caselaws
Supreme Court of India
Vice Chancellor Luknow … vs Akhilesh Kumar Khare &Amp;Anr on 8 September, 2015Author: ………………………J.
Bench: Dipak Misra, R. Banumathi
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.5731 OF 2011
VICE-CHANCELLOR, LUCKNOW UNIVERSITY
LUCKNOW, U.P. ..Appellant
Versus
AKHILESH KUMAR KHARE & ANR. ..Respondents
WITH
C.A.NO.5732/2011, C.A.NO.5733/2011, C.A.NO.5736/2011, C.A.NO.5737/2011,
C.A.NO.5738/2011, C.A.NO.5739/2011,
C.A.NO.5740/2011, C.A. NO.5741/2011, C.A.NO.5742/2011, C.A.NO.5743/2011,
C.A. NO.5744/2011, C.A.NO.5745/2011,
C.A.NO.5746/2011, C.A.NO.5747/2011, C.A. NO.5748/2011,
C.A. NO.5749/2011 AND C.A.NO.5750/2011
J U D G M E N T
R. BANUMATHI, J.
This batch of appeals arise out of the common judgment of the High Court of
Judicature at Allahabad, Lucknow Bench dismissing the writ petitions
[W.P.No.6690 of 1996 (S/S) and batch] dated 14.09.2009, whereby the High
Court upheld the award passed by the Industrial Tribunal and directed the
appellant-university to consider the respondents for regularisation of
their services as and when the vacancies arise and till that time they be
paid the emoluments, which are being paid by university authorities to
similarly situated workmen against the unsanctioned posts.
2. Before we advert to the contentious points, it would be
appropriate to highlight the factual background of the case. In the year
1989, the Finance Officer of the University of Lucknow,
Mr.R.S.Vishvakarma engaged the respondents in this batch of appeals as
Routine Grade Clerk (RGC)/Peon by oral engagement as daily wagers for the
Central Accounts Office and they were being paid from out of the
contingency fund. In order to prevent the abuse of power in engaging daily
wagers, the then Vice-Chancellor of the Lucknow University issued Order
No.VC/1932/90 dated 03.08.1990 notifying that the daily wagers would not be
allowed to continue in any case after 31.12.1990 unless prior written
approval was obtained from the Vice-Chancellor. It was further directed
that if there was any need of any extra hand, the Section Heads must send a
demand for creation of posts to the Deputy Registrar (Admn.) with details
justifying the need so that a consolidated statement for sanction of new
posts in the university be sent to the State Government. As per the
appellant-university, the Finance Officer neither dispensed with the
respondents/daily wagers nor did he obtain written approval from the Vice-
Chancellor. The engagement of the respondents came to an end with effect
from 01.01.1991.
3. The terminated workers sent a legal notice on 28.01.1992
through Mazdoor Sabha to the Vice-Chancellor stating that they served the
university till 31.12.1990 continuously and that they were terminated
without assigning any reason and put forth the demand for reinstatement in
service and backwages. All the ex-daily wagers further filed individual
applications to the Deputy Labour Commissioner, Lucknow for conciliation of
the dispute raised by them in February 1992. As no conciliation could be
achieved, on the recommendation of the Conciliation Officer, the Deputy
Labour Commissioner by his order dated 18.08.1992 referred all the cases to
the Labour Court, Lucknow for adjudication of the dispute between
respondents and the appellant-university. The Presiding Officer, Labour
Court vide order dated 30.01.1996 held that termination of the workmen from
01.01.1991 by the university is illegal and directed the reinstatement of
respondent No.1 with full back wages. Being aggrieved, the appellant-
university filed a Writ Petition before the High Court challenging the
award. The High Court disposed of the writ petition and connected
petitions vide a common order dated 14.09.2009 affirming the award passed
by the Labour Court and inter alia issued direction as aforesaid. The
university has filed this batch of appeals assailing the order passed by
the High Court.
4. Learned counsel for the appellants contended that merely
because a casual wage worker or a temporary employee worked continuously
for more than 240 days in a year, he would not be entitled to be absorbed
in regular service or made permanent on the strength of such continuance,
if the original appointment was made without following the due process of
selection as envisaged by the rules. It was submitted the respondents were
not engaged as against any sanctioned post and the impugned judgment of the
High Court directing regularisation is violative of the principles laid
down by this Court in Secretary, State of Karnataka and Others vs. Umadevi
(3) and Others, (2006) 4 SCC 1.
5. Per contra, learned Senior Counsel Ms. Shobha Dikshit for the
respondents submitted that the services of the respondents were terminated
without giving any notice or retrenchment compensation and is contravention
of Section 6-N of the U.P. Industrial Disputes Act, 1947. It was argued
that the respondents were out of employment since 1991 and they are finding
it difficult to survive along with their families with the meagre amount of
Rs.650/- awarded to them under Section 17B of the Industrial Disputes Act,
1947. It was further submitted that the respondents’ juniors were retained
and continued in service and subsequently, even new hands have been engaged
and while so, the respondents were discriminated and the courts below
rightly directed their regularisation.
6. We have given our thoughtful consideration to the rival
contentions of both the parties and perused the impugned judgment and
material on record.
7. Lucknow University is a statutory body and is governed by the
U.P. State Universities Act, 1973. The Vice-Chancellor is the Principal
Executive and exercises general supervision and control over all its
affairs including appointments of non-teaching staff. The Registrar of the
University is the administrative head who issues orders of appointment duly
made and approved by the Vice-Chancellor. The appointments are to be made
by the university against the sanctioned posts created by the Government
and the Government determines the pay scale and allowances of the
employees. The Finance Officer by himself had no right to appoint any
person and university has not created extra post of Routine Grade Clerk or
Record Boy or Peon. In the present case, the Finance Officer in the
university engaged the respondents as daily wagers for his Central Accounts
Section. Admittedly, the respondents were not engaged by following due
procedure and their engagement was not against any sanctioned posts. In
order to curb the illegal practice of engaging daily wagers, Vice-
Chancellor of the University issued an order dated 03.08.1990 clarifying
that the daily wagers will not be allowed to continue after 31.12.1990
until prior written approval is accorded by the Vice-Chancellor. No such
approval was taken qua the respondents for their continuance. The
respondents were terminated w.e.f. 01.01.1991. When the respondents’
appointments were illegal, the respondents would not be entitled to any
right to be regularized or absorbed.
8. As noticed earlier, there is no appointment letter issued to
the respondents by the Registrar on which they were engaged. The
respondents have based their claim on service certificate issued by Mr.
R.L. Shukla, the then Finance Officer of the University of Lucknow. Mr.
R.L. Shukla in his evidence has stated that the daily wagers were engaged
by the then Finance Officer, Mr. R.S. Vishvakarma as daily wage employees
in the accounts section as per their need and they were terminated when
their services were not required. He further stated that no particular
nature of work was assigned to the respondents in the accounts section and
the respondents were being paid out of “recurring expenditure item”. So far
as the certificate issued to the respondents, Mr. Shukla has stated that
those certificates issued to the respondents-workmen only to enable them to
seek other job.
9. Learned Senior Counsel for the respondents has submitted that
after removal of the respondents, similarly placed employees have been
regularized and drawn our attention to regularisation of one such Narendra
Pratap Singh. Evidence of Mr. Brij Pal Das Mehrotra, former Registrar of
the University would show that the persons who are regularized are only
those who were appointed by following due procedure. The said Narendra
Pratap Singh was also appointed by following due procedure. As seen from
Annexure (P-5) filed with rejoinder affidavit, the said Narendra Pratap
Singh was appointed by the Registrar of the University as Routine Grade
Clerk (RGC) on daily wage basis, the respondents were not so appointed by
the Registrar of the university. The respondents have admittedly not
produced any document to show that they were appointed by the university
against sanctioned posts in accordance with statutory rules. If the
original appointment was not made following due process of selection as
envisaged by the relevant rules, the respondents cannot seek
regularisation. The Labour Court and the High Court, in our view, fell in
error in directing the regularisation of the respondents.
10. In the rejoinder-affidavit filed by the appellant-university,
it is stated that the university has requested the State Government for
sanction of 755 posts in various categories in order to regularise the
persons working in the various departments of the university. The State
Government sanctioned only 330 posts in various categories, as a result of
which regularisation/samayojan of 330 persons were made strictly on the
basis of their seniority. A bare perusal of letter No.26/C.S./70-4-99-
3(27)/99 dated 29.09.1999 by Special Executive Officer, Government of U.P.
regarding absorption of non-teaching posts in the Lucknow University, it
is clearly mentioned that if there is any disruption in the service of any
employee, then the services of the prior period from the said disruption
may not be calculated. A perusal of minutes of the Sub-Committee
constituted by the Executive Committee held on 16.01.2001, it is clear that
employees who were continuously working in the university were only
regularised. The respondents have been out of employment from 01.01.1991
and at the time of regularisation/Samyojan, the respondents were not in
service and, therefore, they cannot seek parity with the persons absorbed.
11. In Umadevi’s case, this Court settled the principle that no
casual workers should be regularised by the Courts or the State Government
and as per constitutional provisions all the citizens of this country have
right to contest for the employment and temporary or casual workers have no
right to seek for regularization. In para (47), this Court held as under:
“47. When a person enters a temporary employment or gets engagement as a
contractual or casual worker and the engagement is not based on a proper
selection as recognised by the relevant rules or procedure, he is aware of
the consequences of the appointment being temporary, casual or contractual
in nature. Such a person cannot invoke the theory of legitimate expectation
for being confirmed in the post when an appointment to the post could be
made only by following a proper procedure for selection and in cases
concerned, in consultation with the Public Service Commission. Therefore,
the theory of legitimate expectation cannot be successfully advanced by
temporary, contractual or casual employees. It cannot also be held that the
State has held out any promise while engaging these persons either to
continue them where they are or to make them permanent. The State cannot
constitutionally make such a promise. It is also obvious that the theory
cannot be invoked to seek a positive relief of being made permanent in the
post.”
12. In para (53) of Umadevi’s case, the Constitution Bench carved
out an exception to the general principles enumerated above and it reads as
under:
“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, R.N. Nanjundappa (1972) 1 SCC 409 and B.N. Nagarajan
(1979) 4 SCC 507 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.”
13. As the respondents worked as casual workers only for about one
and half years and not against any sanctioned posts, be it noted that even
the benefit of para (53) of Umadevi’s case cannot be extended to the
respondents.
14. In Satya Prakash & Others vs. State of Bihar & Others (2010) 4
SCC 179, this Court held as under:
“7. We are of the view that the appellants are not entitled to get the
benefit of regularisation of their services since they were never appointed
in any sanctioned posts. The appellants were only engaged on daily wages in
the Bihar Intermediate Education Council.
8. In Umadevi (3) case (2006) 4 SCC 1, this Court held that the courts are
not expected to issue any direction for absorption/regularisation or
permanent continuance of temporary, contractual, casual, daily wage or ad
hoc employees. This Court held that such directions issued could not be
said to be inconsistent with the constitutional scheme of public
employment. This Court held 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. In view of the law laid down by this
Court, the directions sought for by the appellants cannot be granted.”
(Underlining added)
15. The respondents were merely casual workers and they do not have
any vested right to be regularised against the posts. The High Court fell
in error in affirming the award passed by the Labour Court directing
regularisation. In the facts and circumstances of the case, as the
respondents were out of employment for more than twenty years and now they
are over aged and cannot seek for regular appointment, in our view, the
interest of justice will be subserved if the judgment of the High Court is
modified to the extent by directing payment of monetary compensation for
the damages to the respondents.
16. In considering the violation of Section 25F of the Industrial
Disputes Act, 1947 in Incharge Officer & Anr. vs. Shankar Shetty (2010) 9
SCC 126 and after referring to the various decisions, this Court held that
the relief by way of back wages is not automatic and compensation instead
of reinstatement has been held to meet the ends of justice and it reads as
under:-
“2. Should an order of reinstatement automatically follow in a case where
the engagement of a daily wager has been brought to end in violation of
Section 25-F of the Industrial Disputes Act, 1947 (for short “the ID Act”)?
The course of the decisions of this Court in recent years has been uniform
on the above question.
3. In Jagbir Singh v. Haryana State Agriculture Mktg. Board, (2009) 15
SCC 327, delivering the judgment of this Court, one of us (R.M. Lodha, J.)
noticed some of the recent decisions of this Court, namely, U.P. State
Brassware Corpn. Ltd. v. Uday Narain Pandey, (2006) 1 SCC 479, Uttaranchal
Forest Development Corpn. v. M.C. Joshi, (2007) 9 SCC 353, State of M.P. v.
Lalit Kumar Verma (2007) 1 SCC 575, M.P. Admn. v. Tribhuban (2007) 9 SCC
748, Sita Ram v. Moti Lal Nehru Farmers Training Institute (2008) 5 SCC 75,
Jaipur Development Authority v. Ramsahai (2006) 11 SCC 684, GDA v. Ashok
Kumar (2008) 4 SCC 261 and Mahboob Deepak v. Nagar Panchayat, Gajraula
(2008) 1 SCC 575 and stated as follows: (Jagbir Singh case (2009) 15 SCC
327, SCC pp. 330 & 335, paras 7 & 14)
“7. It is true that the earlier view of this Court articulated in many
decisions reflected the legal position that if the termination of an
employee was 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, this 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. Compensation instead of reinstatement has been
held to meet the ends of justice.
* * *
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.”
4. Jagbir Singh (2009) 15 SCC 327 has been applied very recently in
Telegraph Deptt. v. Santosh Kumar Seal (2010) 6 SCC 773, wherein this Court
stated: (SCC p. 777, para 11)
“11. In view of the aforesaid legal position and the fact that the workmen
were engaged as daily wagers about 25 years back and they worked hardly for
2 or 3 years, relief of reinstatement and back wages to them cannot be said
to be justified and instead monetary compensation would subserve the ends
of justice.”
17. In the light of the above discussion, the impugned judgment of
the High Court is modified and keeping in view the fact that the
respondents are facing hardship on account of pending litigation for more
than two decades and the fact that some of the respondents are over aged
and thus have lost the opportunity to get a job elsewhere, interest of
justice would be met by directing the appellant-university to pay
compensation of rupees four lakhs to each of the respondents. By order
dated 11.07.2011, this Court directed the appellant to comply with the
requirements of Section 17B of the Industrial Disputes Act, 1947 and it is
stated that the same is being complied with. The appellant-university is
directed to pay the respondents rupees four lakhs each within four months
from the date of receipt of this judgment. The payment of rupees four lakhs
shall be in addition to wages paid under Section 17B of the Industrial
Disputes Act, 1947.
18. In the result, the impugned judgment is modified and these
appeals are partly allowed in the above terms. No order as to costs.
………………………J.
(DIPAK MISRA)
………………………J.
(R. BANUMATHI)
New Delhi;
September 8, 2015
Comments