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REPORTABLE              IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.10856   OF 2014 (Arising out of SLP (C) No.31531 of 2009)

DURGAPUR CASUAL WORKERS UNION & ORS.     ... APPELLANTS

VERSUS

FOOD CORPORATION OF INDIA & ORS.        ... RESPONDENTS

J U D G M E N T

SUDHANSU JYOTI MUKHOPADHAYA, J.

                         Leave granted.

2. This appeal has been preferred by the appellant-Durgapur  

Casual Workers Union and others (hereinafter referred to as,  

‘the workmen’ for short) against the judgment and order dated  

25th February, 2009 passed by the Division Bench of the High  

Court at Calcutta in F.M.A. No.2345 of 2005 (C.A.N. 8685 of 2007  

and  C.A.N.4726  of  2008).  By  the  impugned  judgment,  the  High  

Court  allowed  the  appeal  preferred  by  the  respondent-Food  

Corporation  of  India  (hereinafter  referred  to  as,  ‘the  

Corporation’ for short) and set aside the Award dated 9th June,  

1999  passed  by  the  Central  Government  Industrial  Tribunal  

(hereinafter  referred  to  as,  ‘the  Tribunal’  for  short)  as  

affirmed  by  the  learned  Single  Judge  of  the  High  Court  at  

Calcutta.

3. The factual matrix of the case is as follows:

The Corporation had long back setup a rice mill in the

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name and style of Modern Rice Mill at Durgapur and it had been  

handed  to  successive  contractors  for  running  the  same.  The  

concerned workmen, forty nine in numbers, had been working as  

contract labours under the contractors in the rice mill. The last  

contractor was M/s Civicon. The contract system was terminated  

and the rice mill was closed in the year 1990-1991. Thereafter,  

the concerned workmen were directly employed by the Corporation  

in June, 1991 as casual employees on daily wage basis in the Food  

Storage Depot at Durgapur for performing the jobs of sweeping  

godown and wagon floors, putting covers on infested stocks for  

fumigation purpose, cutting grass, collections and bagging of  

spillage from godowns/wagons etc.

There being an industrial dispute between the workmen and  

the Corporation regarding the regularisation of services of the  

workmen, the Government of India, Ministry of Labour in exercise  

of powers conferred on them by clause (d) of sub Section (1) and  

Sub Section (2A) of Section 10 of the Industrial Disputes Act,  

1947 (hereinafter referred to as, ‘the Act’ for short) referred  

the  following  dispute  to  the  Tribunal  for  adjudication  vide  

Ministry’s  order  No.L-22012/348/95-IR  (C.II)  dated  18th July,  

1996.  

SCHEDULE

“Whether the demand of Durgapur Casual Workers Union  for  absorption  of  49  casual  workmen  as  per  list  enclosed  by  the  management  of  FCI,  Durgapur  is  justified? If not, what relief they are entitled to?”

4. The said reference was registered as Reference No.21 of  

1996  before  the  Tribunal.   The  Tribunal  on  appreciation  of  

evidence brought on record by the Management of the Corporation

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and the workmen and hearing the parties answered the reference in  

favour of the workmen by Award dated 9th June, 1999 and held that  

continued casualization of service of workmen amounts to unfair  

labour practice as defined in item no.10 in part I of the Fifth  

Schedule of the Act and that social justice principle demands  

order of absorption and thereby directed the Management to absorb  

49 casual workmen as per list.   

5. The Corporation being aggrieved preferred a Writ Petition  

being W.P.No.21368 (W) of 1999 before the High Court at Calcutta.  

The learned Single Judge of the High Court on hearing the parties  

and taking into consideration the evidence on record, dismissed  

the writ petition by judgment and order dated 18th February, 2005  

and affirmed the Award passed by the Tribunal.   

6. Aggrieved by the aforesaid judgment of the learned Single  

Judge, the Corporation preferred an appeal before the Division  

Bench of High Court at Calcutta.  One of the grounds taken was  

that the appointments of the workmen were backdoor appointments.  

The workmen were working under the contractor whose services as  

terminated in the year 1990-1991 and thereafter on their demand,  

the workmen were engaged as casual workmen under the Corporation  

in June, 1991.  It was contended that in view of Constitution  

Bench judgment of this Court in  Secretary, State of Karnataka  

and  others  v.  Umadevi  (3)  and  others,  (2006)  4  SCC  1 and  

decisions rendered by this Court in other cases, regularization  

of service cannot be allowed if it violates the basic principles  

of Articles 14 and 16 of the Constitution of India.  The Division  

Bench of the High Court by impugned judgment dated 25th February,  

2009 while setting aside the award as affirmed by the learned

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Single Judge held as follows:    

“Hence,  it  appears  that  Appointing  Authority  has  every right to appoint either in substantive capacity  or  in  casual  manner  and/or  ad-hoc.  It  is  also  a  settled  legal  position  of  law  that  regularization/absorption  of  casual  appointee/ad-hoc  appointee in a permanent post is not other mode of  appointment…...”  

“In the instant case it appears that the workmen,  illegal appointees, moved the writ application in the  year 1994 and got an order of status quo to maintain  their service condition passed by the Writ Court and  as such, service of the workmen since 1994 till this  date is covered by the order of the Court, which is  accordingly attracted by the said riders of para 53  as quoted, to negative their claim.”

“Having regard to the aforesaid judgments of the Apex  Court, now the law has got its firm root being the  law  of  the  land  that  no  regularization  even  in  respect of a workman under Industrial Dispute Act is  permissible unless the contingencies of the law is  satisfied,  namely,  appointment  following  the  rule,  appointment  in  a  post  and  appointment  for  a  long  continuous period in the angle of Secretary, State of  Karnataka and Ors. v. Uma Devi (3) and Ors. (supra).  This law of the land was existing and it has been re- echoed and reviewed in Secretary, State of Karnataka  and Ors. v. Uma Devi (3) and Ors. (supra).”

“In  the  instant  case,  from  the  decision  under  challenge  in  the  writ  application  passed  by  the  learned Tribunal below, it appears that the Tribunal  did not answer by any findings as to why workmen were  legally  entitled  to  be  absorbed  permanently  on  considering the settled legal position of law that  absorption and/or regularization are not the mode of  permanent  appointment.  Even  the  reasoning  as  advanced, namely, "unfair labour practice", it also  does  not  support  the  decision  to  regularize  in  absence of any statutory provision for regularization  of service of the workmen under the four corners of  the Industrial Dispute  Act,  1947.  On  the  other  hand, Industrial Dispute  Act  provides  under  Chapter  VC as already quoted above by Section 25-U, a penal  consequences  for  imprisonment  and  fine.  The  very  essence and concept of unfair labour practice in the  angle  and  anvil  of  Section 25-T and 25-Uis  that  in  the industrial sector  there  is  complete  bar  to  appoint the casual appointees for a continuous period  with  the  object  to  deprive  them  the  status  and  privileges  of  permanent  workmen  and  as  a  coercive  measures  to  avoid  such  contingency,  law  has  been  framed  in  a  negative  angle  restraining/prohibiting  such  unfair  labour  practice  under  the  pain  of

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The  Industrial  dispute  is  defined  under  Section  2(k)  as  

follows:-

“2(k) “industrial  dispute”  means  any  dispute  or  difference between employers and employers, or between  employers and workmen, or between workmen and workmen,  which is connected with the employment or non-employment  or the terms of employment or with the conditions of  labour, of any person.”   

Section  2(ka)  of  the  said  Act  defines  “industrial  

establishment or undertaking” and reads as follow:

“(ka) "industrial establishment or undertaking" means an   establishment or undertaking in which any industry is   carried on:    Provided that where several activities are carried on  in an establishment or undertaking and only one or some  of such activities is or are an industry or industries,  then,--    (a)  if  any  unit  of  such  establishment  or  undertaking  carrying  on  any  activity,  being  an  industry,  is  severable  from  the  other  unit  or  units  of  such  establishment or undertaking, such unit shall be deemed  to  be  a  separate  industrial  establishment  or  undertaking;    (b)  if  the  predominant  activity  or  each  of  the  predominant  activities carried on in such establishment  or undertaking or any unit thereof is an industry and  the   other  activity  or  each  of  the  other  activities  carried  on in such establishment or undertaking or unit  thereof is not severable from and is, for the purpose of  carrying  on,  or  aiding  the  carrying  on  of,  such  predominant  activity  or  activities,  the  entire  establishment  or  undertaking  or,  as  the  case  may  be,  unit  thereof  shall  be  deemed  to  be  an  industrial  establishment or undertaking;”

“Unfair  labour  practice",  as  defined  under  Section  2(ra)  

means any of the practices specified in the Fifth Schedule.   

11. The industrial establishment or undertaking as defined in  

the Act not only includes the State Public Undertakings, the  

Subsidiary  Companies  set  up  by  the  Principal  Undertaking  and  

Autonomous bodies owned or control by the State Government or

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Central  Government  but  also  the  private  industries  and  

undertakings.  

Industrial Disputes Act is applicable to all the industries  

as  defined  under  the  Act,  whether  Government  undertaking  or  

private industry. If any unfair labour practice is committed by  

any industrial establishment, whether Government undertaking or  

private  undertaking,  pursuant  to  reference  made  by  the  

appropriate Government the Labour Court/Tribunal will decide the  

question of unfair labour practice.  

12. In  the  matter  of  appointment  in  the  services  of  the  

‘State’,  including  a  public  establishment  or  undertaking,  

Articles 14 and 16 of the Constitution of India are attracted.  

However, Articles 14 and 16 of the Constitution of India are not  

attracted in the matter of appointment in a private establishment  

or undertaking.  

13. An undertaking of the Government, which comes within the  

meaning  of  industry  or  its  establishment,  cannot  justify  its  

illegal action including unfair labour practice nor can ask for  

different  treatment  on  the  ground  that  public  undertaking  is  

guided by Articles 14 and 16 of the Constitution of India and the  

private industries are not guided by Articles 14 and 16 of the  

Constitution of India.

14. In the light of above discussion, in the present case the  

issues that are to be determined are as follows:

1) Whether an issue relating to the validity of  

initial appointment can be raised in absence of  

any specific pleading or reference.  

2) The Tribunal having held, as affirmed by the

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High Court that the respondent corporation had  

committed  unfair  trade  practice  against  the  

workmen depriving them of status and privileges  

of permanent workmen; whether the workmen were  

entitled for relief of absorption?

15. Before deciding the issues, it is necessary to notice the  

relevant  decisions  of  this  Court  regarding  regularization  of  

service/absorption in the Government Service or its undertakings  

in the light of Articles 14 and 16 of the Constitution of India.

16. In  Uma Devi (3) Constitution Bench of this Court while  

observing that casual/temporary employees do not have any right  

to regular or permanent employment held as follows:  

“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, 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

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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.”

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 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.

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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 enshrined  in Article 14 of the Constitution.”

However,  in  respect  of  irregular  appointments  of  duly  

qualified persons working for more than 10 years, this Court  

observed:

“53. One aspect needs to be clarified. There may be  cases  where  irregular  appointments  (not  illegal  appointments) as explained in S.V. Narayanappa11, R.N.  Nanjundappa12  and  B.N.  Nagarajan8  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 above-referred 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

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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.

17. This  Court  in  the  case  of  M.P.  Administration  v.  

Tribhuban,  (2007)  9  SCC  748 while  taking  into  account  the  

doctrine of  public  employment  involving  public  money  and  

several other facts observed as follows:

“6. The  question,  however,  which  arises  for  consideration is as to whether in a situation of this  nature, the learned Single Judge and consequently the  Division  Bench  of  the  Delhi  High  Court  should  have  directed reinstatement of the respondent with full back  wages. Whereas at one point of time, such a relief used  to be automatically granted, but keeping in view several  other factors and in particular the doctrine of public  employment and involvement of the public money, a change  in the said trend is now found in the recent decisions  of this Court. This Court in a large number of decisions  in  the  matter  of  grant  of  relief  of  the  kind  distinguished between a daily wager who does not hold a  post  and  a  permanent  employee.  It  may  be  that  the  definition of “workman” as contained in Section 2(s) of  the  Act  is  wide  and  takes  within  its  embrace  all  categories of workmen specified therein, but the same  would not mean that even for the purpose of grant of  relief  in  an  industrial  dispute  referred  for  adjudication,  application  of  constitutional  scheme  of  equality  adumbrated  under  Articles  14  and  16  of  the  Constitution of India, in the light of a decision of a  Constitution  Bench  of  this  Court  in  Secy.,  State  of  Karnataka v.  Umadevi  (3) and  other  relevant  factors  pointed out by the Court in )a catena of decisions shall  not be taken into consideration.

7. The nature of appointment, whether there existed any  sanctioned post or whether the officer concerned had  any authority to make appointment are relevant factors.  (See  M.P. Housing Board v.  Manoj Shrivastava (2006)2  SCC 702, State of M.P. v.  Arjunlal Rajak (2006)2 SCC  711 and  M.P. State Agro Industries Development Corpn.  Ltd. v. S.C. Pandey, 2006 (2) SCC 716.)

18. The  effect  of  Constitution  Bench  decision  in  Uma Devi

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(3), in case of unfair labour practice was considered by this  

Court  in  Maharashtra  State  Road  Transport  and  another  v.  

Casteribe Rajya Parivahan Karmchari Sanghatana (2009) 8 SCC 556.  

In the said case, this Court held that Umadevi’s case has not  

over ridden powers of Industrial and    Labour   Courts   in  

passing    appropriate order, once unfair labour practice on the  

part of employer is established.  This Court observed and held  

as follows:

“34. It is true that Dharwad Distt. PWD Literate  Daily Wages Employees’ Assn.v. State of Karnataka,  (1990)  2  SCC  396   arising  out  of  industrial  adjudication  has  been  considered  in  State  of  Karnataka v .Umadevi (3), (2006)4 SCC 1 and that  decision has been held to be not laying down the  correct law but  a careful and complete reading of  the  decision  in  Umadevi  (3) leaves  no  manner  of  doubt that what this Court was concerned in Umadevi  (3) was the exercise of power by the High Courts  under Article 226 and this Court under Article 32 of  the Constitution of India in the matters of public  employment where the employees have been engaged as  contractual, temporary or casual workers not based  on proper selection as recognised by the rules or  procedure and yet orders of their regularisation and  conferring  them  status  of  permanency  have  been  passed.

35. Umadevi (3) is an authoritative pronouncement  for the proposition that the Supreme Court (Article  32) and the High Courts (Article 226) should not  issue  directions  of  absorption,  regularisation  or  permanent  continuance  of  temporary,  contractual,  casual, daily wage or ad hoc employees unless the  recruitment itself was made regularly in terms of  the constitutional scheme.

36. Umadevi (3) does not denude the Industrial  and  Labour  Courts  of  their  statutory  power  under  Section 30 read with Section 32 of the MRTU and PULP  Act to order permanency of the workers who have been  victims of unfair labour practice on the part of the  employer under Item 6 of Schedule IV where the posts  on which they have been working exist.  Umadevi (3)  cannot be held to have overridden the powers of the  Industrial and Labour Courts in passing appropriate  order under Section 30 of the MRTU and PULP Act,  once  unfair  labour  practice  on  the  part  of  the  employer  under  Item  6  of  Schedule  IV  is  established.”

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“47. It  was  strenuously  urged  by  the  learned  Senior  Counsel  for  the  Corporation  that  the  Industrial Court having found that the Corporation  indulged in unfair labour practice in employing the  complainants  as  casuals  on  piece-rate  basis,  the  only direction that could have been given to the  Corporation was to cease and desist from indulging  in such unfair labour practice and no direction of  according permanency to these employees could have  been given. We are afraid, the argument ignores and  overlooks  the  specific  power  given  to  the  Industrial/Labour  Court  under  Section  30(1)(b)  to  take affirmative action against the erring employer  which  as  noticed  above  is  of  wide  amplitude  and  comprehends  within  its  fold  a  direction  to  the  employer  to  accord  permanency  to  the  employees  affected by such unfair labour practice.”

19. Almost similar issue relating to unfair trade practice  

by employer and the effect of decision of Umadevi (3) in the  

grant of relief was considered by this Court in  Ajaypal Singh  

v. Haryana Warehousing Corporation  in Civil Appeal No.6327 of  

2014 decided on 9th July, 2014. In the said case, this Court  

observed and held as follows:

“20.The provisions of Industrial Disputes Act and  the  powers  of  the  Industrial  and  Labour  Courts  provided therein were not at all under consideration  in Umadevi’s case. The issue pertaining to unfair  labour practice was neither the subject matter for  decision nor was it decided in Umadevi’s case.  

21. We have noticed that Industrial Disputes Act  is made for settlement of industrial disputes and  for certain other purposes as mentioned therein. It  prohibits unfair labour practice on the part of the  employer  in  engaging  employees  as  casual  or  temporary employees for a long period without giving  them  the  status  and  privileges  of  permanent  employees.  

22. Section 25F of the Industrial Disputes Act,  1947 stipulates conditions precedent to retrenchment  of workmen. A workman employed in any industry who  has been in continuous service for not less than one  year under an employer is entitled to benefit under  said provision if the employer retrenches workman.  Such a workman cannot be retrenched until he/she is  given one month's notice in writing indicating the  reasons for retrenchment and the period of notice

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has expired, or the workman has been paid in lieu of  such  notice,  wages  for  the  period  of  the  notice  apart from 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.  It also mandates the employer to  serve  a  notice  in  the  prescribed  manner  on  the  appropriate Government or such authority as may be  specified  by  the  appropriate  Government  by  notification in the Official Gazette.   

If any part of the provisions of Section 25F  is  violated  and  the  employer  thereby,  resorts  to  unfair trade practice with the object to deprive the  workman  with  the  privilege  as  provided  under  the  Act, the employer cannot justify such an action by  taking a plea that the initial appointment of the  employee was in violation of Articles 14 and 16 of  the Constitution of India.  

23. Section  25H  of  the  Industrial  Disputes  Act  relates  to  re-employment  of  retrenched  workmen.  Retrenched workmen shall be given preference over  other persons if the employee proposes to employ any  person.

24. We have held that provisions of Section 25H  are in conformity with the Articles 14 and 16 of the  Constitution  of  India,  though  the  aforesaid  provisions (Articles 14 and 16) are not attracted in  the matter of re-employment of retrenched workmen in  a private industrial establishment and undertakings.  Without giving any specific reason to that effect at  the time of retrenchment, it is not open to the  employer of a public industrial establishment and  undertaking to take a plea that initial appointment  of such workman was made in violation of Articles 14  and 16 of the Constitution of India or the workman  was a backdoor appointee.  

25. It is always open to the employer to issue an  order  of  “retrenchment”  on  the  ground  that  the  initial  appointment  of  the  workman  was  not  in  conformity  with  Articles  14  and  16  of  the  Constitution of India or in accordance with rules.  Even for retrenchment on such ground, unfair labour  practice  cannot  be  resorted  and  thereby  workman  cannot be retrenched on such ground without notice,  pay and other benefits in terms of Section 25F of  the Industrial Disputes Act, 1947, if continued for  more than 240 days in a calendar year.

26.  However, in other cases, when no such plea is  taken by the employer in the order of retrenchment  that  the  workman  was  appointed  in  violation  of  Articles 14 and 16 of the Constitution of India or  in  violation  of  any  statutory  rule  or  his  appointment  was  a  backdoor  appointment,  while

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granting  relief,  the  employer  cannot  take  a  plea  that  initial  appointment  was  in  violation  of  Articles 14 and 16 of the Constitution of India, in  absence  of  a  reference  made  by  the  appropriate  Government for determination of question whether the  initial appointment of the workman was in violation  of Articles 14 and 16 of the Constitution of India  or statutory rules.  Only if such reference is made,  a workman is required to lead evidence to prove that  he was appointed by following procedure prescribed  under  the  Rules  and  his  initial  appointment  was  legal.”  

20. In the present case, it is admitted that the workmen had  

been working as contract labours under the contractor in the  

rice  mill  of  the  Corporation.   The  contract  system  was  

terminated and the rice mill was closed in the year 1990-1991.  

The effect was termination of services of the workmen.  In that  

view of the matter, they were entitled for re-employment when  

the employer proposed to take into his employment any person,  

in view of Section 25H, which reads as follows:

“Section 25H. Re-employment of retrenched workmen.-  Where any workmen are retrenched, and the employer  proposes  to  take  into  his  employ  any  persons,  he  shall, in such manner as may be prescribed, give an  opportunity  to  the  retrenched  workmen  who  are  citizens  of  India  to  offer  themselves  for  re- employment  and  such  retrenched  workman  who  offer  themselves  for  re-employment  shall  have  preference  over other persons.”

Under  Section  25H  the  retrenched  workman  who  offer  

themselves  for  employment  shall  have  preference  over  other  

persons. It was for the said reason the workmen were employed  

by the Corporation in June, 1991.  

21. This Court in Ajaypal Singh  held that the provisions of  

Section 25H are in conformity with Articles 14 and 16 of the  

Constitution  of  India,  though,  the  aforesaid  provisions

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(Articles 14 and 16) are not attracted in the matter of re-

employment  of  retrenched  workmen  in   private  industrial  

establishment and undertakings.  In that view of the matter it  

can be safely held that the workmen who were retrenched, were  

rightly taken in the services of Corporation. Admittedly, no  

plea  was  taken  by  the  Corporation  either  before  the  State  

Government or before the Tribunal that the initial appointment  

of workmen were illegal or they were appointed through back  

door means.

22. In this background, we are of the view that it was not  

open to the Division Bench of the High Court, particularly in  

absence of any such plea taken by the Corporation before the  

Tribunal to come to a finding of fact that initial appointments  

of  workmen  were  in  violation  of  Articles  14  and  16  of  the  

Constitution of India, nor it was open to the High Court to  

deny the benefit to which the workmen were entitled under item  

10 of Part I of the Fifth Schedule of the Act,  the Tribunal  

having given specific finding of unfair trade practice on the  

part of the Management of the Corporation.  

23. Having accepted that there was unfair trade practice, it  

was  not  open  to  the  Division  Bench  of  the  High  Court  to  

interfere with the impugned award.

24. For the reasons aforesaid, we aside the impugned judgment  

dated 25th February, 2009 passed by the Division Bench of the  

High Court at Calcutta in F.M.A. No.2345 of 2005 (C.A.N.8685 of  

2007 and C.A.N.4726 of 2008).  Award dated 9th June, 1999  passed  

by the Tribunal in Reference No.21 of 1996 as affirmed by the

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learned Single Judge by order dated 18th February, 2005 in W.P.  

No.21368 (W) of 1999 is upheld.  The respondent-Corporation is  

directed to implement the Award from its due date as ordered by  

the Tribunal. The appeal is allowed with aforesaid observations  

and directions. No costs.  

...........................J.  [SUDHANSU JYOTI MUKHOPADHAYA]

 ..........................J.                              [PRAFULLA C. PANT] NEW DELHI; DECEMBER 09, 2014.