http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

CASE NO.: Appeal (civil)  4636 of 2006

PETITIONER: Regional Manager, SBI.                                           

RESPONDENT: Mahatma Mishra                                                   

DATE OF JUDGMENT: 01/11/2006

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T  [Arising out of S.L.P. (Civil) No. 8064 of 2006]

S.B. SINHA,  J :

       Leave granted.

       Respondent was appointed on a temporary basis in the year 1982 for a  period of 88 days.  His services were terminated.  An industrial dispute was  raised by him which was referred to for adjudication before the Presiding  Officer, Central Government Industrial Tribunal \026 cum \026 Labour Court,  Kanpur by the State of Uttar Pradesh in the following terms:

"Whether the action of the management of State  Bank of India, Region III, the Mall Kanpur, in  relation to their Jhanstongang Branch, Allahabad  in terminating the services of Shri Mahatma  Mishra, Ex-messenger with effect from 4.9.1982  and not considering him for further employment as  provided under section 25-H of the Industrial  Disputes Act, is justified.  If not to what relief is  the workman concerned entitled?"

       Before the Industrial Court, the respondent inter alia relied upon a  purported circular issued by the Personnel Department of the Appellant \026  Bank wherein direction was issued that temporary appointments were to be  made for a maximum period of 90 days in the case of sub staff and 180 days  in case of temporary staff upon obtaining suitable number of names from the  concerned employment exchange(s).  Engagement of casual labour was  directed to be resorted to for work of casual nature only and such casual  employees were not to be engaged as members of subordinate staff.   

       Inter alia on the premise that the respondent was engaged as  temporary messenger which, according to the Labour Court, was not of a  casual nature but of permanent one and, furthermore, having regard to the  fact that he was appointed on 3.5.1982 and his services were terminated on  3.9.1982, it was opined that unfair labour practice had been resorted to by  the management.  The Labour Court further noticed that one Basudeo was  appointed after termination of the services of the respondent.  The Labour  Court inter alia held that as no written notice was served on the respondent  before terminating his services, the same was illegal and upon referring to  the bipartite settlement by and between the Bank and the workmen, it was  held:

"In the instant case before termination of Mahatma  Misra two other persons worked as temporary

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

messenger and after his termination several others  were also appointed to work as temporary  messenger.  Thus, there was vacancy of permanent  nature and had the workman allowed to be  continued after 88 days he could have acquired the  status of permanent messenger and it was on that  count that his services were terminated two days  before which was an unfair (sic) on the part of the  management bank.

Thus, in view of the discussion made above and  the law discussed, I hold that the action of the  management bank of the State Bank of India in  terminating the service of the workman concerned  w.e.f. 4.9.1983 which in reality and admittedly  3.9.1982 and not considering him for further  employment as provided under Section 25H of the  I.D. Act is illegal.  The effect is that he will be  reinstated in service with full back wages."

       A writ petition was filed before the High Court.  A learned Single  Judge although opined that the respondent was not entitled to be granted a  permanent status after having worked only for a period of 88 days but in  purported interest of justice having regard to the fact that he had been paid  idle wages for a period of 20 years, it was directed:

"Thus, the sum and substance of the matter is that  it is not the absolute consequence of reinstatement  that in every case, full back wages are to be  granted, but that the issue of grant of back wages  must be gone into and the grant, if any, of back  wages must be given proper consideration which  shall of course vary from case to case.

       In view of the above discussion, the writ  petition is partly allowed.  I modify the award of  the Labour Court to the extent that no further back  wages shall be paid to the respondent workman.   However, his reinstatement shall continue."

       The approach of the Labour Court as also the High Court cannot be  appreciated.  The respondent was appointed only for 88 days.  The  requirements of Section 6-N of the U.P. Industrial Disputes Act was, thus,  not required to be complied with.  The Labour Court although proceeded on  the basis that Section 25-H of the Industrial Disputes Act would be attracted,  no reason has been assigned in support thereof.  If the appointment of the  respondent as a casual worker was for a fixed period and the termination of  his services was in terms of contract of employment, Section 25-H of the  Industrial Disputes Act would not have any application.  In a case of this  nature, Section 25-H of the Industrial Disputes Act is not attracted.  It is not  in dispute that the appointment of the respondent was made in violation of  circular letter issued by the Appellant \026 Bank.  Requirements of law as  envisaged under Employment Exchanges (Compulsory Notification of  Vacancies) Act, 1959 had also not been complied with.

       The appellant is a State within the meaning of Article 12 of the  Constitution of India.  A constitutional duty was, thus, enjoined to it to  comply with the doctrine of equality as enshrined under Articles 14 and 16  thereof.

       The Labour Court committed a serious illegality in proceeding on the  basis that retrenchment was illegal.  It was not so.  As was rightly observed  by the High Court, the respondent was not entitled to a permanent status.  If

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

he was not entitled to conferment of any permanent status having worked  only for 88 days and that too in the year 1982, we fail to understand as to  how he was entitled to be reinstated in service and that too with full  backwages.  The High Court although noticed the recent decisions of this  Court in relation to grant of backwages but it failed to consider a vital aspect  of the matter, viz., reinstatement in service can be directed provided the  termination is illegal.  No finding of fact has been arrived at that the  termination of the service of the respondent was illegal.  The question of  directing an award reinstating him in service did not and could not arise.   

       The question came up for consideration before a Division Bench of  this Court in Regional Manager, State Bank of India v. Raja Ram [(2004) 8  SCC 164] wherein it was held:

"It appears that the High Court as well as the  Labour Court had proceeded on a fundamental  misconception as to the nature of the right  available to the respondent. The respondent was  employed for a fixed period of 91 days. Assuming  that such an employee could be called a temporary  employee for the purposes of the Sastry Award,  the requirement as to service of notice of 14 days,  would, in cases where an employee has been  appointed for a fixed tenure, amount to an  embargo on the employer terminating the services  prior to the expiry of such period without giving a  14 days’ notice. The non-giving of the notice  would not mean that the employee would thereby  continue to serve beyond the period for which he  was originally appointed. The exception to this  principle is when an employee is appointed  temporarily for successive fixed tenures with  artificial breaks in between so as to deny the  employee the right to claim permanent  appointment. This action would be an unfair labour  practice within the meaning of the phrase in  Section 2(ra) of the Act. Section 2(ra) says that  unfair labour practice means any of the practices  specified in the Fifth Schedule to the Act. The  Fifth Schedule to the Act contains a list of unfair  labour practices which have been classified under  two heads, namely: (I) on the part of the employer  and trade unions of employers, and (II) on the part  of the workmen and trade unions of workmen. The  principle that we have referred to earlier finds  place in Item 10 of Part I under which "to employ workmen as ’badlis’, casuals or  temporaries and to continue them as such for  years, with the object of depriving them of the  status and privileges of permanent workmen" is an unfair labour practice. In other words, before  an action can be termed as an unfair labour  practice it would be necessary for the Labour  Court to come to a conclusion that the badlis,  casuals and temporary workmen had been  continued for years as badlis, casuals or temporary  workmen, with the object of depriving them of the  status and privileges of permanent workmen. To  this has been added the judicial gloss that artificial  breaks in the service of such workmen would not  allow the employer to avoid a charge of unfair  labour practice. However, it is the continuity of  service of workmen over a period of years which is  frowned upon. Besides, it needs to be emphasised

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

that for the practice to amount to unfair labour  practice it must be found that the workman had  been retained on a casual or temporary basis with  the object of depriving the workman of the status  and privileges of a permanent workman. There is  no such finding in this case. Therefore, Item 10 in  List I of the Fifth Schedule to the Act cannot be  said to apply at all to the respondent’s case and the  Labour Court erred in coming to the conclusion  that the respondent was, in the circumstances,  likely to acquire the status of a permanent  employee. Furthermore, both the High Court and  the Labour Court appeared to have proceeded on  the basis that the appointment of Ram Kumar after  the employment of the respondent ceased, also on  casual basis, was an unfair labour practice. If this  view is to be upheld the respondent’s appointment  in place of Sooraj would equally be an unfair  labour practice and therefore unsustainable."

         Unfair labour practice is not to be readily inferred.  Before a  conclusion in that behalf is drawn, the conditions precedent therefor must be  satisfied.  The Labour Court failed to show as to how the appellant can be  said to have taken recourse to unfair labour practice.  It was not a case where  the respondent was being appointed consistently for a number of years with  artificial breaks.  It was also not a case where the purport and object for such  appointment was to violate the provisions of the Industrial Disputes Act.   

       The question again came up for consideration before this Court in  Regional Manager, SBI v. Rakesh Kumar Tewari [(2006) 1 SCC 530]  wherein Raja Ram (supra) was followed.

       Section 11-A of the Industrial Disputes Act confers a discretionary  power in the Industrial Tribunal or the Labour Court, as the case may be.   Although in a given case, the Industrial Tribunal or the Labour Court may  grant appropriate relief, its discretion should be exercised judiciously.  An  employee after termination of his services cannot get a benefit to which he  was not entitled to if he remained in service.  It is one thing to say that  services of a workman was terminated in violation of mandatory provisions  of law but it is another thing to say that relief of reinstatement in service  with full backwages would be granted automatically.  Even in a case where  service of an employee is terminated in violation of Section 25-F of the  Industrial Disputes Act, he would not be entitled to grant of a permanent  status.  Regularisation does not mean permanence.  [See Secretary, State of  Karnataka and Others v. Umadevi (3) and Others, (2006) 4 SCC 1]

       This aspect of the matter has been considered by this Court in  Principal, Mehar Chand Polytechnic & Anr. v. Anu Lumba & Ors. [2006 (7)  SCALE 648] wherein it was observed:

"In Umadevi  (supra), it was stated :

"There have been decisions which have taken the  cue from the Dharwad case and given directions  for regularization, absorption or making  permanent, employees engaged or appointed  without following the due process or the rules for  appointment. The philosophy behind this approach  is seen set out in the recent decision in The  Workmen v. Bhurkunda Colliery of Central  Coalfields Ltd., though the legality or validity of  such an approach has not been independently  examined. But on a survey of authorities, the  predominant view is seen to be that such

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

appointments did not confer any right on the  appointees and that the Court cannot direct their  absorption or regularization or re-engagement or  making them permanent"

See also State of U.P. v. Neeraj Awasthi and  Others [(2006) 1 SCC 667].

Yet again in National Fertilizers Ltd. & Ors. v.  Somvir Singh  [(2006) 6 SCALE 101], it was held:

"Regularization, furthermore, is not a mode of  appointment.  If appointment is made without  following the Rules, the same being a nullity the  question of confirmation of an employee upon the  expiry of the purported period of probation would  not arise\005"                  It was further opined :         "It is true that the Respondents had been  working for a long time.  It may also be true that  they had not been paid wages on a regular scale of  pay.  But, they did not hold any post.  They were,  therefore, not entitled to be paid salary on a regular  scale of pay.  Furthermore, only because the  Respondents have worked for some time, the same  by itself would not be a ground for directing  regularization of their services in view of the  decision of this Court in Uma Devi (supra).""

       Furthermore, the High Court, in our opinion, committed a serious  error in passing an order only on the basis of sympathy although it was held  that the respondent was not entitled to any relief.

In Maruti Udyod Ltd.  v. Ram Lal and Others  [(2005) 2 SCC 638], it  was observed  :

"While construing a statute, "sympathy" has no  role to play. This Court cannot interpret the  provisions of the said Act ignoring the binding  decisions of the Constitution Bench of this Court  only by way of sympathy to the workmen  concerned.

In A. Umarani v. Registrar, Coop. Societies  this  Court rejected a similar contention upon noticing  the following judgments: (SCC pp.       131-32,  paras 68-70)

"68. In a case of this nature this Court should not  even exercise its jurisdiction under Article 142 of  the Constitution of India on misplaced sympathy.

69. In Teri Oat Estates (P) Ltd. v. U.T.,  Chandigarh18 it is stated: (SCC p.      144, paras  36-37)

’36. We have no doubt in our mind that sympathy  or sentiment by itself cannot be a ground for  passing an order in relation whereto the appellants  miserably fail to establish a legal right. It is further  trite that despite an extraordinary constitutional  jurisdiction contained in Article 142 of the  Constitution of India, this Court ordinarily would  not pass an order which would be in contravention

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

of a statutory provision.

37. As early as in 1911, Farewell, L.J. in Latham v.  Richard Johnson & Nephew Ltd. observed: (All  ER p. 123 E)

"We must be very careful not to allow our  sympathy with the infant plaintiff to affect our  judgment. Sentiment is a dangerous will o’ the  wisp to take as a guide in the search for legal  principles."  

70. Yet again, recently in Ramakrishna Kamat v.  State of Karnataka this Court rejected a similar  plea for regularisation of services stating: (SCC  pp.     377-78, para 7) ’We repeatedly asked the learned counsel for the  appellants on what basis or foundation in law the  appellants made their claim for regularisation and  under what rules their recruitment was made so as  to govern their service conditions. They were not  in a position to answer except saying that the  appellants have been working for quite some time  in various schools started pursuant to resolutions  passed by Zila Parishads in view of the  government orders and that their cases need to be  considered sympathetically. It is clear from the  order of the learned Single Judge and looking to  the very directions given, a very sympathetic view  was taken. We do not find it either just or proper to  show any further sympathy in the given facts and  circumstances of the case. While being  sympathetic to the persons who come before the  court the courts cannot at the same time be  unsympathetic to the large number of eligible  persons waiting for a long time in a long queue  seeking employment.’ "

       [See also State of Bihar & Ors. v. Amrendra Kumar Mishra, 2006 (9)  SCALE 549]

       For the reasons aforementioned, we are of the opinion that the  impugned judgments cannot be sustained which are set aside accordingly.   The respondent, however, has obtained idle wages for a long time.  Although  he was not entitled thereto, keeping in view the fact and circumstances of  this case, we do not direct refund of the said amount.  The appeal is allowed.   No costs.