HINDUSTAN PETROLEUM CORPN. LTD.versusASHOK RANGHBA AMBRE

                         [2008] 1 S.C.R. 688


A           HINDUSTAN PETROLEUM CORPN. LTD.                          ~
                                  v.
                   ASHOK RANGHBA AMBRE
                     (C.A. No. 391 of 2008)
                        JANUARY 15, 2008
B
           [C.K. THAKKER AND J.M. PANCHAL, JJ.]
                                                                     •    ,
        Labour Laws:
        Industrial Disputes Act, 1947 - Appointment of workman
c to the post of compounder/dresser on casual basis -
  Termination - Re-instatement of workman holding termination
  illegal and order attaining finality - Claim of permanent status
  to the post and benefits accruing therefrom - Entitlement of -
  Held: Not entitled as re-instatement of workman in earlier
D proceedings cannot be equated with confirmation, and status
  of permanency cannot be granted - Two things are distinct,
  different and operate in different areas - Thus, order of High
  Court that employee entitled to permanent status and all
  benefits accruing therefrom set aside - However, his case for
E permanency to be considered sympathetically since he is
  working for two decades.
       The Appellant-Corporation appointed the respondent
  on casual basis as compounder/dresser in 1984. The
  respondent filed a writ petition seeking permanent status
F to the post of compounder/dresser and all benefits flowing
  therefrom with effect from 6.6.1987. However, from 1996
  onwards, the Corporation stopped engaging the
  respondent since he was not appointed in accordance
  with the recruitment procedure and also was not qualified.
G Respondent raised an industrial dispute. The tribunal
  passed an award of re-instatement of workman with back
  wages. It held that the workman though appointed as a
                                                                         '.
  daily wager, but had worked for more than 240 days in a
  calendar year just preceding his termination which
H                             688
                            HINDUSTAN PETROLEUM CORPN. LTD. v.               689
                                  ASHOK RANGHBAAMBRE
          ...          amounted to retrenchment within the meaning of s. 25 of A
                       the Industrial Disputes Act, 1947 and as such was entitled
                       to re-instatement. Both the Single Judge as also Division
                       Bench of the High Court upheld the award. The award
                       attained finality. In the writ petition, the High Court held
                       that the respondent was entitled to the status of 8
                       permanent employee of the Corporation and all the
    ~          ~       benefits accruing on that basis with effect from the date
                       of filing of writ petition. Hence the present appeal.
                            Appellant-Corporation contended that the High Court
                       could not have directed the Corporation to make the c
                       respondent permanent and grant benefit on that basis
                       from the date of filing writ petition; that the respondent
                       was never appointed in accordance with the recruitment
                       procedure on regular basis, nor was he qualified to be
                       appointed as Compounder-cum-Dresser, and as such the D
              .~
                       appellant-Corporation stopped engaging him; and that
                       the order of re-instatement became final and to that extent,
                       the Corporation could not make any grievance.
                            Respondent-workmalJ contended that when the
                       action of termination of services of the workman was held E
                       to be bad and in the Reference, Award was passed in
                       favour of the workman granting reinstatement and full
                       back wages, the order by the High Court granting
                       permanent status and benefits thereto could not be
                   j
                       objected; that the High Court did not commit any illegality F
~
                       or impropriety requiring interference by this Court under
                       Article 136 of the Constitution; that it was a consequential
                       action based on earlier award; that the scope of Reference
                       was limited to termination of services of the workman,
                       therefore, the High Court considered the facts and G
        ,..    "       circumstances and rightly granted relief in favour of
                       respondent; and that the petitioner could not be said to
                       be 'not qualified' to be appointed as Compounder/
                       Dresser.
                                                                                    H
    690       SUPREME COURT REPORTS               [2008) 1 S.C.R.


A         Allowing the appeal, the Court
                                                                    ...
       HELD: 1.1 The question with regard to the
  termination of services of the workman was decided in
  his favour in earlier proceedings which had become final
  and it is not open to the Corporation to argue that point.
B The Corporation rightly stated that the order holding
  termination of services of the workman being illegal and
  contrary to law had reached finality. The workman was
                                                                    I       .
  reinstated and was also granted all benefits to which he
  was held entitled in those proceedings. But, it has come
c on record that at the time when the services of the
  workman were terminated in 1996, a writ petition filed by
  the workman in the year 1992 for the status of permanency
  and all benefits flowing therefrom was pending in the High
  Court. [Para 10] [695-F-H; 696-A]
D
          1.2 Appellant-Corporation was right in su~mitting that
    setting aside an action of termination of services being
    violative of section 25F of the Industrial Disputes Act, 1947
    does not necessarily follow that the workman must be                        .
    held entitled to the benefit of status of permanency and
E   claim of regular pay scales and other benefits based on
    permanency. Two things are distinct, different and operate
    in different areas. In Reference proceedings, the question
    before the Industrial Tribunal as also before the High Court
    was whether termination of services of the workman was
F   in consonance with law. Once it was held that there was
    breach of section 25F of the Act, it necessarily followed
    that the order of termination was in violation of law and
    direction was required to be issued in the form of
    reinstatement of the workman. Therefore, the said order
G   was confirmed by the High Court. But in the proceedings
    before the High Court under Article 226 of the Constitution         t   ~



    as to permanency and other benefits on that basis, the
    writ petitioner could not contend that since the action of
    termination of his services was held to be illegal and he
H   was ordered to be reinstated by Industrial Tribunal and
              HINDUSTAN PETROLEUM CORPN. LTD. v.                691
                    ASHOK RANGHBAAMBRE

         the said Award was confirmed by the High Court, ipso A
         facto, he ought to be treated as permanent employee of
       , the Corporation and must be held entitled to the benefits
         claimed in the writ petition. Therefore, to that extent, the
         order passed by the High Court is not in consonance with
         law. [Para 11) [696-8-F]                                     B
             1.3 The High Court was in clear error in equating
        reinstatement of employee in service in earlier


r       proceedings with confirmation and granting status of
        permanency. Continuation in or regularization of service
        of an employee and extending the benefit of confirmation C
        or making him permanent are two different concepts.
        [Para 16) [697-G-H]
             1.4 In the instant case, according to the appellant-
        Corporation, the workman was appointed on a purely ad D
        hoc and temporary basis, without following due process
        of law. Cases of other similarly situated persons were not
        considered and the appointment was not legal and lawful.
        In industrial adjudication, an order of termination was
        quashed as it was not in accordance with law. But that
        did not mean that the workman had substantive right to E
        hold the post. Therefore, the High Court was wrong in
        directing the Corporation to make the writ petitioner
        permanent and to extend him all benefits on that basis
        from 1992 and the said direction, therefore, is not
        sustainable. [Para 18) [698-E-G]                           F
            1.5 The writ petitioner is working with the appellant-
        Corporation since 1984 and by now, he has completed
        more than two decades, and as such his case for
        P.ermanency be considered by the Corporation G
        sympathetically. Necessary directions issued and
~·"'    observations made. [Para 20) [699-8)
              State of Mysore and Anr v. S. V Narayanappa, 1967 (1)
        SCR 128; B.N. Nagarajan and Ors. v. State of Karnataka and
        Ors., 1979 (4) SCC 507 - referred to.                       H
    692      SUPREME COURT REPORTS                   [2008) 1 S.C.R.


A        CIVILAPPELLATE JURISDICTION: Civil Appeal No. 391              ~
    of 2008.
         From the final Judgment and Order dated 28.1.2005 of
    the High Court of Judicature at Bombay in Writ Petition No. 661
    of 1992.
B
         Mukul Rohtagi, Sanjay Kapur, Shubra Kapur, Rajiv Kapur
    and Arti Singh for the Appellant.

          K. Sarada Devi for the Respondent.

c         C.K. THAKKER, J. 1. Leave granted.

        2. The present appeal is filed by the Hindustan Petroleum
  Corporation ltd. ('Corporation' for short) against judgment and
  final order dated January 28, 2005 in Writ Petition No. 661 of
  1992 by the High Court of Judicature at Bombay. By the
D impugned order, the High Court allowed the writ petition filed by
  the respondent-writ petitioner and ruled that he was entitled to
  the status of permanent employee of the Corporation with effect
  from the date of filing of the petition i.e. March 16, 1992 and all
  the benefits accruing by virtue of such permanency.
E
        3. Short facts giving rise to the present appeal are that
  appellant-Corporation is a Government Company within the
  meaning of Section 617 of the Companies Act, 1956. It is the
  case of the Corporation that the writ petitioner was engaged by
  the Corporation in 1984 on casual basis as an 'unskilled
F workman' at its refinery at Bombay. The writ petitioner filed \Nrit
  Petition No. 661 of 1992 in the High Court by invoking Article
  226 of the Constitution, inter alia, praying that he be declared
  as permanent workman on the post of Compounder/Dresser
  with effect from June 6, 1987 in the Corporation. A prayer was
G also sought to direct the Corporation to extend to the writ
  petitioner all benefits accrued in his favour by virtue of his
                                                                            1~
  permanency with 18% interest. It appears from the record,
  however, that since the writ petitioner was engaged purely on
  ad hoc and temporary basis without following proper procedure
H of law and without there being any right in his favour, the
     HINDUSTAN PETROLEUM CORPN. LTD. v.                       693
    ASHOK RANGHBA AMBRE [C.K. THAKKER, J.)

Corporation stopped engaging him from June, 1996. Being A
aggrieved by the said action, the workman raised an industrial
dispute. Failure report was submitted by the Conciliation Officer
and the Central Government, in exercise of power under Section
1O(d) read with Section 10(2A) of the Industrial Disputes Act,
1947 (hereinafter referred to as 'the Act') referred the dispute B
for adjudication to the Central Government Industrial Tribunal,
Mumbai.

      4. The Tribunal vide Award dated April 10, 2003, allowed
the Reference. It was held that the workman was not a regularly
appointed Compounder/Dresser but was a daily wage C
employee. But as he had worked for more than 240 days in the
calendar year just preceding the date of his oral termination,
the action amounted to 'retrenchment' within the meaning of
Section 25F of the Act and he was entitled to reinstatement
with back wages. The Tribunal, however, made it clear that it D
was not considering the question of regularization of services
of the workman because of two reasons; (i) the Reference did
not cover the question of regularization; and (ii) the workman
had already filed a writ petition for the relief of regularization
which was pending in the High Court. The Award passed by the E
Industrial Tribunal was challenged by the Corporation in the High
Court. A Single Judge of the High Court as well as a Division
Bench confirmed the said Award. The matter came to an end
there and the award attained finality.
      5. The writ petition which was instituted by the writ F
petitioner-workman then came up for hearing before the Division
Bench of the High Court and as stated above, the High Court
allowed the petition by making rule .absolute and by directing
the appellant-Corporation to make the writ petitioner permanent
and to grant benefits with effect from the date of filing of the writ G
petition. The aforesaid order and directions issued in the writ
petition by the High Court are challenged by the Corporation in
the present appeal.
     6. Notice was issued on May 11, 2005 and affidavit in reply
                                                                     l:i
    694       SUPREME COURT REPORTS                   [2008] 1 S. C.R.


A   and rejoinder were filed thereafter. The Registry was then
    directed to place the matter for final hearing and that is how the
    matter has been placed before us.

          7. We have heard learned counsel for the parties.

B        8. The learned counsel for the appellant-Corporation
  submitted that the High Court was in grave error in directing the
  appellant-Corporation to make the writ petitioner permanent by
  granting all benefits with effect from 1992. It was submitted that
                                                                               •
                                                                           '
  the writ petitioner was never appointed in accordance with the
c recruitment procedure on regular basis. Nor he was qualified to
  be appointed as Compounder-cum-Dresser. No doubt, when
  the Corporation stopped engaging the workman in 1996, he
  raised an industrial dispute and in a Reference, Industrial
  Tribunal passed an Award of reinstatement in favour of the
  employee which was confirmed by the High Court. To that extent,
D
  therefore, the Corporation cannot make any grievance as the
  order has become final. The workman was accordingly
  reinstated and was also paid back wages as per the directions
  in the Award. The counsel, however, submitted that the limited
  grievance of the appellant-Corporation is that the High Court, in
E
  exercise of power under Article 226 of the Constitution, could
  not have directed the Corporation to make the writ petitioner
  permanent and grant benefit on that basis from 1992. When
  initial appointment of the workman was illegal and he was not
  having requisite qualifications, it was not open to the High Court
F to grant relief which was claimed by the writ petitioner under
  Article 226 of the Constitution and the appeal deserves to be
  allowed.
        9. The learned counsel for the respondent-workman, on
  the other hand, supported the order passed by the High Court.
G
  He submitted that when the action of termination of services of                  ~


  the workman was held to be bad and the Reference was allowed           1 . . ;!-
  and Award was passed in favour of the workman granting
  reinstatement and full back wages, the order passed by the High
  Court in the writ petition could not be objected. It is a
H
              HINDUSTAN PETROLEUM CORPN. LTD. v.                         695
             ASHOK RANGHBA AMBRE [C.K. THAKKER, J.]
     ~   consequential action based on earlier award. Even otherwise, A
         the workman was entitled to all the benefits including
         permanency and payment of wages and other reliefs. It was
         made explicitly clear in the Award passed by the Industrial
         Tribunal that the relief of permanency was not considered in
         view of the fact that a petition instituted by the workman was B
         pending in the High Court and ambit and scope of Reference
~        was limited to termination of services of the workman. The High
         Court, therefore, considered the facts and circumstances and
         rightly granted relief in favour of the writ petitioner. It was also
         submitted that the petitioner could not be said to be 'not qualified' c
         to be appointed as Compounder/ Dresser. He was appointed
         as early as in 1984. Even prior to first termination, he had
         completed services of more than a decade. He had also passed
         S.S.C. examination as early as in 1969. He had obtained
         Nursing Certificate from St. John Ambulance Association of India.
                                                                                D
         He had cleared First Aid Examination and was having
    1-   experienc~ of more than two decades. If, in the light of all these
         facts, the High Court granted relief in favour of the writ petitioner,
         it cannot be said that by doing so, the High Court had committed
         any illegality or impropriety and the said order requires
         interference in exercise of discretionary jurisdiction of this Court E
         under Article 136 of the Constitution.
               10. Having heard learned counsel for the parties, in our
         opinion, the appeal deserves to be allowed. So far as termination
    ..   of services of the workman is concerned, the question was F
         decided in his favour in earlier proceedings which had become
         final and it is not open to the Corporation to argue that point. It
         has rightly been stated on behalf of the Corporation that the
         order holding termination of services of the workman being illegal
         and contrary to law had reached finality. An Award passed by
                                                                             G
         the Industrial Tribunal was confirmed by a Single Judge as well
~\
         as Division Bench of the High Court. The workman was
         reinstated and was also granted all benefits to which he was
         held entitled in those proceedings. But, it has come on record
         that at the time when the services of the workman were
                                                                               H
    696       SUPREME COURT REPORTS                      [2008] 1 S.C.R.


A   terminated in 1996, a writ petition filed by the workman was             ~
    pending in the High Court. In the year 1992, the workman had
    approached the High Court for the status of permanency and all
    benefits flowing therefrom.

           11. To us, however, the learned counsel for the appellant-
s   Corporation is right in submitting that setting aside an action of
    termination of services being .violative of Section 25F of the Act
    does not necessarily follow that the workman must be held                     •
    entitled to the benefits claimed by him in the writ petition, namely,
    status of permanency and claim of regular pay scales and other
C   benefits based on permanency. In our judgment, two things are
    distinct, different and operate in different areas. In Reference
    proceedings, the question before the Industrial Tribunal as also
    before the High Court was whether termination of services of
    the workman was in consonance with law. Once it was held that
D   there was breach of Section 25F of the Act, it necessarily
    followed that the order of termination was in violation of law and
    direction was required to be issued in the form of reinstatement
    of the workman. The said order was, therefore, confirmed by
    the High Court. But in our considered opinion, in the proceedings
E   before the High Court under Article 226 of the Constitution as to
    permanency and other benefits on that basis, the writ petitioner
    could not contend that since the action of termination of his
    services was held to be illegal and he was ordered to be
    reinstated by Industrial Tribunal and the said Award was
F   confirmed by the High Court, ipso facto, he ought to be treated
    as permanent employee of the Corporation and must be held
    entitled to the benefits claimed in the writ petition. To that extent,
    therefore, the order passed by the High Court is not in
    consonance with law.
G       12. Both the parties in this connection referred to several
  judgments in support of their respective contentions. We do not                7 •
  wish to deal with all those judgments since, in our opinion, law
  is well settled on the point. But as already noted earlier, the High
  Court, not only continued the appointment of the writ petitioner
H but observed that once the appointment was made and the
              HINDUSTAN PETROLEUM CORPN. LTD. v.                        697
             ASHOK RANGHBA AMBRE [C.K. THAKKER, J.]

     '   workman was allowed to work for two decades, it would be hard         A
         and harsh to deny him the confirmation on the post.
              13. The High Court further stated "We, therefore, hold that
         the petitioner (workman-respondent herein) is entitled to the
         status of permanent employee of the Corporation and
                                                                               8
         accordingly we make the rule absolute in terms of prayer clause
         (a) with modification that the petitioner would be entitled to
·~       permanency with effect from the date of filing of the petition i.e.
         16.3.1992. Petition is accordingly disposed of'.

              14. Prayer (a) in the Writ Petition before the High Court        c
         reads thus:
              "(a) That this Hon'ble Court be pleased to declare the
              petitioner to be a permanent workman of the respondents
              in the post of Compounder/ Dresser w.e.f. 6.6.1987 and
              direct the respondents to pay the petitioner all the benefits D
              accruing by virtue of his permanency including fitment with
              annual increments in the appropriate grade with
              retrospective effect".
               15. The High Court observed that the writ petitioner was
         working as Compounder/Dresser right from 1984. It was not E
         disputed that there was requirement of Compounder/Dresser
         at the Refinery which was working all throughout seven days in
         a week. It also noted the observation of the Tribunal in earlier
         Award that if the policy decision was breached in the
         appointment of the workman, the appointment coul.d not be said F
         to be illegal or prohibited by law. Such appointment would be
         merely irregular but not illegal.
               16. In our opinion, the High Court was in clear error in
         equating reinstatement of employee in service in earlier G
         proceedings with confirmation and granting status of
         permanency. Continuation in or regularization of service of an
         employee and extending the benefit of confirmation or making
         him permanent are two different concepts. Before more than
         four decades, in State of Mysore & Anr. v. S. V Narayanappa, H
    698      SUPREME COURT REPORTS                  [2008] 1 S.C.R.


A (1967) 1 SCR 128, setting aside the order passed by the High
  Court of Mysore, this Court observed that the High Court             "
  erroneously proceeded on an assumption that 'regularisation'
  meant 'permanence'. The Court stated that regularization would
  not mean that the appointment would have to be considered as
B permanent.
        17. Again, in B.N. Nagarajan & Ors. v. State of Karnataka
  & Ors., (1979) 4 SCC 507, orders were passed by the State
                                                                          1
                                                                              •
  Government promoting certain officers as Assistant Engineers
  'on a regular basis'. It was argued that the regularization of the
c promotion gave it the colour of permanence and the
  appointments of the promotees as Assistant Engineers must,
  therefore, be deemed to have been made substantively. The
  Court held that the words 'regular' or 'regularisation' do not
  connote 'permanence'. They are terms calculated to condone
D any procedural irregularities and are meant to cure only such
  defects as are attributable to the methodology followed in
  making the appointments and cannot be construed so as to
  convey an idea of the nature of tenure of appointments.
         18. In the case on hand, according to the appellant-
E Corporation, the workman was appointed on a purely ad hoc
  and temporary basis, without following due process of law. His
  name was never sponsored by the Employment Exchange nor
  an advertisement was issued for the purpose of filling the post
  to which the writ petitioner was appointed. Cases of other
F similarly situated persons were not considered and the               ....
  appointment was not legal and lawful. In industrial adjudication,
  an order of termination was quashed as it was not in accordance
  with law. But that did not mean that the workman had substantive
  right to hold the post. The High Court was, therefore, wrong in
G directing the Corporation to make the writ petitioner permanent
  and to extend him all benefits on that basis from 1992. The said      ~«
  direction, therefore, has to go.
          19. For the foregoing reasons, the appeal is allowed by
    setting aside the direction issued by the High Court ordering
H
             HINDUSTAN PETROLEUM CORPN. LTD. v.                       699
            ASHOK RANGHBA AMBRE [C.K. THAKKER, J.]

     the appellant-Corporation to make the writ-petitioner (respondent A
     herein) permanent employee of the Corporation and to grant all
     benefits on that basis with effect from the date of filing of writ
     petition.
            ?O. We may, however, observe that since the writ petitioner
     is working with the appellant-Corporation since 1984 and by              8
     now, he has completed more than two decades, his case for
     permanency be considered by the Corporation sympathetically.
     If there is age bar in considering the case of the writ petitioner
     for permanent appointment, the appellant-Corporation will not
     treat the writ petitioner ineligible on that count in view of the fact   C
     that he is already in service of the Corporation since 1984. If
     there are statutory rules/administrative instructions/guidelines
     which require minimum educational qualification and/or
     experience, it is open to the Corporation to insist compliance
     with such rules/instructions/guidelines. But if there is power of        D
     relaxation with the Corporation or any of its Officers, the
     appellant-Corporation will consider that aspect as well keeping
     in view the fact that the writ petitioner was appointed in 1984,
     has completed service of more than twenty years and is having
     rich experience.                                                         E
          21. In the result, the appeal is allowed. The order passed
     and directions issued by the High Court are set aside but with
     the above observations. On the facts and in the circumstances,
     however, the parties shall bear their own costs.
                                                                              F
     N.J.                                               Appeal allowed.

I
J.