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2017 DIGILAW 474 (ALL)

U. P. S. R. T. C. v. Satish Chandra

2017-02-08

MAHESH CHANDRA TRIPATHI

body2017
JUDGMENT : Mahesh Chandra Tripathi, J. Heard Sri Ved Byas Mishra, learned counsel for the petitioners, Sri Ajay Rajendra, learned counsel for the opposite party No. 1 and learned Standing Counsel for the respondent No. 2. 2. Petitioners are before this Court assailing the award dated 28.09.2011 passed by respondent No. 2 in Adjudication Case No. 108 of 1997 and further directing the Sate-respondent not to enforce the award dated 28.09.2010 published on 1.2.2011 passed by respondent No. 2. 3. Briefly stated facts are that the present matter relates to Uttar Pradesh State Road Transport Corporation (hereinafter referred to as "Corporation") which is a Government undertaking. The respondent No. 1 was working as Driver in Khatauli Depot of the Corporation. The service of the respondent No. 1 is governed under the provisions of Uttar Pradesh State Road Transport Corporation Employees (other than officers) Service Regulation which has been notified under Section 13-B of Industrial Employment (Standing Orders) Act. The present writ petition is filed challenging the judgment and award dated 28.09.2010 passed by respondent No. 2 published on 1.2.2011 in Adjudication Case No. 108 of 1997. The Regional Manager, Meerut who is the appointing authority of Driver issued charge sheet to respondent No. 1 (workman) on 21.06.1994. After holding inquiry, the Inquiry Officer found guilty of respondent No. 1. Copy of the inquiry report was served to the respondent No. 1 on 24.02.1996 along with show cause notice and ultimately the services of respondent No. 1 was dispensed with vide order dated 8.11.1996. Against the order dated 8.11.1996 respondent No. 1 approach to Labour Court and a reference was sent by the State Government to decide as to whether the termination of service of respondent No. 1 by the employer vide order dated 8.11.1996 is justified or unjustified/illegal. Thereafter, the petitioner filed its written statement mentioning the correct facts wherein it is specifically stated that Inquiry Officer has submitted the Inquiry report in accordance with law and the order has been passed after issuing show cause notice. 4. Initially the present matter was taken up on 17.05.2011 and this Court vide order dated 17.05.2011 had proceeded to stay the realization of fifty per cent of the arrears of wages till the next date of listing subject to reinstatement of respondent no. 4. Initially the present matter was taken up on 17.05.2011 and this Court vide order dated 17.05.2011 had proceeded to stay the realization of fifty per cent of the arrears of wages till the next date of listing subject to reinstatement of respondent no. 1 within a period of one month from today and continue to pay him future salary with following orders :- "Heard learned counsel for the petitioner and learned Standing Counsel for respondent no. 2. The present Writ Petition has been filed for a Writ of Certiorari for quashing the award dated 28.09.2010 published on 01.02.2011 passed by the Presiding Officer, Labour Court, U.P. Meerut in Adjudication Case No. 108 of 1997, whereby the award has been returned directing reinstatement with fifty per cent back wages. Learned counsel for the petitioner has contended that the award has been passed without appreciating the evidence on record and the provisions of law and therefore, the same can not be sustained. Issue notice to opposite party no. 1 returnable within four weeks. Steps be taken within a week. Learned Standing Counsel prays for and is granted four weeks' time to file counter affidavit. Respondent no 1 may also file counter affidavit within the same period. Rejoinder affidavit, if any, may be filed within two weeks thereafter. List after expiry of aforesaid period. In the meantime, it is provided that in case the petitioner reinstates respondent no. 1 within a period of one month from today and continue to pay him future salary, the realization of fifty per cent of the arrears of wages shall be kept in abeyance till the next date of listing." 5. Thereafter, the matter was taken up on 22.05.2015 and this Court vide order dated 22.05.2015 had proceeded to modify the aforesaid interim order dated 17.05.2011 to the extent that award dated 28.09.2010 shall remain stayed subject to payment of 50% arrears of wages within three weeks as the respondent No. 1 was already got superannuated before the filing of the present writ petition. The order dated 22.05.2015 reads as under :- "Heard learned counsel for the petitioners and learned counsel for the respondents. The order dated 22.05.2015 reads as under :- "Heard learned counsel for the petitioners and learned counsel for the respondents. This Court vide order 17.05.2011 had passed the following interim order in favour of the petitioners :- "..........The present Writ Petition has been filed for a Writ of Certiorari for quashing the award dated 28.09.2010 published on 01.02.2011 passed by the Presiding Officer, Labour Court, U.P. Meerut in Adjudication Case No. 108 of 1997, whereby the award has been returned directing reinstatement with fifty per cent back wages. Learned counsel for the petitioner has contended that the award has been passed without appreciating the evidence on record and the provisions of law and therefore, the same can not be sustained. Issue notice to opposite party no. 1 returnable within four weeks. Steps be taken within a week. Learned Standing Counsel prays for and is granted four weeks' time to file counter affidavit. Respondent no 1 may also file counter affidavit within the same period. Rejoinder affidavit, if any, may be filed within two weeks thereafter. List after expiry of aforesaid period. In the meantime, it is provided that in case the petitioner reinstates respondent no. 1 within a period of one month from today and continue to pay him future salary, the realization of fifty per cent of the arrears of wages shall be kept in abeyance till the next date of listing." Sri Ved Byas Mishra, learned counsel for the petitioners states that due to inadvertence it could not be brought on record before the Court that at the time of filing of the writ petition that the opposite party No. 1 had already had attained the age of superannuation on 28.02.2010. Therefore, at the time of passing the interim order dated 17.05.2011, there was no occasion for reinstatement of the opposite party No. 1 and as such, he has already attained the age of superannuation much prior to the passing of the interim order. In view of aforesaid facts and circumstances, list in the week commencing 13-07-2015. It is expected from the petitioners that they may comply the interim order passed by this Court to the extent that half of the arrears of wages would be paid to the opposite party No. 1 within three weeks from today. In view of aforesaid facts and circumstances, list in the week commencing 13-07-2015. It is expected from the petitioners that they may comply the interim order passed by this Court to the extent that half of the arrears of wages would be paid to the opposite party No. 1 within three weeks from today. Till the next date of listing, the interim order dated 17.05.2011 is modified to the extent that award dated 28.09.2010 shall remain stayed subject to the payment of 50% arrears of wages within three weeks from today." 6. On the matter being taken up on 08.02.2017, Sri Ved Byas Mishra, learned counsel for the petitioner on the basis of instruction dated 02.02.2017 states that the respondent No. 1 has already received a total sum of Rs. 3,26,151/- (Rs. 2,48,801/-+Rs. 58,850/-+Rs. 20,550/-) (towards 50% arrears of wages+payment of gratuity etc.). 7. Petitioner employer submits that U.P.S.R.T.C. is a local authority constituted under the Act of 1916 and is a 'State' within the meaning of Article 12 of the Constitution of India. It is further stated that engagement of employee is regulated by statutory provisions. Appointment could be made only after due publication of vacancy, by the authority competent, against a post duly sanctioned by the State. It is further stated that there was no vacancy, nor any appointment order was ever issued to the respondent workman by the competent authority but learned Tribunal while allowing the claim of the workman has patently erred in law in not considering the objections so made by the petitioners. 8. On behalf of the workman, it is stated that the workman had been appointed in the Khatauli Depot on 23.02.1986 and superannuated on 28.02.2010 and as such, no interference is called for and the writ petition is liable to be dismissed on this score. 9. Heard rival submissions of learned counsel for the parties and perused the record. 10. On the basis of evidence brought before the Labour Court, who had proceeded to observe that the workman was engaged on the post of Driver w.e.f. 23.02.1986 and had been superannuated on 28.02.2010 on contract basis and it has been held that the work of first respondent was continuous. 11. 10. On the basis of evidence brought before the Labour Court, who had proceeded to observe that the workman was engaged on the post of Driver w.e.f. 23.02.1986 and had been superannuated on 28.02.2010 on contract basis and it has been held that the work of first respondent was continuous. 11. Labour Court, however, has not examined the question as to whether the engagement of workman was against any sanctioned vacant post, nor it has been considered as to whether the procedure for a valid recruitment by State agency had been followed or not. Although a specific issue was raised by the petitioner employer regarding appointment being bad due to non-following of procedure as well as non-availability of vacant post in the written statement but the workman failed to demonstrate that any valid appointment against a vacant post was made and the award is absolutely silent on such crucial aspects. A perusal of the award goes to show that Labour Court found engagement of respondent workman to be purely on daily wage basis. Labour Court has confined its award only to the aspect relating to non-payment of retrenchment compensation and consequent violation of Section 6-N of the U.P. Industrial Disputes Act. 12. It is undisputed that U.P.S.R.T.C. is a local authority, and in matters relating to engagement of its employees, the statutory provisions as well as dictum of Article 16 of the Constitution of India was applicable. It is nowhere claimed that any recruitment proceeding in consonance with Article 16 of the Constitution of India was undertaken before engaging the respondent workman. No evidence has been led on behalf of the worker on this aspect, despite a specific objection taken in this regard before the Labour Court. On the aspect of existence of vacant post also no evidence was led by the workman. The engagement of respondent workman, therefore, was purely to meet exigency of work, on daily wage, and was apparently not against any post. 13. So far as challenge made by the employer to the award is concerned, it is to be noticed that though a case was set up by the employer about engagement being made on contract basis, but no evidence to support such a plea has been adduced before the Labour Court. 13. So far as challenge made by the employer to the award is concerned, it is to be noticed that though a case was set up by the employer about engagement being made on contract basis, but no evidence to support such a plea has been adduced before the Labour Court. The finding returned by the Labour Court about continuous working of workman is based upon appreciation of materials brought on record, which has not been shown to be erroneous or perverse. From the stand taken by the employer, engagement of workman on daily wage basis is not in dispute. It is further not in dispute that no retrenchment compensation was paid. In view of the finding returned by the Labour Court that the workman had continued for more than 240 days in a calender year, and had not been paid any retrenchment compensation before terminating his services, the finding returned by the Labour Court about violation of Section 6-N of the U.P. Industrial Disputes Act is clearly made out and requires no interference. Once it is held that termination of respondent workman was in teeth of Section 6-N of the U.P. Industrial Disputes Act, it follows that termination is bad in law. The question which then arises is as to what is the relief, to which workman was entitled in law? 14. It has been urged that once termination is held to be illegal, due to non-payment of retrenchment compensation, workman is entitled to reinstatement along with back wages, and the Labour Court is not required to go into other aspects like availability of post, manner of engagement etc. For such purposes, reliance has been placed upon decisions of the Apex Court in State of U.P. v. Charan Singh, 2015 (8) SCC 150 , Bhuvanesh Kumar Dwivedi v. M/s Hindalco Industries Ltd., 2014 (142) FLR 20 , and K.V.S. Ram v. Bangalore Metropolitan Transport Corporation, 2015 (144) FLR 994 to contend that payment of compensation in place of reinstatement has been disapproved. It is also urged that unless award is found to be illegal on account of some error of law, relief of reinstatement cannot be substituted with lump sum compensation. Reliance has also been placed upon a judgment of the Apex Court in Harjinder Singh v. Punjab State Warehousing Corporation, reported in 2010 (3) SCC 192 . It is also urged that unless award is found to be illegal on account of some error of law, relief of reinstatement cannot be substituted with lump sum compensation. Reliance has also been placed upon a judgment of the Apex Court in Harjinder Singh v. Punjab State Warehousing Corporation, reported in 2010 (3) SCC 192 . Consideration of initial illegality in making of appointment was disapproved in the matter, as no such plea was taken before the Labour Court. Krishan Singh v. Executive Engineer, reported in 2010 (125) FLR 187 , is also to similar effect. These two judgments apparently have no applicability in the facts of the present case, as the employer had taken a specific ground about non-existence of post as well as nonobservance of procedure contemplated for a valid appointment in its written statement. 15. On the other hand, judgments are relied upon, to contend that where employer is a 'State' or 'Agency or instrumentality of State' issues regarding existence of post, manner of recruitment, length of service etc. are relevant considerations. Learned counsel for the petitioner employer has relied upon a recent decision of the Apex Court reported in 2014 (7) SCC 177 (Bharat Sanchar Nigam Limited v. Bhurumal). Para 29 to 35 of the said decision dealt with a similar exigency, where a worker engaged on daily wage had been terminated without complying with the provisions of Section 25-F of the Industrial Disputes Act. Following proposition has been laid down by the Hon'ble Supreme Court in Paras 29 to 35, which is reproduced :- "29. The learned counsel for the appellant referred to two judgments wherein this Court granted compensation instead of reinstatement. In the case of BSNL v. Man Singh, (2012) 1 SCC 558 , 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 the case of Incharge Officer & Anr. v. Shankar Shetty, (2010) 9 SCC 126 , 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 2-3 years and where the termination had taken place many years ago, the recent trend was to grant compensation in lieu of reinstatement. 30. v. Shankar Shetty, (2010) 9 SCC 126 , 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 2-3 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 (supra), 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 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 5, SCC pp.330 & 335 paras 7 & 14) '7. It is true that the earlier view of this Court articulated in many decision reflected the legal position that if the termination of an employee 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. 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, 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 sub-serve the ends of justice.'" 31. In the case of Telecom District Manager v. Keshab Deb the Court emphasized that automatic direction for reinstatement of the workman with full back wages is not contemplated. He was at best entitled to one months' pay in lieu of one month's notice and wages of 15 days of each completed year of service as envisaged under Section 25-F of the Industrial Disputes Act. He could not have been directed to be regularized in service or granted/given a temporary status. Such a scheme has been held to be unconstitutional by this Court in A. Umarani v. Registrar, Coop. Societies and Secy., State of Karnataka v. Umadevi. 32. It was further submitted by the learned counsel for the appellant that likewise, even when reinstatement was ordered, it does not automatically follow full back wages should be directed to be paid to the workman. He drew our attention of this Court in the case of Coal India Ltd. v. Ananta Saha and Metropolitan Transport Corporation v. V. Venkatesan. 33. It was further submitted by the learned counsel for the appellant that likewise, even when reinstatement was ordered, it does not automatically follow full back wages should be directed to be paid to the workman. He drew our attention of this Court in the case of Coal India Ltd. v. Ananta Saha and Metropolitan Transport Corporation v. V. Venkatesan. 33. It is clear from the reading of the aforesaid judgments that the ordinary principle of grant of reinstatement with full back wages, when the termination is found to be illegal is not applied mechanically in all cases. While that may be a position where services of a regular/permanent workman are terminated illegally and/or mala fide and/or by way of victimization, unfair labour practise etc. However, when it comes to the case of termination of a daily wage worker and where the termination is found illegal because of procedural defect, namely in violation of Section 25-F of the Industrial Disputes Act, this Court is consistent in taking the view in such cases reinstatement with back wages is not automatic and instead the workman should be given monetary compensation which will meet the ends of justice. Rationale for shifting in this direction is obvious. 34. The reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the termination is found to be illegal because of non-payment of retrenchment compensation and notice pay as mandatorily required under Section 25-F of the Industrial Disputes Act, even after reinstatement, it is always open to the management to terminate the services of that employee by paying him the retrenchment compensation. Since such a workman was working on daily wage basis and even after he is reinstated, he has no right to seek regularization [See: State of Karnataka v. Uma Devi]. Thus when he cannot claim regularization and he has no right to continue even as a daily wage worker, no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated again after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay. In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose. 35. We would, however, like to add a caveat here. In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose. 35. We would, however, like to add a caveat here. There may be cases where termination of a daily wage worker is found to be illegal on the ground it was resorted to as unfair labour practise or in violation of the principle of last come first go viz. while retrenching such a worker daily wage juniors to him were retained. There may also be a situation that persons junior to him wee regularized under some policy but the concerned workman terminated. In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty reasons for adopting the course of grant of compensation instead of reinstatement. In such cases, reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing, such a relief can be denied." 16. Similar views are expressed by the Apex Court in Bhavnagar Municipal Corporation v. Jadeja Govubha Chhanubha, AIR 2015 SC 609 ; Rajasthan State Agricultural Marketing Board v. Mohan Lal, 2013 (14) SCC 543 and 2014 (16) SCC 440. Judgment in BSNL v. Bhurumal (supra) has been reiterated in Hari Nandan Prasad and another v. Employer I/R to Management of Food Corporation of India and another, 2014 (7) SCC 190 . The question as to what relief is to be granted to a workman employed by State Authorities when termination is found to be bad on account of non-payment of retrenchment compensation has been dealt with extensively. Paragraphs 23 to 40 of the judgment is apposite and thus reproduced :- "23. Before we advert to this question, it would be necessary to examine as to whether the Constitution Bench judgment in Uma Devi case have applicability in the matters concerning industrial adjudication. We have already pointed out above the contention of the counsel for the appellants in this behalf, relying upon Maharashtra State Road Transport case that the decision in Uma Devi would be binding the Industrial or Labour Courts. On the other hand, counsel for the FCI has referred to the judgment in U.P. Power Corporation for the submission that law laid down in Uma Devi equally applies to Industrial Tribunals/Labour Courts. It, thus, becomes imperative to examine the aforesaid two judgments at this juncture. 24. On the other hand, counsel for the FCI has referred to the judgment in U.P. Power Corporation for the submission that law laid down in Uma Devi equally applies to Industrial Tribunals/Labour Courts. It, thus, becomes imperative to examine the aforesaid two judgments at this juncture. 24. A perusal of the judgment in U.P. Power Corporation would demonstrate that quite a few disputes were raised and referred to the industrial tribunal qua the alleged termination of respondent Nos.2 and 3 in that case. Without giving the details of those cases, it would be sufficient to mention that in one of the cases the tribunal held that after three years of their joining in service both respondents 2 and 3 were deemed to have been regularized. The appellants filed the Writ Petition which was also dismissed. Challenging the order of the High Court, the appellants had approached this Court. It was argued that there could not have been any regularization order passed by the Industrial Court in view of the decision in Uma Devi. Counsel for the workmen had taken a specific plea that the powers of the industrial adjudicator were not under consideration in Uma Devi's case and that there was a difference between a claim raised in a civil suit or a Writ Petition on the one hand and one adjudicated by the industrial adjudicator. It was also argued that the labour court can create terms existing in the contract to maintain industrial peace and therefore it had the power to vary the terms of the contract. 25. While accepting the submission of the appellant therein viz. U.P. Power Corporation, the Court gave the following reasons: (U.P. Power Corpn. case, SCC pp.758, para 6-8) "6. It is true as contended by learned counsel for the respondent that the question as regards the effect of the industrial adjudicators' powers was not directly in issue in Umadevi case. But the foundation logic in Umadevi case is based on Article 14 of the Constitution of India. Though the industrial adjudicator can very the terms of the contract of the employment, it cannot do something which is violative of Article 14. If the case is one which is covered by the concept of regularization, the same cannot be viewed differently. 7. Though the industrial adjudicator can very the terms of the contract of the employment, it cannot do something which is violative of Article 14. If the case is one which is covered by the concept of regularization, the same cannot be viewed differently. 7. The plea of learned counsel for the respondent that at the time the High Court decided the matter, decision in Umadevi case was not rendered is really of no consequence. There cannot be a case of regularization without there being employee-employer relationship. As noted above the concept of regularization is clearly linked with Article 14 of the Constitution. However, if in a case the fact situation is covered by what is stated in para 45 of Umadevi case the industrial adjudicator can modify the relief, but that does not dilute the observations made by this Court in Umadevi case about the regularization. 8. On facts, it is submitted by learned counsel for the appellants that Respondent No.2 himself admitted that he never worked as a pump operator, but was engaged as daily wage basis. He also did not possess the requisite qualification. Looked at from any angle, the direction for regularization, as given, could not have been given in view of what has been stated in Umadevi case." It is clear from the above that the Court emphasized the underline message contained in Umadevi's case to the effect that regularization of a daily wager, which has not been appointed after undergoing the proper selection procedure etc. is impermissible as it was violative of Article 14 of the Constitution of India and this principle predicated on Article 14 would apply to the industrial tribunal as well inasmuch as there cannot be any direction to regularize the services of a workman in violation of Article 14 of the Constitution. As we would explain hereinafter, this would mean that the industrial court would not issue a direction for regularizing the service of a daily wage worker in those cases where such regularization would tantamount to infringing the provisions of Article 14 of the Constitution. But for that, it would not deter the Industrial Tribunals/Labour Courts from issuing such direction, which the industrial adjudicators otherwise possess, having regard to the provisions of Industrial Disputes Act specifically conferring such powers. This is recognised by the Court even in the aforesaid judgment. 26. But for that, it would not deter the Industrial Tribunals/Labour Courts from issuing such direction, which the industrial adjudicators otherwise possess, having regard to the provisions of Industrial Disputes Act specifically conferring such powers. This is recognised by the Court even in the aforesaid judgment. 26. For a detailed discussion on this aspect, we proceed to discuss the ratio in the case of Maharashtra State Road Transport Corporation (supra). In that case the respondent Karamchari Union had filed two complaints before the Industrial Court, Bombay alleging that the appellant-Corporation had indulged in unfair labour practise qua certain employees who were engaged by the appellant as casual labourers for cleaning the buses between the years 1980-1985. It was stated in the complaints that these employees were made to work every day at least for 8 hours at the depot concerned of the Corporation; the work done by them was of permanent nature but they were being paid a paltry amount; and even when the post of sweepers/cleaners were available in the Corporation, these employees had been kept on casual and temporary basis for years together denying them the benefit of permanency : 26.1. After adjudication, the Industrial Court held that the Corporation had committed unfair labour practise under items 5 and 9 of Schedule IV to the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practise Act, 1971 (MRTU and PULP Act). As a consequence, it directed the Corporation to pay equal wages to the employees concerned which was being paid to Swachhaks and also pay arrears of wages to them. 26.2. In the second complaint, the Industrial Court returned the finding that the Corporation was indulging in unfair labour practise under Item 6 of Schedule IV, by continuing these employees on temporary/casual/daily wage basis for years together and thereby depriving them the benefits of permanency. The direction in this complaint was to cease and desist from the unfair labour practise by giving them the status, wages and all other benefits of permanency applicable to the post of cleaners, w.e.f. 3.8.1982. 27. The Corporation challenged these two orders of the Industrial Court before the High Court of Judicature at Bombay in five separate Writ Petitions. The direction in this complaint was to cease and desist from the unfair labour practise by giving them the status, wages and all other benefits of permanency applicable to the post of cleaners, w.e.f. 3.8.1982. 27. The Corporation challenged these two orders of the Industrial Court before the High Court of Judicature at Bombay in five separate Writ Petitions. These were disposed of by the learned Single Judge vide common judgment dated 2.8.2001 holding that complaints were maintainable and the finding of the Industrial Court that the Corporation had indulged in unfair labour practise was also correct. 28. The Corporation challenged the decision of the learned Single Judge by filing LPAs which were dismissed by the Division Bench on 6.5.2005. This is how the matter came before the Supreme Court. One of the contentions raised by the appellants before this Court was that there could not have been a direction by the Industrial Court to give these employees status, wages and other benefits of permanency applicable to the post of cleaners as this direction was contrary to the ratio laid down by the Constitution Bench of this Court in Umadevi (supra). The Court while considering this argument went into the scheme of the MRTU and PULP Act. It was, inter-alia, noticed that complaints relating to unfair labour practise could be filed before the Industrial Court. The Court noted that Section 28 of that Act provides for the procedure for dealing with such complaints and Section 30 enumerates the powers given to the Industrial and Labour Courts to decide the matters before it including those relating to unfair labour practise. On the reading of this section, the Court held that it gives specific power to the Industrial/Labour Courts to declare that an unfair labour practise has been engaged and to direct those persons not only to cease and desist from such unfair labour practise but also to take affirmative action. Section 30(1) conferring such powers is reproduced below: "30. On the reading of this section, the Court held that it gives specific power to the Industrial/Labour Courts to declare that an unfair labour practise has been engaged and to direct those persons not only to cease and desist from such unfair labour practise but also to take affirmative action. Section 30(1) conferring such powers is reproduced below: "30. Powers of Industrial and Labour Courts.- (1)Where a court decides that any person named in the complaint has engaged in, or is engaging in, any unfair labour practise, it may in its order- (a) declare that an unfair labour practise has been engaged in or is being engaged in by that person, and specify any other person who has engaged in, or is engaging in the unfair labour practise; (b) direct all such persons to cease and desist from such unfair labour practise, and take such affirmative action (including payment of reasonable compensation to the employee or employees affected by the unfair labour practise, or reinstatement of the employee or employees with or without back wages, or the payment of reasonable compensation), as may in the opinion of the Court be necessary to effectuate the policy of the Act; (c) where a recognised union has engaged in or is engaging in, any unfair labour practise, direct that its recognition shall be cancelled or that all or any of its rights under sub-section(1) of Section 20 or its right under Section 23 shall be suspended." 29. It was further noticed that Section 32 of the Act provides that the Court shall have the power to decide all connected matters arising out of any application or a complaint referred to it for decision under any of the provisions of this Act. The Court then extensively quoted from the judgment in Uma Devi in order to demonstrate the exact ratio laid down in the said judgment and thereafter proceeded to formulate the following question and answer thereto: "The question that arises for consideration is: have the provisions of the MRTU and PULP Act been denuded of the statutory status by the Constitution Bench decision in Umadevi? In our judgment, it is not." 30. In our judgment, it is not." 30. Detailed reasons are given in support of the conclusion stating that the MRTU and PULP Act provides for and empowers the Industrial/Labour Courts to decide about the unfair labour practise committed/being committed by any person and to declare a particular practise to be unfair labour practise if it so found and also to direct such person ceased and desist from unfair labour practise. The provisions contained in Section 30 giving such a power to the Industrial and Labour Courts vis-a-vis the ratio of Uma Devi are explained by the Court in the following terms: (Maharashtra SRTC case, SCC pp. 573-74, paras 32-33 & 36) "32. The power given to the Industrial and Labour Courts under Section 30 is very wide and the affirmative action mentioned therein is inclusive and not exhaustive. Employing badlis, casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent employees is an unfair labour practise on the part of the employer under Item 6 of Schedule IV. Once such unfair labour practise on the part of the employer is established in the complaint, the Industrial and Labour Courts are empowered to issue preventive as well as positive direction to an erring employer. 33. The provisions of the MRTU and PULP Act and the powers of the Industrial and Labour Courts provided therein were not at all under consideration in Umadevi. As a matter of fact, the issue like the present one pertaining to unfair labour practise was not at all referred to, considered or decided in Umadevi. Unfair labour practise on the part of the employer in engaging employees as badlis, casuals or temporaries and to continue them as such for years with the object of depriving them of the status and privileges of permanent employees as provided in Item 6 of Schedule IV and the power of the Industrial and Labour Courts under Section 30 of the Act did not fall for adjudication or consideration before the Constitution Bench. 36. 36. Umadevi 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 practise on the part of the employer under Item 6 of Schedule IV where the posts on which they have been working exist. Umadevi 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 practise on the part of the employer under Item 6 of Schedule IV is established." (emphasis in original) 31. The Court also accepted the legal proposition that Courts cannot direct creation of posts, as held in Mahatma Phule Agricultural University v. Nasik Zilla Sheth Kamgar Union, (2001) 7 SCC 346 . Referring to this judgment, the Court made it clear that inaction on the part of the State Government to create posts would not mean an unfair labour practise had been committed by the employer (University in that case) and as there were no posts, the direction of the High Court to accord the status of permanency was set aside. The Court also noticed that this legal position had been affirmed in State of Maharashtra v. R.S. Bhonde, (2005) 6 SCC 751 . The Court also reiterated that creation and abolition of post and regularization are purely Executive functions, as held in number of judgments and it was not for the Court to arrogate the power of the Executive or the Legislature by directing creation of post and absorbing the workers or continue them in service or pay salary of regular employees. This legal position is summed up in para 41 which reads as under: (Maharashtra SRTC case, SCC p.576) "41. Thus, there is no doubt that creation of posts is not within the domain of judicial functions which obviously pertains to the executive. It is also true that the status of permanency cannot be granted by the Court where no such posts exist and that executive functions and powers with regard to the creation of posts cannot be arrogated by the courts." 32. However, the Court found that factual position was different in the case before it. Here the post of cleaners in the establishment were in existence. However, the Court found that factual position was different in the case before it. Here the post of cleaners in the establishment were in existence. Further, there was a finding of fact recorded that the Corporation had indulged in unfair labour practise by engaging these workers on temporary/causal/daily wage basis and paying them paltry amount even when they were discharging duties of eight hours a day and performing the same duties as that of regular employees. 33. In this backdrop, the Court was of the opinion that direction of the Industrial Court to accord permanency to these employees against the posts which were available, was clearly permissible and with the powers, statutorily conferred upon the Industrial/Labour Courts under Section 30(1)(b) of the said Act which enables the Industrial adjudicator to take affirmative action against the erring employees and as those powers are of wide amplitude abrogating within its fold a direction to accord permanency. 34. A close scrutiny of the two cases, thus, would reveal that the law laid down in those cases is not contradictory to each other. In U.P. Power Corporation, this Court has recognised the powers of the Labour Court and at the same time emphasized that the Labour Court is to keep in mind that there should not be any direction of regularization if this offends the provisions of Article 14 of the Constitution, on which judgment in Umadevi is primarily founded. On the other hand, in Bhonde case, the Court has recognised the principle that having regard to statutory powers conferred upon the Labour Court/Industrial Court to grant certain reliefs to the workmen, which includes the relief of giving the status of permanency to the contract employees, such statutory power does not get denuded by the judgment in Umadevi's case. It is clear from the reading of this judgment that such a power is to be exercised when the employer has indulged in unfair labour practise by not filling up the permanent post even when available and continuing to workers on temporary/daily wage basis and taking the same work from them and making them some purpose which were performed by the regular workers but paying them much less wages. It is only when a particular practise is found to be unfair labour practise as enumerated in Schedule IV of MRTP and PULP Act and it necessitates giving direction under Section 30 of the said Act, that the Court would give such a direction. 35. We are conscious of the fact that the aforesaid judgment is rendered under MRTP and PULP Act and the specific provisions of that Act were considered to ascertain the powers conferred upon the Industrial Tribunal/Labour Court by the said Act. At the same time, it also hardly needs to be emphasized the powers of the industrial adjudicator under the Industrial Disputes Act are equally wide. The Act deals with industrial disputes, provides for conciliation, adjudication and settlements, and regulates the rights of the parties and the enforcement of the awards and settlements. Thus, by empowering the adjudicator authorities under the Act, to give reliefs such as a reinstatement of wrongfully dismissed or discharged workmen, which may not be permissible in common law or justified under the terms of the contract between the employer and such workmen, the legislature has attempted to frustrate the unfair labour practices and secure the policy of collective bargaining as a road to industrial peace. 36. In the language of Krishna Iyer, J: "22. The Industrial Disputes Act is a benign measure, which seeks to preempt industrial tensions, provide for the mechanics of dispute-resolutions and set up the necessary infrastructure, so that the energies of the partners in production may not be dissipated in counter-productive battles and the assurance of industrial justice may create a climate of goodwill." (Life Insurance Corpn. of India v. D.J. Bahadur 1980 Lab IC 1218, 1226 (SC), per Krishna Iyer, J.). In order to achieve the aforesaid objectives, the Labour Courts/Industrial Tribunals are given wide powers not only to enforce the rights but even to create new rights, with the underlying objective to achieve social justice. Way back in the year 1950 i.e. immediately after the enactment of Industrial Disputes Act, in one of its first and celebrated judgment in the case of Bharat Bank Ltd. v. Employees of Bharat Bank Ltd. (1950) LLJ 921, 948-49 (SC) this aspect was highlighted by the Court observing as under: (Bharat Bank case, AIR p.209, para 61) "61. Way back in the year 1950 i.e. immediately after the enactment of Industrial Disputes Act, in one of its first and celebrated judgment in the case of Bharat Bank Ltd. v. Employees of Bharat Bank Ltd. (1950) LLJ 921, 948-49 (SC) this aspect was highlighted by the Court observing as under: (Bharat Bank case, AIR p.209, para 61) "61. In settling the disputes between the employers and the workmen, the function of the tribunal is not confined to administration of justice in accordance with law. It can confer rights and privileges on either party which it considers reasonable and proper, though they may not be within the terms of any existing agreement. It has not merely to interpret or give effect to the contractual rights and obligations of the parties. It can create new rights and obligations between them which it considers essential for keeping industrial peace." 37. At the same time, the aforesaid sweeping power conferred upon the Tribunal is not unbridled and is circumscribed by this Court in the case of New Maneckchowk Spinning & Weaving Co. Ltd. v. Textile Labour Association (1961) 1 LLJ 521 , 526 (SC) in the following words: (AIR p.870, para 6) "6. ..... This, however, does not mean that an industrial court can do anything and everything when dealing with an industrial dispute. This power is conditioned by the subject matter with which it is dealing and also by the existing industrial law and it would not be open to it while dealing with a particular matter before it to overlook the industrial law relating to the matter as laid down by the legislature or by this Court." 38. It is, thus, this fine balancing which is required to be achieved while adjudicating a particular dispute, keeping in mind that the industrial disputes are settled by industrial adjudication on principle of fair play and justice. 39. On harmonious reading of the two judgments discussed in detail above, we are of the opinion that when there are posts available, in the absence of any unfair labour practise the Labour Court would not give direction for regularization only because a worker has continued as daily wage worker/adhoc/temporary worker for number of years. Further, if there are no posts available, such a direction for regularization would be impermissible. Further, if there are no posts available, such a direction for regularization would be impermissible. In the aforesaid circumstances giving of direction to regularize such a person, only on the basis of number of years put in by such a worker as daily wager etc. may amount to backdoor entry into the service which is an anathema to Article 14 of the Constitution. Further, such a direction would not be given when the concerned worker does not meet the eligibility requirement of the post in question as per the Recruitment Rules. However, wherever it is found that similarly situated workmen are regularized by the employer itself under some scheme or otherwise and the workmen in question who have approached Industrial/Labour Court are at par with them, direction of regularization in such cases may be legally justified, otherwise, non-regularization of the left over workers itself would amount to invidious discrimination qua them in such cases and would be violative of Article 14 of the Constitution. Thus, the Industrial adjudicator would be achieving the equality by upholding Article 14, rather than violating this constitutional provision. 40. The aforesaid examples are only illustrated. It would depend on the facts of each case as to whether order of regularization is necessitated to advance justice or it has to be denied if giving of such a direction infringes upon the employer's rights." 17. Learned counsel for the petitioner U.P.S.R.T.C. has also relied upon the decision of this Court reported in 2011 (5) ALJ 249 (State of U.P. And another v. Hind Majdoor Sabha and others), and also decision of the Apex Court reported in 2013 (2) SCC 751 (Raj Kumar v. Jalagaon Municipal Corporation), 2010 (6) SCC 773 (Senior Superintendent Telegraph (Traffic), Bhopal v. Santosh Kumar Seal and others), 2005 (107) FLR 122 (M/s Kesarwani Zarda Bhandar v. Additional Labour Commissioner, Allahabad and others), and AIR 2006 SC 2427 (Haryana State Electronics Development Corporation Ltd. v. Mamni). 18. Having considered the aforesaid submission, this Court finds that law for guidance of the courts with regard to grant of relief, in such circumstances, has been clearly laid down by the Apex Court. Relief of reinstatement and back wages, in a case of violation of Section 6-N or Section 25-F, is the normal rule. Industrial jurisprudence and service jurisprudence operated in distinct fields. Relief of reinstatement and back wages, in a case of violation of Section 6-N or Section 25-F, is the normal rule. Industrial jurisprudence and service jurisprudence operated in distinct fields. However, after the exhaustive definition assigned to industry in Banglore Water Supply case, this distinction has got blurred. Many of governmental activities upon which provisions of Articles 14 and 16 apply have come within the definition of industry. Applicability of constitutional provisions, which regulates governmental activity, cannot be excluded from consideration merely because it is an industry. In view of the law laid down by the Apex Court in Hari Nandan Prasad (supra), considerations like existence of post, manner of recruitment, length of working, entitlement of regularization in case of daily wager etc. are relevant in case of a State instrumentality notwithstanding it being an industry. Grant of relief of reinstatement to a daily wager is not automatic, when no post itself is available. The nature of engagement is relevant, inasmuch as if it is found that initial engagement was contrary to Article 16 of the Constitution of India, the Court may not be justified in granting relief of reinstatement, as it may not subserve the larger cause sought to be addressed by Article 16 of the Constitution of India. Although, as a result of noncompliance of Section 6-N, workman is entitled to be reinstated, but in the absence of existence of any vacant post of pump operator, it would not be possible to award relief of reinstatement against a non-existent post. This is particularly so as the employer herein is a State Authority and in the matter of recruitment thereunder is governed by the statutory service regulations, and dictum of Articles 14 and 16 would clearly be attracted. 19. Even otherwise, reinstatement is permissible on the same status as was held by the workman at the time of his termination. The Labour Court has held that workman was engaged on daily wage basis, and his reinstatement would have to be as a daily wage earner. The workman's plea of regularization has not been granted. No such relief can otherwise be granted in the matter of employment by State/Agency of State, against a non-existent post without following the procedure for recruitment. In the facts of the present case, engagement of respondent was apparently a back-door entry, courtesy the then Executive Engineer, without any advertisement or existence of post. No such relief can otherwise be granted in the matter of employment by State/Agency of State, against a non-existent post without following the procedure for recruitment. In the facts of the present case, engagement of respondent was apparently a back-door entry, courtesy the then Executive Engineer, without any advertisement or existence of post. Despite a specific plea taken in the written statement, the workman has not adduced any evidence to show that he was appointed against a vacant post, after procedure was followed. Relief of non-compliance of the provisions of Section 6-N of the U.P. Industrial Disputes Act can not be granted, which has the effect of violating mandate laid under Articles 14 and 16 of the Constitution of India. Consequence flowing from the non-compliance of Section 6-N, therefore, has to be restricted in a manner such that constitutional protection guaranteed under Article 14 and 16 of the Constitution of India itself is not violated. 20. Labour Court has not found the case of workman to be covered under the Rules for regularization. Regularization can otherwise be granted only in accordance with the Rules framed for the purpose (See: Secretary, State of Karnataka v. Uma Devi & Ors. (2006) 4 SCC 1 ). In case reinstatement is allowed as a daily wager, the continuance of worker would be dependent upon exigency of work, and it would be open for the employer to terminate the employee upon payment of retrenchment compensation. The judgment relied upon on behalf of the respondents in State of U.P. v. Charan Singh, reported in 2015 (8) SCC 150 also will have no applicability, inasmuch as the Labour Court in the said case had returned a finding on the basis of evidence that work of tube-well operator were taken over by other workman, some of whom were junior. Finding was returned that post of tube-well operator was not abolished, but was merely changed. The judgment in Bhuvnesh Kumar Dwivedi (supra) since related to a private company, as such, considerations mandated by Articles 14 and 16 of the Constitution of India did not arise for consideration. 21. In the opinion of the Court, it was not proper for the Labour Court to have allowed relief of reinstatement when there existed no post and procedure for appointment was not followed. 21. In the opinion of the Court, it was not proper for the Labour Court to have allowed relief of reinstatement when there existed no post and procedure for appointment was not followed. On this aspect, award suffers from a serious error of law, which is liable to be corrected by this Court, exercising its jurisdiction under Article 226 of the Constitution of India. In such circumstances, workman was at best entitled to a definite sum towards compensation instead of relief of reinstatement. 22. Considering the facts and circumstances, writ petition is disposed of, accordingly. 23. However, in view of the facts narrated above, it is provided that no further amount is held payable under the award to the workmen, nor any recovery is to be made by the employer from the workman concerned. 24. Parties shall bear their own cost.