Karambir vs Presiding Officer, Labour Court ...
2014 Latest Caselaw 2779 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
                                            Judgment Reserved on March 05, 2014
                                             Judgment Delivered on May 29, 2014
+       W.P.(C) 774/1997
        KARAMBIR                                              ..... Petitioner
                                   Through:    Mr.Vinay Sabharwal,
                                               Advocate with Ms.Neha
                                               Sabharwal, Advocate

                                   versus

        PRESIDING OFFICER, LABOUR COURT NO. 1 & ORS.
                                              ..... Respondents
                         Through: Ms.Latika Chaudhary,
                                  Advocate with Ms.Chandni
                                  Mehta, Advocate for R2 &
                                  R3
+       W.P.(C) 809/2001
        DELHI TRANSPORT CORPORATION          ...... Petitioner
                         Through: Ms.Latika Chaudhary,
                                  Advocate with Ms.Chandni
                                  Mehta, Advocate

                                   versus

        DELHI ADMINISTRATION AND ORS.
                                                           ..... Respondents
                                   Through:    Mr.Vinay Sabharwal,
                                               Advocate with Ms.Neha
                                               Sabharwal, Advocate for R3-
                                               workman

CORAM:
HON'BLE MR. JUSTICE V.KAMESWAR RAO
V.KAMESWAR RAO, J.

1. Since the afore-captioned two writ petitions involve a challenge to an award dated July 05, 1996 passed by the Labour Court in I.D. No.

405/87 by both the parties before the Labour Court, the same are being disposed of by this common order. For convenience, the parties shall be referred by their status in Writ Petition (C) No. 774/1997.

2. In terms of the impugned award, the Labour Court directed the respondent Nos. 2 and 3-Corporation to reinstate the petitioner-workman with all consequential benefits and continuity in service along with Rs.2000/- as litigation expenses. The facts as culled out from the award are, the petitioner was engaged as a Retainer Crew Driver w.e.f. July 25, 1985 on daily rate wage basis. He was drawing salary for the days he worked. On December 08, 1985, he met with an accident, damaged the bus and injured a cyclist. An FIR No. 493/85, P.S. Delhi Cantt. was registered under Section 279/337 of the Indian Penal Code. His services were dispensed with, w.e.f. April 02, 1986. In the meantime, he was discharged by the Criminal Court vide order dated July 04, 1986. He challenged his termination, which was referred to the Labour Court after the failure of the conciliation proceedings, on the following terms:

"Whether the termination of the services of Karambir is illegal and/or unjustified? If so, to what relief is he entitled and what directions are necessary in this respect"

3. It was the case of the petitioner that the order by which his services were dispensed with, is illegal as the same was made during pendency of the case before the Criminal Court, that too, without any notice and charge sheet. It was also the case of the petitioner that the order is also in clear violation of Section 25-N of the Industrial Disputes Act, 1947 (Act in short) as neither the compensation nor dues were given to him. He sought his reinstatement with full back wages and continuity in service.

4. The case of the respondent Nos. 2 & 3-Corporation was that the reference was not maintainable as the erstwhile Delhi Administration and Secretary (Labour) are not competent to make the said reference. It was further averred that the termination of the petitioner was as per terms of appointment. It was contended that the accident has taken place on account of rash and negligent driving of the petitioner-workman. It was also the case of the respondent Nos. 2 & 3-Corporation that the petitioner had joined service on July 27, 1985 and had actually worked for 212 days and therefore, Section 25-F of the Act is not contravened in the case.

5. The Labour Court framed two issues; one being, 'whether the erstwhile Delhi Administration is the appropriate Government' and the second being, 'as per the terms of reference'. The Labour Court in the impugned award, has answered the first issue, holding that the Delhi Administration is competent to make a reference to the Labour Court. On issue No. 2, it has held that the termination of the petitioner was in violation of principles of natural justice and since, it was based on the finding of the Committee, the termination is not sustainable. Further, the Labour Court was of the view that since the petitioner has completed 240 days of service, the termination could not have been effected without following Section 25-N of the Act.

6. Mr. Vinay Sabharwal, learned counsel appearing for the petitioner would submit that for all purposes, the appointment of the petitioner was of regular nature. The provisions of the Delhi Road Transport Authority's Act cannot be construed as part of the contract so as to make them applicable on the petitioner; even as a probationer, the petitioner was holding a lien. Even if it is assumed that the petitioner was a

temporary employee or a probationer, then also, he is entitled to the benefits under Section 25-F, 25-G and 25-N of the Act. Further, the accident being the foundation for dispensing with the service of the petitioner, the respondent Nos. 2 and 3-Corporation were required to follow the principles of natural justice by giving an opportunity of hearing to the petitioner. That apart, the petitioner having been acquitted in the criminal case, he could not have been terminated. He would rely upon the following judgments in support of his contention:

1. 2007 (2) SCC 112, Uttaranchal Forest Development Corporation Vs. Jabar Singh & Ors.

2. 2013 (10) SCC 324, Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidhlaya (D.ED.) and Ors.

3. 2010 (5) SCC 497, Anoop Sharma Vs. Executive Engineer Public Health Division No. 1, Panipat (Haryana)

4. AIR 2003 SC 3553, S.M. Nilajkar & Ors. Vs. Telecom District Manager, Karnataka

5. (3) SCC 588, Nar Singh Pal Vs. Union of India

6. AIR 1988 SC 2168, Calcutta Port Shramik Union Vs. Calcutta River Transport Association & Ors.

7. 1999 (3) SCC 60, Dipti Prakash Banerjee Vs. Satendernath Bose National Centre for Basic Sciences, Calcutta and Ors.

8. 2000 (3) SCC 239, V.P. Ahuja Vs. State of Punjab & Ors.

9. 2013 (3) SCC 607, SBI & Ors. Vs. Palak Modi and Anr.

10. 1984 Suppl. SCC 540, Manmohan Singh Jatla Vs. Commissioner, Union Territory of Chandigarh & Ors.

11. 1975 (1) SCC 574, L.Michael Vs. Johnson Pumps Ltd.

12. 1992 (2) SLR 694, State of Haryana Vs. POLC, Rohtak & Ors.

13. AIR (37) 1950 SC 188, The Bharat Bank Ltd., Delhi Vs. The Employees of the Bharat Bank Ltd., Delhi & Anr.

14. AIR 1960 SC 819, Rashtriya Mill Mazdoor Sangh,

Parel Bombay & Anr. Vs. The Apollo Mills Ltd. & Ors.

15. State of U.P. and Ors. Vs. Muir Mills Company Ltd. and Ors., (1967) II LLJ 598 All

16. AIR 1963 SC 630, R.B.Diwan Badri Dass and Ors. Vs. Industrial Tribunal, Punjab, Patiala and Ors.

17. AIR 1953, SC 30, Messrs. Crown Aluminium Works Vs. Their Workmen

7. On the other hand, Ms. Latika Chaudhary, learned counsel for the respondent Nos. 2 and 3-Corporation would submit that the petitioner's appointment as a Retainer Crew Driver, was not a regular appointment but a temporary one. She would submit that he has no right to the post and his services could be dispensed with at any time. She would also submit that the petitioner had not completed 240 days, hence there was no requirement to follow the provisions of Section 25-N of the Act. She has taken me through the provisions of the DRTA Act with regard to the Retainer-Crew-Driver. Lastly, it was her case that even if the termination is held to be bad, the petitioner would not be entitled for reinstatement and appropriate compensation can be awarded. She would rely upon the following judgments in support of her case:

1. 2013 (5) SCC 136, Asstt. Engineer, Rajasthan Development Corporation & Anr. Vs. Gitam Singh.

2. 1994 Suppl. 2 SCC 520, A.K.Dass Vs. National Federation of Co-op. Sugar Factories Ltd.

3. 1995 Suppl. 4 SCC 548, Gujarat State Road Transport Corporation and Anr. Vs. Mulu Amra.

4. 1997 (11) SCC 396, Rattan Singh Vs. Union of India and Anr.

5. 2010 (9) SCC 126, Incharge Officer and Anr. Vs. Shankar Shetty.

6. W.P.(C) 6716/2000, Sajjan Kumar Vs. DTC, decided on February 06, 2006

7. 2006 (1) SCC 106, R.M.Yellati Vs. The Asstt. Executive Engineer

8. 2005 (7) SCC 447, Rajasthan State Road Transport Corporation and Ors. Vs. Zakir Hussain

8. Having heard the learned counsel for the parties, before I deal with the rival submissions of the parties, I note the Clause 4 (XIV) of the Executive Instructions regarding the employment of Retainer-Crew, which, inter alia, stipulates that the services of the Retainer Crew can be dispensed with by Corporation without notice and without assigning any reason. Further, their services can also be dispensed with if they failed to turn up at the units and perform duties as laid down in Instructions for five days continuously without permission of the officers, under whom, they are working and without adequate reasons. That apart, I note, some of the terms of appointment of the petitioner are as under:

"2. The appointment is purely temporary. Their services will be liable to be dispensed with at any time without notice and without assigning any reason therefor.

                 XXX                XXX                 XXX
      8.         Their services will be liable to be dispensed with     in

case they are found to be having directly or indirectly by themselves or by partners or any other person or agent any interest, if any contract or work with the Corporation".

9. From the perusal of para 4 (XIV) of the Executive Instructions regarding the employment of Retainer Crew would reveal that the service of the Retainer Crew can be dispensed with by the Corporation without notice and without assigning any reason. That apart, even the terms of appointment given to the petitioner would reflect such a position. In other words, independently, the Executive Instructions and the terms of appointment would enable the respondent Nos. 2 & 3- Corporation to dispense with the services of the Retainer Crew without notice and without assigning any reason. It is also noted that in the

respondent Nos. 2 & 3-Corporation, employees have been categorized as (1) Regular (Permanent), (2)Probationers, (3) Temporary and (4)Casual. A further examination of the provisions framed by the respondent Nos. 2 & 3-Corporation, more particularly, relating to the matters set out in the Schedule to Industrial Employment (Standing Orders) Act, 1946, defines a Casual employee to mean an employee whose employment is of casual nature and includes an employee appointed on daily rates of pay or as a Retainer. The provisions do bring out a distinction between a regular (permanent) employee and a casual employee. A regular employee holds a lien on a permanent post, whereas, a casual employee does not hold any such lien as the employment of a casual employee does not contemplate so, and it appears that the appointment of such an employee is on need basis. The provisions also contemplate that services of an employee engaged on contract for a specific period on the expiration of such period, in accordance with the terms of appointment, be terminated without notice. In the case in hand, it is clear that a Retainer Crew Driver being only a casual employee, his services can be dispensed with, without any notice and without specifying any reason. In view of this, the Conduct Rules would not be applicable to a Retainer Crew Driver, so as to enable the Corporation to hold a regular inquiry before dispensing with the services. This answers the submission of Mr.Vinay Sabharwal that the engagement of a Retainer Crew Driver is of a regular nature, which is not. It also answers his submission that a Retainer Crew Driver holds a lien on the post and also answers the submission of Mr. Sabharwal that before dispensing with the services, procedure in conformity with the principles of natural justice like holding an enquiry, need to be followed.

That apart, insofar as the submission of Mr. Vinay Sabharwal that the petitioner having completed 240 days in the year preceding the date of alleged termination, the provisions of Section 25-N of the Act need to be followed is concerned, before I deal with this submission of Mr. Sabharwal, I reproduce hereunder the relevant provisions of Section 25- N of the Act:

25-N. Conditions precedent to retrenchment of workmen.- (1) No workman employed in any industrial establishment to which this Chapter applies, who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until,--

(a) the workman has been given three months' notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice; and

(b) the prior permission of the appropriate Government or such authority as may be specified by that Government by notification in the Official Gazette (hereafter in this section referred to as the specified authority) has been obtained on an application made in this behalf.

(2) An application for permission under sub- section (1) shall be made by the employer in the prescribed manner stating clearly the reasons for the intended retrenchment and a copy of such application shall also be served simultaneously on the workmen concerned in the prescribed manner.

(3) Where an application for permission under sub- section (1) has been made, the appropriate Government or the specified authority, after making such enquiry as it thinks fit and after giving a reasonable opportunity of being heard to the employer, the workmen concerned and the persons interested in such retrenchment, may, having regard to the genuineness and adequacy of the reasons stated by the employer, the interests of the workmen and all other relevant factors, by order and for reasons to be recorded in writing, grant or refuse to grant such permission and a copy of such order shall be communicated to the employer and

the workmen.

(4) Where an application for permission has been made under sub- section (1) and the appropriate Government or the specified authority does not communicate the order granting or refusing to grant permission to the employer within a period of sixty days from the date on which such application is made, the permission applied for shall be deemed to have been granted on the expiration of the said period of sixty days.

(5) An order of the appropriate Government or the specified authority granting or refusing to grant permission shall, subject to the provisions of sub- section (6), be final and binding on all the parties concerned and shall remain in force for one year from the date of such order. (6) The appropriate Government or the specified authority may, either on its own motion or on the application made by the employer or any workman, review its order granting or refusing to grant permission under sub- section (3) or refer the matter or, as the case may be, cause it to be referred, to a Tribunal for adjudication: Provided that where a reference has been made to a Tribunal under this sub- section, it shall pass an award within a period of thirty days from the date of such reference.

(7) Where no application for permission under sub- section (1) is made, or where the permission for any retrenchment has been refused, such retrenchment shall be deemed to be illegal from the date on which the notice of retrenchment was given to the workman and the workman shall be entitled to all the benefits under any law for the time being in force as if no notice had been given to him.

(8) Notwithstanding anything contained in the foregoing provisions of this section, the appropriate Government may, if it is satisfied that owing to such exceptional circumstances as accident in the establishment or death of the employer or the like, it is necessary so to do, by order, direct that the provisions of sub- section (1) shall not apply in relation to such establishment for such period as may be specified in the order.

(9) Where permission for retrenchment has been granted under sub- section (3) or where permission for retrenchment is deemed to be granted under sub- section (4), every

workman who is employed in that establishment immediately before the date of application for permission under this section shall be entitled to receive, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months.]

10. A perusal of the said provision would reveal that while retrenching a workman employed in an industrial establishment; (a) a notice of 3 months in writing indicating the reasons for retrenchment and the period of notice expired, or the workman is paid in lieu of such notice, wages for the period of notice; (b) and a prior permission of the appropriate Government, is necessarily to be followed. The word 'retrenchment' has been defined in Section 2(oo) of the Act, the same is also reproduced as under:

"2(oo)-"retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include--

(a) voluntary retirement of the workman; or

(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or [(bb)] termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein".

11. A perusal of the aforesaid provisions would reveal that a retrenchment would not include termination of the service of the workman by way of voluntary retirement, retirement on reaching the age of superannuation; and termination of the workman as a result of non- renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein. A similar question arose for consideration before the Supreme Court in the case reported as (1994) 2 SCC 323, M. Venugopal Vs. Divisional Manager, LIC wherein, the appellant M.Venugopal was appointed on probation for a period of one year from 23.05.1984 to 22.05.1985 and the said period of probation was extended for a further period of one year from 23.05.1985 to 22.05.1986. Before the completion of period of probation, his services were terminated on 09.05.1986. It was held that since the termination was in accordance with the terms of contract, though before the expiry of probation, it fell within the ambit of Section 2(oo)(bb) of the Act and did not constitute retrenchment. The ratio in the case of M. Venugopal (supra) was followed by the Supreme Court in (1997) 11 SCC 521, Escorts Ltd. Vs. Presiding Officer and Anr. In fact, in the case of Escorts Ltd. (supra), the facts are identical to the facts of the present case, wherein, the workman was given a temporary appointment for a period of two months. In the said letter, the following clause was incorporated:

"Your temporary services can be terminated at any stage by either side without assigning any reason and without any notice or payment of compensation in lieu of notice". By relying upon the said stipulation, the Supreme Court, in the case of Escort Ltd. (supra), was of the view

that the services of the workman were terminated as per the terms of the contract of employment contained in the appointment letter, which enabled the appellant to terminate the service of the workman, without assigning any reason, and the Labour Court has erred in holding that it constituted retrenchment and was protected by Section 25-F of the Act. In view of the above, the submission of Mr. Sabharwal, with regard violation of Section 25-N, need to be rejected.

12. Now, coming to the submission that the accident being the foundation of the termination of the service of the petitioner without following the principles of natural justice is concerned, suffice to state that I have already come to a conclusion that the Conduct Rules are not applicable to a Retainer Crew Driver. I have also come to a conclusion that since the terms of appointment stipulates that the services can be dispensed with without specifying any reason, the impugned action is justified. Even otherwise, assuming that the foundation for dispensing with the service of the petitioner was the accident, which took place involving the bus which the petitioner was driving, surely, the same would reflect the unsuitability of the petitioner to be a Driver. The foundation for dispensing with the service, may be the accident, but, the motive is overall unsuitability of the petitioner to continue in the employment of the respondent Nos. 2 & 3-Corporation, moreso, when larger public interest is involved. The order is not stigmatic. I refer here para 21 of the judgment of the Supreme Court in Dipti Prakash Banerjee (supra), which reads as under:

"21. If findings were arrived at in inquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as `founded' on the allegations and will be bad. But if the inquiry

was not held, no finding were arrived at and the employer was not inclined to conduct an inquiry but, at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the order would not be bad. Similar is the position if the employer did not want to inquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegations would be a motive and not the foundation and the simple order of termination would be valid".

13. Insofar as the judgments relied upon by the learned counsel for the petitioner are concerned, in the case of Uttaranchal Forest Development Corporation's case (supra), the Court has held that failure to comply with the provisions of Section 25-N of the Act would entitle the workman full back wages. As I have held that in view of the provisions of Section 2(oo)(bb), Section 25-N would have no application, this judgment would not be of any help to the petitioner. On similar lines, are the judgment of the Supreme Court in the case of Deepali Gundu Surwase (supra) and Anoop Sharma (supra).

14. In the case of S.M. Nilajkar (supra), the Supreme Court has held that the closure of project or scheme by the State Government amounts to closing of an undertaking under Section 25-FFF and the termination amounts to retrenchment and the workman would be entitled to compensation. The facts in that case are that a number of workers were engaged as casual labourers for the purpose of expansion of telecom facilities in the district of Belgaum, Karnataka, during the years 1985-86 and 1986-87. The services of the workers were utilized for digging, laying cables erecting poles, drawing lines and other connected works. The services of the workmen were terminated sometime during the year

1987 and they were not engaged on work thereafter. It was in those facts, the Supreme Court held that the workers are entitled to compensation under 25-F. In the present case, in view of the conclusion arrived at by this Court in para 11, about the applicability of Section 25- N of the Act, this judgment of the Supreme Court would also not be applicable to this case.

15. In the case of Calcutta Port Shramik Union (supra), the Supreme Court has held that High Court should not interfere with the award of the Industrial Tribunal on technical grounds. In that case, the Supreme Court was concerned with the order of the Tribunal wherein the Tribunal has held that the definition of dock worker includes within its scope bargemen too but the Wage Board had erroneously failed to make any recommendation with regard to the wages and allowances payable to the bargemen. Alternatively, the Tribunal also took up for consideration the second question which was referred to it, namely, if for any reason, the bargemen were not entitled to the benefits under the recommendations made by the Wage Board, to what other relief with regard to the wages and allowances they were entitled to? The Tribunal held that having regard to all the circumstances of the case, the fair wages and allowances payable to the bargemen should be the same as the fair wages payable pursuant to the recommendations made by the Wage Board. On challenge before the learned Single Judge of the High Court, the learned Single Judge has set aside the award holding that it was beyond the scope of reference. It was in this background, the Supreme Court has held so. In the case in hand, the question which fell for consideration before the Tribunal was also about the applicability of Section 25-N of the Act, keeping in view the terms of appointment of the petitioner, the

view of the Tribunal is erroneous, contrary to the ratio of the Supreme Court in M. Venugopal's case (supra) as followed in the case of Escorts Ltd. (supra).

16. In the case of Dipti Prakash Banerjee (supra), it is noted that this judgment would not be of any help to the petitioner inasmuch as the Supreme Court held, in the following circumstances, the termination can be said to be bad:

(i) if the findings were arrived at in an enquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as 'founded' on the allegations and will be bad (2) if the order of termination is not simple order of termination, the words used can be said to contain a 'stigma' (3) material which amounts to stigma need not be contained in the termination order of a probationer but might be contained in the documents referred to in the termination order or its annexures. Such a document can be asked for or called for by any future employer of a probationer. In such case, employee's interest would be harmed and therefore, the order of termination would stand vitiated. In the case in hand, the discharge order reads as under:

"The services of the Sh. Karam Vir, S/o Sh. Piaray Lal R/o.....(illegible) Driver B.No. 16120 T. No. 51353 are hereby dispensed with w.e.f. 2-4-86 (AN) under para 4 (XIV) of the Executive Instructions governing the employment of Retainer Crew.

He is required to deposit all the DTC articles in his possession within 24 hrs of the receipt of this memo. Non- deposit of DTC articles (Badge...(illegible) Card-cum-Bus

Pass, Medical Cards, by him in accordance with the instructions contained in the office order No. 21 dt. 27-1-84, will render him liable to pay a penalty of Rs. 2/- per day for the days he keeps any of the DTC article in his possession of after the specified period of 24 hrs."

The above order dispensing with the service of the petitioner is simplicitor. It does not disclose reasons for dispensing with the service nor it refers to any annexures/documents, which may highlight a misconduct on the part of the petitioner.

17. Insofar as the case of V.P. Ahuja (supra) is concerned, suffice to state, the petitioner herein is not a probationer. In any case, the Supreme Court on a reading of the termination order has held it to be stigmatic. As I have held that the order dispensing with the service of the petitioner is not stigmatic, the judgment would not be applicable.

18. Insofar as the case of L.Michael (supra) is concerned, in this case, the management asserted for the first time that the workman was an intractable smuggler of inside information and the management lost confidence on him, who had worked for six years. The Supreme Court held, the action is not bona fide. The Supreme Court held that there is only a ipse dixt of the employer that he was suspecting since 1968 that the workman was divulging secrets relating to his business. No reasons have been disclosed for forming such an opinion. In the case in hand, an accident had occurred involving the bus driven by the petitioner which apart from damaging the bus, had also injured a cyclist. Surely, the incident would reflect the unsuitability of the petitioner to continue in the employment of the respondent Nos. 2 & 3-Corporation. The respondent Nos. 2 & 3-Corporation were justified in their action, when the petitioner

being a casual employee has no right to the post.

19. Insofar as the case of State of Haryana (supra) is concerned, reliance has been placed that termination of a service in violation of Section 25-F of the Act is illegal. That apart, it was held that the Executive Instructions cannot supersede the provisions of the Act. In the present case, not only the Executive Instructions as referred above, even the terms of appointment of the petitioner would show that his services could be dispensed with without a show cause notice and without giving any reasons. In view of this provision, in the appointment letter, which, read with Section 2(oo)(bb) of the Act would exclude the applicability of provisions of Section 25-N of the Act.

20. Insofar as the case of State Bank of India Vs. Palak Modi (supra) is concerned, the Supreme Court has held that if the allegation of misconduct constitutes the foundation of the action taken, the ultimate decision taken by the competent authority can be nullified on the ground of violation of rules of natural justice. In the said case, the misconduct alleged was of very serious nature that the respondents have indulged in unfair means namely copying answers from one another. In the present case, the foundation of the order though the accident, it reflected the unsuitability of the petitioner to work as a Driver, which is different from misconduct.

21. Insofar as the case of Manmohan Singh Jatla (supra) is concerned, the same would not be applicable as the termination in the said case was effected in terms of the contract of service which were contrary to the mandatory statutory obligation without holding any enquiry. In the case in hand, the executive instructions and the terms of appointment are pari materia and have been invoked to dispense with the service of the

petitioner.

22. In Nar Singh Pal's case (supra), the Supreme Court has held that a casual labour acquiring temporary status is entitled to the protection of Article 311 of the Constitution of India. It was further held, acceptance of retrenchment compensation would not validate an invalid order of termination. In the case in hand, the petitioner was only a casual employee without any temporary status. Since, this Court has already held the non-applicability of provisions of Section 25-N of the Act, this judgment is of no help to the petitioner.

23. Insofar as the judgments relied upon by the learned counsel for the petitioner in the cases of Bharat Bank Ltd., Delhi (supra), Rashtriya Mill Mazdoor Sangh (supra), Muir Mills Co. Ltd. (supra), R.B.Diwan Badri Dass and Ors. (supra) and Messers Crown Aluminium Works (supra) to contend, the powers of the Industrial Tribunal have the sanction of law behind it and are not exercisable by reasons of any discretion; it can do what no court can do it, including adjusting the provisions of contract with the claim of the employees for social justice. In other words, social justice is not based on contractual relations and is not to be enforced on the principles of contract of service.

24. To sum up, the award of the Tribunal dated July 05, 1996 in I.D. No. 405/87 is untenable from every perspective and need to be set aside. This Court do so accordingly. The writ petition filed by the petitioner being W.P.(C) 774/1997 is dismissed and the writ petition filed by the respondent Nos. 2 & 3 being W.P.(C) 809/2001 is allowed.

25. No costs.

(V.KAMESWAR RAO) JUDGE MAY 29, 2014/akb