
offer other reliefs, particularly, when a relief of reinstatement can be
granted for violation of the provisions of Section 6-N of the Act in view of
the decision of this Court in Hindustan Tin Works Pvt. Ltd. v. Employees of M/s
Hindustan Tin Works Pvt Ltd. and Others, [(1979) 2 SCC 80 : AIR 1979 SC 75].
they were directed to be paid 50% of the backwages.
learned counsel appearing on behalf of the Appellant would contend that having
regard to the nature of appointment, the impugned award could not have been
passed. The learned counsel appearing on behalf of the Respondent, on the other
hand, would support the impugned award.
is one of those cases which clearly depict as to 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 Appointing Authority has now taken a stand that the
Respondents had been appointed in terms of the order of 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
clerks 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.
Court in a large number of decisions has expressed its concern on how and in
what manner appointments 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.
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 & Ors. v. Umadevi & Ors., [2006 (4) SCALE 197].
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.
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.
High Court exercised its discretion in not granting an interim relief in favour
of the Appellant. In view of the refusal on the part of the High Court to grant
an interim relief as was prayed for by the Appellant, the Appellant implemented
the award pending the appeal which can only be subject to appeal, that would
not mean that the High Court would not or should not go into the merit of the
matter. In fact it is the duty of the High Court to consider the appeal on
merits. It is unfortunate that the writ petition filed in the year 1989 has
been disposed of in 2004 but the Appellants cannot be blamed therefor. The
Respondents might have continued in service for more than 14 years only because
the High Court did not pass any interim order, but the same, in our opinion,
should not have formed the basis for making the interim order absolute or for
non- consideration of the merit of the matter.
opinion, the High Court did not adopt a correct approach in the matter.
of the provisions of Section 6-N of the U.P. Industrial Disputes Act, although,
may lead to the grant of a relief of reinstatement with full backwages and
continuity of service in favour of the retrenched workmen, the same would not
mean that such a relief is to be granted automatically or as a matter of
The Labour Court in its award did not take into
consideration the relevant facts for exercise of its discretion in granting the
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.
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.
Branch Manager, M.P. State Agro Industries Development Corpn. Ltd. & Anr. v. Shri
S.C. Pandey [(2006) 2 SCALE 619], it is stated:
Industrial Court as also the High Court applied the
principles of estoppel on the finding that the respondent was transferred from Morena
to Gwalior. If his appointment was void, being
contrary to regulations, in our opinion, the procedural provisions like estoppel
or waiver were not applicable. If an appointment made by the Branch Manager was
wholly without jurisdiction, the order of appointment itself was void.
the contention of the appellant had been that in terms of Regulation 16 of 1976
Regulations only the Managing Director of the Corporation could issue an offer
not been found by the Industrial Courts or the High Court that the Branch
Manager and the Regional Manager were authorized to make such appointments. The
appointment of the respondent, thus, must be held to have been made only to
meet the exigencies of services and not in terms of the service regulations.
The appointment of the Respondent, thus, could not have been made for filling
up a regular vacancy for the purpose of invoking Rule 2 of the Standing Orders.
it has not been contended that the services of the respondent were not governed
by the provisions of the Industrial Disputes Act. He worked from 16.9.1985 to
19.5.1987. He must have, thus, completed 240 days of service. The termination
of his services without complying with the provisions of Section 25F of the
Industrial Disputes Act was, thus, illegal. He, however, had unjustly been
directed to continue in service by reason of an interim order. He has been
continuing in service pursuant thereto.
appellant, in our opinion, cannot be made to suffer owing to a mistake on the
part of the court. The respondent also cannot take advantage of a wrong order.
peculiar facts and circumstances of the case, we, therefore, of the opinion
that interest of justice would be sub-served if, in place of directing
reinstatement of the services of the respondent, the appellant is directed to
pay a sum of Rs. 10,000/- by way of compensation to him. It is directed
accordingly. The orders under challenge are set aside. The appeal is allowed
with the aforementioned directions and observations." The learned counsel
appearing on behalf of the Respondents has strongly relied upon a decision of
this in S.M. Nilajkar and Others v. Telecom District Manager, Karnataka [(2003)
4 SCC 27] wherein this Court was considering the question as to whether the
interpretation of the expression "the termination by the employer of the
service of a workman for any reason whatsoever" has been employed by the
Parliament while defining the term "retrenchment". It was held:
"Retrenchment" in its
ordinary connotation is discharge of labour as surplus though the business or
work itself is continued. It is well settled by a catena of decisions that labour
laws being beneficial pieces of legislation are to be interpreted in favour of
the beneficiaries in case of doubt or where it is possible to take two views of
a provision. It is also well settled that Parliament has employed the
expression "the termination by the employer of the service of a workman
for any reason whatsoever" while defining the term
"retrenchment", which is suggestive of the legislative intent to
assign the term "retrenchment" a meaning wider than what it is
understood to have in common parlance. There are four exceptions carved out of
the artificially extended meaning of the term "retrenchment", and
therefore, termination of service of a workman so long as it is attributable to
the act of the employer would fall within the meaning of
"retrenchment" dehors the reason for termination. To be excepted from
within the meaning of "retrenchment" the termination of service must
fall within one of the four excepted categories. A termination of service which
does not fall within categories (a), (b), (bb) and (c) would fall within the
meaning of "retrenchment"." In Nilajkar (supra), this Court
cannot be said to have laid down a law having universal application. In that
case also backwages had been denied by the learned Single Judge of the High
Court which order was held to be just and reasonable. Therein, the question
which arose was whether in fact the Appellants therein were appointed in a
said decision has been distinguished by this Court in various decisions including
Executive Engineer, ZP Engg. Divn. And Another v. Digambara Rao and Others
[(2004) 8 SCC 262] which in turn has been followed in a large number of
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.
goes without saying that the Respondents would be entitled to wages and other
remunerations in terms of the interim order passed by the High Court so long
they have actually worked. We, furthermore, hope and trust that in all future
appointments, the Appellant shall strictly follow the provisions of the Adhiniyam
and the Rules.
Appeal is allowed in part and to the extent mentioned hereinbefore. No costs.