TMI Blog2006 (11) TMI 544X X X X Extracts X X X X X X X X Extracts X X X X ..... t mean permanence. 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. - Appeal (civil) 4636 of 2006 - - - Dated:- 1-11-2006 - S.B. Sinha and Markandey Katju, JJ. JUDGMENT 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 cum 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 assigne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ployer 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 perman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strial 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 regulariz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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