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2000 DIGILAW 355 (CAL)

Texmaco Limited v. State of West Bengal

2000-07-19

H.Banerji, S.B.Sinha

body2000
JUDGMENT S. B. Sinha, J.: Several questions of importance have been raised in this appeal but before adverting thereto the short fact of the matter may be noticed. 2. The workmen-respondents who were 92 in number were said to be Badli Workmen. They raised an industrial dispute as regard inaction on the part of the appellant herein to absorb them permanently in services. 3. The State of West Bengal being the Appropriate Government referred the following dispute for adjudication by the third respondent herein which is in the following terms: "Whether the demand of the Badli Workmen as shown in the annexure for regularisation of their services in the permanent role of the company is justified? What reliefs, if any, are they entitled?" 4. The third respondent upon adjudication of the said industrial dispute herein made an award on 29th January, 1999. 5. Questioning the validity of the said award, a writ petition was filed by the appellant herein which by reason of the impugned judgment has been dismissed by the learned single Judge. 6. Mr. S. Pal, the learned Senior Counsel appearing on behalf of the appellant drew our attention to the following observation of the Tribunal: "But it is to be considered whether they are actually badli or they have been termed as badli for depriving them from the benefits of regular employees and as such this Tribunal will have every jurisdiction to consider such matter and to adjudicate on the referred issues." 7. According to the learned Counsel, the said question, having been raised on a wrong premise, constitutes a jurisdictional error as thereby: 1. The Tribunal had gone beyond the order of reference; 2. The Tribunal failed to take into consideration the circumstances leading to the reference as the workmen claimed themselves to be Badli Workmen and stated that they had been given works for about six days in a month; 3. The Tribunal's interpretation in the order of reference renders the issues non-justiciable resulting in gross unfairness in procedure and violation of the principles of natural justice; 4. The Tribunal could not have taken into consideration the pleadings of the parties which were inconsistent with the substratum of the issue; and 5. The Tribunal's interpretation in the order of reference renders the issues non-justiciable resulting in gross unfairness in procedure and violation of the principles of natural justice; 4. The Tribunal could not have taken into consideration the pleadings of the parties which were inconsistent with the substratum of the issue; and 5. The issues raised by the learned Tribunal could not have been raised in view of the order of reference and in particular the issue of unfair labour practice and in any event suffered from the jurisdictional error, error of law and perversity. 8. Admittedly before the learned Trial Judge an application under section 17B of the Industrial Disputes Act, 1947 had been filed by the workmen. The learned Trial Judge not only allowed the said application but by reason of the judgment under appeal directed payment of costs to each of the workmen @ Rs. 3,500/- by the appellant. 9. Mr. Ganguly, the learned Counsel appearing on behalf of the workmen, on the other hand, submitted that out of 92 concerned workmen, three are working from 1979, 36 from 1980 and 53 from 1981 and, thus, they having rendered services for about two decades, were entitled to be regularised in service. Strong reliance in this connection has been placed on Executive Engineer, Electricity Distribution Div., U.P.S.E.B. vs. Hydro Electric Employees' Union, reported in (1999)1 SCC 253 . The learned Counsel submits that the learned Tribunal below having passed its award in exercise of its incidental power conferred upon it under section 10(4) of the Industrial Disputes Act cannot be said to have gone beyond the reference. Reliance in this connection has been placed on National Engineering Industries Ltd. vs. State of Rajasthan & Ors., reported in 2000(84) F.L.R. 162 : AIR 2000 SC 469 . The learned Counsel contends that Badli workmen being workmen within the meaning of section 2(s) of the Industrial Disputes Act, had a right to raise an industrial dispute. According to the learned Counsel the findings arrived at by the learned Tribunal being findings of fact, they cannot be interfered with by a writ Court as it does not sit in appeal over the award of the learned Tribunal. According to the learned Counsel the findings arrived at by the learned Tribunal being findings of fact, they cannot be interfered with by a writ Court as it does not sit in appeal over the award of the learned Tribunal. Strong reliance has been placed on Dharangadhra Chemical Works Ltd. vs. State of Saurashtra & Ors., reported in AIR 1957 SC 246 , Calcutta Port Shramik Union vs. The Calcutta River Transport Association & Ors., reported in AIR 1988 SC 2168 and Kanshi Ram Verma vs. The Municipal Committee, Mansa & Ors., reported in AIR 1981 SC 946 . 10. The learned Counsel drew our attention to Item No. 10 of Vth Schedule appended to the Industrial Disputes Act and submitted that in the facts and circumstances of this case the learned Tribunal has rightly drawn an inference that the appellant has indulged in unfair labour practice. Reliance in this connection has been placed on H.D. Singh vs. R.B.I., reported in 1986(1) LLJ 127 : AIR 1986 SC 1514 , G.S.R.T.S. vs. Workmen of State Transport Corpn. Gujarat, reported in 2000 L.L.R. 182 and Chief Conservator of Forest vs. Jagannatha, reported in 1996 (1) LLJ 1223 . It was submitted that the word 'reinstatement' occurring in section 17B of the Industrial Disputes Act must be given a liberal meaning and having regard to the fact that even the interim order passed by the learned Judge had not been implemented, the poor workmen could not have been kept deprived of the said benefit. 11. In view of the rival submissions, as noticed hereinbefore, the questions which arise for consideration are: 1. Whether the Tribunal in passing the impugned order has gone beyond the reference? 2. Whether the learned Tribunal having not framed proper issues deprived the management to adduce relevant evidences and, thus, the impugned award is bad in law being violative of natural justice? 3. Whether the impugned award is vitiated by reason of consideration of irrelevant facts and non-consideration of relevant facts? 4. Whether the learned Trial Judge erred in allowing the application filed by the workmen in terms of section 17B of the Industrial Disputes Act? 12. The question Nos. 1 to 3 are taken up for consideration together as they are all inter-related. Question Nos. 1 to 3 13. 4. Whether the learned Trial Judge erred in allowing the application filed by the workmen in terms of section 17B of the Industrial Disputes Act? 12. The question Nos. 1 to 3 are taken up for consideration together as they are all inter-related. Question Nos. 1 to 3 13. There cannot be any doubt that the Tribunal being a creature of statute cannot travel beyond the terms of reference but it is also equally well settled that it can go into questions which are incidental or ancilliary to the terms of reference. 14. The learned Tribunal having framed the questions as referred to supra, which although ex facie appear to be beyond the terms of the reference but it had a power to do so for the purpose of answering the main issue, namely, as to whether the concerned workmen are entitled to be regularised. 15. Although the concerned workmen were not enjoying any status, they were empanelled as Badli workers. They admitted the same as would appear from their letters of demand dated 30.11.87 (page 293), dated 10.2.93 (page 294) and one in Bengali vernacular which is at page 296 of the paper book. 16. In the first letter of demand dated 30.11.87 it was stated: "We, the badli workers, write to inform you that a good No. of the badli workers have been working in the factory for more than 10 years. But they have not yet been made permanent for reason best known to the management. Recently we find that certain jobs of perennial nature are being given to the contractors violating the existing law. This is highly illegal. We, the badli workers try draw the attention of the management to this violation of law and requested them to put the badli in these perennial jobs and make them permanent. But all our efforts went in vain. A commotion has thus been created among the workers and we apprehend that in absence of your finally intervention this commotion may find an expression in a way not desired by us. We, therefore, request you to convey a tripartite meeting with a view to settle the question or permanency of the badli workers. We believe you will comply with the request." 17. We, therefore, request you to convey a tripartite meeting with a view to settle the question or permanency of the badli workers. We believe you will comply with the request." 17. In the letter of demand dated 10.2.93 it was stated: "With due respect, we beg to state the following: That we 119 Badli Sramik have been working in Texmaco Sodepur works for the last 10 years. But we get only 6 days work in a month on average. 2. That those who worked for 240 days are not provided with the facility entitled in the law such as casual leave, earn leave, etc. and this job was not made permanent though entitled under law. 3. We have appealed to all but in vain. The Company is trying to appoint more badli workers. It is the proof that Company needs more working force. But still they are not making the badli workers permanent. 4. Therefore we demand that old badli workers who are serving the Company for the last 12 years should be made permanent and only after that Company should appoint more badli workers we further demand that facilities entitled in law of those workers who have crossed 240 days should be introduced immediately with retrospective effect. We hope, you will intervene and make arrangement so that law of the land may enforced." (Emphasis supplied) 18. In a representation to the Chief Minister of the State of West Bengal it was alleged that the Badli workers had been working on regular basis for a period of more than 12 years but despite the same, they were not granted the status of regular workmen nor are they granted even earned leave. It has been alleged that the management had entered into a conspiracy not to allow a person to work as a badli worker who had been working for more than 240 days. 19. In Sabitri Motor Service Put. Ltd. vs. State of West Bengal & Ors., reported in 1976(33) F.L.R. 14, a Division Bench of this Court held: "The fact that the Tribunal thought that whether there had been termination of a service or not was for the Tribunal to decide, indicates that the Tribunal did not appreciate the real scope of the reference. In law, the Tribunal could not travel beyond the ambit of the reference. In law, the Tribunal could not travel beyond the ambit of the reference. It was only left for the Tribunal to decide whether termination of service was justified or not and on the basis of the answer to that question, to award or not to award relief. " 20. It was held in that case that the Tribunal failed to answer the issue and the said infirmity cannot be cured in so far as it equated the two terms termination of service and refusal of employment. 21. In Arunangshu Chakrabarty vs. Aaj Kaal, reported in 1994(2) CHN 109 , a Division Bench of this court held that whereas a reference with regard to the termination of service and the finding being that the workmen had been demoted, the Tribunal had acted without jurisdiction in determining the issue of demotion. Referring to the provisions of section 10(4) of the Industrial Disputes Act and relying upon the decision of Sabitri Motor (supra) it was held: "In our view, the employer has to proceed on the assumption that the action taken by it is an order of termination and has to justify it as such. In other words, the employer cannot urge before the Tribunal that it is not a case of termination but an order of reduction in rank or demotion. Therefore, the issue which is raised in the writ petition cannot by reason of well settled principles of law be an adjudicatable issue before the Tribunal. That apart, any proceedings before the Tribunal pursuant to the impugned order of reference would result in violation of principles of natural justice because the writ petitioner would be precluded from putting forward his case because of the limited jurisdiction of the Tribunal, i.e. the limitation of not being able to go behind the order of reference." 22. In Delhi Cloth & General Mills vs. Its Workmen, reported AIR 1967 SC 469 , the Apex Court interpreted the incidental power of a Tribunal and hold that in exercise thereof the Tribunal is not free to enlarge the scope of the dispute referred to it but must confine its attention to the points specifically mentioned and anything which is incidental thereto. 23. In National Engineering Industries Ltd. vs. State of Rajasthan, reported in AIR 2000 SC 469 , it has been held that a Tribunal cannot go into the validity of reference. 23. In National Engineering Industries Ltd. vs. State of Rajasthan, reported in AIR 2000 SC 469 , it has been held that a Tribunal cannot go into the validity of reference. In that case the Apex Court held that a Writ Court can entertain a writ application questioning an award when no industrial dispute was existing. 24. However, in the Jaipur Udyog Ltd. vs. The Cement Work Karmachari Sangh, Sahu Nagar, reported in 1972 (1) LLJ 437 , the Apex Court referring to its earlier decision in The Sindhu Resettlement Corporation Ltd. vs. The Industrial Tribunal of Gujarat & Ors., reported in 1968(1) LLJ 834 , held: "In our view, the finding of the Tribunal that the company could not fix a lower age limit of superannuation for workmen at the quarries went beyond the scope of reference which had to be gathered from the 'circumstances proceeding the Government Order. The Tribunal never addressed itself to the point of view of the workmen that his proper age was only 50 and not 55; nor did it come to a finding that the true age of the workman being 50 years in 1968 there was no question of his superannuation in that year." 25. Badli workmen are also workmen. It may be true that for the purpose of sections 25B and 25C of the Industrial Disputes Act Badli workmen have separately been defined. But there cannot be any doubt that in a given case it may be open to the concerned workmen to show that although they had been empaneled as Badli workmen, regular work was being taken from them and they have not been given the status of permanent workmen by way of unfair labour practice. Such a dispute was permissible to be raised and the third respondent was also entitled to pierce the veil to find out the actual status of the workmen for arriving at a conclusion to the effect that the Badli workmen were entitled to be regularised in services and/or they have not been so regularised by the management by way of unfair labour practice. Such questions were raised for the first time in the written statement by the workmen but the learned Tribunal did not frame any issue. 26. Such questions were raised for the first time in the written statement by the workmen but the learned Tribunal did not frame any issue. 26. Several materials had been placed before us to show that had an opportunity of hearing been given to the management, they could have shown that in fact no unfair labour practice was being resorted to inasmuch as when the permanent posts fell vacant the Badli workmen had been absorbed in services and further they have, in truth and effect, been treated as Badli workmen and had never been allowed to work as permanent workmen against permanent vacancies. 27. Unfortunately this aspect of the matter has not been considered either by the learned Tribunal or the learned Trial Judge. 28. It is not correct to contend as has been contended by Mr. Pal that the aforementioned issue could not be framed in the manner as has been done as the answer thereof was by necessary implication required to be rendered in affirmative. 29. As indicated hereinbefore, the main issue was whether the Badli workmen should be regularised and for arriving at a just conclusion it was permissible for the Tribunal to consider as to how the workmen had been treated and as to whether they have been subjected to unfair labour practice or not. 30. In Indian Overseas Bank vs. I.O.B. Staff Canteen Workers Union, reported in 2000 L.I.C. 1495, the Apex Court laid down the law as regard a question when existence of master and servant relationship arises for consideration in the following terms: “The standards and nature of tests to be applied for finding out the existence of Master and Servant relationship cannot be confined to or concretise into fixed formula(s) for universal application invariably in all class or category of cases. Though some common standards can be devised, the mere availability of anyone or more or their absence in a given case can not by itself be held to be decisive of the whole issue, since it may depend upon each case and the peculiar device adopted by the employer to get his needs fulfilled without rendering him liable. That being the position, in order to safeguard the welfare of the workmen, the veil may have to be pierced to get at the realities. That being the position, in order to safeguard the welfare of the workmen, the veil may have to be pierced to get at the realities. Therefore, it would be not only impossible but also not desirable to lay down abstract principles or rules to serve as a ready reckoner for all situations and thereby attempt to compartmentalise and peg them into any pigeonhole formulas, to be insisted upon as proof of such relationship. This would only help to perpetuate practising unfair labour practices than rendering substantial justice to the class of persons who are invariably exploited on account of their inability to dictate terms relating to conditions of their service. Neither all the tests nor guidelines indicated as having been followed in the decisions noticed above should be invariably insisted upon in every case, nor the mere absence of anyone of such criteria could be held to be decisive of the matter. A cumulative consideration of a few or more of them, by themselves or in combination with any other relevant aspects, may also serve to be the safe and effective method to ultimately decide this often agitated question. Expecting similarity or identity of facts in all such variety or class of cases involving different type of establishments and in dealing with different employers would mean seeking for things, which are only impossible to find." 31. However, while doing so, the Tribunal evidently did not put the management on notice. Had the management been put on notice, it could bring on records the relevant materials therefor. Such materials could have brought on record to show: "a) That the workmen are really 'Badli' workmen as ordinarily understood. b) The reason why a large number of persons who are not permanently employed get themselves empaneled in the Badli Panel is the expectation that on days when they are not employed elsewhere, there would be a possibility of engagement at the Sodepur Workshop of Texmaco. Such empanelment of Bad Ii is a general feature of the industrial scene in West Bengal having regard to the large scale employment. c) In an Engineering Company, the workmen are qualified and trained in various trades, such as, welders, fitters, drillers, grinders, gas cutters, painters, mazdoors etc. to carry out different manufacturing activities. Such empanelment of Bad Ii is a general feature of the industrial scene in West Bengal having regard to the large scale employment. c) In an Engineering Company, the workmen are qualified and trained in various trades, such as, welders, fitters, drillers, grinders, gas cutters, painters, mazdoors etc. to carry out different manufacturing activities. Should there be any shortfall in the requisite number of workmen on any day in any particular trade or category owing to sickness or leave absence of the permanent hands, the chain of manufacturing activity is disrupted. Therefore, the Company maintains a panel of Badli workers in various trades, who are engaged for different durations in place of the permanent hands, who are on leave or sick, or otherwise absent. d) As and when the permanent vacancies arise owing to natural retirement or expansion of business activities, the Badlis are absorbed as permanent workmen, based on their seniority (i.e. date of empanelment and experience) as per requirement in the specified categories. e) The empanelment of Badli workmen and their engagement from time to time as aforesaid are in accepted normal practice in industry by Trade Unions and their Federations, as also the Labour Directorate of the State Government. The opportunities for such Badli Workmen to be made permanent would vary from unit to unit, depending on the growth of the business and age profile of the permanent hands in the company. f) The system and procedural formalities relating to empanelment of Badlis namely, that the concerned persons voluntarily get themselves empanelled in a panel of Badli workers. g) The empanelled Badli workers also work at other factories/ establishments where work may be available and are some times not available for engagement when required by Texmaco. h) The actual engagement of a Badli for work is substitutional in character, namely, they work as substitutes when for some reason a permanent workman is absent. i) That the Badlis were engaged as substitutes against specific absent permanent employees could be established from the engagement slips issued to them in connection with such engagement. j) From the Badli Panel, persons were absorbed as permanent workers following the principle of seniority of the Badlis in the respective trades. i) That the Badlis were engaged as substitutes against specific absent permanent employees could be established from the engagement slips issued to them in connection with such engagement. j) From the Badli Panel, persons were absorbed as permanent workers following the principle of seniority of the Badlis in the respective trades. k) The 92 Badlis belonging to the different trades were not entitled to be absorbed, as their claim for absorption on the basis of principle of seniority did not mature vis-a-vis 226 other Badlis who were empaneled earlier and made permanent. l) The policy of the appellant was to absorb Badlis as regular and permanent employees as and when there were vacancies and not to be unfair to them in any manner whatsoever. m) Should all Badli workman be made permanent on mere consideration of the number of years they had worked as Badlis, but without regard to the actual requirement of additional hands by the Company; it will severely erode the viability of the Company's operations and make it sick. This will, in fact, jeopardise the employment of the permanent hands too, not to speak of the prospect of Badli engagements." 32. The issue as regard unfair labour practice was not expressly framed, it may be noticed that even no evidence had been adduced by the parties nor any finding has been arrived at by the learned trial Judge. 33. In Firestone Tyre & Rubber Co. of India Pvt. Ltd. vs. Workmen, reported in 1981 (2) LLJ 218 , it has been held: “The fairness of subsequent absorption of some workmen is a matter quite irrelevant for judging the validity of the earlier dismissal of these workmen along with others; it is an entirely separate and independent question. The Tribunal also did not frame an issue on the alleged discrimination. That being so, we think the Tribunal travelled outside its jurisdiction in recording a finding of unfair labour practice and discrimination.” (Emphasis supplied) 34. An appropriate issue thus, having not been raised, the appellant could not adduce any evidence in this regard. The Tribunal also did not frame an issue on the alleged discrimination. That being so, we think the Tribunal travelled outside its jurisdiction in recording a finding of unfair labour practice and discrimination.” (Emphasis supplied) 34. An appropriate issue thus, having not been raised, the appellant could not adduce any evidence in this regard. Furthermore, for the purpose of answering the question referred to it for its adjudication, the Tribunal was required to arrived at a finding on the basis of the materials brought on record that the management had given their explanation as to why the concerned workmen had not been absorbed in various documents which are contained in Annexure 'D' to the Stay Position. No finding had also been arrived that at that time sanctioned permanent strength of the appellant factory was not based on a bona fide need. There is also no finding that the concerned workmen were engaged irrespective of the fact as to whether any permanent workmen was absent or on leave etc. which was the sine qua non for engaging Badli Workmen in terms of section 25C of the Industrial Disputes Act. There is also no finding as regard the object of their engagement or in other words whether they have been so engaged with a view to depriving them of their legitimate right of being absorbed. 35. The aforementioned findings of ours would be sufficient to set aside the award. A Writ of Certiorari as is well known can be issued when the Tribunal commits a jurisdictional error or an error of law apparent on the face of the records or when the same is perverse. The learned Tribunal in the instant case, has proceeded on certain assumptions. It has placed the burden of proof wrongly upon the management. It had proceeded on the basis that only by reason of working for more than 240 days, the workmen were entitled to be absorbed. It has also failed to take into consideration one relevant fact namely, even if a case of regularisation has been made out, the Industrial Court may not thrust a workman upon the management who would be surplus. 36. It has also failed to take into consideration one relevant fact namely, even if a case of regularisation has been made out, the Industrial Court may not thrust a workman upon the management who would be surplus. 36. It is true that a writ court does not sit in an appeal over an award of the Tribunal but as indicated hereinbefore, the award of the Tribunal not only suffers from a misdirection in law but it suffers from jurisdictional error as also an error apparent on the face of the records. See Anisminic Ltd. vs. Foreign Compensation Commission & Anr., reported in 1969(2) Appeal Cases 147. See also R. vs. Cornwell C.S. ex parte Huntington, reported in 1992(2) All ER 566 which decision has been upheld in appeal reported in 1994(1) All ER 694. This aspect of the matter has been considered by one of us (S.B. Sinha, J.) in Srikanta Bar & Ors. vs. State of West Bengal & Ors., reported in 1999(1) CLJ 538 and Sushil Kumar Sasmal & Anr. vs. State of West Bengal & Ors., reported in 1999(1) CHN 93 . 37. In Sushil Kr. Sasmal (supra), it has been observed: “If a statutory authority takes into consideration irrelevant fact and fails to take into consideration relevant fact, and error on the face of the record is committed (See De Smith's Judicial Review of Administrative Action, 4th Edn. page 136). It is further well known that a statutory authority must pose unto himself the correct question so as to acquaint himself with the fact of the matter with a view to answer the jurisdictional question, failing which he would be guilty of commission of mis-direction in law.” 38. The question as regard power of this court even to consider the materials on records for the purpose of finding out as to whether a jurisdictional error has been committed by the Tribunal or not has been considered in great details by a Division Bench of this court of which one of us (S.B. Sinha, J.) was a member in APOT No. 105 of 1998 G.E.C. Alsthem India Ltd. vs. The Seventh Industrial Tribunal of W.B. & Ors.) disposed of on 21.5.99. Under the general law regularisation is not permissible. 39. Under the general law regularisation is not permissible. 39. In Sairindhri Dolui vs. State of W.B. & Ors., reported in 2000(1) SLR 803, it has been held: "The appointment of the appellants, thus, having been made contrary to the provisions of the Rules must be held to be illegal. The rules have the force of the Statute. See U.P. State Co-operative Land Development Banh Ltd. vs. Chandra Bhan Dubey & Ors., reported in 1999(1) SCC 741 : 1999(2) SLR 576 (SC). This aspect of the matter has also been considered by a Full Bench of this Court in Debasish Dutta vs. State of West Bengal, reported in 1998(2) CLJ as also Division Bench of this Court in Ziaul Islam vs. State of West Bengal & Ors., reported in Cal. L.T. 1999(1) HC 509 and Muktipada Maity vs. State, reported in 1999 W.B.L.R. 252 : 1999(2) SLR 178 (Cal.)." 40. In the said decision the Apex Court in exercise of its jurisdiction under Article 142 of the Constitution of India has directed that the 50 per cent of the sanctioned posts which were held by these appellants should be filled from amongst the appellants on the basis of their inter se merit position by taking into account their academic qualifications by waiving question of age bar if any and usual procedures for such appointment. Thus, illegal appointments even in that case had not been and could not be set aside evidently in view of the decision of the Apex Court in various decisions as for example in Ashwani Kaumar & Ors. vs. State of Bihar & Ors., reported in 1997 (2) SCC 1 : 1996(7) SLR 15 (SC), Dr. Arundhati Ajit Pargaonkar vs. State of Maharashtra and Ors., reported in AIR 1995 SC 962 : 1994(5) SLR 234(SC), State of West Bengal & Ors. vs. Tapan Kumar Saha, reported in 1999(2) CHN 519 , J&K Public Service Commission & Ors. vs. Dr. Narinder Mohan & Ors., reported in 1994(2) SCC 630 : 1994(1) SLR 246 (SC), State of Madhya Pradesh vs. Dharambir, reported in 1998(6) SCC 165 and Dr. Surinder Singh & Anr. vs. State of Jammu & Kashmir & Ors., reported in AIR 1996 SC 2775 ." 41. But regularisation may be directed if an appropriate industrial dispute is raised or there exists any statute or statutory rule in that regard. 42. Surinder Singh & Anr. vs. State of Jammu & Kashmir & Ors., reported in AIR 1996 SC 2775 ." 41. But regularisation may be directed if an appropriate industrial dispute is raised or there exists any statute or statutory rule in that regard. 42. Working in an industrial unit for a period of more than 240 days may, in the case of retrenchment be relevant but the same may not be relevant for the purpose of absorption in view of the decision of the Apex Court in Madhyamik Siksha Parishad, U.P. vs. Anil Kumar Mishra & Ors., reported in AIR 1994 SC 1638 . 43. In Jaswant Sugar Mills Ltd., Meerut vs. Badri Prasad & Ors., reported in 1961(1) LLJ 649 , it has been held: " What, however, if a workman who is engaged on work of a permanent nature which lasts through out the year but his own engagement is only to fill in a temporary need of extra hands? It is clear that such a workman falls clearly within the definition of a temporary workman which has been set out above, though at the same time he may fall within the definition of a permanent workman." 44. Of course there can be a scheme to the contrary and if the Tribunal finds that the scheme framed by the management is reasonable, the same may also be given effect to it. 45. In Executive Engineer, Electricity Distribution Division, U.P.S.E.B. Bareilly vs. Hydro Electric Employees' Union & Ors., reported in 1999(1) SCC 253 , the question raised was as to whether there existed a policy decision in terms of an office order dated 13.1.1987. As the Tribunal and all concerned proceeded on the basis that there existed such an order, the Apex Court refused to allow the appellant therein to raise a question contra. It was held: “The only contention canvassed before the Labour Court was that the aforesaid office order did not apply to Bareilly region. It is difficult to appreciate as to how the said office order giving benefit of regular is at ion to these workmen who had completed service of 240 days in a year could be made available to workmen working in other divisions and could not be made available only to workmen working in Bareilly region. It is difficult to appreciate as to how the said office order giving benefit of regular is at ion to these workmen who had completed service of 240 days in a year could be made available to workmen working in other divisions and could not be made available only to workmen working in Bareilly region. That would be clearly a discriminatory act on the part of the Board which is a State within the meaning of Article 13 of the Constitution. Consequently, it must be held that the aforesaid defence put forward by the appellant was wholly misconceived and rightly rejected by the Labour Court and the High Court. On this short ground, therefore, this appeal is liable to fail.” 46. Thus, in that case there was a policy decision to absorb these workmen who had worked for more than 240 days in a year. Such is not the position here. 47. In Jacob M. Puthuparambil vs. Kerala Water Authority, reported in AIR 1990 SC 2228 , there existed a statutory regulation to absorb the workmen being clause(c) of Rule 9 of Kerala State and Subordinate Service Rules, 1958. The said decision has been distinguished by the Apex Court in a number of judgments as also by this Court. See for example Madhusudan Pal & Ors. vs. State of West Bengal & Ors., reported in 1996(1) CLR 134. 48. We are, therefore, of the opinion that it is a fit case in which the writ application should have been allowed and the matter ought to have been remitted back to the third respondent herein for deciding the question afresh after giving an opportunity to parties of adducing evidence on the issues to be framed in relation thereto. Question No.4 49. The question which now remains is whether the learned Trial Judge erred in allowing the application filed by the workmen under section 17B of the Industrial Disputes Act. Section 17B of the Industrial Disputes Act reads thus: “S. 17B. Question No.4 49. The question which now remains is whether the learned Trial Judge erred in allowing the application filed by the workmen under section 17B of the Industrial Disputes Act. Section 17B of the Industrial Disputes Act reads thus: “S. 17B. Payment of full wages to workman pending proceedings in higher courts.-Where in any case, a Labour Court, Tribunal or National Tribunal by its award directs reinstatement of any workman and the employer prefers any proceedings against such award in a High Court or the Supreme Court, the employer shall be liable to pay such workman, during the period of pendency of such proceedings in the High Court or the Supreme Court, full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any rule if the workman had not been employed in any establishment during such period and an affidavit by such workman had been filed to that effect in such Court: Provided that where it is proved to the satisfaction of the High Court or the Supreme Court that such workman had been employed and had been receiving adequate remuneration during any such period or part thereof, the Court shall order that no wages shall be payable under this section for such period or part, as the case may be." 50. A plain reading of the said provision clearly shows that unless an award of reinstatement had been passed, the said provision will have no application. The 'award on reinstatement' cannot mean an 'award on absorption'. 51. The decision cited by Mr. Ganguly cannot be said to have any application in the facts of the present case. 52. In Dena Bank vs. Kiriti Patel, reported in AIR 1998 SC 511 , the Apex Court has not held that even an award of absorption should be treated as an award of reinstatement for the purposes of section 17B of the Act. 53. In C.M. Saraiah vs. E.E. Panchayat Raj Department & Anr., reported in 2000(1) LLJ 23 , the Apex Court merely held that where the said provision is applicable, the High Court is bound to give effect thereto. The said decision in the considered opinion of this court cannot be said to have any application in the fact of the present case. The Dictionary meaning of the word 'reinstate' is (1) replace in a formal position, (2) restore to former privileges. The said decision in the considered opinion of this court cannot be said to have any application in the fact of the present case. The Dictionary meaning of the word 'reinstate' is (1) replace in a formal position, (2) restore to former privileges. But it is not a case where the workman by reason of the impugned award has only been replaced in former position or restored to privileges to which they were earlier entitled to in terms of any contract of service. 54. The learned Trial Judge, in our considered opinion, misconstrued the said provision and granted relief to the workmen to which they were not entitled in law. No such order could be passed even on sympathy. 55. In Sairindhri Dolui vs. State of W.B. & Ors., reported in 2000(1) SLR 803, a Division Bench of this Court relying upon an earlier decision as in Ashoka Saha vs. State of West Bengal & Ors., reported in Cal.L.T. 1999(2) H.C. 1, held: "In Life Insurance Corporation of India vs. Mrs. Asha Ramchandra Ambedkar & Anr., reported in AIR 1994 SC 2148 , the law has been laid down in the following terms : 'Thus apart from the directions as to appointment on compassionate grounds being against statutory provisions, such direction does not take note of this fact. Whatever it may be the court should not have directed the appointment on compassionate grounds. The jurisdiction under mandamus cannot be exercised in that fashion.' 'In G. Kalyan Sundaram vs. UCO Bank & Anr., reported CLT 1995(2) HC 201, I had observed that in the fact of that case even sympathy has no role to play and in that connection noticed: In Latham vs. Richard Johnson & Nephew Ltd., reported in 1911-13 AER (reprint) page 117, Farwell L.J. observed: 'We must be very careful not to allow our sympathy; sentiment is a dangerous will 0' the wisp to take as a guide in the search for legal principles.' In the State of Tamil Nadu & Ors. vs. St. Joseph Teachers Training College, reported in (1991)3 SCC page 87 the Apex Court observed that court cannot grant relief on humanitarian ground contrary to law." 56. For the reasons aforementioned, this appeal is allowed. vs. St. Joseph Teachers Training College, reported in (1991)3 SCC page 87 the Apex Court observed that court cannot grant relief on humanitarian ground contrary to law." 56. For the reasons aforementioned, this appeal is allowed. The impugned judgement of the learned single Judge as also the award of the learned Tribunal are set aside and the matter is remitted back to the third respondent herein for a fresh decision in accordance with law. However, having regard to the fact that the matter is pending for a long time, we would direct the third respondent herein to complete the hearing of the matter as expeditiously as possible and not later than three months from the date of communication of this order. However, in the facts and circumstances of this case there will be no order as to costs. H. Banerji, J.: I agree. Appeal allowed.