Delhi High Court
Punjab National Bank vs Manoj Kumar on 16 October, 2024
Author: Chandra Dhari Singh
Bench: Chandra Dhari Singh
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 23rd July, 2024
Pronounced on: 16th October, 2024
+ W.P.(C) 4770/2007 & CM APPL. 13972/2017
PUNJAB NATIONAL BANK .....Petitioner
Through: Mr. Swarnil Dey, Advocate
versus
MANOJ KUMAR .....Respondent
Through: Mr. Barun Kumar Sinha and Mrs.
Pratibha Sinha and Mr. Sneh
Vardhan, Advocates
+ W.P.(C) 5770/2007 & CM APPL. 14607/2010 & CM APPL.
19703/2010
MANOJ KUMAR .....Petitioner
Through: Mr. Barun Kumar Sinha and Mrs.
Pratibha Sinha and Mr. Sneh
Vardhan, Advocates
versus
SR.REGIONAL MANAGER PUNJAB NATIONAL BANK
.....Respondent
Through: Mr. Swarnil Dey, Advocate
CORAM:
HON'BLE MR. JUSTICE CHANDRA DHARI SINGH
JUDGMENT
CHANDRA DHARI SINGH, J.
1. The instant writ petitions under Article 226 read with Article 227
of the Constitution of India (“Constitution” hereinafter) has been filed by
the respective petitioners challenging the award dated 14th February, 2007
(“impugned award” hereinafter) passed by the learned Presiding Officer,
Signature Not Verified
W.P.(C) 4770/2007 & W.P.(C) 5770/2007 Page 1 of 42
Digitally Signed
By:GAURAV SHARMA
Signing Date:18.10.2024
20:14:16
Central Government Industrial Tribunal-cum-Labour Court in Industrial
Dispute bearing ID No. 158/1999.
FACTUAL MATRIX
2. Sh. Manoj Kumar (“the workman” hereinafter) was engaged vide
Regional Office Letter no. RMD/STAFF/IR dated 15th October, 1993 on
an ad-hoc basis as a „sweeper‟ in the Punjab National Bank (“PNB”
hereinafter), from 30th September, 1993 till 31st December, 1997.
3. Thereafter, the branch manager of the PNB terminated the services
of the workman w.e.f. 22nd January, 1998, subsequent to which, the
workman wrote a letter dated 23rd January, 1998 to the Chief Manager,
PNB for allowing him to continue working in the aforesaid branch.
4. Aggrieved by the aforesaid circumstances, the workman raised an
industrial dispute bearing ID No. 158/1999, before the learned Tribunal,
seeking reinstatement of his services along with full back wages w.e.f.
22nd January, 1998 as he was wrongfully terminated without issuance of a
notice of termination as mandated under Section 25F of the Industrial
Disputes Act, 1947 (“ID Act” hereinafter).
5. Subsequently, the PNB raised an objection to the aforesaid
industrial dispute, alleging that the same is not an industrial dispute in
terms of Section 2(k) of the ID Act as the applicant therein is not a
workman as per Section 2(s) of the ID Act. Further, it was contested that
the workman was not appointed by PNB, therefore, no employer-
employee relationship exists between the parties.
6. In view of the aforesaid submissions, the learned Tribunal framed
issues surrounding the dispute and consequently passed the impugned
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Digitally Signed
By:GAURAV SHARMA
Signing Date:18.10.2024
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award by holding that the said termination was illegal and the workman is
entitled to be reinstated with full back wages w.e.f. 22nd January, 1998.
However, the learned Tribunal found no force in the claim of the
workman seeking relief of regularization and thus, the same was decided
in favour of PNB.
7. Aggrieved by the grant of relief of reinstatement with full back
wages, PNB has filed the writ petition bearing WP(C) No. 4770/2007,
seeking setting aside of the impugned award, whereas, the workman is
challenging the same in writ petition bearing WP(C) No. 5770/2007, to
the extent that the findings of the learned Tribunal qua denying
regularization to the workman may be set aside.
8. For proper adjudication of captioned petitions, this Court finds it
apposite to deal with the issues of law raised herein vide a common
judgment.
PLEADINGS BEFORE THIS COURT
9. The PNB has filed the instant writ petition bearing WP(C) No.
4770/2007 on the following grounds:
“1) Because the award passed by the Presiding Officer
Industrial Tribunal cum Labour Court dated 14.2.2007
directing reinstatement & full back wages is illegal and
contrary to the constitution bench decision of the Hon’ble
Supreme Court in the case reported as State of Karnataka
vs. Uma Devi, (2006) 4 SCC 1.
II) Because the findings & conclusions recorded by the
Presiding Officer, Industrial Tribunal cum Labour Court it
is contradictory inasmuch on the one hand he has recorded
that there is no material on record to show that the workman
was appointed in accordance with due process and
procedure of application and on the other hand the order ofSignature Not Verified
W.P.(C) 4770/2007 & W.P.(C) 5770/2007 Page 3 of 42
Digitally Signed
By:GAURAV SHARMA
Signing Date:18.10.2024
20:14:16
removal has been set aside and the workman has been
reinstated with full backwages.
III) Because the issue as to whether the decision in the case
of Uma Devi would also apply to cases arising under the
Industrial Disputes Act has also been settled by a recent
decision of the Hon’ble Supreme Court in the case of U.P
Power Corporation Ltd. & Anr. Vs. Bijli Mazdoor Sangh &
Ors. Reported in 2007(5)Scale 732 wherein it has been
clearly held that the principle would be equally applicable to
cases arising under the Industrial Disputes Act.
IV) Because it is an admitted fact that no appointment
letter was ever issued to the workman under para 495 of
Shastri award.
V) Because it is an admitted position that the appointment of
the respondent was as a stop gap arrangement to the post of
Safal Karamchari.
VI) Because as per the provision of Para 16.9 of Desai
award, persons engaged on casual basis are also excluded
from operation of the award which governs the service
condition as applicable to the employees in the banking
industry.
VII) Because the recent decisions of the Hon’ble Apex Court
have clarified that mere fact that there is violations of
provision of Section 25 (F) of the Industrial Disputes Act
would not automatically entitle the adhoc casual worker to
reinstatement with full back wages.”
10. Grounds of the workman in writ petition bearing WP(C) No.
5770/2007 along with the written submissions of the workman are
reproduced as follows:
“A. Because the Petitioner became eligible for
regularization, the Bank has not issued appointment letter no
educational qualification is required and Safai Karamchari
was not called from employment exchange. There is no
irregularity in his appointment in the Bank. All other SafaiSignature Not Verified
W.P.(C) 4770/2007 & W.P.(C) 5770/2007 Page 4 of 42
Digitally Signed
By:GAURAV SHARMA
Signing Date:18.10.2024
20:14:16
Karamchari are also appointed in the Bank as the same
pattern as the Petitioner appointed.
B. Because the Petitioner was working without any break
that the respondents did not give him any leave whereas as
per banks rules – he was entitled to get casual leave as well
as medical aid etc. That the respondents without assigning
any reason and without giving any notice terminated his
service from 22.01.1998.
C. Because that the Petitioner wrote a letter dated
23.01.1998 to the respondents that he had been working
since 30.09.1993 without any break so he be allowed to
continue working in the branch. A copy of letter-dated
23.01.1998 is annexed herewith as ANNEXURE P-7.
D. Because the Tribunal has erred in its finding that as per
ratio of Uma Devi case the regularization is not permitted as
his appointment is not in accordance with law. However the
said Judgment provides for a scheme to consider
regularization as on time measure. Therefore the fmding qua
regularization is bad in law.
E. Because there is nothing on record to suggest that the
appointment of these petitioner is either irregular or illegal.
Rather the petitioner has been taken on roll as per existing
policy and practice prevalent in the bank, therefore the
finding of the tribunal is bad in law.
F. Because the petitioner was removed on 22-01-98 and in
his place one Ms. Meena was appointed on temporary basis
from February 1998 till April, 2007and therefore he has also
been removed. Thus, it is crystal clear that the petitioner has
been discriminated and the same is violation of Article 14 of
the constitution.”
(written submissions on behalf of the workman)
“1. THAT THE PETITIONER IS ELIGIBLE FOR
REGULARIZATION TO THE POST OF SWEEPER IN
RESPONDENT BANK
It is submitted that the Respondent Bank has issued
Circular dated 07.11.1988 for appointment of part time and
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Digitally Signed
By:GAURAV SHARMA
Signing Date:18.10.2024
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full time Sweepers as well as maintenance of rosters (Page
no.6 of Additional Affidavit filed by petitioner along with
CM No.19703 of 2010).
A perusal of Circular dated 07.11.1988 for
appointment of part time / full time sweepers, Regional
Manager is the competent authority and minimum eligibility
criteria pertaining to educational qualification i.e. Class -4.
The Petitioner fulfils the eligibility criteria and therefore, he
was appointed under the orders of the Regional Manager,
Delhi Region. In this connection reference may be made to
letter dated 15.10.1993 issued by Regional Manager, Punjab
National Bank to the Chief Personal, Personal Division,
Head Officer, New Delhi (Page No.31, Annexure P-3).
Therefore, the appointment of the petitioner is as per
recruitment policy of the bank. Therefore, his appointment
cannot be treated as back door entry. He is entitled to
regularization as sweeper.
2. THE BANK HAS REGULARIZED THE JUNIORS TO
THE PETITIONER AS SWEEPER IN THE BANK
It is submitted that the two juniors to the Petitioner
who were similarly situated, have been regularized by the
bank. In the list of seniority one Smt. Meena has been
regularized. In this connection reference may be made to
Letter dated 12.03.2007 issued to Zonal Manager of the
Bank by the Chief Manager (Page -14, Annexure P12 of CM
No.19703/2010)
That apart one Sh. Ajay Kumar has been regularized
in the year 2015. (Kindly refer Page 19, Annexure P-3 in
CM No.13972/2017 in WP (C) No.4770/2007). It is further
submitted that Ajay Kumar had succeeded before LD CGIT,
Delhi and the Bank had challenged the said Award before
this Hon‟ble Court vide WP No.6166/2008, PNB Vs Ajay
Kumar. However, the Bank has withdraw the Writ Petition
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Digitally Signed
By:GAURAV SHARMA
Signing Date:18.10.2024
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No.6166 /2008 and has regularized the service of Ajay
Kumar as sweeper.
Another part time sweeper namely Vinod Kumar has
also been regularized who is junior to the Petitioner. In this
connection reference may be made to letter dated
03.12.2015 of the PNB Workers Organization to the General
Manager , HRD (Page No.8, Annexure P-1 to CM
No.13972/2017 in WP No.4770/2007).
3. BANK DISCRIMINATES THE PETITIONER
Since, the juniors has been regularized as sweeper by
the Bank and Petitioner has been left out. This approach of
the Bank is discriminate and violative of Article 14 of the
Constitution of India.
4. THERE ARE VACANCIES AVAILABLE TO THE
POST OF SWEEPERS
It is submitted that there are about 72 posts available
in the bank for the posts of sweepers. Against those
vacancies, juniors to the petitioner has been regularized,
therefore, Petitioner can be regularized against those
vacancies. (kindly refer Page -11 of Additional affidavit in
CM No.19703/2010)”
11. The PNB has refuted the aforesaid contentions of the workman in
their Written Submissions, which has been reproduced herein below:
“RE: NO AUTOMATIC REINSTATEMENT OF AD-HOC
WORKER
3. The Respondent Worker was „engaged‟ orally as a safai
karmchari purely on a stopgap arrangement on an ad-hoc
basis at the Bank‟s branch without any formal appointment
letter. He was never appointed to the services. This is
because his engagement did not result from any formal
recruitment notice advertisement by the Bank. He was
engaged by the then Branch-Manager, as the previousSignature Not Verified
W.P.(C) 4770/2007 & W.P.(C) 5770/2007 Page 7 of 42
Digitally Signed
By:GAURAV SHARMA
Signing Date:18.10.2024
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regular employee/safai karmchari was promoted to peon.
Hence, to immediately attend the cleaning activities of the
Bank‟s branch-premises the Respondent Worker was
engaged on stopgap basis, until the Bank formally deputed
its regular employee.
4. When Petitioner Bank deputed its regular employee (Sh.
Suresh Kumar), as per proper/formal procedure, the
Respondent Worker was disengaged. Worker challenged his
disengagement as illegal termination stating no prior notice
or compensation was given. The Ld. Tribunal despite finding
that the Worker was not appointed through due process and
proper procedure of appointment, granted automatic
reinstatement with back-wages citing violation of Section 25-
F of the ID Act.
5. Respondent Worker‟s disengagement is not same as
illegal termination under Section 25-F of ID Act. It is most
humbly submitted that when there was no formal
appointment, there could be no formal termination.
6. Without prejudice to the above submissions, even if such
disengagement is equated to illegal retrenchment under
Section 25-F of ID Act, then it is a settled law that the scope
of relief is only compensation; and not automatic
reinstatement.
xxxxx
14. It is a well settled proposition that merely by the timeline
of work one cannot seek regularisation to a public post. Such
law has been fortified by the Hon‟ble Supreme Court in
Secretary State of Karnataka and Ors. v. Uma Devi [(2006)
4 SCC 1]. Ld. Tribunal in its Award dt. 14.02.2007 has
correctly applied this ratio and juxtaposed this with its
finding that there was no formal appointment.
Worker’s fresh case for regularisation is beyond original
scopeSignature Not Verified
W.P.(C) 4770/2007 & W.P.(C) 5770/2007 Page 8 of 42
Digitally Signed
By:GAURAV SHARMA
Signing Date:18.10.2024
20:14:16
15. Respondent Worker now seeks this Hon‟ble Court‟s
intervention in his W.P (C) 5770/2007 to compel the Bank to
regularise him by framing a scheme. It is submitted that such
plea is a misreading of Para 53 in Uma Devi (supra). It
exceeds and diverges form the original scope of the
reference.
16. While originally the Worker sought regularisation before
Ld. Tribunal based on work-timeline, but in his petition
prays for framing a scheme. Framing a scheme for
regularisation and considering him under it was not the
original dispute. Without prejudice, Para 53 in Uma Devi,
suggesting absorption as a one-time measure, is also
inapplicable as the Worker lacks 10 years of service. In fact,
Uma Devi (supra) at Para 37 held no such directions can be
issued for framing a scheme.
Arguments Arguments in
before Tribunal W.P (C)
5770/2007
Sought Now newly
regularisation seeks
basis timeline regularisation
of work. under a Scheme,
with
reconsideration
of facts.
17. Rather the Hon‟ble Court in Uma Devi (supra)
emphasized that consistent with the Constitutional scheme,
public employment requires compliance with rules and fair
competition. Unless an appointment follows the due process
of selection, appointee has no claim. A daily-wage/casual
engagement comes to an end when discontinued. Thus, Para
43 and Para 45 of the judgment are relied upon here by
reference (and other relevant paras in the compilation).
Signature Not Verified
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Digitally Signed
By:GAURAV SHARMA
Signing Date:18.10.2024
20:14:16
18. The Hon‟ble Court (at Para 33) reasoned that while the
State may need to engage ad-hoc workers without following
due procedure in certain exigencies, but this does not mean
a right of regularization. That public post has to be
ultimately filled by a regularly selected employee.
Appointments to public posts must follow proper procedures.
Similarly, in this case, the Respondent Worker was
disengaged and a regular employee was appointed in
accordance with due procedure, and not by another ad-hoc
worker.”
SUBMISSIONS
(on behalf of the PNB)
12. Learned counsel appearing on behalf of the PNB submitted that the
impugned award is liable to be set aside as the same has been passed
without application of judicial mind and is thus, contrary to the settled
position of law.
13. It is submitted that the learned Tribunal erred in reinstating the
workman despite observing it in its award that there is no material on
record which reflects that the workman was appointed in accordance with
the due procedure of appointment.
14. It is further submitted that there are sufficient materials available
on record to show that the workman was merely appointed as a „stop gap
arrangement‟ as no formal appointment letter was ever issued to him as
required under paragraph no. 495 of the Shastri Award which governs the
service conditions of bank employees.
15. Learned counsel for the PNB also placed reliance upon the
judgment passed by the Constitution Bench of the Hon‟ble Supreme
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Digitally Signed
By:GAURAV SHARMA
Signing Date:18.10.2024
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Court in State of Karnataka vs. Uma Devi1, and submitted that the
finding of the learned Tribunal of reinstatement of the workman with full
back wages is contrary to the aforesaid judgment.
16. It is further submitted that as per the provisions of paragraph no.
16.9 of the Desai Award, a workman engaged on casual basis are
excluded from the ambit of the said award which governs the service
conditions as applicable to the bank employees.
17. It is submitted that the learned Tribunal failed to appreciate the
settled position of law as per which mere violation of Section 25F of the
ID Act does not automatically entitle the ad-hoc workman to be
reinstated with full back wages. Furthermore, the learned counsel
submitted that there was no illegal termination in view of the fact that
there was no formal appointment of the workman and he was merely
appointed on casual/stop gap basis.
18. In support of the aforementioned submission, the learned counsel
for PNB further placed reliance upon the judgments of Jagbir Singh v.
Haryana State Agriculture Marketing Board And Anr2, Aiims v. Ashok
Kumar3, and BSNL v. Bhurmal4and submitted that the finding of the
impugned award pertaining to the reinstatement is in contravention to the
settled position of law with regard to the fact that the violation of Section
25F of the ID Act would only entitle the workman to be compensated and
not the relief of reinstatement with full back wages.
1
(2006) 4 SCC 1
2
(2009) 15 SCC 327
3
2024 SCC OnLine Del 3286
4
(2014) 7 SCC 177
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Digitally Signed
By:GAURAV SHARMA
Signing Date:18.10.2024
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19. Therefore, in light of the foregoing submissions, the learned
counsel appearing on behalf of the PNB prayed that its writ petition may
be allowed and the reliefs be granted, as prayed.
(on behalf of the workman)
20. Per Contra, the learned counsel appearing on behalf of the
workman vehemently opposed the writ petition filed on behalf of the
PNB and submitted that the learned Tribunal rightly reinstated the
workman with full back wages in accordance with the law and there is no
illegality of any kind thereto, however, the learned Tribunal failed to
appreciate that the workman is also entitled to regularization of his
services.
21. Learned counsel for the workman submitted that the instant writ
petition has been filed on behalf of the workman assailing the finding of
the impugned award qua the denial of regularization of services of the
workman.
22. It is submitted that the workman is eligible for regularization in
view of the fact that there is no irregularity in his appointment and all the
other sweepers on the same footing, were also appointed in the same
manner as the workman herein.
23. It is submitted that the learned Tribunal failed in appreciating the
fact that the workman was working without taking any leaves whereas he
was entitled to get casual as well as medical leaves as per the Bank rules.
24. It is submitted that the action of the PNB was arbitrary as the
workman was wrongfully terminated from his services without assigning
proper reasons and without issuing any notice of termination, therefore, in
the interest of justice, he is entitled to be regularized.
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Digitally Signed
By:GAURAV SHARMA
Signing Date:18.10.2024
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25. It is submitted that the learned Tribunal further failed in
appreciating the law laid down by the Hon‟ble Supreme Court in Uma
Devi (Supra) as the same categorically held that regularization must be
considered as a one-time measure.
26. It is further submitted that the approach of the PNB in not
regularizing the services of the workman is violative of Article 14 of the
Constitution of India as the PNB has duly regularized the services of two
juniors who were similarly situated as him. Hence, the termination of the
workman is discriminatory in nature.
27. It is submitted that the workman was appointed in accordance with
the recruitment policy of the PNB and the PNB has purposely concealed
the relevant document, i.e., a circular dated 7th November, 1988, which
was issued for appointment of part-time and full-time sweepers, and thus,
the workman was appointed under the orders of the Regional Manager of
the PNB, Delhi Region. Therefore, it is submitted that his appointment
cannot be treated as a back door entry and the workman is entitled for
regularization of his services.
28. It is further submitted that it is wrong to say that he cannot be
regularized in absence of any sanctioned post as there are about 72
vacancies for the said post in the PNB, for which, services of many other
juniors have already been regularized.
29. It is also submitted that his removal from the service was illegal
and violative of the terms mentioned under the provisions of Section 25F
of the ID Act as he was not issued a prior notice of termination.
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Signing Date:18.10.2024
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30. It is submitted that in view of the same, the petition filed on behalf
of the PNB is liable to be dismissed as the learned Tribunal rightly
reinstated the workman with full back wages.
31. Therefore, in light of the foregoing submissions, it is prayed that
the writ petition filed on behalf of the workman may be allowed and
accordingly his services may be regularized. It is further prayed that the
writ petition filed by the PNB may be dismissed being devoid of any
merits.
32. In rejoinder, the learned counsel appearing on behalf of the PNB
refuted the above stated submissions of the workman and submitted that
the petition filed on behalf of the workman is liable to be dismissed being
bereft of any merits as he is not entitled to the relief of regularization
merely on the strength of his work tenure.
33. It is submitted that the learned Tribunal has rightly denied the said
relief in terms of the principle settled in the judgment of Uma Devi
(Supra) as the scheme of one-time measure is also inapplicable in the
workman‟s case.
34. Therefore, in light of the aforesaid, it is submitted that the petition
filed by the workman may be dismissed as the same is devoid of any
merit.
ANALYSIS AND FINDINGS
35. Heard the learned counsel for the parties and perused the material
placed on record.
36. It is the case of the PNB that the findings of the learned Tribunal in
the impugned award, wherein, the workman was reinstated with full back
wages is in contravention to the law settled by the Hon‟ble Supreme
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Digitally Signed
By:GAURAV SHARMA
Signing Date:18.10.2024
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Court in the judgment of Uma Devi (Supra) as he was only engaged as a
stop gap arrangement on the post of a temporary sweeper and no formal
appointment letter was issued to him.
37. It has also been argued on behalf of the PNB that the aforesaid
relief of reinstatement has been granted by the learned Tribunal to the
workman despite observing the fact that there is no material on record to
show that he was appointed in accordance with the established procedure
and therefore, the said finding of the learned Tribunal is contrary to its
observation.
38. In rival submissions, the workman is aggrieved by the finding of
the learned Tribunal qua denial of regularization of his services and thus,
it has been argued that interference of this Court is warranted with respect
to the same in view of the fact that the workman was taken on roll as per
the existing policy and prevalent practice of the PNB. Furthermore, the
learned counsel appearing on behalf of the workman refuted the
contentions of the PNB with respect to the relief of reinstatement of full
back wages and submitted that the same was granted on the basis of the
relevant material available on the learned Tribunal‟s record and there is
no error of law thereto.
39. In view of the submissions advanced on behalf of the parties, this
Court deems it apposite to adjudicate the instant writ petitions conjointly
by framing the following issues:
a) Whether workman is entitled to the relief of
reinstatement with full back wages as awarded by the
learned Tribunal?
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Signing Date:18.10.2024
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b) Whether the learned Tribunal erred by denying the
workman the relief of regularization of his services?
40. Before delving into the merits of the instant case, this Court finds it
pertinent to state the scope of interference of this Court under Article
226/227 of the Constitution to interfere with the orders/awards passed by
Tribunals. The scope of interference with the findings of a Labour Court
under Article 226 of the Constitution of India is to the extent that the
High Courts need not reconsider the factual findings of the Court below
unless the same is full of conjectures and surmises, and has been
erroneously decided, without stating due reasons or corroborating by
legal evidence.
41. Summarily stated, it is trite to note that in exercise of power under
Article 226 of the Constitution, the High Court does not sit in appeal and
therefore, cannot go into the disputed question of facts. Further, it is clear
that generally, a petition under Article 226 of the Constitution is
maintainable in cases of violation of Fundamental Rights and/or
principles of natural justice. Further, the interference of the High Court is
warranted where an order or proceeding has been carried out without
jurisdiction or in vires of a particular statute, therefore, this Court is of the
view that intervention may be generally avoided unless it is prima facie
visible that there is a gross abuse of power and the petition discloses
extremely serious allegations which merits intervention.
42. The aforesaid principle has been enunciated in the judgment of the
Hon‟ble Supreme Court in K.V.S. Ram v. Bangalore Metropolitan
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Digitally Signed
By:GAURAV SHARMA
Signing Date:18.10.2024
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Transport Corpn.5, wherein, the Hon‟ble Court held that upon
establishment of the fact that the Labour Court judicially applied its
discretion qua its findings, the same shall not be interfered with as doing
so will nullify the purpose of the forums below which have been
specifically established to adjudicate upon the matters.
43. Therefore, it is clear that the power to appreciate the evidence and
accordingly decide the merits of the facts of a case lies with the Court
below and a Writ Court does not sit in appeal over such factual findings
unless the same is found to be perverse, thereby, warranting interference
of the High Court.
44. In view of the above, this Court shall now analyze the findings of
the learned Tribunal in the impugned award. The relevant paragraphs of
the impugned award are reproduced below:
“8. Admittedly the workman claimant Shri Manoj Kumar
worked as temporary safal karamchari w.e.f. 30.9.93 till
31.12.96. He worked for 1553 days continuously. He was
taken in service vide regional office letter on 15.10.93. He
was given a chance to work in place of Ravinder Singh
Sweeper who was promoted as Peon. According to the
management he was working in stop gap arrangement
vacancy. There is only one post. He was not engaged
through due procedure i.e. by interview. However, the claim
of the management that the claimant worked by way of stop
gap arrangement is not borne out i.e. supported from the
statement of management witness Shri G.K.Garg MW1.
There is nothing on record as to who was working on the
vacancy against which the workman has worked for 1553
days . However, it is proved that the workman has worked
for 1553 days continuously and he has not been given any
notice or notice pay. His disengagement is in violation of5
(2015) 12 SCC 39Signature Not Verified
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section 25 F of the I.D.Act. It is thus evident that the
workman’s removal is in violation of the principles of
natural justice. The workman has also claimed
regularization. His claim that he has worked for 1553 days
is not sufficient to prove that he is entitled to regularization
in the absence of existence of any regular post of Safal
Karamchari in the bank and mere working for 1553 days
does- not entitle him to be regularized in the post/job.
9. There is nothing on record to show that the workman has
been engaged or appointed in accordance with the due
process and procedure of appointment, therefore, he is not
entitled to the relief of regularization in view of the decision
captioned as Secretary of State of Karnataka Vs. Uma Devi
reported in JT(4)2006. However, his removal is illegal and
he is entitled to reinstatement and full back wages w.e.f.
22.1.98 till he is reinstated. Therefore, he be reinstated with
back wages w.e.f. 22.1.91 Award is passed accordingly. File
be consigned to record room.”
45. From a bare reading of the above excerpts, it is transpired that vide
a regional office letter dated 15th October, 1993, the workman was
engaged in services as a sweeper in place of another workman namely Sh.
Ravinder Singh who got promoted as a peon. It is further made out that
the workman worked for a continuous period of 1553 days pursuant to
which his services were disengaged by the PNB without issuing any
notice of termination to him. In view of the same, the learned Tribunal
held that the termination of his services was illegal, being violative of
Section 25F of the ID Act and thus, it was directed that the workman be
reinstated with full back wages w.e.f. 22nd January, 1998.
46. On the aspect of claim of regularization of the workman‟s services,
the learned Tribunal categorically held that his period of tenure, i.e., 1553
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days of work, is not sufficient in order to prove that he is entitled for
regularization of his services, in view of the fact that there is absence of a
regular post of a sweeper in the Bank. Moreover, the learned Tribunal
held that there is nothing on record to show that his services were
engaged by following the due process of selection. Therefore, in light of
the law laid down in Uma Devi (Supra), the workman was denied the
relief of regularization.
47. Now this Court shall delve into the merits of the instant petition.
ISSUE (a)- Whether workman is entitled to the relief of
reinstatement with full back wages as awarded by the learned
Tribunal?
48. One of the primary contentions made on behalf of the PNB is that
the learned Tribunal erroneously reinstated the workman with full back
wages as the said finding and conclusion is illegal and in contravention to
the decision of the Hon‟ble Supreme Court passed in the judgment of
Uma Devi (Supra). It has also been contended that the aforesaid finding
is contrary to the undisputed fact that the workman was irregularly
appointed.
49. In rival submissions, the learned counsel for the workman
contended that he was illegally terminated which is against the provisions
of Section 25F of the ID Act, and thus, in the interest of justice, the
learned Tribunal has rightly reinstated the workman with full back wages.
50. With regard to the aforesaid issue, the learned Tribunal held that
the workman‟s termination was in violation of the provisions of Section
25F of the ID Act which mandates that the workman be issued a prior
notice of termination and accordingly granted the relief of reinstating the
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workman along with full back wages. At this juncture, this Court finds it
imperative to discuss the law qua reinstatement of services of a workman.
51. Reinstatement is an act which aims to rectify an act of wrongful
termination by restoring an employee to their previous position on the
same terms and conditions of their appointment. However, the settled
position of law is clear with regard to the said relief as the Courts in a
catena of judgments, have repeatedly held that the ordinary principles of
reinstatement do not automatically apply in all cases.
52. Undoubtedly, if a termination is found to be violative in terms of
non-compliance of prerequisites as mentioned under Section 25F of the
ID Act, the relief of reinstatement ordinarily follows, however, the
jurisprudence qua the same has shifted in the recent times as the Courts
have consistently held that the said relief is not automatic and the
workman shall be fairly compensated in lieu of the relief of reinstatement.
53. Reliance in this regard can be placed upon the judgment passed by
the Hon‟ble Supreme Court in Jagbir Singh v. Haryana State
Agriculture Marketing Board and Another6, wherein it was held that the
relief of reinstatement shall not be granted automatically, and the relief to
be granted depends upon the peculiar facts and circumstances wherein the
Labour Court may also award monetary compensation instead of
reinstatement to meet the ends of justice. The relevant extracts of the
same are as follows:
“7. It is true that the earlier view of the Supreme Court
articulated in many decisions reflected the legal
position that if the termination of an employee was6
(2009) 15 SCC 327Signature Not Verified
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found to be illegal, the relief of reinstatement with full
back wages would ordinarily follow. However, in
recent past, there has been a shift in the legal position
and in a long line of cases, the Supreme Court has
consistently taken the view that relief by way of
reinstatement with back wages is not automatic and
may be wholly inappropriate in a given fact situation
even though the termination of an employee is in
contravention of the prescribed procedure. An order of
retrenchment passed in violation of Section 25-F
although may be set aside but an award of
reinstatement should not be automatically passed. The
award of reinstatement with full back wages in a case
where the workman particularly a daily wager, who
has completed 240 days of work in a year preceding
the date of termination has not been found to be
proper. Compensation instead of reinstatement has
been held to meet the ends of justice. The Supreme
Court has distinguished between a daily wager who
does not hold a post and a permanent employee.
****
14. It would be, thus, seen that by a catena of decisions
in recent time, this Court has clearly laid down that an
order of retrenchment passed in violation of Section
25-F although may be set aside but an award of
reinstatement should not, however, be automatically
passed. The award of reinstatement with full back
wages in a case where the workman has completed 240
days of work in a year preceding the date of
termination, particularly, daily wagers has not been
found to be proper by this Court and instead
compensation has been awarded. This Court has
distinguished between a daily wager who does not hold
a post and a permanent employee.”
54. The finding of the learned Tribunal qua the grant of relief of
reinstatement to the present workman, with full back wages, was opposed
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by the learned counsel for the PNB. He placed reliance upon a recent
decision passed by this Court in AIIMS v. Ashok Kumar (Supra),
wherein it was held as follows:
“25. Bearing in mind the reasoning afforded by the
learned Labour Court, this Court deems it imperative to
briefly state the position of law as to in what
circumstances may the Court grant the relief of
compensation in lieu of reinstatement. The Hon’ble
Supreme Court in State of
Uttarakhand v. Raj Kumar, (2019) 14 SCC 353, observed
as to how and when must the Labour Court/Tribunal
grant the relief of compensation in lieu of reinstalment
along with back wages. The relevant paragraphs are
reproduced herein below:
“…..9. In our opinion, the case at hand is covered by
the two decisions of this Court rendered
in BSNL v. Bhurumal [BSNL v. Bhurumal, (2014) 7
SCC 177 : (2014) 2 SCC (L&S) 373] and Distt.
Development Officer v. Satish Kantilal Amrelia
[Distt. Development Officer v. Satish Kantilal
Amrelia, (2018) 12 SCC 298 : (2018) 2 SCC (L&S)
276].
10. It is apposite to reproduce what this Court has
held in BSNL [BSNL v. Bhurumal, (2014) 7 SCC
177 : (2014) 2 SCC (L&S) 373] : (SCC p. 189, paras
33-35)
“33. It is clear from the reading of the aforesaid
judgments that the ordinary principle of grant of
reinstatement with full back wages, when the
termination is found to be illegal is not applied
mechanically in all cases. While that may be a
position where services of a regular/permanent
workman are terminated illegally and/or mala fide
and/or by way of victimisation, unfair labour
practice, etc. However, when it comes to the case of
termination of a daily-wage worker and where the
termination is found illegal because of a proceduralSignature Not Verified
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defect, namely, in violation of Section 25-F of the
Industrial Disputes Act, this Court is consistent in
taking the view that in such cases reinstatement with
back wages is not automatic and instead the workman
should be given monetary compensation which will
meet the ends of justice. Rationale for shifting in this
direction is obvious.
34. The reasons for denying the relief of reinstatement
in such cases are obvious. It is trite law that when the
termination is found to be illegal because of non-
payment of retrenchment compensation and notice
pay as mandatorily required under Section 25-F of
the Industrial Disputes Act, even after reinstatement,
it is always open to the management to terminate the
services of that employee by paying him the
retrenchment compensation. Since such a workman
was working on daily-wage basis and even after he is
reinstated, he has no right to seek regularisation
[see State of Karnataka v. Umadevi (3) [State of
Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006
SCC (L&S) 753] ]. Thus when he cannot claim
regularisation and he has no right to continue even as
a daily-wage worker, no useful purpose is going to be
served in reinstating such a workman and he can be
given monetary compensation by the Court itself
inasmuch as if he is terminated again after
reinstatement, he would receive monetary
compensation only in the form of retrenchment
compensation and notice pay. In such a situation,
giving the relief of reinstatement, that too after a long
gap, would not serve any purpose.
35. We would, however, like to add a caveat here.
There may be cases where termination of a daily-
wage worker is found to be illegal on the ground that
it was resorted to as unfair labour practice or in
violation of the principle of last come first go viz.
while retrenching such a worker daily wage juniors to
him were retained. There may also be a situation thatSignature Not Verified
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persons junior to him were regularised under some
policy but the workman concerned terminated. In
such circumstances, the terminated worker should not
be denied reinstatement unless there are some other
weighty reasons for adopting the course of grant of
compensation instead of reinstatement. In such cases,
reinstatement should be the rule and only in
exceptional cases for the reasons stated to be in
writing, such a relief can be denied……”
26. Upon perusal of the aforementioned judicial dictum,
it is inferred that ordinarily when the termination is found
to be illegal, the principle of grant of reinstatement with
full back wages has to be applied as per the facts and
circumstances of each case and shall not be awarded
mechanically. It is further observed that termination of a
daily-wage worker where, found illegal on account of
procedural defects, reinstatement with back wages is not
to be construed automatically rather, in the interest of
justice, the workman shall be granted a relief in the form
of a lump sum monetary compensation as it is more
appropriate.”
55. The learned counsel for the PNB has also relied upon another
judgment of the Hon‟ble Supreme Court passed in Senior
Superintendent Telegraph (Traffic) Bhopal v. Santosh Kumar Seal and
Ors.7, wherein a similar view was taken that even if the termination of the
workman is found to be illegal, being in violation of Section 25F of the
ID Act, the relief of reinstatement shall not be mechanically granted. The
workmen therein were engaged as daily wagers, 25 years before the date
of judgment, who worked for a period of 2 to 3 years, therefore, the
reinstatement with full back wages granted by the learned Tribunal was
found to be unjustified and the workmen were awarded a compensation
7
(2010) 6 SCC 773
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amount to the tune of Rs. 40,000/- each in lieu of the services rendered by
them during the relevant period.
56. The principle discussed herein above has also been affirmed by the
Hon‟ble Supreme Court in the judgment M.P. Admn. v. Tribhuban8,
wherein it was directed that that non-compliance of Section 25F of the ID
Act entitles a workman for some relief and such relief does not
necessarily has to be the reinstatement, instead, if the Court deems fit,
compensation may be awarded.
57. Therefore, it is transpired that the Hon‟ble Supreme Court, in a
catena of decisions, has time and again substituted the direction of
reinstatement with full back wages by monetary compensation.
58. Bearing in mind the merits of the instant case, it is relevant to
mention herein that the workman was irregularly appointed on an ad hoc
basis and worked for a total of 1553 days, therefore, it is evident that
there was a violation of Section 25F of the ID Act and in view of his
illegal termination, the learned Tribunal vide the impugned award,
reinstated him with full back wages.
59. For the reasons stated hereinabove and on the basis of the law
settled in the aforementioned judicial dictum, it is well settled that in a
situation such as in the present case, a workman may be granted adequate
monetary compensation instead of the relief of reinstatement with full
back wages.
60. It is made clear that this Court is not intervening with the finding of
the learned Tribunal qua the workman‟s illegal termination, however, this
Court is bound to appreciate the aforesaid settled position of law, by
8
(2007) 9 SCC 748
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virtue of which, it is of the considered view that the finding of the learned
Tribunal in granting the relief of reinstatement to the workman, warrants
interference. Therefore, this Court deems it fit that the workman be
monetarily compensated in lieu of the relief granted qua reinstatement his
services with full back wages.
61. For the purpose of awarding an adequate compensation, a
accumulation of factors need to be considered such as the procedure of
employment, the nature of employment, the duration of service, etc. It is
noteworthy to mention herein that the workman was engaged as a
sweeper on an ad hoc basis from 30th September, 1993 and worked there
till 31st December, 1997, thus he rendered services for a total period of
1553 days.
62. At this stage, to decide upon the quantum of compensation, this
Court deems it necessary to refer to the judgment of Hon‟ble Supreme
Court in Anil Mithra v. Sree Sankaracharya University of Sanskrit, 9,
wherein the Hon‟ble Court, while holding that the termination of the
appellants/workmen was in violation of Section 25F of the ID Act, a
compensation amount to the tune of Rs. 2,50,000/- was awarded to each
workman in lieu of their reinstatement with 50% back wages, considering
that they were engaged as daily wagers for a term starting from 1993 till
1997.
63. Bearing in mind the aforesaid factors and the above stated
decisions, this Court deems it appropriate to grant a compensation of Rs.
2,50,000/- to the workman herein in lieu of the relief of reinstatement
9
(2022) 17 SCC 505
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with full back wages as awarded by the learned Tribunal in order to meet
the ends of justice.
64. Accordingly, the relief of reinstatement of services along with full
back wages is set aside and the workman is awarded a compensation of
Rs. 2,50,000/- instead of reinstatement along with full back wages. The
PNB is directed to pay the workman a compensation of Rs. 2,50,000/-
within a period of four weeks from today, failing which, the same shall
carry an interest @ 9% per annum.
65. In view of the aforesaid terms, issue (a) stands decided in favour of
the PNB.
ISSUE (b)- Whether the learned Tribunal erred by denying the
workman the relief of regularization of his services?
66. Now this Court shall deal with the issue of regularization of
services of the workman.
67. On the aforesaid issue, it has been contended by the learned
counsel appearing on behalf of the workman that the finding of the
learned Tribunal qua denying the claim of regularization of his services is
liable to be set aside as the same has been passed erroneously and without
proper application of law. It has been argued that the workman is eligible
for regularization of his services in view of the fact that he was appointed
with due procedure as per the Bank‟s policy and he is entitled for the
regularization of his services in terms of the one-time measure scheme
laid down in Uma Devi (Supra) for the services rendered by him for a
continuous period of 1553 days as a sweeper in the PNB.
68. Per Contra, the learned counsel for the PNB submitted that the
aspect of regularization has been duly dealt with by the learned Tribunal
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after thoroughly perusing the facts and evidences placed before it.
Further, the learned Tribunal has rightly applied the law with regard to
the above referred judgment as working for a continuous period of 1553
days would not entitle the workman for regularization of his services.
69. As already mentioned earlier, the scope of this Court in interfering
with the factual findings of a Labour Court under its writ jurisdiction is
limited as it is settled law that a Writ Court need not delve into the merits
of the case by re-appreciation of facts and circumstances and thus, as per
the settled position of law, a Writ Court shall exercise the jurisdiction in a
supervisory manner. However, the interference of the Writ Courts is only
warranted in cases where the rights of the aggrieved party have been
grossly violated due to the erroneous findings of the Court below and the
said erroneous finding is apparent on the face of the record.
70. During the course of the arguments, the learned counsel for the
workman has heavily relied upon the decision passed by the Hon‟ble
Supreme Court in Uma Devi (Supra) and has argued that the finding of
the learned Tribunal with respect to regularization is illegal and contrary
to the aforesaid judgment as it provides for a scheme to consider
regularization as a one-time measure. Therefore, the crux of the
arguments advanced on behalf of the workman is that he is eligible for
regularization of his services and the denial of the same by the learned
Tribunal is in contravention to the settled position of law.
71. At this juncture, it is imperative to note the findings of the
Constitutional Bench of the Hon‟ble Supreme Court in Uma Devi
(Supra), relevant extracts of which are as under: –
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“4. …..Whether the wide powers under Article 226 of the
Constitution are intended to be used for a purpose certain to
defeat the concept of social justice and equal opportunity for
all, subject to affirmative action in the matter of public
employment as recognised by our Constitution, has to be
seriously pondered over. It is time, that the courts desist
from issuing orders preventing regular selection or
recruitment at the instance of such persons and from issuing
directions for continuance of those who have not secured
regular appointments as per procedure established. The
passing of orders for continuance tends to defeat the very
constitutional scheme of public employment. It has to be
emphasised that this is not the role envisaged for the High
Courts in the scheme of things and their wide powers under
Article 226 of the Constitution are not intended to be used
for the purpose of perpetuating illegalities, irregularities or
improprieties or for scuttling the whole scheme of public
employment. Its role as the sentinel and as the guardian of
equal rights protection should not be forgotten.
*****
43. Thus, it is clear that adherence to the rule of equality in
public employment is a basic feature of our Constitution and
since the rule of law is the core of our Constitution, a court
would certainly be disabled from passing an order
upholding a violation of Article 14 or in ordering the
overlooking of the need to comply with the requirements of
Article 14 read with Article 16 of the Constitution.
Therefore, consistent with the scheme for public
employment, this Court while laying down the law, has
necessarily to hold that unless the appointment is in terms of
the relevant rules and after a proper competition among
qualified persons, the same would not confer any right on
the appointee. If it is a contractual appointment, the
appointment comes to an end at the end of the contract, if it
were an engagement or appointment on daily wages or
casual basis, the same would come to an end when it is
discontinued. Similarly, a temporary employee could not
claim to be made permanent on the expiry of his term ofSignature Not Verified
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appointment. It has also to be clarified that merely because a
temporary employee or a casual wage worker is continued
for a time beyond the term of his appointment, he would not
be entitled to be absorbed in regular service or made
permanent, merely on the strength of such continuance, if the
original appointment was not made by following a due
process of selection as envisaged by the relevant rules. It is
not open to the court to prevent regular recruitment at the
instance of temporary employees whose period of
employment has come to an end or of ad hoc employees who
by the very nature of their appointment, do not acquire any
right. The High Courts acting under Article 226 of the
Constitution, should not ordinarily issue directions for
absorption, regularisation, or permanent continuance unless
the recruitment itself was made regularly and in terms of the
constitutional scheme. Merely because an employee had
continued under cover of an order of the court, which we
have described as “litigious employment” in the earlier part
of the judgment, he would not be entitled to any right to be
absorbed or made permanent in the service. In fact, in such
cases, the High Court may not be justified in issuing interim
directions, since, after all, if ultimately the employee
approaching it is found entitled to relief, it may be possible
for it to mould the relief in such a manner that ultimately no
prejudice will be caused to him, whereas an interim
direction to continue his employment would hold up the
regular procedure for selection or impose on the State the
burden of paying an employee who is really not required.
The courts must be careful in ensuring that they do not
interfere unduly with the economic arrangement of its affairs
by the State or its instrumentalities or lend themselves the
instruments to facilitate the bypassing of the constitutional
and statutory mandates.
****
53. One aspect needs to be clarified. There may be cases
where irregular appointments (not illegal appointments) as
explained in S.V. Narayanappa [(1967) 1 SCR 128 : AIRSignature Not Verified
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1967 SC 1071] , R.N. Nanjundappa [(1972) 1 SCC 409 :
(1972) 2 SCR 799] and B.N. Nagarajan [(1979) 4 SCC 507 :
1980 SCC (L&S) 4 : (1979) 3 SCR 937] and referred to in
para 15 above, of duly qualified persons in duly sanctioned
vacant posts might have been made and the employees have
continued to work for ten years or more but without the
intervention of orders of the courts or of tribunals. The
question of regularisation of the services of such employees
may have to be considered on merits in the light of the
principles settled by this Court in the cases abovereferred to
and in the light of this judgment. In that context, the Union
of India, the State Governments and their instrumentalities
should take steps to regularise as a one-time measure, the
services of such irregularly appointed, who have worked for
ten years or more in duly sanctioned posts but not under
cover of orders of the courts or of tribunals and should
further ensure that regular recruitments are undertaken to
fill those vacant sanctioned posts that require to be filled up,
in cases where temporary employees or daily wagers are
being now employed. The process must be set in motion
within six months from this date. We also clarify that
regularisation, if any already made, but not sub judice, need
not be reopened based on this judgment, but there should be
no further bypassing of the constitutional requirement and
regularising or making permanent, those not duly appointed
as per the constitutional scheme.”
72. This Court has meticulously perused the relevant portions of the
aforesaid judgment wherein the Hon‟ble Supreme Court has categorically
held that a casual wage worker who has been appointed on a temporary
basis is not entitled to be absorbed in regular services or be made
permanent. Further, it has been made clear that the termination of
employment of such nature would not necessitate the right to be
regularized merely because he continued working for a time beyond the
term of his employment.
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73. Therefore, the Hon‟ble Court has pertinently stated that the High
Courts under Article 226 of the Constitution of India, shall desist from
issuing directions pertaining to regularization of an employee who has not
secured regular appointment as per the established procedure of
appointment in the concerned entity. Thus, such appointment of a
workman which has been made without the established procedure does
not confer any legal right to him to be made permanent or regularized in
the concerned entity.
74. The jurisprudence behind the said constitutional scheme is that in
case the regularization is granted to a workman who has approached the
Court concerned seeking the said relief, the same will open another mode
of public employment which is impermissible in law. Therefore, such a
direction of regularization would impose financial burden on the State to
make an irregularly appointed worker as permanent.
75. However, the aforesaid judgment carves out an exception to the
above principle by emphasizing that relief of regularization, which is not
under the cover of the orders of the Courts or Tribunals, may be
considered on merits in cases where irregularly appointed workmen have
continued to work for a period of ten years or more against duly
sanctioned vacant posts. It has been held that in such cases, the Union of
India, the State Governments and their instrumentalities shall take
initiative in order to regularize the services of such workmen as a one-
time measure.
76. Summarily stated, the aforesaid judicial dicta sets a precedent by
categorically holding that an irregularly appointed workman, working for
an unsancetioned post, is ineligible for the claim of regularization and
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thus, no employees so appointed shall be granted the relief to be made
permanent on the expiry of their appointments. The general exception to
the aforesaid rule is that in case such workman has continued working for
a period of ten years or more, against a vacant post, the regularization of
his services may be considered by the Courts as a one-time measure.
77. At this juncture, this Court deems it necessary to mention herein
that the Hon‟ble Supreme Court in its decision passed in Hari Nandan
Prasad v. Food Corporation of India,10, has clarified the applicability of
the judgment of Uma Devi (Supra) in matters pertaining to industrial
dispute cases, wherein it was held as follows:
“34. On a harmonious reading of the two judgments
discussed in detail above, we are of the opinion that when
there are post available, in the absence of any unfair labour
practice the Labour court would not give direction for
regularization only because a worker has continued as daily
wage worker/ad hoc/temporary worker for number of years.
Further, if there are no posts available, such a direction for
regularization would be impermissible. In the aforesaid
circumstances giving of direction to regularise such a
person, only on the basis of number of years put in by such a
worker as daily wager, etc. may amount to back door entry
into the service which is an anathema to Article 14 of the
Constitution. Further, such a direction would not be given
when the worker concerned does not meet the eligibility
requirement of the post in question as per the recruitment
rules. However, wherever it is found that similarly situated
workmen are regularized by the employer itself under some
scheme or otherwise and the workmen in question who have
approached the Industrial/Labour Court are on a par with
them, direction of regularization in such cases may be
legally justified, otherwise, non−regularization of the left
over workers itself would amount to invidious discrimination
10
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qua them in such cases and would be violative of Article 14
of the Constitution. Thus, the industrial adjudicator would
be achieving the equality by upholding Article 14, rather
than violating this constitutional provision.”
78. Therefore, upon a harmonious construction of the aforesaid
judgment along with the judgment of Uma Devi (Supra), it can be
construed that justice shall be served while balancing the rights and
interest of the aggrieved workmen as well as the entity concerned.
Therefore, a daily wage worker cannot claim the right to be regularized,
unless a formal policy of regularization in the concerned organization
exists, as the same will amount to back door entry which is violative of
Article 14 of the Constitution of India.
79. The learned counsel for the PNB has brought the attention of this
Court upon the judgment passed by the Hon‟ble Supreme Court in U.P.
Power Corpn. Ltd. v. Bijli Mazdoor Sangh,11, wherein the Hon‟ble Court
held that the concept of regularization is clearly linked with Article 14 of
the Constitution of India and if the merits of a case is covered under the
judgment of Uma Devi (Supra), the Industrial Adjudicator can modify
the relief, but that does not dilute the observations made in the judgment
of Uma Devi (Supra). Briefly stated, the abovementioned judgment held
that the decision of the Hon‟ble Court in Uma Devi (Supra) is applicable
in cases pertaining to industrial disputes.
80. Moreover, a Coordinate Bench of this Court in Rahul Sharma v.
North Delhi Municipal Corpn.,12while relying upon the judicial
11
(2007) 5 SCC 755
12
2018 SCC OnLine Del 9580
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precedent of Uma Devi (Supra), held that the workmen therein had no
legal right to seek the relief of regularization in the absence of a
sanctioned post as their services came to an end after expiry of the
contractual period. Therefore, it was held that they could only be granted
a lump sum compensation amount which had been adequately granted in
the impugned award therein.
81. Moreover, in Madhyamik Shiksha Parishad v. Anil Kumar
Mishra,13, the Hon‟ble Supreme Court held that the ground of completion
of 240 days of work does not entitle a workman to avail the relief of
regularization as the same is not an absolute right.
82. Therefore, on question of regularization of workman appointed on
ad hoc or daily wage basis, the Courts have time and again, and in a large
number of cases clarified that in order to seek the relief of regularization,
there must be a regular and permanent post against which the workman
has been appointed through the requisite recruitment process.
83. Now coming back to the merits of the instant case.
84. The learned Tribunal while dealing with the aforesaid issue, held
that the duration of the workman‟s work tenure of 1553 days is not
sufficient to prove that he is entitled to be regularized. Moreover, it has
been stated in the impugned order that there was no existence of any
regular post of sweeper against which the present workman was working.
It was also observed by the learned Tribunal that there is absence of
material on record to reflect that he was appointed with due process and
in accordance with the established procedure of appointment.
13
(2005) 5 SCC 122
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85. Therefore, the learned Tribunal, on the aforesaid aspect, while
bearing in mind the fact that he was engaged as a sweeper from 30 th
September, 1993 till 31st December, 1996, and while appreciating the
decision rendered in Uma Devi (Supra), held that the workman is not
entitled for the grant of relief of regularization of his services.
86. At this stage, this Court has referred to the decision rendered in the
judgment of BSNL v. Bhurumul,14, wherein, the Hon‟ble Supreme Court,
while granting monetary compensation to the workman in lieu of
reinstatement, also declined the relief of regularization to the workman.
The relevant extract of the same is as under:
“33…..Since such a workman was working on daily-wage
basis and even after he is reinstated, he has no right to seek
regularisation [see State of Karnataka v. Umadevi (3) [State
of Karnataka v. Umadevi (3), (2006) 4 SCC 1 :2006 SCC
(L&S) 753] ]. Thus when he cannot claim regularisation and
he has no right to continue even as a daily-wage worker, no
useful purpose is going to be served in reinstating such a
workman and he can be given monetary compensation by the
Court itself inasmuch as if he is terminated again after
reinstatement, he would receive monetary compensation only
in the form of retrenchment compensation and notice
pay……”
87. This Court is of the view that there is no dispute in the fact that no
formal appointment letter was ever issued to the workman for his
appointment in the instant case and therefore, it is concluded that the
workman was not engaged by following the due process of
selection/appointment.
14
(2014) 7 SCC 177
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88. Insofar as the contention of the workman is concerned that the
PNB has discriminated against him by regularizing the services of his
juniors except for his, this Court, upon perusing the seniority list, which
has been appended as Annexure P-2 to the instant petition, finds that the
workmen, i.e., Ms. Meena and Mr. Ajay Kumar are both senior in ranking
to the workman herein.
89. Furthermore, the workman herein has contended that another
workman namely, Mr. Vinod Kumar, who is junior to him and at the
footing as him, has also been regularized by the PNB. Thus, it is argued
that his fundamental right enshrined under Article 14 of the Constitution
of India has been grossly violated.
90. It is pertinent to note herein that the workman has further argued
that his appointment was made after due process of recruitment as the
PNB has deliberately failed to bring on record the circulars dated 6th July,
1991 and circular No.12/96 dated 20th August, 1996, which prescribes the
eligibility criteria for filling up permanent vacancy on temporary basis for
sweepers and the workman herein was fully eligible for the same.
Moreover, it was contended by the workman that his name in the
seniority list further reflects that he was appointed as per the legally
adopted procedure of appointment.
91. On the aspect of foregoing contention advanced by the workman
demanding regularization on parity, it is observed by this Court that he
has failed to place on record any relevant document to show as to how the
aforesaid people, who have been regularized before him, were recruited
by the PNB.
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92. Moreover, this Court is of the view that the workman ought to have
contended the same before the learned Tribunal or its appellate authority
for proper adjudication of this material fact. It is well settled that a Writ
Court cannot re-appreciate a dispute on merits by conducting a trial for
the adjudication of the same, therefore, the litigants ought to adduce
corroborative evidence before the Court concerned for proper
adjudication of the matter.
93. As stated earlier, the scope of intervention of this Court in
modifying the factual findings of the Labor Court is limited. Accordingly,
this Court is of the considered view that the learned Tribunal in the
instant case dealt with the issue of regularization of the workman after
meticulously examining all the evidence placed before it. The learned
Tribunal applied the principle laid down in Uma Devi (Supra) and
categorically held that the workman herein was not properly appointed as
there was no vacant posts against which, the workman was appointed.
94. Upon his claim of regularization, it is relevant to note that in
paragraph no. 53 of the Uma Devi (Supra) judgment, the Constitutional
Bench of the Hon‟ble Supreme Court has laid down an exception to the
general principle of denying regularization and held that an employee
may be entitled to be regularized in cases where his services have been
rendered for a period of ten years or more.
95. Keeping the aforesaid principle in mind and the fact that the
workman, being a casual worker has worked with the PNB, against an
unsanctioned post, for a period of 1553 days, which is four and a half
years approximately, this Court finds that even the benefit laid down
hereinabove cannot be extended to the workman in the instant case.
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96. This Court is bounded by the jurisprudence of the aforesaid
judgment, which specifically directs that the Courts shall refrain from
issuing a direction of absorption or regularization of the services of a
workman when he has been irregularly engaged against an unsanctioned
post.
97. On merits, it is observed that the workman was engaged by the
PNB as a sweeper on an ad hoc basis in place of another workman
namely, Sh. Ravinder Singh, and there is nothing on record to show that
he was appointed with due process of recruitment. Moreover, it is also
noted that he worked as a sweeper for a period of 1553 days, i.e., a total
of 4 years and 3 months approximately, which is insufficient to be
regularized as per the decision rendered in the judgment of Uma Devi
(Supra). Thus, it is held that the workman was not appointed by
following the requisite procedure of recruitment and therefore, he is not
entitled for the relief of regularization.
98. Taking into consideration the aforesaid facts and circumstances, as
well as the settled position of law, it is made out that the learned Tribunal
rightly adjudicated the issue of regularization and the workman has been
unable to put forth any material contention to contradict the findings of
the learned Tribunal. In light of the same, it is held that this Court is
satisfied with the reasoning given by the learned Tribunal and there is no
illegality or errors of law of any kind which is apparent on the face of the
record.
99. As stated earlier, the scope of intervention of this Court in
modifying the factual findings of the Labor Court is limited. Accordingly,
this Court is of the considered view that the learned Tribunal in the
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instant case dealt with the issue of regularization of the workman after
meticulously examining all the evidence placed before it. The learned
Tribunal applied the principle laid down in Uma Devi (Supra) and
categorically held that the workman herein was not properly appointed as
there was no vacant posts against which, the workman was appointed.
100. Therefore, this Court finds that the workman herein is not entitled
to seek the relief of regularization in view of the fact that his appointment
was not made by following the due procedure of selection.
101. Accordingly, this Court finds no infirmity with the findings of the
learned Tribunal qua denying the relief of regularization and the same is
upheld. Thus, issue (b) stands decided in favor of the PNB.
CONCLUSION
102. The captioned writ petitions have been filed against the impugned
award passed by the learned Tribunal. The PNB has contended that the
decision of the learned Tribunal to reinstate the workman is erroneous
and thus, the impugned award is liable to be set aside. In the writ petition
filed by the workman, it has been contended therein that the learned
Tribunal rightly awarded the relief of reinstatement along with full back
wages, however, it erred in not granting regularization of services.
103. As already stated above, a Writ Court shall refrain from interfering
with the findings of the Courts below under Article 226 of the
Constitution of India on merits as the same have been established under
special legislation to adjudicate the dispute and a Writ Court does not sit
in appeal to re-appreciate the evidence.
104. Therefore, in light of the above facts and circumstances as well as
the discussion on law and merits, the following is held by this Court:
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i. Issue (a), i.e., „whether the workman is entitled to the relief
of reinstatement with full back wages as awarded by the
learned Tribunal‟ is decided in favour of the PNB and the
impugned award dated 14th February, 2007 passed by the
learned Tribunal is modified and in the interest of justice, the
workman is awarded a compensation amount of Rs.
2,50,000/-.
ii. Accordingly, the Punjab National Bank is directed to pay the
awarded compensation amount of Rs. 2,50,000/- to the
workman, within a period of four weeks from today, failing
which, the same shall carry a penal interest @ 9% per
annum.
iii. In view of the aforesaid terms, the Writ Petition bearing
WP(C) No. 4770/2007 stands disposed. Pending
applications, if any, stands dismissed.
iv. Issue (b), i.e., „whether the learned Tribunal erred by
denying the workman the relief of regularization of his
services?‟ is decided in favour of the PNB and it is held that
the workman has been unable to put forth any propositions
to make out a case in his favour regarding grant of relief of
regularization and this Court is of the considered view that
there is no illegality in the finding of the learned Tribunal
that the workman is not entitled to the relief of
regularization. In view of the same, the workman is at liberty
to approach the appropriate forum of law with respect to the
issue of parity for regularization of services.
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v. Accordingly, the Writ Petition bearing WP(C) No.
5770/2007 stands dismissed. Pending applications, if any,
stands dismissed.
105. In view of the foregoing discussions, the impugned award dated
14th February, 2007 passed by the learned Presiding Officer, Central
Government Industrial Tribunal-cum-Labour Court, New Delhi in dispute
bearing ID No. 158/1999 stands modified as per the aforesaid terms.
106. The judgment be uploaded on the website forthwith.
(CHANDRA DHARI SINGH)
JUDGE
OCTOBER 16, 2024
gs/sm/ryp
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