Branch
Manager, M.P. State Agro Industries Development Corpn. Ltd. & Anr Vs. Shri S.C. Pandey
[2006] Insc 97 (24
February 2006)
S.B.
Sinha & P.K. Balasubramanyan
(Arising
out of SLP (C) No. 24842 of 2004) S.B. SINHA, J.
Leave
granted.
The
appellant herein is a statutory corporation and, thus, a 'State' within the
meaning of Article 12 of the Constitution of India.
The
respondent herein was temporarily appointed as a Typist. He was appointed by
the Branch Manager, Morena Branch of the appellant whereafter intimation
thereto was given to the Regional Manager, stating:
"Shri
Vinod Bharga has left the services from this Office and now Shri S.C. Pandey
has been temporarily appointed as a Typist w.e.f. 16th September, 1985.
The
original application of Shri Pandey is enclosed herewith. Please issue
necessary orders." He appears to have been appointed an daily wages. His
services were terminated by an order dated 18.7.1987 with immediate effect by
the Regional Manager on the ground that his services were no longer required.
On or
about 23.8.1987, assailing the said order of termination, he filed an
application before the Presiding Officer, Labour Court No. 2, Gwalior wherein an interim order was passed
not to remove him from services.
Although,
the order had been given effect to, but in view of the said interim order, he
was allowed to continue in service. Before the Labour Court the appellant inter alia raised a contention that the
respondent had been illegally appointed by the then Branch Manager and, thus, he
derived no legal right to continue in service. It was categorically stated that
the employees of the said undertaking are governed by the Rules and Regulations
framed by the Corporation known as Service Recruitment Selections Regulations,
1976 (hereinafter referred to as '1976 Regulations') in terms whereof only the
Managing Director was designated as the appointing authority.
The
issues which inter alia arose for consideration before the Labour Court were:
"(4)
Whether the petitioner was appointed on contingency and due to which he is not
entitled to be regularized?
(6)
Whether the order of termination of petitioner is legal and valid, because his
appointment itself was illegal?" The Labour Court held that the M.P. Industrial Employment (Standing Orders)
Rules, 1963 framed under M.P. Industrial Employment (Standing Order) Act, 1961
are applicable to the Corporation. On a finding that the respondent was
appointed against a vacant post, it was held that he had acquired a right to be
appointed as a regular/permanent employee in the post of typist purported to be
in terms of the proviso appended to Rule 2 (4) of the Standing Orders. The
order of termination was also held to be bad in law, although, no reason therefor
was assigned. The Labour
Court without considering
the contentions raised by the appellant - Corporation held:
"Since
the petitioner is in continuous service of the respondents in compliance of the
interim orders of this Court and it has already been decided that the
petitioner is entitled to be regularized on the post of Typist, therefore, the
respondents are hereby directed to regularize/classify the petitioner on the
post of typist within a period of 30 days of this order with effect from 6
months after 16.9.1985 and will also pay to the petitioner the difference
between regular pay scale of permanent post and pay scale given to him, from
the date of his regularization along with other consequential benefits."
An appeal preferred by the appellant herein against the said order before the Tribunal
was dismissed inter alia on the ground that the respondent was accepted as a
working staff in the Morena Office and he had been transferred to Gwalior by an
order of the Regional Manager himself.
Before
the Tribunal reliance was placed on behalf of the appellant- Corporation upon a
decision of a Full Bench of the Madhya Pradesh High Court in M.P.S.R.T.C v. Narayan
Singh Rathor and Ors. [ 1994 MPLJ 959]. The said decision was distinguished by
the Tribunal stating that as therein the employee was claiming the benefit of
the Standard Standing Order in the promotional post, it had no application to
the fact of the case.
Despite
the fact that before the Labour Court the respondent made a prayer that his
services may not be terminated, although it stood terminated, the Tribunal
opined that the law of pleadings should not be strictly applied to the labour
cases on the purported ground that the services of the respondent were not
terminated legally or properly.
The
writ petition filed by the appellant-Corporation herein before the High Court
of Madhya Pradesh at Gwalior was also dismissed. The High Court
applied the principles contained in Section 25B of the Industrial Disputes Act
and opined that the termination of services of the respondent was illegal.
A Letters
Patent Appeal thereagainst was summarily dismissed by a Division Bench of the
High Court.
Ms. Hetu
Arora, the learned counsel appearing on behalf of the appellant-Corporation in
assailing the judgment of the High Court, would contend that as the respondent
herein had not been able to establish that he was appointed in the services of
the appellant-Corporation in terms of the provisions of the regulations
governing selection and appointment, the impugned order cannot be sustained.
Reliance, in this behalf, has been placed on Mahendra Lal Jain & Ors. v. Indore Development Authority & Ors.
[(2005) 1 SCC 639] .
Mr. Ashok
Mathur, the learned counsel appearing on behalf of the respondent, on the other
hand, submitted that as a finding of fact has been arrived at that there was a
clear vacancy, and as he has satisfactorily worked for a period of more than
six months, he was rightly held entitled to be classified as a permanent
employee in terms of the provisions of the Standing Orders. It was furthermore
contended that in view of the fact that the provisions of the Standing Orders
relating to classification were rightly invoked at the entry point being a case
of appointment and not promotion.
Strong
reliance has been placed on Dwarika Prasad Tiwari v. M.P. State Road Transport
Corporation & Anr. [(2001) 8 SCC 322].
The
Industrial Courts and High Court inter alia proceeded on the basis that the
respondent having completed 240 days of service during the preceding 12 months,
he should have been regularized in service. Section 25-B of the Industrial
Disputes Act was also invoked on that premise. The Labour Court, however, wrongly equated
classification with regularization. The term 'regularization' does not connote
permanence.
The
question raised in this appeal is now covered by a decision of this Court in
M.P. Housing Board & Anr. v. Manoj Srivastava [ Civil Appeal arising out of
SLP (Civil) No. 27360/04 disposed of this date] wherein this Court clearly
opined that:
-
when the
conditions of service are governed by two statutes; one relating to selection
and appointment and the other relating to the terms and conditions of service,
an endeavour should be made to give effect to both of the statutes;
-
A daily wager
does not hold a post as he is not appointed in terms of the provisions of the
Act and Rules framed thereunder and in that view of the matter he does not
derive any legal right;
-
Only because an
employee had been working for more than 240 days that by itself would not
confer any legal right upon him to be regularized in service;
-
If an
appointment has been made contrary to the provisions of the statute the same
would be void and the effect thereof would be that no legal right was derived
by the employee by reason thereof.
The
said decision applies on all fours to the facts of this case. In Mahendra Lal
Jain (supra) this Court has categorically held that the Standing Orders
governing the terms and conditions of service must be read subject to the
constitutional and statutory limitations for purpose of appointment both as a
permanent employee or as a temporary employee. An appointment to the post of a
temporary employee can be made where the work is essentially of temporary
nature. In a case where there existed a vacancy, the same was required to be
filled up by resorting to the procedures known to law i.e. upon fulfilling the
constitutional requirements as also the provisions contained in the 1976
Regulations. No finding of fact has been arrived at that before the respondent
was appointed, the constitutional and statutory requirements were complied
with.
A
Constitution Bench of this Court in State of Punjab v. Jagdip Singh & Ors. [(1964 (4) SCR 964] has
categorically held that if an order of confirmation is passed when no post was
available and that too by a person who was not authorized therefor, the
appointment would be void. We have noticed hereinbefore that the Branch Manager
in his letter dated 27.9.1985 addressed to the Regional Manager stated that the
respondent had already been appointed w.e.f. 16.9.1985. Before the Labour Court, the offer of appointment had not
been produced. It had not, therefore, been disclosed as to on what terms and
conditions he was appointed.
A Full
Bench of the Madhya Pradesh High Court in Narayan Singh Rathor (supra) held:
"Service
conditions are essentially matters of agreement between employer and the
employee. Where the employer frames regulations or rules relating to conditions
of service, they are treated as part of the conditions of service of the
employee. M.P. Industrial Employment (Standing Orders) Act, 1961 was enacted to
provide for rules defining with sufficient precision in certain matters the
conditions of service of employees in certain undertakings in the State. It
contemplates statutory interventions in service conditions of employees in
certain undertakings. Rules have been framed under the Act. There is no doubt
that the intention is to improve the service conditions of the employees and
ensure that they are not adversely affected by unilateral action of the employers.
But the contours of intervention cannot be extended beyond the statutory frame
work." In Dwarika Prasad Tiwari (supra), whereupon Mr. Mathur placed
reliance, a Division Bench of this Court accepted the views of the Full Bench
in Narayan Singh Rathor (supra). However, it was held that the Standing Order
categorizes the nature of employment and it does not classify individual
employees in different posts according to the hierarchy created in a department
and thus the proviso to Rule 2 does not apply to promotions or regularizations
in higher grade.
Such
appointments, in our opinion, having regarding to the decisions in Mahendra Lal
Jain (supra) and Manoj Srivastava (supra) must be made in accordance with
extant rules and regulations. It is also a well settled legal position that
only because a temporary employee has completed 240 days of work, he would not
be entitled to be regularized in service. Otherwise also the legal position in
this behalf is clear as would appear from the decision of this Court in Dhampur
Sugar Mills Ltd. v. Bhola Singh [(2005) 2 SCC 470] apart from Mahendra Lal Jain
(supra).
The 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.
Furthermore, 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 of appointment. It has 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.
However,
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.
The
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.
In the
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.
There
shall be no order as to costs.
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