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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.10856 OF 2014

(Arising out of SLP (C) No.31531 of 2009)

DURGAPUR CASUAL WORKERS UNION & ORS. ... APPELLANTS

VERSUS

FOOD CORPORATION OF INDIA & ORS. ... RESPONDENTS

J U D G M E N T

SUDHANSU JYOTI MUKHOPADHAYA, J.

Leave granted.

2. This appeal has been preferred by the appellant-Durgapur

Casual Workers Union and others (hereinafter referred to as,

‘the workmen’ for short) against the judgment and order dated

25

th

February, 2009 passed by the Division Bench of the High

Court at Calcutta in F.M.A. No.2345 of 2005 (C.A.N. 8685 of 2007

and C.A.N.4726 of 2008). By the impugned judgment, the High

Court allowed the appeal preferred by the respondent-Food

Corporation of India (hereinafter referred to as, ‘the

Corporation’ for short) and set aside the Award dated 9

th

June,

1999 passed by the Central Government Industrial Tribunal

(hereinafter referred to as, ‘the Tribunal’ for short) as

affirmed by the learned Single Judge of the High Court at

Calcutta.

3. The factual matrix of the case is as follows:

The Corporation had long back setup a rice mill in the

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name and style of Modern Rice Mill at Durgapur and it had been

handed to successive contractors for running the same. The

concerned workmen, forty nine in numbers, had been working as

contract labours under the contractors in the rice mill. The last

contractor was M/s Civicon. The contract system was terminated

and the rice mill was closed in the year 1990-1991. Thereafter,

the concerned workmen were directly employed by the Corporation

in June, 1991 as casual employees on daily wage basis in the Food

Storage Depot at Durgapur for performing the jobs of sweeping

godown and wagon floors, putting covers on infested stocks for

fumigation purpose, cutting grass, collections and bagging of

spillage from godowns/wagons etc.

There being an industrial dispute between the workmen and

the Corporation regarding the regularisation of services of the

workmen, the Government of India, Ministry of Labour in exercise

of powers conferred on them by clause (d) of sub Section (1) and

Sub Section (2A) of Section 10 of the Industrial Disputes Act,

1947 (hereinafter referred to as, ‘the Act’ for short) referred

the following dispute to the Tribunal for adjudication vide

Ministry’s order No.L-22012/348/95-IR (C.II) dated 18

th

July,

1996.

SCHEDULE

“Whether the demand of Durgapur Casual Workers Union

for absorption of 49 casual workmen as per list

enclosed by the management of FCI, Durgapur is

justified? If not, what relief they are entitled to?”

4. The said reference was registered as Reference No.21 of

1996 before the Tribunal. The Tribunal on appreciation of

evidence brought on record by the Management of the Corporation

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and the workmen and hearing the parties answered the reference in

favour of the workmen by Award dated 9

th

June, 1999 and held that

continued casualization of service of workmen amounts to unfair

labour practice as defined in item no.10 in part I of the Fifth

Schedule of the Act and that social justice principle demands

order of absorption and thereby directed the Management to absorb

49 casual workmen as per list.

5. The Corporation being aggrieved preferred a Writ Petition

being W.P.No.21368 (W) of 1999 before the High Court at Calcutta.

The learned Single Judge of the High Court on hearing the parties

and taking into consideration the evidence on record, dismissed

the writ petition by judgment and order dated 18

th

February, 2005

and affirmed the Award passed by the Tribunal.

6. Aggrieved by the aforesaid judgment of the learned Single

Judge, the Corporation preferred an appeal before the Division

Bench of High Court at Calcutta. One of the grounds taken was

that the appointments of the workmen were backdoor appointments.

The workmen were working under the contractor whose services as

terminated in the year 1990-1991 and thereafter on their demand,

the workmen were engaged as casual workmen under the Corporation

in June, 1991. It was contended that in view of Constitution

Bench judgment of this Court in Secretary, State of Karnataka

and others v. Umadevi (3) and others, (2006) 4 SCC 1 and

decisions rendered by this Court in other cases, regularization

of service cannot be allowed if it violates the basic principles

of Articles 14 and 16 of the Constitution of India. The Division

Bench of the High Court by impugned judgment dated 25

th

February,

2009 while setting aside the award as affirmed by the learned

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Single Judge held as follows:

“Hence, it appears that Appointing Authority has

every right to appoint either in substantive capacity

or in casual manner and/or ad-hoc. It is also a

settled legal position of law that

regularization/absorption of casual appointee/ad-hoc

appointee in a permanent post is not other mode of

appointment…...”

“In the instant case it appears that the workmen,

illegal appointees, moved the writ application in the

year 1994 and got an order of status quo to maintain

their service condition passed by the Writ Court and

as such, service of the workmen since 1994 till this

date is covered by the order of the Court, which is

accordingly attracted by the said riders of para 53

as quoted, to negative their claim.”

“Having regard to the aforesaid judgments of the Apex

Court, now the law has got its firm root being the

law of the land that no regularization even in

respect of a workman under Industrial Dispute Act is

permissible unless the contingencies of the law is

satisfied, namely, appointment following the rule,

appointment in a post and appointment for a long

continuous period in the angle of Secretary, State of

Karnataka and Ors. v. Uma Devi (3) and Ors. (supra).

This law of the land was existing and it has been re-

echoed and reviewed in Secretary, State of Karnataka

and Ors. v. Uma Devi (3) and Ors. (supra).”

“In the instant case, from the decision under

challenge in the writ application passed by the

learned Tribunal below, it appears that the Tribunal

did not answer by any findings as to why workmen were

legally entitled to be absorbed permanently on

considering the settled legal position of law that

absorption and/or regularization are not the mode of

permanent appointment. Even the reasoning as

advanced, namely, "unfair labour practice", it also

does not support the decision to regularize in

absence of any statutory provision for regularization

of service of the workmen under the four corners of

the Industrial Dispute Act, 1947. On the other

hand, Industrial Dispute Act provides under Chapter

VC as already quoted above by Section 25-U, a penal

consequences for imprisonment and fine. The very

essence and concept of unfair labour practice in the

angle and anvil of Section 25-T and 25-Uis that in

the industrial sector there is complete bar to

appoint the casual appointees for a continuous period

with the object to deprive them the status and

privileges of permanent workmen and as a coercive

measures to avoid such contingency, law has been

framed in a negative angle restraining/prohibiting

such unfair labour practice under the pain of

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punishment with imprisonment for a term in

Section 25U. Hence, even if any unfair labour

practice is assumed though it requires to be proved

by leading the evidence that such appointment as

casual appointee for a continuous period was with the

mens rea to deprive the workmen from their permanent

status and privileges, the award prima facie speaks

an "error of law" due to a decision applying

principle of "unfair labour practice" for "permanent

absorption" and it also covers the field of "without

jurisdiction" principle…..”

7. Learned counsel appearing on behalf of the appellants

submitted that in absence of any pleading made by the Corporation

before the Tribunal about legality of initial appointment of

appellants, it was not open to the Corporation to raise such

question before the Division Bench of the High Court. The

Division Bench of the High Court was also not justified in giving

any finding with regard to the initial appointment of the

workmen, in absence of any issue suggested or framed by the

Tribunal.

8. On the other hand, the respondents have taken a similar

plea as was taken before the High Court that the initial

appointments of the workmen were backdoor appointments and hence

the regularization is not permissible.

9. We have heard the rival contention of the parties and

perused the record.

10. The Industrial Disputes Act, 1947 is a beneficial

legislation enacted with an object for the investigation and

settlement of industrial disputes and for a certain other

benefits. Section 2 (j) of the Act defines industry as follows:

“2(j) “industry” means any business, trade,

undertaking, manufacture or calling of employers and

includes any calling, service, employment, handicraft,

or industrial occupation or avocation of workmen.”

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The Industrial dispute is defined under Section 2(k) as

follows:-

“2(k) “industrial dispute” means any dispute or

difference between employers and employers, or between

employers and workmen, or between workmen and workmen,

which is connected with the employment or non-employment

or the terms of employment or with the conditions of

labour, of any person.”

Section 2(ka) of the said Act defines “industrial

establishment or undertaking” and reads as follow:

“(ka) "industrial establishment or undertaking" means an

establishment or undertaking in which any industry is

carried on:

Provided that where several activities are carried on

in an establishment or undertaking and only one or some

of such activities is or are an industry or industries,

then,--

(a) if any unit of such establishment or undertaking

carrying on any activity, being an industry, is

severable from the other unit or units of such

establishment or undertaking, such unit shall be deemed

to be a separate industrial establishment or

undertaking;

(b) if the predominant activity or each of the

predominant activities carried on in such establishment

or undertaking or any unit thereof is an industry and

the other activity or each of the other activities

carried on in such establishment or undertaking or unit

thereof is not severable from and is, for the purpose of

carrying on, or aiding the carrying on of, such

predominant activity or activities, the entire

establishment or undertaking or, as the case may be,

unit thereof shall be deemed to be an industrial

establishment or undertaking;”

“Unfair labour practice", as defined under Section 2(ra)

means any of the practices specified in the Fifth Schedule.

11. The industrial establishment or undertaking as defined in

the Act not only includes the State Public Undertakings, the

Subsidiary Companies set up by the Principal Undertaking and

Autonomous bodies owned or control by the State Government or

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Central Government but also the private industries and

undertakings.

Industrial Disputes Act is applicable to all the industries

as defined under the Act, whether Government undertaking or

private industry. If any unfair labour practice is committed by

any industrial establishment, whether Government undertaking or

private undertaking, pursuant to reference made by the

appropriate Government the Labour Court/Tribunal will decide the

question of unfair labour practice.

12. In the matter of appointment in the services of the

‘State’, including a public establishment or undertaking,

Articles 14 and 16 of the Constitution of India are attracted.

However, Articles 14 and 16 of the Constitution of India are not

attracted in the matter of appointment in a private establishment

or undertaking.

13. An undertaking of the Government, which comes within the

meaning of industry or its establishment, cannot justify its

illegal action including unfair labour practice nor can ask for

different treatment on the ground that public undertaking is

guided by Articles 14 and 16 of the Constitution of India and the

private industries are not guided by Articles 14 and 16 of the

Constitution of India.

14. In the light of above discussion, in the present case the

issues that are to be determined are as follows:

1)Whether an issue relating to the validity of

initial appointment can be raised in absence of

any specific pleading or reference.

2)The Tribunal having held, as affirmed by the

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High Court that the respondent corporation had

committed unfair trade practice against the

workmen depriving them of status and privileges

of permanent workmen; whether the workmen were

entitled for relief of absorption?

15. Before deciding the issues, it is necessary to notice the

relevant decisions of this Court regarding regularization of

service/absorption in the Government Service or its undertakings

in the light of Articles 14 and 16 of the Constitution of India.

16. In Uma Devi (3) Constitution Bench of this Court while

observing that casual/temporary employees do not have any right

to regular or permanent employment held as follows :

“43. Thus, it is clear that adherence to the rule of

equality in public employment is a basic feature of our

Constitution and since the rule of law is the core of

our Constitution, a court would certainly be disabled

from passing an order upholding a violation of Article

14 or in ordering the overlooking of the need to comply

with the requirements of Article 14 read with Article 16

of the Constitution. Therefore, consistent with the

scheme for public employment, this Court while laying

down the law, has necessarily to hold that unless the

appointment is in terms of the relevant rules and after

a proper competition among qualified persons, the same

would not confer any right on the appointee. If it is a

contractual appointment, the appointment comes to an end

at the end of the contract, if it were an engagement or

appointment on daily wages or casual basis, the same

would come to an end when it is discontinued. Similarly,

a temporary employee could not claim to be made

permanent on the expiry of his term of appointment. It

has also to be clarified that merely because a temporary

employee or a casual wage worker is continued for a time

beyond the term of his appointment, he would not be

entitled to be absorbed in regular service or made

permanent, merely on the strength of such continuance,

if the original appointment was not made by following a

due process of selection as envisaged by the relevant

rules. It is not open to the court to prevent regular

recruitment at the instance of temporary employees whose

period of employment has come to an end or of ad hoc

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employees who by the very nature of their appointment,

do not acquire any right. The High Courts acting under

Article 226 of the Constitution, should not ordinarily

issue directions for absorption, regularisation, or

permanent continuance unless the recruitment itself was

made regularly and in terms of the constitutional

scheme. Merely because an employee had continued under

cover of an order of the court, which we have described

as “litigious employment” in the earlier part of the

judgment, he would not be entitled to any right to be

absorbed or made permanent in the service. In fact, in

such cases, the High Court may not be justified in

issuing interim directions, since, after all, if

ultimately the employee approaching it is found entitled

to relief, it may be possible for it to mould the relief

in such a manner that ultimately no prejudice will be

caused to him, whereas an interim direction to continue

his employment would hold up the regular procedure for

selection or impose on the State the burden of paying an

employee who is really not required. The courts must be

careful in ensuring that they do not interfere unduly

with the economic arrangement of its affairs by the

State or its instrumentalities or lend themselves the

instruments to facilitate the bypassing of the

constitutional and statutory mandates.”

45. While directing that appointments, temporary or

casual, be regularised or made permanent, the courts are

swayed by the fact that the person concerned has worked

for some time and in some cases for a considerable

length of time. It is not as if the person who accepts

an engagement either temporary or casual in nature, is

not aware of the nature of his employment. He accepts

the employment with open eyes. It may be true that he is

not in a position to bargain—not at arm’s length—since

he might have been searching for some employment so as

to eke out his livelihood and accepts whatever he gets.

But on that ground alone, it would not be appropriate to

jettison the constitutional scheme of appointment and to

take the view that a person who has temporarily or

casually got employed should be directed to be continued

permanently. By doing so, it will be creating another

mode of public appointment which is not permissible. If

the court were to void a contractual employment of this

nature on the ground that the parties were not having

equal bargaining power, that too would not enable the

court to grant any relief to that employee. A total

embargo on such casual or temporary employment is not

possible, given the exigencies of administration and if

imposed, would only mean that some people who at least

get employment temporarily, contractually or casually,

would not be getting even that employment when securing

of such employment brings at least some succour to them.

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After all, innumerable citizens of our vast country are

in search of employment and one is not compelled to

accept a casual or temporary employment if one is not

inclined to go in for such an employment. It is in that

context that one has to proceed on the basis that the

employment was accepted fully knowing the nature of it

and the consequences flowing from it. In other words,

even while accepting the employment, the person

concerned knows the nature of his employment. It is not

an appointment to a post in the real sense of the term.

The claim acquired by him in the post in which he is

temporarily employed or the interest in that post cannot

be considered to be of such a magnitude as to enable the

giving up of the procedure established, for making

regular appointments to available posts in the services

of the State. The argument that since one has been

working for some time in the post, it will not be just

to discontinue him, even though he was aware of the

nature of the employment when he first took it up, is

not one that would enable the jettisoning of the

procedure established by law for public employment and

would have to fail when tested on the touchstone of

constitutionality and equality of opportunity enshrined

in Article 14 of the Constitution.”

However, in respect of irregular appointments of duly

qualified persons working for more than 10 years, this Court

observed:

“53. One aspect needs to be clarified. There may be

cases where irregular appointments (not illegal

appointments) as explained in S.V. Narayanappa11, R.N.

Nanjundappa12 and B.N. Nagarajan8 and referred to in

para 15 above, of duly qualified persons in duly

sanctioned vacant posts might have been made and the

employees have continued to work for ten years or more

but without the intervention of orders of the courts or

of tribunals. The question of regularisation of the

services of such employees may have to be considered on

merits in the light of the principles settled by this

Court in the cases above-referred to and in the light of

this judgment. In that context, the Union of India, the

State Governments and their instrumentalities should

take steps to regularise as a one-time measure, the

services of such irregularly appointed, who have worked

for ten years or more in duly sanctioned posts but not

under cover of orders of the courts or of tribunals and

should further ensure that regular recruitments are

undertaken to fill those vacant sanctioned posts that

require to be filled up, in cases where temporary

employees or daily wagers are being now employed. The

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process must be set in motion within six months from

this date. We also clarify that regularisation, if any

already made, but not sub judice, need not be reopened

based on this judgment, but there should be no further

bypassing of the constitutional requirement and

regularising or making permanent, those not duly

appointed as per the constitutional scheme.

17. This Court in the case of M.P. Administration v.

Tribhuban, (2007) 9 SCC 748 while taking into account the

doctrine of public employment involving public money and

several other facts observed as follows:

“6. The question, however, which arises for

consideration is as to whether in a situation of this

nature, the learned Single Judge and consequently the

Division Bench of the Delhi High Court should have

directed reinstatement of the respondent with full back

wages. Whereas at one point of time, such a relief used

to be automatically granted, but keeping in view several

other factors and in particular the doctrine of public

employment and involvement of the public money, a change

in the said trend is now found in the recent decisions

of this Court. This Court in a large number of decisions

in the matter of grant of relief of the kind

distinguished between a daily wager who does not hold a

post and a permanent employee. It may be that the

definition of “workman” as contained in Section 2( s) of

the Act is wide and takes within its embrace all

categories of workmen specified therein, but the same

would not mean that even for the purpose of grant of

relief in an industrial dispute referred for

adjudication, application of constitutional scheme of

equality adumbrated under Articles 14 and 16 of the

Constitution of India, in the light of a decision of a

Constitution Bench of this Court in Secy., State of

Karnataka v. Umadevi (3) and other relevant factors

pointed out by the Court in )a catena of decisions shall

not be taken into consideration.

7. The nature of appointment, whether there existed any

sanctioned post or whether the officer concerned had

any authority to make appointment are relevant factors.

(See M.P. Housing Board v. Manoj Shrivastava (2006)2

SCC 702, State of M.P. v. Arjunlal Rajak (2006)2 SCC

711 and M.P. State Agro Industries Development Corpn.

Ltd. v. S.C. Pandey, 2006 (2) SCC 716.)

18. The effect of Constitution Bench decision in Uma Devi

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(3), in case of unfair labour practice was considered by this

Court in Maharashtra State Road Transport and another v.

Casteribe Rajya Parivahan Karmchari Sanghatana (2009) 8 SCC 556.

In the said case, this Court held that Umadevi’s case has not

over ridden powers of Industrial and Labour Courts in

passing appropriate order, once unfair labour practice on the

part of employer is established. This Court observed and held

as follows:

“34. It is true that Dharwad Distt. PWD Literate

Daily Wages Employees’ Assn.v. State of Karnataka,

(1990) 2 SCC 396 arising out of industrial

adjudication has been considered in State of

Karnataka v .Umadevi (3), (2006)4 SCC 1 and that

decision has been held to be not laying down the

correct law but a careful and complete reading of

the decision in Umadevi (3) leaves no manner of

doubt that what this Court was concerned in Umadevi

(3) was the exercise of power by the High Courts

under Article 226 and this Court under Article 32 of

the Constitution of India in the matters of public

employment where the employees have been engaged as

contractual, temporary or casual workers not based

on proper selection as recognised by the rules or

procedure and yet orders of their regularisation and

conferring them status of permanency have been

passed.

35. Umadevi (3) is an authoritative pronouncement

for the proposition that the Supreme Court (Article

32) and the High Courts (Article 226) should not

issue directions of absorption, regularisation or

permanent continuance of temporary, contractual,

casual, daily wage or ad hoc employees unless the

recruitment itself was made regularly in terms of

the constitutional scheme.

36. Umadevi (3) does not denude the Industrial

and Labour Courts of their statutory power under

Section 30 read with Section 32 of the MRTU and PULP

Act to order permanency of the workers who have been

victims of unfair labour practice on the part of the

employer under Item 6 of Schedule IV where the posts

on which they have been working exist. Umadevi (3)

cannot be held to have overridden the powers of the

Industrial and Labour Courts in passing appropriate

order under Section 30 of the MRTU and PULP Act,

once unfair labour practice on the part of the

employer under Item 6 of Schedule IV is

established.”

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“47. It was strenuously urged by the learned

Senior Counsel for the Corporation that the

Industrial Court having found that the Corporation

indulged in unfair labour practice in employing the

complainants as casuals on piece-rate basis, the

only direction that could have been given to the

Corporation was to cease and desist from indulging

in such unfair labour practice and no direction of

according permanency to these employees could have

been given. We are afraid, the argument ignores and

overlooks the specific power given to the

Industrial/Labour Court under Section 30(1)( b) to

take affirmative action against the erring employer

which as noticed above is of wide amplitude and

comprehends within its fold a direction to the

employer to accord permanency to the employees

affected by such unfair labour practice.”

19. Almost similar issue relating to unfair trade practice

by employer and the effect of decision of Umadevi (3) in the

grant of relief was considered by this Court in Ajaypal Singh

v. Haryana Warehousing Corporation in Civil Appeal No.6327 of

2014 decided on 9

th

July, 2014. In the said case, this Court

observed and held as follows:

“20.The provisions of Industrial Disputes Act and

the powers of the Industrial and Labour Courts

provided therein were not at all under consideration

in Umadevi’s case. The issue pertaining to unfair

labour practice was neither the subject matter for

decision nor was it decided in Umadevi’s case.

21. We have noticed that Industrial Disputes Act

is made for settlement of industrial disputes and

for certain other purposes as mentioned therein. It

prohibits unfair labour practice on the part of the

employer in engaging employees as casual or

temporary employees for a long period without giving

them the status and privileges of permanent

employees.

22. Section 25F of the Industrial Disputes Act,

1947 stipulates conditions precedent to retrenchment

of workmen. A workman employed in any industry who

has been in continuous service for not less than one

year under an employer is entitled to benefit under

said provision if the employer retrenches workman.

Such a workman cannot be retrenched until he/she is

given one month's notice in writing indicating the

reasons for retrenchment and the period of notice

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has expired, or the workman has been paid in lieu of

such notice, wages for the period of the notice

apart from compensation which shall be equivalent to

fifteen days' average pay for every completed year

of continuous service or any part thereof in excess

of six months. It also mandates the employer to

serve a notice in the prescribed manner on the

appropriate Government or such authority as may be

specified by the appropriate Government by

notification in the Official Gazette.

If any part of the provisions of Section 25F

is violated and the employer thereby, resorts to

unfair trade practice with the object to deprive the

workman with the privilege as provided under the

Act, the employer cannot justify such an action by

taking a plea that the initial appointment of the

employee was in violation of Articles 14 and 16 of

the Constitution of India.

23. Section 25H of the Industrial Disputes Act

relates to re-employment of retrenched workmen.

Retrenched workmen shall be given preference over

other persons if the employee proposes to employ any

person.

24. We have held that provisions of Section 25H

are in conformity with the Articles 14 and 16 of the

Constitution of India, though the aforesaid

provisions (Articles 14 and 16) are not attracted in

the matter of re-employment of retrenched workmen in

a private industrial establishment and undertakings.

Without giving any specific reason to that effect at

the time of retrenchment, it is not open to the

employer of a public industrial establishment and

undertaking to take a plea that initial appointment

of such workman was made in violation of Articles 14

and 16 of the Constitution of India or the workman

was a backdoor appointee.

25. It is always open to the employer to issue an

order of “retrenchment” on the ground that the

initial appointment of the workman was not in

conformity with Articles 14 and 16 of the

Constitution of India or in accordance with rules.

Even for retrenchment on such ground, unfair labour

practice cannot be resorted and thereby workman

cannot be retrenched on such ground without notice,

pay and other benefits in terms of Section 25F of

the Industrial Disputes Act, 1947, if continued for

more than 240 days in a calendar year.

26. However, in other cases, when no such plea is

taken by the employer in the order of retrenchment

that the workman was appointed in violation of

Articles 14 and 16 of the Constitution of India or

in violation of any statutory rule or his

appointment was a backdoor appointment, while

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granting relief, the employer cannot take a plea

that initial appointment was in violation of

Articles 14 and 16 of the Constitution of India, in

absence of a reference made by the appropriate

Government for determination of question whether the

initial appointment of the workman was in violation

of Articles 14 and 16 of the Constitution of India

or statutory rules. Only if such reference is made,

a workman is required to lead evidence to prove that

he was appointed by following procedure prescribed

under the Rules and his initial appointment was

legal.”

20. In the present case, it is admitted that the workmen had

been working as contract labours under the contractor in the

rice mill of the Corporation. The contract system was

terminated and the rice mill was closed in the year 1990-1991.

The effect was termination of services of the workmen. In that

view of the matter, they were entitled for re-employment when

the employer proposed to take into his employment any person,

in view of Section 25H, which reads as follows:

“Section 25H. Re-employment of retrenched workmen.-

Where any workmen are retrenched, and the employer

proposes to take into his employ any persons, he

shall, in such manner as may be prescribed, give an

opportunity to the retrenched workmen who are

citizens of India to offer themselves for re-

employment and such retrenched workman who offer

themselves for re-employment shall have preference

over other persons.”

Under Section 25H the retrenched workman who offer

themselves for employment shall have preference over other

persons. It was for the said reason the workmen were employed

by the Corporation in June, 1991.

21. This Court in Ajaypal Singh held that the provisions of

Section 25H are in conformity with Articles 14 and 16 of the

Constitution of India, though, the aforesaid provisions

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(Articles 14 and 16) are not attracted in the matter of re-

employment of retrenched workmen in private industrial

establishment and undertakings. In that view of the matter it

can be safely held that the workmen who were retrenched, were

rightly taken in the services of Corporation. Admittedly, no

plea was taken by the Corporation either before the State

Government or before the Tribunal that the initial appointment

of workmen were illegal or they were appointed through back

door means.

22. In this background, we are of the view that it was not

open to the Division Bench of the High Court, particularly in

absence of any such plea taken by the Corporation before the

Tribunal to come to a finding of fact that initial appointments

of workmen were in violation of Articles 14 and 16 of the

Constitution of India, nor it was open to the High Court to

deny the benefit to which the workmen were entitled under item

10 of Part I of the Fifth Schedule of the Act, the Tribunal

having given specific finding of unfair trade practice on the

part of the Management of the Corporation.

23. Having accepted that there was unfair trade practice, it

was not open to the Division Bench of the High Court to

interfere with the impugned award.

24. For the reasons aforesaid, we aside the impugned judgment

dated 25

th

February, 2009 passed by the Division Bench of the

High Court at Calcutta in F.M.A. No.2345 of 2005 (C.A.N.8685 of

2007 and C.A.N.4726 of 2008). Award dated 9

th

June, 1999 passed

by the Tribunal in Reference No.21 of 1996 as affirmed by the

Page 17 17

learned Single Judge by order dated 18

th

February, 2005 in W.P.

No.21368 (W) of 1999 is upheld. The respondent-Corporation is

directed to implement the Award from its due date as ordered by

the Tribunal. The appeal is allowed with aforesaid observations

and directions. No costs.

...........................J.

[SUDHANSU JYOTI MUKHOPADHAYA]

..........................J.

[PRAFULLA C. PANT]

NEW DELHI;

DECEMBER 09, 2014.