TMI Blog2005 (3) TMI 802X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 eligib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 : Assuming 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 as ..... 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