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TMI Blog2006 (11) TMI 544X X X X Extracts X X X X X X X X Extracts X X X X ..... ar issued by the Personnel Department of the Appellant -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 wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 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 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 Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king 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 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" It was further opined : "It is true that the Respondents had been working for a l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gularisation 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 ju ..... X X X X Extracts X X X X X X X X Extracts X X X X
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