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CASE NO.: Appeal (civil)  4809-4810 of 2007

PETITIONER: G.M. Tanda Thermal Power Project

RESPONDENT: Jai Prakash Srivastava & Anr

DATE OF JUDGMENT: 11/10/2007

BENCH: S.B. Sinha & Harjit Singh Bedi

JUDGMENT: J U D G M E N T (Arising out of SLP (C) Nos.9380-9381 of 2005)

S.B. Sinha, J.

1.      Leave granted.  2.      The State of Uttar Pradesh acquired land for the appellant company.   Various land acquisition proceedings therefor were initiated.  The Special  Land Acuqisition Officer, the acquiring authority, expressed its intention to  engage some daily wagers to look after the pending acquisition cases and  asked the appellant to meet the said expenses or depute one of its staff for  the said purpose.  Appellant agreed to the proposal of the Special Land  Acquisition Officer that a person on daily wages may be appointed on an ad  hoc basis.  The Special Land Acquisition Officer, inter alia, engaged three  persons on daily wages.  Their wages were paid from the fund provided for  by the appellant.  Appointments of the said employees were for a temporary  period and so long as their services were necessary for the purpose of  looking after the land acquisition cases, services of the said employees were  necessary for the period 1.5.1981 to 6.3.1982.   3.      The services of the respondent having been terminated with effect  from 6.3.1982, an industrial dispute was raised.  The State of Uttar Pradesh  referred the following dispute for adjudication to the Presiding Officer,  Labour Court, Lucknow : \023Whether the termination/removal of Shri Jai  Prakash Srivastava, Case-Clerk, son of Shri Gomti  Prasad Srivastava, from services by the  Management w.e.f. 6.3.1982, is just and legal ?  If  not, then to what benefit/relief the workman is  entitled entitled?\024

4.      Whereas the contention of the first respondent was that there existed a  relationship of employer and employee by and between the appellant and  himself; the contention raised on the part of the petitioner was that there did  not exist any such relationship.  The validity of the reference made by the  State was also questioned.   5.      In its award dated 30.9.1996, the Presiding Officer, Labour Court, UP,  Lucknow, in Award Dispute No.28 of 1985 recorded that the first  respondent was appointed by the Special Land Acquisition Officer for  conducting pairvi on behalf of the project in the cases of land acquisition.   The learned Labour Court, however, was of the opinion that as the salary of  the first respondent was made available to the Land Acquisition Officer from  the funds provided for by the appellant, a relationship of employer and  employee came into being, holding : \023From the documents available on record, it is  very well proved that although the appointment of  the applicant-workman Shri Jai Prakash was not  made on the basis of any appointment letter issued

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independently by the Chief Project Manager of  Tanda Thermal Power Project, but was made by  the Special Land Acquisition Officer on daily  wages on the basis of the approval given by the  Chief Project Manager on the request/proposal  made by the Special Land Acquistiion Officer.   The Management had also approved extension of  the above appointment from time to time and also  came to a decision for not continuing the services  of the applicant-workman and the Chief Project  Manager had duly informed the Special Land  Acquistiion Officer for discontinuing the services  of the applicant-workman.  Finally the services of  the applicant-workman were terminated.  It is also  proved from the evidence that the applicant- workman was doing the work of pairvi in the cases  relating to the Tanda Thermal Power Project and  the payment of his salaries was also made from the  funds made available by Management.  In the  circumstances, it is proved that the appointment of  the applicant-workman was made on the basis of  approval given by Management.\024

6.      Opining that the first respondent worked for more than 240 days  during the aforementioned period and as no notice pay as also retrenchment  compensation had been paid to the workman, he was directed to be  reinstated with back wages.   7.      The writ petition filed by the appellant thereagainst before the  Lucknow Bench of Allahabad High Court which was marked as Writ  Petition No.222 of 1998, was dismissed on the premise that the disputed  question of fact could not be determined by the High Court in exercise its  jurisdiction under Article 226 of the Constitution of India.   8.      The Division Bench of the High Court on an intra court appeal  preferred by the appellant refused to interfere therewith stating that the  Special Appeal was not maintainable. 9.      Appellant is, thus, before us. 10.     Mr. Ranjit Saxena, learned counsel appearing on behalf of the  petitioner, would submit that the High Court committed an error in passing  the impugned judgment insofar as it failed to take into consideration that  there did not exist any relationship of employer and employee by and  between the petitioner and the first respondent; appointment of the first  respondent having been made by the Special Land Acquisition Officer.   11.     Our attention has not been drawn to any statute or statutory rules in  terms whereof such an appointment could be made by a revenue authority.   It was, therefore, only an ad hoc employment. 12.     Lands are acquired in terms of the provisions of the Land Acquisition  Act.  It is for the authorities concerned to conduct the cases relating to  acquisition of land in the courts of law.  Although the appellant was  providing for the funds for meeting the expenditure in relation to payment of  wages etc. to the first respondent herein, evidently, the relationship between  an employer and employee did not come into being between the appellant  and the first respondent. It did not require the services of the appellant.  It  did not require the services of the appellant.  The Special Land Acquisition  Officer did. The offer of appointment was issued by the Special Land  Acquisition Officer.  First respondent was working under his supervision  and control.  His services were being taken by the Special Land Acquisition  Officer for a particular purpose, namely, looking after the land acquisition  cases.  When the purpose for which the first respondent was appointed  ceased to exist, his services were terminated.  If there did not exist any  relationship of employer and employee, the question of the appellant\022s  fulfilling the obligations required in terms of the UP Industrial Disputes Act,  namely, payment of retrenchment compensation or one month\022s pay in lieu  of notice did not and could not arise.  If the first respondent was a workman  working under the Special Land Acquisition Officer, the question of

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compliance of the said provisions by the said authority would also not arise.   The High Court, therefore, in our opinion, committed a serious error in  refusing to interfere in the matter.  When existence of the relationship of  employer and employee is disputed, the same was required to be determined  in presence of all the parties who are interested in the subject matter of  reference.  The Special Land Acquisition Officer was not a party to the  reference.  The learned Presiding Officer, Labour Court, UP, Lucknow  neither went into the question as regards the nature of duties required to be  performed by the first respondent and also other relevant factors, namely,  who had issued the offer of appointment; who used to supervise and control  the work of the respondent; or who was the authority to grant leave and take  disciplinary action etc.  The said questions were relevant.  {See Workmen of  Nilgiri Coop. Mkt. Society Ltd. v. State of Tamil Nadu and Ors. [(2004) 3  SCC 514]}. 13.     The High Court, furthermore, committed a serious error insofar as it  failed to take into consideration that a direction for reinstatement cannot be  issued when there does not exist any post.  Requirement of the Special Land  Acquisition Officer to have the services of some employees was for a short  period.  No such post was created by the competent authority.  The services  of the first respondent were necessary for looking after the land acquisition  cases of the petitioner.  Even in a case where the workman is appointed on  contractual basis, the industrial court would ordinarily not direct for  reinstatement.  Subject to statutory interdict, the agreement between the  parties in this behalf must be given due weight. 14.     For the reasons aforementioned, the impugned judgment cannot be  sustained.  The same is set aside accordingly.  Appeal is allowed.  As  nobody has appeared on behalf of the first respondent, there shall be no  order as to costs.