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CASE NO.: Appeal (civil)  391 of 2008

PETITIONER: HINDUSTAN PETROLEUM CORPN. LTD.

RESPONDENT: ASHOK RANGHBA AMBRE

DATE OF JUDGMENT: 15/01/2008

BENCH: C.K. THAKKER & J.M. PANCHAL

JUDGMENT: J U D G M E N T ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO. 10819 OF 2005

C.K. THAKKER, J.

1.              Leave granted. 2.              The present appeal is filed by the  Hindustan Petroleum Corporation Ltd.  (\021Corporation\022 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 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. 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 \021unskilled workman\022  at its refinery at Bombay. The writ petitioner  filed Writ 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 also  sought to direct the Corporation to extend to  the writ petitioner all benefits accrued in his  favour by virtue of his 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 of law and without  there being any right in his favour, the  Corporation stopped engaging him from June,  1996. Being 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 10(d) read with Section  10(2A) of the Industrial Disputes Act, 1947

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(hereinafter referred to as \021the Act\022) referred  the dispute 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  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 \021retrenchment\022 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 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 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 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 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 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. 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 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, 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

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the limited grievance of the appellant- Corporation is that the High Court, in 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 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.  He submitted that when the action of  termination of services of the workman was held  to be bad and the Reference was allowed 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  consequential action based on earlier award.  Even otherwise, 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 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 \021not qualified\022 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.  He had cleared First Aid Examination and was  having experience 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 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  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

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passed by 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 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-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 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 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 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 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. 12.             Both the parties in this connection  referred to several judgments in support of  their respective contentions. We do not 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 but observed that once the  appointment was made and the workman was  allowed to work for two decades, it would be  hard and harsh to deny him the confirmation on  the post. 13.             The High Court further stated \023We,  therefore, hold that the petitioner (workman- respondent herein) is entitled to the status of  permanent employee of the Corporation and

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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\024. 14.             Prayer (a) in the Writ Petition before  the High Court reads thus: \023(a)  That this Hon\022ble 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 accruing by virtue of his  permanency including fitment with  annual increments in the appropriate  grade with retrospective effect\024.

15.             The High Court observed that the writ  petitioner was working as Compounder/Dresser  right from 1984. It was not 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 could not be  said 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 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, (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  \021regularisation\022 meant \021permanence\022. The Court  stated that regularization would not mean that  the appointment would have to be considered as  permanent. 17.             Again, in B.N. Nagarajan & Ors. v.  State of Karnataka & Ors., (1979) 4 SCC 507,  orders were passed by the State Government  promoting certain officers as Assistant  Engineers \021on a regular basis\022. It was argued  that the regularization of the 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 \021regular\022 or \021regularisation\022 do not  connote \021permanence\022. They are terms calculated  to condone 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

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of appointments. 18.             In the case on hand, according to the  appellant-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  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  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 the  appellant-Corporation to make the writ- petitioner (respondent herein) permanent  employee of the Corporation and to grant all  benefits on that basis with effect from the  date of filing of writ petition. 20.             We may, however, observe that since  the writ petitioner is working with the  appellant-Corporation since 1984 and by 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  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 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. 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.