Syndicate Bank vs Kishan Lal
2007 Latest Caselaw 262 Del

JUDGMENT

Shiv Narayan Dhingra, J.

1. By this writ petition, the petitioner has challenged the validity of award dated 17th March, 2004 passed by Central Government Industrial Tribunal-cum-Labour Court -II ( in short " the Tribunal") whereby the Tribunal answered the reference in favor of the respondent, directing the petitioner to reinstate the respondent with 25% back wages.

2. Briefly facts are that the Manager of the petitioner bank engaged respondent to fetch water as a "water-boy" since the branch was facing a water scarcity. He was engaged for a limited purpose of brining water and he was not connected with normal business/routine functioning of the branch. He was being paid Rs. 30/- to Rs. 35 per day. His engagement was temporary in the nature. He was being paid daily coolie charges out of the contingency expenditure account of the petitioner, denoting the expenditure "as misc. and sundry" as distinct from from "salaries and allowances". The engagement of the respondent was not against any post available or created in that branch. The respondent was not issued any appointment letter/order. A regular appointment in the category of workman whether part time or whole time, temporary or permanent could be made in the petitioner bank only as per the recruitment rules and guidelines since the petitioner bank is a nationalized bank and the vacancies can be filled either through employment exchange or by the recruitment procedure of the bank. The zonal management was not competent to appoint anybody without following rules and regulations. Therefore, the respondent was only engaged as a "water-boy" for fetching water for the branch and not as an employee. The services of the respondent were dispensed with when they were not required, in November, 1994. The respondent, however, raised an industrial dispute alleging that his services were wrongfully terminated and following dispute was referred for adjudication to the appropriate Government:

Whether the action of the management of Syndicate Bank in terminating the services of Sh. Kishan Lal Ex. Water boy w.e.f. 16.11.1994 without complying the provision of Section 25F of the Industrial Disputes Act, 1947 is legal and justified? If no to what relief the said workman is entitled to and from what date?

3. The respondent in his statement of claim alleged that he was appointed as water-boy/peon with effect from 11.10.1991. His conduct and work was satisfactory and he had worked continuously up to 15th November, 1994 and on 16th November, 1994 he was verbally told that his services were not required and were terminated. No charge sheet was issued to him, no inquiry had taken place and no compensation as required under Section 25F of the Industrial Disputes Act was paid. The action of the management was illegal and malafide.

4. The management had taken the stand that the respondent was not a workman under Section 2(s) of the I.D. Act. There was no employee-employer relationship. He was engaged only as a water boy to fetch water for the branch's use and he was getting coolie charges on daily basis and was getting Rs. 30 to Rs. 35 per day. His services were purely casual and temporary in nature. He was being paid out of the contingency account and he was not being paid salary.

5. The Tribunal came to conclusion that the respondent had worked for 240 days during the calender year. Whether he was working as "water-boy" or a peon, makes no difference. If he had been engaged only for fetching water, his services would have been terminated after the said season but since he continued working continuously for 240 days in the year 1994, Section 25F of the I.D. Act was applicable. He, therefore, directed that the respondent be reinstated with 25% back wages.

6. It is now well settled that the public employment cannot be a subject matter of management arbitrariness. The manager or the administrator cannot distribute the public employment to persons of his choice giving a go-bye to the rules of recruitments. Recruitment to the public employment must be done in accordance with service rules and an employee who has not been appointed on the post in accordance with rules and regulations cannot claim absorption and can be removed. In Secretary, State of Karnataka and Ors. v. Umadevi and Ors. 2006 SCC(L&S) 753 Supreme Court observed:

In Director, Institute of Management Development, U.P. v. Pushpa Srivastava this Court held that since the appointment was on purely contractual and ad hoc basis on consolidated pay for a fixed period and terminable without notice, when the appointment came to an end by efflux of time, the appointee had no right to continue in the post and to claim regularization in service in the absence of any rule providing for regularization after the period of service. A limited relief of directing that the appointee be permitted on sympathetic consideration to be continued in service till the end of the calendar year concerned was issued. This Court noticed that when the appointment was purely on ad hoc and contractual basis for a limited period, on the expiry of the period, the right to remain the the post came to an end. This Court stated that the view they were taking was the only view possible and set aside the judgment of the High Court which had given relief to the appointee.

In Madhyamik Shiksha Parishad, U.P. v. Anil Kumar Mishra a three-Judge Bench of this Court held that ad hoc appointees/temporary employees engaged on ad hoc basis and paid on piece-rate basis for certain clerical work and discontinued on completion of their task, were not entitled to reinstatement or regularization of their services even if their working period ranged from one to two years. /This decision indicates that if the engagement was made in a particular work or in connection with particular project, on completion of that work or of that project, those who were temporarily engaged or employed in that work or project could not claim any right to continue in service and the High Court cannot direct that they be continued or absorbed elsewhere.

It is not necessary to multiply authorities on this aspect. It is only necessary to refer to one or two of the recent decisions in this context. In State of U.P. v. Neeraj Awasthi this Court after referring to a number of prior decisions held that there was no power in the State under Article 162 of the Constitution to make appointments and even if there was any such power, no appointment could be made in contravention of statutory rules. This Court also held that past alleged regularization or appointment does not connote entitlement to further regularization or appointment. It was further held that the High Court has no jurisdiction to frame a scheme by itself or direct the framing of a scheme for regularization. This view was reiterated in State of Karnataka v. KGSD Canteen Employees' Welfare Assn. .

7. The respondent in this case was not appointed as per rules and regulations. He was not even appointed as casual or ad hoc employee. His services were engaged to fetch water for the branch who was suffering water scarcity and he was being paid Rs. 30 to Rs. 35 daily by the branch manager out of the contingency funds. This kind of engagement by the manager which is not against a post, permanent or temporary is purely an ad hoc engagement to meet certain contingencies. A manager in exercise of his administrative powers, to overcome the difficulties of administrative nature being faced in the branch can always make such engagement and such engagements do not confer any right on the person engaged, to perpetuate his engagement. Such engagement comes to an end when work is over and difficulty is overcome. If the manager engaged such a person to fetch water that does not give him the status of workman or employee. If the Courts and Tribunals take away such powers of the managers to make contingency arrangements for the benefit of the customers or their employees for providing them water or other contingency requirements or the Courts impose a financial burden on the bank for all times to come, the Court and Tribunals shall be unnecessarily interfering into the administration of the bank.

8. I consider that Labour Courts and Tribunals must keep in mind that every establishment has to have some liberty of engaging such kind of labour for temporary works which are not permanent in nature and the requirement of which may come to an end due to change in circumstances. Such temporary arrangements which are made by the establishments or banks out of the contingency funds do not confer any right on the person employed for the said purpose, to claim employment for all times to come. Those persons who are engaged by the bank or establishment only for limited purposes of meeting such situations like fetching water, fixing electrical wiring, cleaning of the bank or due to some municipal work or meeting such other extraordinary situations during rainy seasons or other problems can always be disengaged when work is over.

9. In Secretary, State of Karnataka and Ors. v. Umadevi(3) and Ors., Supreme Court observed that the State is controlled by economic considerations and financial implications of any public employment. The viability of the department or the instrumentality or of the project is also of equal concern for the State. The Courts cannot impose on the State a financial burden on this nature by insisting on regularization or permanence in employment of those who are employed temporarily and are not needed permanently or regularly. The burden may become so heavy by such directions that the undertaking itself may collapse under its own weight. The rule of equality in public employment is a basic feature of our Constitution. Unless an appointment is in terms of the relevant rules of recruitment after a proper competition amongst qualified persons, the same would not confer any right on the appointee. If an appointment is a contractual appointment, it comes to an end at the end of the project. If it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. A temporary employee cannot claim to be made permanent on the expiry of his terms of appointment. Merely because a temporary employee or casual worker is continued for a time beyond the terms of his appointment, he would not be entitled to be absorbed in regular service or made permanent.

10. In view of my foregoing discussion, the writ petition is allowed. The order of the Tribunal dated 17th March, 2004 is set aside. No orders as to costs.