Madhya Pradesh High Court

Dharmendra Singh Kushwah vs Janpad Panchayat Guna Thr on 24 February, 2021

Author: Gurpal Singh Ahluwalia

        THE HIGH COURT OF MADHYA PRADESH                         1
                   MP 1577 of 2020
    Dharmendra Singh Kushwah vs. Janpad Panchayat,
                    Guna and Anr.

Gwalior, Dated :24/02/2021

       Shri Ravi Jain, Counsel for the petitioner.

       Shri GK Agrawal, Govt. Advocate for the State.

      Shri Rakesh Sharma, CEO Janpad Panchayat, Guna is present

in person.

      This miscellaneous petition under Article 227 of Constitution

of India has been filed against the Award dated 29/11/2019 passed by

Labour Court, No.3, Gwalior in Case No.06/A/ID Act/2016(R) by

which a direction has been given to the respondent No.1 to pay

compensation of Rs.2,50,000/- in lieu of reinstatement.

It is the case of the petitioner that the petitioner was appointed

on the vacant post of Computer Operator on daily wages vide

resolution passed by Janpad Panchayat, Guna in its general body

meeting, dated 27/07/2007 and accordingly, the petitioner was

appointed by order dated 08/08/2007 and he was attached to the

Office of respondent no.2 for election duty from 01/11/2008, but

the salary was being paid by respondent No.1. The petitioner has

worked till 05/03/2015 and by order dated 05/03/2015, his services

were terminated. The said order was challenged by the petitioner by

approaching the Labour Court, who decided the case in favour of the

petitioner and held that the termination of the petitioner is bad in

MP 1577 of 2020 Dharmendra Singh Kushwah vs. Janpad Panchayat, Guna and Anr.

law, however, in lieu of reinstatement, the Labour Court has awarded

a compensation of Rs.2,50,000/-. Accordingly, it is prayed that since

the petitioner had worked for about eight years, therefore, he should

have been granted reinstatement instead of compensation.

Per contra, it is submitted by the Counsel for the respondents

that the petitioner was appointed de hors the rules and his

appointment was illegal and was a backdoor entry and after

considering this aspect, the Labour Court has awarded compensation

in lieu of reinstatement.

Heard the learned Counsel for the parties.

In the present case, the Labour Court has come to a conclusion

that the original appointment of the petitioner was a backdoor entry.

The petitioner in his writ petition has not pointed out as to how his

initial appointment was legal. It is the contention of the petitioner

that since he was appointed in compliance of the resolution passed

by general body meeting of Janpad Panchayat, Guna, therefore, his

appointment was legal. This contention of the petitioner cannot be

accepted.

It is submitted by the counsel for the petitioner that the

Supreme Court in the case of State of Karnataka vs. Uma Devi

reported in (2006) 4 SCC 1 has not considered the provisions of

MP 1577 of 2020 Dharmendra Singh Kushwah vs. Janpad Panchayat, Guna and Anr.

Industrial Disputes Act, therefore, the Court below committed

material illegality by denying the relief of reinstatement on the

ground that the petitioner has failed to prove that his appointment

was in accordance with law.

Article 16 of the Constitution of India reads as under :

''16. Equality of opportunity in matters of public employment.--(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State. (3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment. (4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. (4-A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion , with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State. (4-B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made

MP 1577 of 2020 Dharmendra Singh Kushwah vs. Janpad Panchayat, Guna and Anr.

under clause (4) or clause (4-A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year.

(5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.

(6) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent. of the posts in each category.''

Article 16(1) of Constitution of India, guarantees equal

opportunities for all citizens of India in matters relating to

employment or appointment to any office under the State. The

Counsel for the petitioner could not point out as to how the

provisions of Industrial Disputes Act, would not be governed by the

provisions of Article 16(1) of Constitution of India. Thus, it is clear

that where any appointment has been made de hors the rules, in a

clandestine manner, without giving equal opportunities to the

citizens, then such appointment would certainly come within the

parameters of illegal appointment. In the statement of claim, the

MP 1577 of 2020 Dharmendra Singh Kushwah vs. Janpad Panchayat, Guna and Anr.

petitioner has not claimed that he was appointed after issuance of

general advertisement inviting all the aspirants. Thus, it is clear that

there was no public advertisement inviting the applications from all

the aspirants and in absence of the said procedure, it cannot be said

that the appointment of the petitioner was not illegal. If the Janpad

Panchyat had picked up the petitioner and passed a resolution in his

favour, then it would not justify his appointment.

The Supreme Court in the case of Uma Devi (Supra) has held

as under :

''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 of 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,

MP 1577 of 2020 Dharmendra Singh Kushwah vs. Janpad Panchayat, Guna and Anr.

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.

44. The concept of "equal pay for equal work" is different from the concept of conferring permanency on those who have been appointed on ad hoc basis, temporary basis, or based on no process of selection as envisaged by the rules. This Court has in various decisions applied the principle of equal pay for equal work and has laid down the parameters for the application of that principle. The decisions are rested on the concept of equality enshrined in our Constitution in the light of the directive principles in

MP 1577 of 2020 Dharmendra Singh Kushwah vs. Janpad Panchayat, Guna and Anr.

that behalf. But the acceptance of that principle cannot lead to a position where the court could direct that appointments made without following the due procedure established by law, be deemed permanent or issue directions to treat them as permanent. Doing so, would be negation of the principle of equality of opportunity. The power to make an order as is necessary for doing complete justice in any cause or matter pending before this Court, would not normally be used for giving the go-by to the procedure established by law in the matter of public employment. Take the situation arising in the cases before us from the State of Karnataka. Therein, after Dharwad decision the Government had issued repeated directions and mandatory orders that no temporary or ad hoc employment or engagement be given. Some of the authorities and departments had ignored those directions or defied those directions and had continued to give employment, specifically interdicted by the orders issued by the executive. Some of the appointing officers have even been punished for their defiance. It would not be just or proper to pass an order in exercise of jurisdiction under Article 226 or 32 of the Constitution or in exercise of power under Article 142 of the Constitution permitting those persons engaged, to be absorbed or to be made permanent, based on their appointments or engagements. Complete justice would be justice according to law and though it would be open to this Court to mould the relief, this Court would not grant a relief which would amount to perpetuating an illegality.

45. While directing that appointments, temporary or casual, be regularised or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargain--not at arm's length--since he might have

MP 1577 of 2020 Dharmendra Singh Kushwah vs. Janpad Panchayat, Guna and Anr.

been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succour to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity

MP 1577 of 2020 Dharmendra Singh Kushwah vs. Janpad Panchayat, Guna and Anr.

enshrined in Article 14 of the Constitution.''

Thus, it is clear that, where the employee has failed to prove

that his appointment was legal and was not illegal, then this Court

cannot perpetuate the illegality by directing the reinstatement of the

petitioner.

So far as the question of payment of compensation in lieu of

reinstatement is concerned, no fault can be found with the direction

of the Labour Court. His initial appointment was not in accordance

with law. Under these circumstances, directing for reinstatement

would be nothing but would be perpetuating the illegality, which

cannot be done.

The Supreme Court in the case of Jayant Vasantrao

Hiwarkar Vs. Anoop Ganaptrao Bobde reported in (2017)11 SCC

244 has upheld the grant of compensation in lieu of reinstatement as

the respondent had merely worked for a period of one year.

The Supreme Court in the case of Hari Nandan Prasad Vs.

Food Corporation of India, reported in (2014) 7 SCC 190 has held

as under:-

''19. The following passages from the said judgment would reflect the earlier decisions of this Court on the question of reinstatement: (BSNL case, SCC pp. 187-

88, paras 29-30) "29. The learned counsel for the appellant referred to two judgments wherein this Court

MP 1577 of 2020 Dharmendra Singh Kushwah vs. Janpad Panchayat, Guna and Anr.

granted compensation instead of reinstatement. In BSNL v. Man Singh, this Court has held that when the termination is set aside because of violation of Section 25-F of the Industrial Disputes Act, it is not necessary that relief of reinstatement be also given as a matter of right. In Incharge Officer v. Shankar Shetty, it was held that those cases where the workman had worked on daily-wage basis, and worked merely for a period of 240 days or 2 to 3 years and where the termination had taken place many years ago, the recent trend was to grant compensation in lieu of reinstatement.

30. In this judgment of Shankar Shetty, this trend was reiterated by referring to various judgments, as is clear from the following discussion: (SCC pp. 127-28, paras 2-4) '2. Should an order of reinstatement automatically follow in a case where the engagement of a daily-wager has been brought to an 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, 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, Uttaranchal Forest Development Corpn. v. M.C. Joshi, State of M.P. v. Lalit Kumar Verma, M.P. Admn. v. Tribhuban, Sita Ram v. Moti Lal Nehru Farmers Training Institute, Jaipur Development Authority v. Ramsahai, GDA v. Ashok Kumar and Mahboob Deepak v. Nagar Panchayat, Gajraula and stated as follows: (Jagbir Singh case, 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

MP 1577 of 2020 Dharmendra Singh Kushwah vs. Janpad Panchayat, Guna and Anr.

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 has been applied very recently in Telegraph Deptt. v. Santosh Kumar Seal, 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.'"

* * * *

21. We make it clear that reference to Umadevi, in the aforesaid discussion is in a situation where the dispute referred pertained to termination alone. Going by the principles carved out above, had it been a case where

MP 1577 of 2020 Dharmendra Singh Kushwah vs. Janpad Panchayat, Guna and Anr.

the issue is limited only to the validity of termination, Appellant 1 would not be entitled to reinstatement...........''

Even otherwise, in the present case, the termination of the

petitioner has been held to be invalid. If an order of reinstatement is

given, even then, the petitioner would not be entitled for

regularization. The employer can still terminate the services of the

petitioner, after making payment of retrenchment compensation as

provided under Section 25-F of Industrial Disputes Act. Thus,

because of illegal termination, the petitioner is merely entitled for

compensation. Under these circumstances, if the Labour Court has

directed for compensation in lieu of reinstatement, then it cannot be

held that the Labour Court has committed any illegality.