Holding

Section 28 does not preclude the Central Administrative Tribunal’s jurisdiction; an employee may elect the forum, and where termination is illegal the proper remedy is compensation, not automatic reinstatement with back wages, and the regularisation scheme is unconstitutional.

Summary

Keshab Deb was appointed as a casual daily‑wage driver in the Directorate of Telecommunications, Dimapur, and was terminated allegedly for misconduct after a brief imprisonment. He filed a writ petition alleging violation of Section 25‑F of the Industrial Disputes Act, 1947 and seeking regularisation under a casual‑labour scheme, also invoking Article 14 of the Constitution. The High Court transferred the petition to the Central Administrative Tribunal (CAT) under Section 14 of the Administrative Tribunals Act, 1985; the CAT held the termination illegal, ordered reinstatement with back wages and regularisation, and the High Court upheld that order. On appeal, the Supreme Court held that Section 28 of the Administrative Tribunals Act does not bar CAT’s jurisdiction and that an employee may elect the forum when both constitutional and statutory grounds are raised. While confirming the termination was illegal, the Court ruled that automatic reinstatement with full back wages was not warranted; the appropriate remedy was compensation under Section 25‑F, and the regularisation scheme was unconstitutional. Consequently, the Court awarded the respondent a compensation of Rs 1,50,000.

Issues considered

The effect of Section 28 of the Administrative Tribunals Act, 1985 on the jurisdiction of the Central Administrative Tribunal in a dispute arising under the Industrial Disputes Act, 1947.
Whether a casual labourer can elect to file a writ petition before a High Court or before the CAT when alleging violation of both constitutional rights and provisions of the Industrial Disputes Act.
The legality of the respondent’s termination in view of the procedural requirements of Section 25‑F of the Industrial Disputes Act.
The appropriate relief for an illegal termination – reinstatement with full back wages or compensation.
The eligibility of a casual employee for regularisation under the Casual Labour (Grant of Temporary Status in Regularisation) Scheme.

Legislation cited

Administrative Tribunals Act, 1985s. 14, s. 28
Industrial Disputes Act, 1947s. 25-F, s. 2(s)

Subjects

Industrial Disputes ActAdministrative Tribunals ActCasual labourTerminationCompensationReinstatementArticle 14Forum selectionRegularisation schemeFundamental rights

Judgment

[2008] 7 S.C.R. 835

THE TELEPHONE DISTRICT MANAGER & ORS. A
v.
KESHAB DEB
(Civil Appeal No. 3324 of 2008)
MAY 6, 2008
B
[S.B. SINHA AND V.S. SIRPURKAR, JJ.]

Industrial Disputes Act, 1947:

Casual labour - Termination - Right of election in the
matter of choice of forum -- Where an employee maintains a C
writ petition not only on the ground of violation of equality
clause enshrined under Art. 14 of the Constitution but also on
ground of violation of the provisions of Industrial Disputes Act,
1947, he has an option to choose his own forum- Constitution
of India, 1950 - Art. 14.
Termination of casual worker - Grant of compensation -
Tribunal as well as the High Court held that the termination al
Respondent-workman was illegal - Correctness of - Held: On
facts, correct - However, automatic direction for reinstatement
of Respondent with full back wages was not contemplated -
Even if provisions of s.25-F of the Industrial Disputes Act had
not been complied with, Respondent-workman was only
entitled to be paid a just compensation - In peculiar facts and
circumstances of the case, Respondent directed to be paid
compensation of Rs.1,50,0001-.
' .,
Administrative Tribunals Act, 1985 - s.28 - Held: Does
not bar the jurisdiction of the Central Administrative Tribunal
- It saves the jurisdiction of the Industrial Tribunal.
Respondent had been appointed as a casual labour
on daily wages. He was terminated from service pursuant
to an alleged misconduct on his part. He filed writ petition
before the High Court contending that his services were
terminated without meeting the statutory requirements as
835
836 SUPREME COURT REPORTS [2008] 7 S.C.R.
.... J
A contained in s.25-F of the Industrial Disputes Act, 1947.
He furthermore alleged arbitrariness on the part of the
appellants in passing the said order of termination and
prayed for regularization of his services in terms of a
scheme known as the Casual Labours (Grant of
B Temporary Status in Regularization) Scheme. A Single
Judge of the High Court transferred the petition to the
Central Administrative Tribunal, holding that in view of the
provision contained under s.14 of the Administrative
Tribunals Act, 1985 the writ petition was not maintainable.
C Before the Administrat;ve Tribunal, the appellants in their
written statement inter alia raised a contention that the
respondent being a casual employee was not entitled to
the benefit of the saiC: Scheme. It was furthermore stated
that the Respondent's attitude, behaviour and conduct
as a casual labour was not at all satisfactory. The
D Administrative Tribunal, however held that the order of
termination passed by the appellant was illegal. Direction
was accordingly given for re-instatement of Respondent
with back wages along with all the service benefits
including the benefit of regularization of service. The
E judgment passed by the Tribunal was upheld by the High
Court by reason of the impugned judgment.
In appeal to this Court, it was contended on behalf
of the appellants that the claim of Respondent being
based on the provisions of the Industrial Disputes Act,
F the Administrative Tribunal had no jurisdiction to entertain
the matter; that Respondent having not claimed any back
wages in the writ petition, he was not entitled thereto; that
he having been appointed only as casual labour on a daily
rated basis, the scheme for regularization was not
G applicable; that he having no right to continue in the
service, the impugned judgment is wholly erroneous and
the High Court committed a serious error in upholding
the order of the Administrative Tribunal and further that
having regard to s.28 of the Administrative Tribunals Act,
H 1985 the only remedy of the respondent was to file an
THE TELEPHONE DISTRICT MANAGER & ORS. v. 837
KESHAB DEB
I A

'
appropriate application before an Industrial Court. A
Respondent, on the other hand, submitted that the
Appellants themselves having contended that the Central
Administrative Tribunal had the requisite jurisdiction,
cannot now turn around and contend that it did not have
any jurisdiction; that Respondent being a government 8
servant, the Central Administrative Tribunal in terms of
.s.14 of the Administrative Tribunals Act, 1985 had the
requisite jurisdiction to entertain the application and that
the order of termination having been issued arbitrarily, the
impugned judgment is unassailable. C
Disposing of the appeal, the Court
HELD:1.1. 5.28 of the Administrative Tribunals Act,
1985 is of no consequence in the present case. In a case
of the present nature where inter alia an employee D
maintains a writ petition not only on the ground of violation
of equality clause enshrined under Article 14 of the
Constitution but also on the ground of violation of the
provisions of the Industrial Disputes Act, 1947, he has an
option to choose his own forum. 5.28 does not bar the E
jurisdiction of the Central Administrative Tribunal. It saves
the jurisdiction of the Industrial Tribunal. An employee who
claims himself to be a workman, therefore, will have a right
of election in the matter of choice of forum. It is, therefore,
not correct to contend that the Central Administrative F
Tribunal had no jurisdiction to pass the impugned
judgment. Furthermore the respondent claimed
regularization in services. Such an application was
maintainable. As to whether he would be entitled to such
a relief or not, however, is a different question. The Tribunal G
indisputably was entitled to exercise its jurisdiction for
.. enforcement of a fundamental right. [Paras 14, 15]
[848-B-D]
1.2. The Tribunal and consequently the .High Court
were correct that the termination of the services of the H

1'
!Vi

838 SUPREME COURT REPORTS [2008] 7 S.C.R.

"' j
A respondent was illegal. He, according to the appellants,
committed a misconduct. His services had been
•
i
terminated on that ground. But therefor he was entitled r-
to an opportunity of being heard. A regular departmental
proceedings should have been initiated against him; the
B order of termination being stigmatic in nature. While,
however, granting a relief, the superior courts should take .... '
into consideration the factors relevant therefor, which in
the instant case are :-a) recruitment of the respondent was
ex-facie illegal as prior thereto neither any advertisement
c was issued nor the employment exchange was notified
in regard to the vacancy; b) it does not appear that the
respondent had even got himself registered with the Local
Employment Exchange and c) he being a daily rated
casual employee did not have any right to continue in
service. [Paras 17, 18) [848-G-H and 849-A-C]
D
1.3. Even in a case where an order of termination is
..... .
illegal, an automatic direction for reinstatement with full
,f'
back wages is not contemplated. Respondent was at best
entitled to one month's pay in lieu of one month's notice ~:
\
E and wages of 15 days of each completed years of service i

as envisaged under s.25-F of the Industrial Disputes Act.
He could not have been directed to be regularized in
service or granted a temporary status. Such a scheme
has been held to be unconstitutional by this Court.
F Therefore grant of compensation instead of a direction of
reinstatement with back wages would meet the ends of ~·
justice. [Paras 19, 20) [849-D-F]
~
1.4. Even if the provisions of s.25-F of the Industrial Ji
Disputes Act had not been complied with, Respondent
G was only entitled to be paid a just compensation. While, !'j
F

however, determining the amount of compensation on~
must also take into consideration the stand taken by the ' -
~
appellants. They took not only an unreasonable stand but
raised a contention in regard to absence of jurisdiction in
H the Tribunal. They admittedly did not comply with the order
THE TELEPHONE DISTRICT MANAGER & ORS. v. 839
KESHAB DEB [S.B. SINHA, J.]
l ~

passed by the Tribunal for a long time and had raised A
contention which are not otherwise tenable. Therefore,
in the peculiar facts and circumstances of the case,
interest of justice shall be subserved if respondent is
directed to be paid a compensation of Rs.1,50,0001-
(Rupees one lakh fifty thousand only). [Paras 23, 24] B
IA [851-C-E]
A. Umarani vs. Registrar, Cooperative Societies and
others, (2004) 7 SCC 112 and Secretary, State of Karnataka
and Ors. vs. Umadevi and Ors. (2006) 4 sec 1- relied on.
c
Shankar Dass vs. Union of India and another, (1985) 2
SC 358; Atyant Pichhara Barg Chhatra Sangh and another
vs. Jharkhand State Vaishya Federation and others, 2006 (6)
SCC718; Indra Sawhney vs.Union of India, 1992 Supp (3)
SCC 217 and Ajoy Kumar Banerjee vs. Union of India, (1984)
D
~ .... 3 sec 127 - referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3324
of 2008
From the final Judgment and Order dated 21.8.2003 of
the Gauhati High Court in Writ Petition (c) No. 8321 of 2002 E

N.M. Sharma, Shweta Gupta and Anil Kumar Tandale for
the Appellants.
K. Sarada Devi for the Respondent.
F
t ~ The Judgment of the Court was delivered by
S.B. SINHA, J. Leave granted.
1. Respondent is a driver. He sought for his recruitment in
the Directorate of Telecommunications, Dimapur. He filed an G
application therefor on 30th January, 1984. Appellant herein in
response thereto by its letter dated 30th January, 1984 stated :-
..(
" With reference to your application dated 30.1.984, it is
to intimate you that recruitment of Driver etc. is banned at
present. Your case will be considered after the b~n on H
840 SUPREME COURT REPORTS [2008) 7 S.C.R.

j... )
A recruitment is lifted.
Moreover you are directed to submit the employment
exchange particulars, age, certificate etc. for consideration
in due course of time."

B 2. Respondent, however, was appointed as a casual
labour on daily wages. It was said to be on a need based one. .... .
He purported to have worked in that capacity from 11th March,
1989.
•
3. Respondent, however, was arrested by the police
c authorities in a case arising out of sub-section (6) of Section 34
of the Police Act. In connection therewith he had to undergo
simple imprisonment for 8 days. He was also sentenced to pay
fine of Rs.30/-.
He was not allowed to join back his duties.
D
He filed a writ petition before the Guwahati High Court,
paragraph 7 whereof reads as under :-
...
"7. That the Petitioner respectfully states that in view of
this he was a workman as defined under Section 2(s) of
E the Industrial Disputes Act, 1947. He was not holding any
civil post nor belonging to any civil service and therefore
his case does not fall within the jurisdiction of the Central
Administrative Tribunal although he served under the
Government of India."
F
4. He inter alia raised a contention that his services were
~·
terminated without meeting the statutory requirements as
contained in Section 25-F of the Industrial Disputes Act, 1947.
Furthermore he prayed for regularization of his services
G purported to be in terms of a scheme known as "Casual Labours
(Grant of Temporary Status in Regularization) Scheme".
The prayer in his writ petition was as under:-
,.. ' '
"In the premises aforesaid, the Petitioner respectfully prays t
that your Lordships may graciously be pleased to call for
H
THE TELEPHONE DISTRICT MANAGER & ORS. v. 841
KESHAB DEB (S.B. SINHA, J.]
l _..
the records and issue Rule calling upon the Respondents A
to show cause as to why an appropriate Writ and or
Direction shall not be issued declaring and adjudging the
impugned action of termination of services of the Petitioner
. by the Respondents No. 2 and 3 as illegal, unconstitutional,

. ...._
null and void and/or why a Writ in the nature of Certiorari
and/or Mandamus and/or any other appropriate Writ shall
B

not be issued setting aside the impugned actions of
Respondents and directing and commanding the
Respondents to allow the Petitioner to continue in service
as Muster Roll Labour (Driver) on daily rated wages and c
also consider case for regularization to be appointed
against a regular post of Driver under the "Casual Labours
(Grant of Temporary Status in Regularization) Scheme"
with effect from 1.10.1989 and cause or causes being
shown and upon hearing the parties be pleased to make
. ' ,,. the Rule absolute and/or pass any other or further orders
D
as Your Lordships may deem fit and proper."
5. It, however, appears that a contention was raised on
behalf of the appellants in the said proceedings that having
regard to the provisions contained in Section 14 of the E
Administrative Tribunals Act, 1985 the writ petition was not
maintainable. A learned Single Judge of the High Court while
transferring the petition to the Central Administrative Tribunal,
Guwahati Bench, noticed the said submission in the following
terms:- F
~· ~
"4. At the outset, Mr. S.N. Chetia raised a preliminary
objection regarding maintainability of this writ petition in
view of the provision of Section 14 of the Administrative
Tribunals Act, 1985. Mr. Bedi fairly concede to the
submission of Mr. S.N. Chetia in view of the decision of G
the Apex Court rendered in Union of India & Ors ... Appellant
vs. Deep Chand Pandey and Anr..... Respondents (1992)
~ 4 SCC 432, it has been held by the Apex Court; "Casual
Railway employees engaged on daily wages basis, on
termination of his service, the remedies lies before the H
842 SUPREME COURT REPORTS (2008] 7 S.C.R.

"' J
A Tribunal and not before the High Court." In view of the
decision of the Apex Court, and in view of the provision
contained under Section 14 of the Act, this writ petition is
not maintainable before the High Court."
6. Before the Central Administrative Tribunal the appellants
B in their written statement inter alia raised a contention that the
L •
respondent being a casual employee was not entitled to the
benefit of the said scheme. It was furthermore stated:-
"5. That with regard to the contents made in paragraph
c 5 that the applicant's attitude behaviour and conduct as a
casual labour in the Department was not at all satisfactory.
He was arrested by the Mokokchung Police on 12.3.1989
for such offence. The application was prosecuted and found
guilty by the Court of Law and he was fined on 13.3.1989
by the ADC (J)/Mokokchung (FM-21/89 dated 13.3.1989),
D
copy of which is annexed herewith and marked as
Annexure R-1." ... ' .
7. By reason of the judgment and order dated 11th April,
2002 the Guwahati Bench of the Administrative Tribunal,
E however, opined that the order of termination passed by the
appellant was illegal, relying on and on the basis of the decision
of this Court in Shankar Dass Vs. Union of India and another:
(1985) 2 SC 358 opining as under:-
"In our view the respondents while resorting to the
F impugned action acted in a most casual fashion. The order
not allowing the applicant to continue in his duty is also ~·
cannot be sustained on the ground pleaded by the
respondents in the written statement, wi'lerein it is clearly
indicated that they also took some of the alleged
G mii?conduct without giving him any opportunity to rebut. In
the circumstances, the order also appears to be punitive
in nature."
~
It was directed:
H "4. For all the reasons stated above we are of the opinion
THE TELEPHONE DISTRICT MANAGER & ORS. v. 843
KESHAB DEB [S.B. SINHA, J.]
t ..... that the impugned order of termination is not sustainable A
in law and the action of the respondents are therefore held
to be illegal and ultra vires. The respondents are
accordingly directed to reinstate the applicant to the post
forthwith. Since the order of termination is found to illegal
(sic) illegal the applicant shall be entitled for all the back B
wages till 27.3.1997 i.e. the date on which the transfer
1-
application was dismissed for default along with all the
services benefits including the benefit of regularization of
service."

8. As the said order was not complied with, a contempt c
proceeding was initiated against the appellants. A writ petition
was thereafter filed before the Guwahati High Court, aggrieved
by and dissatisifed with the said judgment and order of the
Tribunal. A Division Bench of the said High Court by reason of
the impugned judgment and order dated 21 51 August, 2003, D
.. .'tr
however, dismissed the same opining :-
"A bare reading of the written statement clearly indicates
that the order of termination of service of the respondent
is not on account of the fact that his service could not have
been continued and that he does not have any right over E
that post. The termination of that (sic) he had misbehaved
with his senior officers and he misused the vehicle and
caused damage to the vehicle.
When the termination of the employee is on account of F
misconduct then he is entitled to be heard and given proper
~- ,... opportunity to explain his conduct. In absence of any enquiry
being conducted by the appellants the order of termination
could not have been issued as a measure of punishment
of fine of Rs.30/- cannot be taken to be a misconduct for
G
dismissal of the respondent from his employment. Under
the aforesaid circumstances we do not find any good or
sufficient reason to interfere with the order passed by the
.... Central Administrative Tribunal, Guwahati."
9. Mr. N.M. Sharma, learned counsel appearing on behalf H
844 SUPREME COURT REPORTS [2008] 7 S.C.R.

~ j
A of the appellants would submit :
i) Claim of the respondent being based on the
provisions of the Industrial Disputes Act, the Central
Administrative Tribunal had no jurisdiction to entertain
the matter.
B
ii) Respondent having not claimed any back wages in
the writ petition, he was not entitled thereto.
,._ .
iii) He having been appointed only as casual labour on
a daily rated basis, the scheme for regularization
c was not applicable.
iv) He having no right to continue in the service, the
impugned judgment is wholly erroneous.
v) The High Court committed a serious error in upholding
D the order of the Central Administrative Tribunal.
-./. '
vi) Having regard to Section 28 of the Administrative
Tribunals Act, 1985 the only remedy of the respondent
was to file an appropriate application before an
Industrial Court.
E
10. Mrs. K. Sarada Devi, learned counsel appearing
on behalf of the respondent, on the other hand, submitted :-
i) Appellants themselves having contended that the
Central Administrative Tribunal had the requisite
F jurisdiction, cannot now turn around and contend that
it did not have any jurisdiction. ~ '

ii) Respondent being a government servant, the Central
Administrative Tribunal in terms of Section 14 of the
G Act had the requisite jurisdiction to entertain the
application.
iii) The order of termination having been issued
arbitrarily, the impugned judgment is unassailable. ,...
11. Respondent claimed himself to be a government
H
THE TELEPHONE DISTRICT MANAGER & ORS. v. 845
KESHAB DEB [S.8. SINHA, J.]
l -i servant. He prayed for his recruitment as an employee of the A
Central Government. He filed a writ petition questioning the order
of termination. He alleged arbitrariness on the part of the
appellants in passing the said order of termination. In the said
writ petition a contention was raised on behalf of the appellants
that the respondent having an alternative remedy to move the 8
t ...
Central Administrative Tribunal, the writ petition was not
maintainable. The said contention was allowed. The application
was transmitted to the Central Administrative Tribunal. If the writ
petition was maintainable there cannot be any doubt whatsoever
that the Central Administrative Tribunal had the jurisdiction to
entertain the matter.
c
12. Section 14 of the Act reads as under:-
"Section 14 - Jurisdiction, powers and authority of the
Central Administrative Tribunal. -(1) Save as otherwise
D
expressly provided in this Act, the Central Administrative
,> ..,..
Tribunal shall exercise, on and from the appointed day, all
the jurisdiction, powers and authority exercisable
immediately before that day by all courts (except the
Supreme Court) in relation to -
E
(a) recruitment, and matters concerning recruitment, to
any All-India Service or to any civil service of the Union or
a civil post under the Union or to a post connected with
defence or in the defence services, being, in either case,
a post filled by a civilian; F
~· .., (b) all service matters concerning-
(i) a member of any All-India Service; or
(ii) a person not being a member of an All-India Service
or a person referred to in clause (c) appointed to any G
civil service of the Union or any civil post under the
Union; or
)
..... (iii) a civilian not being a member of an All-India Service
or a person referred to in clause (c) ai;ipointed to any
H
846 SUPREME COURT REPORTS [2008] 7 S.C.R.

..._ J
A defence services or a post connected with defence,
and pertaining to the service of such member, person or
civilian, in connection with the affairs of the Union or of any
State or of any local or other authority within the territory of
India or under the control of the Government of India or of
B any corporation or society owned or controlled by the
Government; ,_ '

(c) all service matters pertaining to service in connection
with the affairs of the Union concerning a person appointed
c to any service or post referred to in sub-clause (ii) or sub-
clause (iii) of clause (b), being a person whose services
have been placed by a State Government or any local or
other authority or any corporation or society or other body,
at the disposal of the Central Government for such
appointment.
D
Explanation.-For the removal of doubts, it is hereby
declared that references to "Union" in this sub-section shall
~ .
be construed as including references also to a Union
territory.
E (2) The Central Government may, by notification, apply
with effect from such date as may be specified in the
notification the provisions of sub-section (3) to local or
other authorities within the territory of India or under the
control of the Government of India and to corporations or
F societies owned or controlled by Government, not being
a local or other authority or corporation or society controlled .... <

or owned by a State Government:
Provided that if the Central Government considers it
expedient so to do for the purpose of facilitating transition
G
to the scheme as envisaged by this Act, different dated
may be so specified under this sub-section in respect of
different classes of or different categories under any class f
,._
of, local or other authorities or corporations or societies.
H (3) Save as otherwise expressly provided in this Act, the
THE TELEPHONE DISTRICT MANAGER & ORS. v. 847
KESHAB DEB [S.B. SINHA, J.]
~ A
Central Administrative Tribunal shall also exercise, on and A
from the date with effect from which the provisions of this
sub-section apply to any local or other authority or
corporation or society], all the jurisdiction, powers and
authority exercisable immediately before that dale by all
courts (except the Supreme Court) in relation to- B
f~
(a) recruitment, and matters concerning recruitment, to
any service or post in connection with the affairs of such
local or other authority or corporation

(b) all service matters concerning a person [other than a c
person referred to in clause (a) or clause (b) of sub-section
(1 )] appointed to any service or post in connection with
the affairs of such local or other authority or corporation or
society and pertaining to the service of such person in
connection with such affairs."
D
13. Reliance placed by Mr. Sharma on Section 28 of the
' "' said Act, in our opinion, is of no consequence. It reads :-
Section 28 - Exclusion of jurisdiction of courts except the
Supreme Court
E
On and from the date from which any jurisdiction,
powers and authority becomes exercisable under
this Act by a Tribunal in relation to recruitment and
matters concerning recruitment to any Service or post
or service matters concerning members of any F
Service or persons appointed to any Service or post,1
' .... [no court except-
(a) the Supreme Court; or
(b) any Industrial Tribunal, Labour Court or other authority G
constituted under the Industrial Disputes Act, 1947
(14 of 1947) or any other corresponding law for the

- time being in force,
shall have], or be entitled to exercise any jurisdiction,
powers or authority in relation to such recruitment or H
848 SUPREME COURT REPORTS [2008] 7 S.C.R.

..... J
A matters concerning such recruitment or such service
matters.

14. In a case of the present nature where inter alia an
employee maintains a writ petition not only on the ground of
violation of equality clause enshrines under Article 14 of the
B Constitution of India but also on the ground of violation of the
~1
provisions of the Industrial Disputes Act, 1947, he has an option
to choose his own forum. Section 28 does not bar the jurisdiction
of the Central Administrative Tribunal. It saves the jurisdiction of
the Industrial Tribunal. An employee who claims himself to be a
c workman, therefore, will have a right of election in the matter of
choice of forum. It is, therefore, not correct to contend that the
Central Administrative Tribunal had no jurisdiction to pass the
impugned judgment. Furthermore the respondent claimed
regularization in services. Such an application was
D maintainable. As to whether he would be entitled to such a relief
or not, however, is a different question. ~.

15. A Tribunal indisputably was entitled to exercise its
jurisdiction for enforcement of a fundamental right.

E 16. In any event the appellants themselves raised the
contention as regards the jurisdiction of the Tribunal. It may be
true that no jurisdiction can be conferred by consent but this
Court while exercising a discretionary jurisdiction under Article
136 of the Constitution of India is entitled to take note thereof. It
F may not allow a party to raise such a contention before it, having
regard to its conduct.. T •

17. The Tribunal and consequently the High Court were
correct that the termination of the services of the respondent
was illegal.
G
18. He, according to the appellants, has committed a
misconduct. His services had been terminated on that ground.
But therefor he was entitled to an opportunity of being heard. A
regular departmental proceedings should have been initiated
...
against him; the order of termination being stigmatic in nature.
H
THE TELEPHONE DISTRICT MANAGER & ORS. v. 849
KESHAB DEB [S.B. SINHA, J.]
' ..A.
While, however, granting a relief, the superior courts should take A
into consideration the factors relevant therefor, which, in our
opinion, in the instant case are:-
a) Recruitment of the respondent was ex-facie illegal
as prior thereto neither any advertisement was issued
. ,.... nor the employment exchange was notified in regard
to the vacancy.
B

b) It does not appear that the respondent had even got
himself registered with the Local Employment
Exchange. c
c) He being a daily rated casual employee did not have
any right to continue in service.
19. Even in a case where an order of termination is illegal,
an automatic direction for reinstatement with full back wages is D
r .,.
not contemplated. He was at best entitled to one month's pay in
lieu of one month's notice and wages of 15 days of each
completed years 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 any temporary status.
E
Such a scheme has been held to be. unconstitutional by this
Court in A. Umarani vs. Registrar, Cooperative Societies and
others: (2004) 7 SCC 112 and Secretary, State of Karnataka
and Ors. VS. Umadevi and Ors. (2006) 4 sec 1.
20. We are, therefore, of the opinion that grant of F
' ... compensation in stead of a direction of reinstatement with back
wages would meet the ends of justice.
21. In Atyant Pichhara Barg Chhatra Sangh and another
vs. Jharkhand State Vaishya Federation and others : 2006 (6)
SCC718 this Court while opining that affirmative action is subject G
to judicial review and while stating that unequals cannot be
treated as equals upon noticing the decision of this Court in
-4. Indra Sawhney vs. Union of India : 1992 Supp (3) SCC 217,
stated the law in the following terms : -
H
850 SUPREME COURT REPORTS [2008) 7 S.C.R.

,.__ J
A "23. Manda/ Commission case has specifically noted
that there is no constitutional bar to a State categorising
the Backward Classes as backward and more Backward
Class. The State of Jharkhand by its actions seeks to
disempower communities that have been extended the
B benefits of reservation after a conscious adoption of the
~.
Bihar Act. What GO No. 5800 seeks to do by combining
the Extremely Backward Class and Backward Class into
one group is to treat unequals as equals thus violating the
notion of substantive equality and Article 14 of the
c Constitution of India bringing it within the purview of judicial
review by the Court."
22. This Court in AJ'oy Kumar Banerjee vs. Union of India
: (1984) 3 sec 127 has held as under:-
"50. Differentiation is not always discriminatory. If there is
D
a rational nexus on the basis of which differentiation has .... ;
been made with the object sought to be achieved by
particular provision, then such differentiation is not
discriminatory and does not violate the principles of Article
14 of the Constitution. This principle is too well-settled
E now to be reiterated by reference to cases. There is
intelligible basis for differentiation. Whether the same result
or better result could have been achieved and better basis
of differentiation evolved is within the domain of legislature
and must be left to the wisdom of the legislature. Had it
F been held that the scheme of 1980 was within the authority
T '
given by the Act, we would have rejected the challenge to
the Act and the scheme under Article 14 of the
Constitution."
It was further held :-
G
"52. It was further submitted on behalf of the respondents
that the rationale, justification and the genesis of the law ,._
of nationalisation being the creation of economic
instrumentalities to subserve the constitutional and
H administrative goals of governance in a social welfare
THE TELEPHONE DISTRICT MANAGER & ORS. v. 851
KESHAB DEB [S.B. SINHA, J.]
\ ....
society, the running of public sector undertakings is neither A
for profit earnings of the management nor for sharing such
profits with the workmen alone but to utilise the investible
funds available as a result of such ventures and
undertakings for socially-oriented goals laid down by the
governmental policies operating on the said sectors. In E
' _._ this connection reference was made before us to the
decision in the case of State of Karnataka v. Ranganatha
Reddy."
23. Even if the provisions of Section 25-F of the Industrial
Disputes Act had not been complied with, respondent was only c
entitled to be paid a just compensation. While, however,
determining the amount of compensation we must also take
into consideration the stand taken by the appellants. They took
not only an unreasonable stand but raised a contention in regard
to absence of jurisdiction in the Tribunal. They admittedly did D
t )'
not comply with the order passed by the Tribunal for a long time.
It had raised contention which are not otherwise tenable.
24. We, therefore, are of the opinion that in the peculiar
facts and facts and circumstances of the case interest of justice
shall be subserved if respondent is directed to be paid a E
compensation of Rs.1,50,000/- (Rupees one lakh fifty thousand
only). The said sum should be paid to him within four weeks
failing which it will carry interest @ 9% per annum.
25. The appeal is disposed of in the aforesaid terms with F
., --... no order as to costs .
8.8.B. Appeal disposed of.