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CASE NO.: Appeal (civil)  4868 of 1999

PETITIONER: Karnataka State Road Transport Corporation & Another

RESPONDENT: S.G. Kotturappa & Anr.

DATE OF JUDGMENT: 03/03/2005

BENCH: N. Santosh Hegde & S.B. Sinha

JUDGMENT: J U D G M E N T

W I T H  

CIVIL APPEAL NO.4869 OF 1999

S.B. SINHA, J :  

INTRODUCTION :

       The Respondents were appointed as Badli Conductors by the  Appellant herein.  Their services having been found to be not satisfactory  were terminated by an order dated 11.11.1983 and 9.9.1980 respectively.   Industrial disputes in relation thereto having been raised by the Respondents  herein, references were made by the State of Karnataka for adjudication  thereof before the Presiding Officer, Labour Court, Bangalore which were   marked as Reference Nos.57 of 1986 and 42 of 1983.  By reason of   awards  dated 21.3.1987 and 31.10.1986, the respective orders of termination of the  Respondents passed by the Appellant herein were held to be bad in law on  the premise that the principles of natural justice had not been complied with  and the workmen  were  directed to be reinstated in service with full back  wages.  The Appellant herein filed writ petitions thereagainst before the  Karnataka High Court which by reason of the impugned judgments were  dismissed.  The Appellant is, thus, before us.   

FACTUAL BACKGROUND :         The factual aspect of the matter may be noticed by us from Civil  Appeal No.4868 of 1999.   

The Respondent was appointed by a Memo. Dated 13.5.1982 in  substitute vacancies arising out of Suspension Pending Enquiry/Suspension  as a measure of specific punishment and absent cases etc., inter alia, on the  following terms and conditions :

       "1.     You as a Badli (sic)  is not an appointee in  the Corporation and do not have any right merely  because your services are so utilized on day-to-day basis.

       2.      You are not entitled to any kind of leave or  other facilities  to which the regular employees are  entitled to.

       3.      You are not transferable from place of your  utilization so long as you remain Badli.

       4.      You will be eligible for payment of wages  for the number of days you are utilized for the job as  such either daily or mothly, as per the rates prevailing in  the Corporation.

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       5.      Your utilization as Badli will be  discontinued if for any reason, your services are found  not suitable for the job for which you are utilised as  Badli."  

       Allegedly, the Respondent committed misconduct on 13 occasions  and upon enquiries held in that behalf, minor punishments were imposed  upon him.  The history-sheet in relation to the said Respondent is as under :          "HISTORY SHEET

Name :  H.S. Keshav Murthy, Conductor

Sl. No. Case  No. Nature of misconduct reported or nature of  good work reported Punishment Imposed 1. 1344/79 Non account of one un-punched ticket. 6.00  1.12.99 Warned 2. 1343/79 Non account of  two tickets. 5.60 Warned 3. 1480/79 Non account of one luggage ticket Non account of one ticket. 2.30 \026 9.11.79

Warned 4. 1612/79 Non account of 2/1 tickets Issue of tickets on sight  Disorder by behaviour Way bill irregularities \026 13.11.79  

Service  Withdrawn 5. 1615/79 Not issual of 4 tickets \026 22.11.79  

6. 1617/79 Not issual of 4 tickets Non account of 4 tickets Stopped from  duty. Finally  warned  25.2.80 7. 900/80 Damages to the property door of Veh.  No.6651 and insubordinations \026 1.5.80  Memo cost

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recovered and  continued.  8. 1166/80 Hurriedly issue of 4 tickets & issued the  same to the passengers without punching \026  11.5.80   Stopped duty  for 7 days

9. 625/80  Possession of excess cash of Rs.45.30 \026  3.6.80 Stopped duty  for 10 days 10. 1457/80 Non issual of one ticket \026 9.8.80 Stopped duty  for 2 days 11. 1115/80 Re-issual of 14 tickets \026 14.8.80 Removed from  Badli list.                                                                                              "         Relying on or on the basis of the said purported conduct on the part of  the Respondent herein during the aforementioned period, he was  discontinued from the select list as Badli and his name was removed  therefrom by an order dated 11.11.1983, stating :

       "Sri S.G. Kotturrappa was utilized as a Badli  Conductor on badli basis under clear terms and  conditions stipulated in the order cited above as per  which the undersigned being the Competent Authority is  empowered to discontinue from utilization as Badli  Worker any of the select list candidate as and when he is  found not suitable during the period he is engaged on  badli duties.

       During the period of utilization as Badli Woker,  his services were found to be unsatisfactory.  He is  therefore found not suitable for the post for which he was  utilized as Badli and he is discontinued from utilization  as Badli and his name is removed from the Select list.   His chance for further appointment as Conductor in terms  of his selection, is forfeited." IMPUGNED AWARD AND JUDGMENT :

       The Labour Court as also the High Court passed  the impugned  awards and judgment relying on or on the basis of a decision of this Court in  S. Govindaraju vs. Karnataka S.R.T.C. and Another [(1986) 3 SCC 273]  wherein it was held that as by reason of such discontinuance in service, the  Respondent had forfeited  his chance of being appointed having been found  unsuitable therefor, it was imperative on the part of the Appellant herein to  afford an opportunity of hearing to him.

CONTENTIONS :          Mr. K.R. Nagaraja, the learned counsel appearing on behalf of the  Appellant herein, raised two submissions before us.  Firstly, the learned  counsel would contend that having regard to the offer of appointment, the  Respondent did not derive any legal right to continue as a Badli worker.   Reliance in this behalf has been placed on State of Uttar Pradesh and

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Another vs. Kaushal Kishore Shukla [(1991) 1 SCC 691].  The decision of  this Court in  S. Govindaraju (supra), according to Mr. Nagaraja, is not  applicable to the facts and circumstances of this case inasmuch as the  concerned workman therein having completed 240 days of service during  the preceding twelve months derived a right to continue, and, thus,  the  conditions precedent for termination thereof as contained in Section 25-F of  the Industrial Disputes Act, 1947 were required to be complied with, which  provision has no application in the instant case. Secondly, compliance of  principles of natural justice would have been rendered in futility inasmuch  past misconduct committed by the Respondent herein stood admitted. It is  further not in dispute that before imposing such punishment, the Respondent  had been given an opportunity of hearing.  

       The learned counsel appearing on  behalf of the Respondent, on the  other hand, would submit that the Respondent herein underwent the  process  of selection in terms of the Karnataka State Road Transport Corporation  (Cadre and Recruitment) Regulations, 1982 framed under Section 45 of the  Road Transport Corporation Act, 1950 and, thus, derived a right to continue  in service.  It was contended that the conditions of service of  the Badli  workmen being governed by the statutory regulations as contra- distinguished from contractual terms, the  right to continue in service is a  statutory right.  The disqualification as contemplated under Sub-Regulation  (5)  of  Regulation 10, it was urged, deserves strict construction.  As by  reason of the order of termination of the service, the right of the Respondent  to be taken in permanent service of the Appellant Corporation stood  forfeited, the learned counsel for the Respondent would submit, the  Respondents must be held to have suffered civil consequences.   

CONDITIONS OF SERVICES :

       The Road Transport  Corporation Act, 1950 was enacted by the  Parliament to provide for the incorporation and regulation of Road Transport  Corporations.  The Appellant-Corporation was constituted in terms of the  provisions of the said Act.  Section 45 of the 1950 Act empowers the  Corporation to make regulations with the previous sanction of the State  Government and the rules made thereunder for the administration of the  affairs of the Corporation.  Pursuant to or in furtherance of the said power,  the Appellant framed the Karnataka State Road Transport Corporation  (Cadre and Recruitment) Regulations, 1982.  Before coming into force of the  1982 Regulations, the MSRTC C&R Regulations 1968 held the field,  Regulation 16 whereof reads as under :       

       "16.  Procedure for Appointment of Badlis.-

       1.      A ’BADLI’ worker is one who is employed  on a day to day basis in any vacancy caused by the absence  of any employee and who is paid for the number of days he  works as such, either daily or once in a month.

       2.      A list of Badli workers shall be maintained in  a Depot or Workshops.  The appointment of a Badli  worker shall be made from among those in the list of Badli  workers who are present at the Depot/Workshop,  preference being given to the person who arrived first at  the place of duty.  If for any reason a Badli worker is not  found suitable for the post, his name may be removed from  the list of Badli workers.

       3.      A badli worker would be eligible for such day  to day appointment as long as his name figures in the list  of Badli workers."

       The regulations are pointers to the fact that the rights of the Badli  workers are not absolute in nature.

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       The 1982 Regulations came into force with effect from 1.1.1983 and  Regulation 4 provides for eligibility for appointment and disqualifications  for appointment, Sub-Regulation (6) whereof reads as under :.

       "No person who has been convicted in an offence,  involving moral turpitude by a Court of law or dismissed  from service in this Corporation or Government, State or  Central or any Local Bodies or any Industrial or  Commercial concerns or other State Transport  Undertakings for offence or misconduct involving moral  turpitude, or a selected candidate removed/terminated for  offence of misconduct while working as Badli in the  Corporation shall be eligible for appointment."

        The expression ’disqualification’ in or opinion does not require strict  construction in all situations as  meaning thereof must be rendered keeping  in view the text and context of the statute.   [See K. Prabhakaran etc. vs. P.  Jayarajan etc. (2005) 1 SCC 754].             Regulation 10 provides for procedure for appointment, Sub- Regulation (5) whereof reads as under :                        "A selected candidate waiting for being appointed  regularly in accordance with these Regulations may be   appointed as a temporary employee before such regular  appointment against a short term vacancy or as a  substitute in place of regular employee under suspension  pending enquiry or suspension as a measure of  punishment or on leave for a period not less than one  month but not exceeding 3 months."

It is not in dispute that by a judgment and order dated 13.2.1987  passed in Writ Petition Nos. 14625 to 14627 of 1986, the Karnataka High  Court declared the last sentence relating to forfeiture in Regulation 10(5) as  invalid, whereupon an amendment was introduced therein  with effect from  13.9.1989 deleting the last sentence.

The power of appointment is vested in the Corporation by reason of  the provisions of the said Act and the Regulations framed thereunder.   ’Selected candidate’ has been defined in Sub-Regulation  (3) of Regulation 2  to mean a candidate whose name appears in a list of candidates selected for  appointment to any service, class or category by the Selection Authority.   The said Regulations provide for method of recruitment, the qualifications  required therefor, the mode of selection, probation etc.  A select list for  appointment of the permanent workman is contained in Sub-Regulations (4)  and (5) of  Regulation 9.  Such select list is to be prepared after interviewing  the candidates who were found suitable therefor in order of  merit.  Sub- Regulation (5) of Regulation 10, however, postulates preparation of a wait  list.  The person whose name appears in such wait list may either be  appointed as temporary employee or engaged as Badli worker on day to day  basis in any vacancy caused by absence of any employee and would be paid  for  the number of days he works as such either daily or once in a month.

The mode of appointment, therefore, postulates appointment in three  tiers.  The status of a temporary employee is higher than a Badli worker.   The names of Badli workers are not to be included in the select list but in the  wait list.  A select list of selected candidates prepared by the selection  authority is required to be equal to the number of existing vacancies plus  vacancies that may arise over a period of one year from the date of  publication as may be assessed by the Selection Authority and only in  exceptional cases, the validity thereof can be extended for a period not  exceeding six months.  The select list or the wait list, as the case  may be,

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therefore, does not have an indefinite life.  A bare perusal of the memo.  dated 13.5.1982 in terms whereof the Respondent was appointed clearly  states that he was appointed in the Corporation and did not have any right  merely because his services were so utilized on day to day basis.  The  services of a Badli worker may be discontinued, if for any reason he is not  found suitable for the job  for which his services were utilized as Badli.  A  Badli worker is eligible for payment of wages only for the number of days  his services are utilized.  

The contentions of the parties as regard the status of the Respondent   are, therefore, required to be considered in the aforementioned backdrop.

It is not a case where the Respondent has completed 240 days of  service during the period of 12 months preceding such termination as   contemplated  under Section 25-F read with Section 25-B of the Industrial  Disputes Act, 1947.  The Badli workers, thus, did not acquire any legal right  to continue in service.  They were not even entitled to the protection under  the Industrial Disputes Act nor the mandatory requirements of Section 25-F  of the Industrial Disputes were required to be complied with before  terminating his services, unless they complete 240 days service within  a  period of twelve months preceding the date of termination.  

Even where an adverse report regarding the work of a temporary  Government servant is made or a preliminary enquiry on the allegation of  improper conduct is carried out, the same would not stand in the way of the  employer to terminate his service.  

See Kaushal Kishore Shukla (supra). This Court in Kaushal Kishore  (supra) distinguished its earlier decisions in Nepal Singh vs. State of  U.P.  [(1985) 1 SCC 56] and Ishwar Chand Jain vs. High Court of Punjab and  Haryana [(1988) 3 SCC 370].  The Court noticed that since a temporary  Government servant is entitled to protection of Article 311(2) of the  Constitution in the same manner as  a permanent Government servant, very  often the question arises as to whether an order of termination is in  accordance with the contract of service and relevant rules regulating the  temporary employment or it is by way of punishment and held :

"3. In the instant case the respondent was a  temporary government servant and there was adverse  report regarding his work which was reflected in the  adverse remarks made for the year 1977-78. The  competent authority held a preliminary inquiry in the  allegations of improper conduct in carrying out  unauthorised audit of Boys Fund of an educational  institution, on result of the preliminary enquiry no  charges were framed against the respondent, no officer  was appointed for holding the departmental inquiry  instead the competent authority chose to terminate the  respondent’s services in exercise of its power under the  terms of contract as well as under the relevant rules  applicable to a temporary government servant. It never  intended to dismiss the respondent from service. Holding  of preliminary inquiry does not affect the nature of the  termination order. The allegations made against the  respondent contained in the counter-affidavit by way a  defence filed on behalf of the appellants also do not  change the nature and character of the order of  termination. The High Court failed to consider the  question in proper perspective and it interfered with the  order of termination in a casual manner."

The terms and conditions of employment of a Badli worker may have  a statutory flavour but the same would not mean that it is not otherwise  contractual.  So long as a worker remains a Badli worker, he does not enjoy  a status.  His services are not protected by  reason of any provisions of the

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statute.  He does not hold a civil post.  A dispute as regard purported  wrongful termination of services can be raised only if such termination takes  place in violation of the mandatory provisions of the statute governing the  services.  Services of a temporary employee or a badli worker can be  terminated upon compliance of the contractual or statutory requirements.  

NATURAL JUSTICE :         In Govindaraju (supra), the concerned workmen had worked for more  than 240 days, his retrenchment  came  within the purview of Section 2(oo)  (bb) of the Industrial Disputes Act.  Despite the fact that provisions  contained in Section 25-F of the Industrial Disputes Act had not been  complied with, this Court held that as in terms of  Sub-Regulation 5 of  Regulation 10 his name should have been removed from the select list,  serious consequences entail as he forfeited his right to employment in future  and, thus,  the principles of natural justice were required to be complied with  though no elaborate enquiry would be necessary, holding :   "\005Giving an opportunity of explanation would meet the  bare minimal requirement of natural justice. Before the  services of an employee are terminated, resulting in  forfeiture of his right to be considered for employment,  opportunity of explanation must be afforded to the  employee concerned. The appellant was not afforded any  opportunity of explanation before the issue of the  impugned order; consequently the order is rendered null  and void being inconsistent with the principles of natural  justice\005."

In that case it was held that the provisions of Section 25-F were not  complied with.  As the statutory requirements of payment of compensation  were  conditions precedent for retrenchment of the workman,  it was invalid  and operative, and, thus, it was not necessary for this Court to determine the  larger question. Govindaraju (supra) has been distinguished by this Court in Dr. J.  Shashidhara Prasad vs. Governor of Karnataka and Another [(1999) 1 SCC  422].  The observation as regard the right of a person to remain in the select  list was doubted in view of the subsequent decisions on the point.  This  Court categorically held that a person does not have a right to appointment  only because his name had appeared in the select list.  In a case of Badli  worker, his name appears not in the select list but in the wait list.  Even in a  case where the order of termination is found to be bad in law, his name can  only be considered to continue in the wait list and, thus, he could not have  been automatically absorbed in the service.   

       In any event, in the instant cases, it has not been found that the  Respondent was entitled, before his services were terminated, to receive  compensation in terms of the provisions of Section 25-F of the Industrial  Disputes Act.  It was not a case where the services of the Respondent could  have been terminated only in compliance with the provisions of Section 25-F  and on the Appellant’s failure to do so he had derived a right to continue in  service.  Furthermore, in Govindaraju (supra) there was no case of proved  misconduct  made out against the workman unlike the present cases.  In this  case, the  Appellant’s contention that before imposing the punishments upon  the Respondent, opportunities of hearing had been granted to the concerned  workman is not denied or disputed.  Imposition of such punishment upon the  workmen had not been questioned by them.  They accepted the same and,  thus, the same attained finality.  The history-sheet of the Respondents clearly  show that opportunities after opportunities had been given to them to  improve themselves but they did not avail the same.  It was in that situation  if the services of the Respondents were found not satisfactory and they were  continued from service, no fault can be found with the action the Appellant  herein.  There is another aspect of the matter which cannot be lost sight of.   The High Court of Karnataka had declared the last sentence of Sub- Regulation (5) of Regulation 10 as invalid.  In view of such declaration, the  Respondent did not forfeit his right for being considered for appointment  from the select list subject, of course, to  fulfillment of other conditions, if

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any.  The question as to what extent, principles of natural justice are required  to be complied with would depend upon the fact situation obtaining in each  case.  The principles of natural justice cannot be applied in  vacuum.  It  cannot be put in any straight jacket formula.  The principles of natural  justice are furthermore not required to be complied with when it will lead to  an empty formality.  What is needed for the employer in a case of this nature  is to apply the objective criteria for arriving at the subjective satisfaction.  If  the criterias required for arriving at an objective satisfaction stands fulfilled,  the principles of natural justice may not have to be complied with,  in view  of the fact that the same stood complied with before imposing punishments  upon the Respondents on each occasion and, thus, the Respondents,  therefore, could  not have improved their stand even if a further opportunity  was given. [See Escorts Farms Ltd., Previously known as M/s Escorts Farms  (Ramgarh) Ltd. vs. Commissioner, Kumaon Division, Nainital, U.P. and  Others    [(2004) 4 SCC 281, Bar Council of India vs. High Court of Kerala  (2004) 6 SCC 311, A. Umarani vs. Registrar, Cooperative Societies and  Others (2004) 7 SCC 112] and Divisional Manager, Plantation Division,  Andaman & Nicobar  Islands vs. Munnu Barrick and Others  (2005) 2 SCC  237].    

STATUS OF BADLI WORKERS  We have noticed hereinbefore the relevant provisions of the  Regulations.  The status of a Badli cannot be better than a probationer.  If the  services of the probationer can be terminated for not being able to complete  the period of probation satisfactorily, there is no reason as to why the same  standard cannot be held to be applicable in the case of  Badli worker.

What would be the legal requirements for discharging a probationer  on the ground of his unsatisfactory performance has recently been  considered by us in Municipal Committee, Sirsa vs. Munshi Ram  [JT 2005  (2) SC 117], wherein it was held :

"16.  From the above, it is clear assuming that there was  some sort of misconduct, as noticed in the evidence of  the witnesses of the management in the cross- examination, the same could not be used as evidence by  the Labour Court or by the appellate court for coming to  the conclusion that an order of termination which is  otherwise simpliciter in nature is motivated  by any  consideration other than the decision of the management  as to the satisfactory nature of the workman concerned."

       It was further observed :

"\005Assuming that there was an incident of misconduct or  incompetency prior to his discharge from  service, the  same cannot be ipso facto be termed as misconduct  requiring an inquiry, it may be a ground for the  employer’s assessment of the workman’s efficiency and  efficacy to retain him in service, unless, of course, the  workman is able to satisfy that the management for  reasons other than efficiency wanted to remove him from  services by exercising its power of discharge."      The Appellant watched the conduct of the Respondents for an year  and only on completion of the period during which the select list remained  valid, terminated their services as having been found not satisfactory.

In Registrar, High Court of Gujarat and Another vs. C.G. Sharma  [(2005) 1 SCC  132], this Court observed :          "\005The order of termination is termination  simpliciter and not punitive in nature and, therefore, no  opportunity needs to be given to the respondent herein.  

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Since the overall performance of the respondent was  found to be unsatisfactory by the High Court during the  period of probation, it was decided by the High Court  that the services of the respondent during the period of  probation of the respondent be terminated because of his  unsuitability for the post.  In this view of  the matter,  order of termination simpliciter cannot be said to be  violative of Articles 14, 16 and 311 of the Constitution.   The law on the point is crystallized that the probationer  remains a probationer unless he has been confirmed on  the basis of the work evaluation.  Unless the relevant  Rules under which the respondent was appointed as a  Civil Judge, there is no provision for automatic or  deemed confirmation and/or deemed appointment on  regular establishment or post, and in that view of the  matter, the contentions of the respondent that the  respondent’s services were deemed to have been  continued on the expiry of the probation period, are  misconceived."

CONCLUSION :         For the reasons aforementioned, the impugned judgments cannot be  sustained which are set aside accordingly.  The appeals are allowed.   However, in the facts and circumstances of the case, there will be no order  as to costs.