Bank of Baroda v. Shri Shashikant Pitale & Ors.

5 Appeal No. 502 OF 2009 Decided on 29 April 2010 such a considerable period of time, they were surreptitiously terminated from service without following the provisions of Section 25F of the ID Act. That since each of the Respondents had completed more than 240 days of service and it is proved that their termination is without following due process of law, the Tribunal has rightly set aside their termination and directed reinstatement. That the Tribunal has directed payment of only 30% backwages even though terminations are found to be illegal. He would submit that the Petitioner terminated the services of Respondent-Workmen and replaced them with other contractual staff. That the case thus clearly involves replacement of one set of casual workers by another. He would further submit that the Tribunal has rightly come to the conclusion of violation of provisions of Sections 25F and 25G of the ID Act. That the impugned action of the Bank amounts to victimization. That the principle of seniority was not followed while effecting oral terminations. That subsequently services of similarly placed workers were regularised through a settlement. In support of his contentions, Mr. Barve would rely upon following judgments:-

(i) Ramesh Kumar Versus. State of Haryana.[7]

(ii) Sarva Shramik Sangh (Union) Versus. The Commissioner and

(iii) Maharashtra Police Academy Versus. Bharati Yashwant Salve. 9

11) Mr. Barve would further submit that direction for regularisation of services of the Respondents by the Tribunal does not call for any interference. That Petitioner-Bank is also governed by Standing Orders mandating regularisation on completion of 240 days of service. He would further submit that Respondents were

8 WP No. 2644 of 2020 decided on 2 August 2025 9 WP No. 9690 of 2025 decided on 15 October 2025 performing duties of regular staff. They were continued for substantial years. That they fulfill the requirements even under the judgment of Umadevi (supra). He would also rely upon judgment of the Apex Court in Dharam Singh & Others. Versus. State of U.P. and another10 in support of his contention that direction for regularization given by the Tribunal is in tune with the law laid down by the Apex Court. Mr. Barve would pray for dismissal of the Petition.

12) Respondent No.2 has segregated himself from the rest of the workmen and has appeared in person. He has filed written submissions in which it is contended that the principle of seniority was not followed while terminating his services. That his juniors were retained in service after effecting his termination. That his illegal termination has deprived him of settlement dated 18 March 2008 by which services of junior employees were regularised. He has relied upon judgment of the Apex Court in Maharashtra State Road Transport Corporation and another Versus. Casteribe Rajya and Hari Nandan Prasad and Another Versus. Employer I/R to Management of Food Corporation of India And Another 12 in support of the claim for regularisation.

13) Rival contentions of the parties now fall for my consideration.

14) Respondents were apparently engaged at the branch levels to work as Peons in exigency of services by the respective Branch Managers of the Bank. There is no dispute to the position

11 (2009) 3 CLR 262 that the Bank had not issued any advertisement in pursuance of which engagement of Respondents were effected. It appears that engagements were made at different times and the concerned workmen have rendered varying periods of service. Mr. Barve has placed on record details of services of the Respondents by way of a chart. The dates of joining by each of the Respondents are indicated in the said chart as under:- Sr. No. Name Date of Joining

1. Shashikant Pitale 30/12/1997

2. Anant R. Bawkar 03/03/1995

3. Hemant M. Mhatre 07/07/1997

4. Amrut S. Bhosal 1997

5. Devdas Gaikwad 30/03/1997

6. Sanjay B. Patil 01/09/1998

7. Shilandra J.Tajane 1994

9. Praveen S. Nanarkar 21/08/1995

10. Prakash M. Anchan 04/10/1993

11. Vikas S. Kadam 10/01/1997

12. Sunil M.D' Britto 10/06/1998

13. Madhukar S. Ghodke 14/02/1994

14. Suresh T. More 25/11/1991

15. Tukaram K. Mahadik 14/02/1994

16. Sunil R. Jangam 16/11/1995

17. Sanjay Dhuria 05/05/1998

18. Santosh N. Gabhane 25/11/1998

19. Vijay A. Katale 20/08/1999

20. Yogesh M. Lokhande 25/11/1998

21. Mahesh K. Pujare 14/08/2000

22. Rajendra P. Waingankar 27/03/2000

23. Prabhakar P. Mahadik 01/04/1997

24. Pardip B. Gowalkar 06/09/1994

25. Gajanan Kale 22/06/1998

26. Eknath D. Kadam 15/03/1991

27. Mahesh S. Khetle 25/05/1998

28. Shivaji N. More 14/10/1998

29. Mahendra Mahakal 07/06/1994

30. Nitin C. Lad 01/02/1998

31. Latesh S. Surve 1987

32. Sanjay C. Mohite 05/02/1998

33. Rajesh J. Dabholkar 21/10/1998

34. Naresh G. Pawar 26/08/1999

35. Prashant B. Mhatre 01/10/1997

36. Sunil B. Patil 12/08/1995

37. Narayan B. Talekar 02/05/1994

38. Vishwambar J. Pednekar 21/01/1992

39. Umesh D. Patil 28/05/1997

40. Santosh D. Kalambe 17/09/1996

41. Damodar J. Thool 09/07/1996

42. Chandrakant C. Mohite 01/11/1996

43. Sachin B. Ghag 21/10/1998

44. Sachin R. Lokhande 14/02/1994

45. Roshan R. Bhatkar 18/05/1997

15) It appears that services of the Respondents were discontinued orally and without issuing any written communications. At the behest of the Respondents, following dispute was referred for adjudication by CGIT:- Whether the action of the management of Bank of Baroda in terminating the services of 45 workmen (list enclosed) is justified? If not, what relief these 45 workmen are entitled to?" Thus, the Reference was made only with regard to termination of services of the Respondents.

16) The CGIT went into the issue of validity of termination effected in August 2002. After appreciating the evidence on record, the CGIT has recorded a finding of fact that the Respondent- Workmen had put in 240 days of service and that they were entitled to protection under Section 25F of the ID Act. The factum of completion of 240 days of service is not seriously disputed by the Petitioner-Bank. Mr. D’souza has also not disputed the position that notice and retrenchment compensation as required under Section 25F of the ID Act were not issued/paid to the Respondents. The Tribunal has further recorded a finding of fact that terminations were effected without following seniority principle in violation of provisions of Section 25G of the ID Act. Again, this is a finding of fact recorded after appreciating the evidence on record.

17) I therefore do not find any valid reason to interfere in the findings recorded by the Tribunal about wrongful termination in violation of provisions of Sections 25F and 25G of the ID Act.

18) After holding that the services of the Respondents were wrongfully terminated in violation of provisions of Sections 25F and 25G of the ID Act, CGIT has granted the relief of reinstatement with 30% backwages.

19) The impugned Award is passed on 18 June 2014 and by now period of 11 long years has elapsed. This Court, while admitting the Petition, has stayed the operation of the impugned Award by order dated 5 August 2015 and the Apex Court has refused to interfere in the said Order. This Court has also rejected the prayer for wages under Section 17B of the ID Act by detailed order dated 7 April 2017. By now period of 23 long years has passed, since discontinuation of services of the Respondent. Some of Respondents have passed away and some of them have already crossed the age of retirement of 60 years. Most of them are left with only few years of service before attaining the age of retirement. In such circumstances, in my view, though termination of Respondents is found to be erroneous, reinstatement would not be appropriate course of action to be adopted at this stage considering the facts and circumstances of the case. It would rather be appropriate to award lump-sum compensation to the Respondents in lieu of reinstatement and backwages.

20) It is also settled position of law that reinstatement cannot be a natural consequence if the termination is found to be in contravention of provisions of Section 25F of the ID Act. In Telecom District Manager (supra) the Apex court has held in para-27 as under:-

27. Even if the provisions of Section 25F of the Industrial Disputes Act had not been complied with, respondent was only entitled to be paid a just compensation. While, however, determining the amount of compensation we must also take into consideration the stand taken by the appellants. They took not only an unreasonable stand but raised a contention in regard to absence of jurisdiction in the Tribunal. They admittedly did not comply with the order passed by the Tribunal for a long time. It had raised contention which are not otherwise tenable.

21) In Jagbir Singh (supra), the Apex Court held in para-14 as under:-

14. It would be, thus, seen that by catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation of Section 25F although may be set aside but an award of reinstatement should not, however, be automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily wager who does not hold a post and a permanent employee.

22) In Bharat Sanchar Nigam Limited (supra), the Apex Court has held in para-33 as under:-

33. It is clear from the reading of the aforesaid judgments that the ordinary principle of grant of reinstatement with full back wages, when the termination is found to be illegal is not applied mechanically in all cases. While that may be a position where services of a regular/permanent workman are terminated illegally and/or malafide and/or by way of victimization, unfair labour practice etc. However, when it comes to the case of termination of a daily wage worker and where the termination is found illegal because of procedural defect, namely in violation of Section 25F of the Industrial Disputes Act, this Court is consistent in taking the view in such cases reinstatement with back wages is not automatic and instead the workman should be given monetary compensation which will meet the ends of justice. Rationale for shifting in this direction is obvious.

23) Considering the above position, in my view, the correct course of action to be adopted in the present case would be to direct payment of lump-sum compensation to the Respondents rather than upholding the direction of reinstatement and backwages.

24) Mr. Barve has strenuously relied upon judgment of learned Single Judge of this Court (M.N. Jadhav, J.) in Sarva Shramik Sangh (Union) (supra) in which this Court held that mere pendency of Reference for a long time cannot be a ground for payment of lump-sum compensation or for denying the relief of reinstatement. However, if facts of the case in Sarva Shramik Sangh (Union) are considered, it appears that the workmen therein were employed in the hospital of the Municipal Corporation in pursuance of advertisements published in the local newspapers. Though the appointments were made directly by the Municipal Corporation, they were shown as workers of contractors. In view of these peculiar circumstances of the case, this Court held that reinstatement in service would be appropriate course of action. The judgment rendered in peculiar facts of that case cannot be applied in the present case.

25) Mr. Barve has also relied upon judgment of this Court in Maharashtra Police Academy (supra) in support of the contention that direction for reinstatement deserves to be upheld. However, in Maharashtra Police Academy, clear vacancies of posts existed against which initial engagements were made. The academy thereafter resolved to regularise the services of employees, who had continued against such regular vacant posts for 8 years. It appears that the employees were subjected to some selection process at the time of their initial engagements. Considering the above peculiar facts of the case, this Court upheld the direction for reinstatement in service. Also, the services were terminated on 11 January 2018 and the termination was set aside within 4 years by the Labour Court on 26 July 2022. It is in the light of these peculiar facts that this Court upheld the direction for reinstatement.

26) Mr. Barve has also relied on judgment of the Apex Court in Ramesh Kumar (supra). In case before the Apex Court, the Appellant therein was appointed as Mali and posted at the residence of the Chief Minister in the year 1991. He worked for three years without any break and thereafter discontinued. It was held that the Appellant had completed 240 days of service. There was no prayer for regularisation by the Appellant. It appears that the Appellant was continued in service by which time the Apex Court decided the Appeal and he gave up claim for backwages. It is in the light of these peculiar facts that the Apex Court upheld the order of the Labour Court for reinstatement. The judgment rendered in peculiar facts of the that case would have no application to the present case.

27) Coming to the aspect of direction for regularisation, it is seen that the CGIT has directed regularisation of services of Respondent-Workman at par with other similarly placed workmen as per their seniority and in accordance with the settlement. However, it appears that the issue of regularisation was not referred for adjudication by the Appropriate Government. The reference was only with regard to the termination and reinstatement. It appears that the Respondent-Workmen amended the Statement of Claim for claiming benefit of regularisation under the Settlement dated 18 March 2008. However, perusal of the amended Statement of Claim would indicate that no specific prayer was added in the original Statement of Claim for regularisation. It also appears that CGIT also did not frame any specific issue relating to regularisation. The issues framed by CGIT are as under:-

1. Are the workmen involved in the reference employees of the first party?

2. Do they prove that they were illegally terminated?

3. Are they entitled to reinstatement and full back wages?

4. What order?

28) Thus, the Reference made to CGIT did not cover the aspect of regularisation. The issues framed by the CGIT also did not include the issue of regularisation. In absence of Reference and framing of issue, CGIT has erroneously proceeded to adjudicate the issue of regularisation. It is a settled law that Labour/Industrial Court cannot travel beyond the scope of Reference. In this regard, it would be useful to make reference to the judgment in Emerson Climate Technologies (India)Pvt. Ltd. Now known as Copeland India Private Ltd. Versus. Bharatiya Kamgar Karmachari Mahasangh 13 in which it is held in paras 19 to 23 as under:-

19) Petitioner contends that Industrial Tribunal has travelled outside the scope of Reference while delivering the impugned Award. It is contended that existence of employer-employee relationship and contract being sham and bogus were never made terms of Reference by the Appropriate Government. It is contended that the Reference was for direct absorption in services of Petitioner as if the workers were temporary workers of the Petitioner. That there is no reference to the Industrial Tribunal to decide whether the contract is sham or bogus or that the workers employed by the Contractor are indeed the direct workers of Petitioner.

20) Reliance is placed on judgment of the Apex Court in Tata Iron and Steel Company Ltd. (supra) in which it is held in paragraph 16 and 18 as under:

16. The Industrial Tribunal/Labour Court constituted under the Industrial Disputes Act is a creature of that statute. It acquires jurisdiction on the basis of reference made to it. The Tribunal has to confine itself within the scope of the subject-matter of reference and cannot travel beyond the same. This is the view taken by this Court in a number of cases including in National Engg. Industries Ltd. v. State of Rajasthan. It is for this reason that it becomes the bounden duty of the appropriate Government to make the reference appropriately which is reflective of the real/exact nature of "dispute" between the parties.

18. It follows from the above that the reference in the present form is clearly defective as it does not take care of the correct and precise nature of the dispute between the parties. On the contrary, the manner in which the reference is worded shows that it has already been decided that the respondent workmen continue to be the employees of the appellant and further that their services were simply transferred to M/s Lafarge. This shall preclude the appellant to put forth and prove its case as it would deter the Labour Court to go into those issues. It also implies that by presuming so, the appropriate Government has itself decided those contentious issues and assumed the role of an adjudicator which is, 13 WRIT PETITION NO. 3761 OF 2025 decided on 5 May 2025. otherwise, reserved for the Labour Court/Industrial Tribunal. (emphasis added)

21) Reliance is also placed on judgment of the Apex Court in Pottery Mazdoor Panchayat (supra) in which it is held in paragraph 11 as under:

11. Having heard a closely thought out argument made by Mr. Gupta on behalf of the appellant, we are of the opinion that the High Court is right in its view on the first question. The very terms of the references show that the point of dispute between the parties was not the fact of the closure of its business by the respondent but the propriety and justification of the res-pondent's decision to close down the business. That is why the references were expressed to say whether the proposed closure of the business was proper and justified. In other words, by the references, the Tribunals were not called upon by the Government to adjudicate upon the question as to whether there was in fact a closure of business or whether under the pretence of closing the business the workers were locked out by the management. The references being limited to the narrow question as to whether the closure was proper and justified, the Tribunals by the very terms of the references, had no jurisdiction to go behind the fact of closure and inquire into the question whether the business was in fact closed down by the management.

22) In Mahendra Jain (supra) it is held in paragraph 34 as under:

34. We have noticed the provisions of the Act and the Rules. No case was made out by the appellants herein in their statements of claims that they became permanent employees in terms thereof. There is also nothing on record to show that such a claim was put forward even in the demand raising the industrial dispute. Presumably, the appellants were aware of the statutory limitations in this behalf. Furthermore, the Labour Court having derived its jurisdiction from the reference made by the State Government, it was bound to act within the four corners thereof. It could not enlarge the scope of the reference nor could deviate therefrom. A demand which was not raised at the time of raising the dispute could not have been gone into by the Labour Court being not the subject-matter thereof.

23) Thus, the law appears to be well settled that Industrial Adjudicator derives its jurisdiction from Reference made by the appropriate Government and that it is bound to act within its four corners. The Industrial Tribunal cannot enlarge the scope of Reference nor can it deviate therefrom. Industrial Tribunal, being a creature under the ID Act, acquires jurisdiction on the basis of a Reference made to it. The appropriate Government needs to make a Reference in such a manner that it reflects the real nature of ‘dispute’ between the parties. If the Reference is found to be defective, which does not take care of correct and precise nature of a dispute, Industrial Adjudicator cannot expand the scope and proceed to decide issues that fall outside the scope of Reference. Having stated the position of law about contours of jurisdiction of Industrial Adjudicator to decide the dispute within its four corners, I now proceed to examine whether Industrial Tribunal has exceeded the terms of Reference.

29) Even if the issue of permissibility to grant relief not covered by the terms of Reference is to be momentarily ignored, in my view the relief of regularization in the present case was unwarranted and in any case the same cannot be upheld in the light of this Court not upholding the direction for reinstatement. The Industrial Court has granted the relief of regularization by rendering a vague finding that the Management had regularised the services of some other similarly placed workmen. The relief of regularisation appears to have been granted as a consequential relief of reinstatement by holding that termination resulted in denial of benefit of settlement. However, once this Court has arrived at the conclusion that reinstatement itself was not warranted, the question of extending the benefit of settlement does not arise.

30) Even on merits, it is difficult to uphold the claim for regularisation. Perusal of details of services rendered by the Respondents placed on record by Mr. Barve would indicate that many of the Respondents had rendered only few years of service prior to their termination. It appears that only couple of them may have completed 10 years of service prior to their termination. The law relating to regularisation of services of casual/temporary/Ad- Hoc workers is settled by Constitution Bench judgment in Umadevi (supra). The judgment permitted regularization of only such employees whose engagements were against sanctioned posts but were irregular. In the present case, there is nothing to indicate that the initial engagements of Respondents were against regularly sanctioned posts. They were utilized as Peons by respective bank managers in excess of sanctioned strength.

31) The Petitioner is an instrumentality of State. An industrial adjudicator cannot direct creation of posts on the establishment of the Petitioner-Bank in an indirect manner by directing regularisation. The issue of impermissibility to direct regularization of services of temporary workers on establishment of State Instrumentality, in absence of sanctioned posts, is no more res-integra and is covered by judgment of Division Bench of this Court in Municipal Council, Tirora vs. Tulsidas Baliram Bindhade14. While answering the reference arising out of conflicting views expressed in judgments of learned Single Judges, the Division Bench has held as under:-

19. In this reference, the position emerging before us is similar. There is no conflict between the provisions of M.S.O. 4C and the provisions of the section 76 of the 1965 Act. In the event of the appointment having been made validly, it may be possible to invoke the provisions Cl. 4C of M.S.O.A. view to the contrary would result in regularizing/validating a void act. Cl. 4C neither permits nor contemplates the same. As held in the above judgments, if the appointment is not made in accordance with the constitutional scheme, it is void ab initio and, therefore, there can be no claim to its regularization or for grant of permanency in any manner. This is all the more so as Cl. 32 of 14 2016 (6) Mh.L.J. 867 the M.S.O. clarifies that the Standing Orders are not to operate in derogation of any other law i.e. section 76 of 1965 Act. Definitely any interpretation of Clause 4C conducive to defeating the Constitutional mandate is unwarranted. Violation of Clause 4C of the MSO may tantamount to an unfair labour practice under item 9 of Sch. IV of the 1971 Act but unless and until, other additional factors are proved on record, finding of indulgence in an unfair labour practice under Item 6 of Sch. IV thereof cannot be reached. As explained by the Hon'ble Apex Court in case of Maharashtra SRTC v. Casteribe Rajya Parivahan Karmchari Sanghatana, (supra), existence of a legal vacancy must be established and as discussed above, the power to recruit with the employer must also be demonstrated. In absence thereof, workman cannot succeed in proving the commission of unfair labour practice under Item 6 by the employer. These two ingredients, therefore, also must be established when benefit of Cl. 4C is being claimed. Unless availability of a vacancy is shown or then power with the employer to create the post and to fill it is brought on record, mere continuation of 240 days cannot and does not enable the workman to claim permanency by taking recourse to Cl. 4C read with Item 9 of Sch. IV of 1971 Act. Clause 4C does not employ word "regularisation" but then it is implicit in it as no "permanency" is possible without it. Conversely, it follows that when a statutory provision like section 76 disables the employer either from creating or filling in the posts, such a claim cannot be sustained. This also nullifies the reliance upon the judgment of learned Single Judge in case of Maharashtra Lok Kamgar Sanghatana v. Ballarpur Industries Limited (supra) where the employer was a private Company not subjected to such regulatory measures by any Statute and enjoyed full freedom to create the posts and to recruit. One of us (B.P. Dharmadhikari, J.) is party to the judgment of this Court in Raymond UCO Denim Private Ltd. v. Praful Warade (supra) which again needs to be distinguished for the same reasons. The judgment of learned Single Judge in case of Indian Tobacco Company Ltd. v. Industrial Court (supra), judgment of Hon'ble Apex Court affirming it or then judgment of Hon'ble Apex Court reported at Western India Match Company Ltd. And Workmen are all considered therein and are distinguishable as the same do not pertain to the province of public employment or consider inherent Constitutional restraints (the suprema lex-see Mahendra L. Jain v. Indore Development Authority (supra) and Cl. 32 of the MSO. For same reasons, law laid down by the Full Bench judgment of this Court in 2007 (1) Mh.L.J. (F.B.) 754: 2007 (1) CLR 460 Gangadhar Balgopal Nair v. Voltas Limited does not advance the cause of workmen. The Division Bench of this Court in May and Baker Ltd. v. Kishore Jaikishandas Icchaporia (supra) while construing section 10A(3) held that the expression "other law" would not refer to the Model Standing Orders or the Certified Standing Orders since they are laws made under the provisions of Parent Act itself and not under any other law. The Model Standing Orders and Certified Standing Orders, held the Division Bench, "are laws no doubt but they are laws made under the provisions of the Act". They were held not to be provisions under any other law. This discussion therefore shows how these words "in derogation of any law for the time being in force" in Cl. 32 of MSO need to be understood and does not help Adv. Jaiswal or Adv. Khan.

20. In Vice-chancellor, Lucknow University v. Akhilesh Kumar Khare (supra) relied upon by Adv. Parihar, Hon'ble Apex Court follows its Constitution Bench in Umadevi (III) and while rejecting relief of regularization to the daily wagers who were engaged in public employment without proper procedure, grants them compensation of? 4 Lakh each by way of compassion. This judgment does not consider any welfare labour legislation and, therefore, cannot provide direct answer to the reference made. Judgment of this Court taking similar view in the light of 1971 Act in the case of Punjabrao Krishi Vidyapeeth, Akola v. General Secretary, Krishi Vidyapeeth Kamgar Union (supra) is already considered above. The Division Bench of this Court in State of Maharashtra v. Pandurang Sitaram Jadhav (supra) finds that the respondents before it were employed as daily wagers in the establishment of the Government Milk Dairy for a longer period of 12 to 20 years. There were no sanctioned posts and vacancies in existence in the concerned department. Respondents failed to demonstrate that their appointments were made in accordance with the procedure prescribed for selection. The Division Bench finds it wholly unjust to direct the appellant State Government to grant permanency to the respondents. It points out that the provisions of Model Standing Orders are subject to the Rules regulating selection and appointment so also subject to the constitutional scheme of public employment. Respondents daily wagers are declared to possess no legal right to claim permanency. Order passed by the learned Single Judge to the contrary have been quashed. State Government is held obliged to make appointments in adherence to the constitutional scheme of Public employment. Respondents Daily Wagers appointed without following the prescribed procedure for selection by passing public participation did not acquire any legal right to claim permanency. It is apparent that no inconsistency exists and cannot be worked out in State of Maharashtra v. Pandurang Sitaram Jadhav as also Pune Municipal Corporation v. Dhananjay Prabhakar Gokhale (supra) on one hand and Ballarpur Industries Limited v. Maharashtra Lok Kamgar Sanghatana (supra) on the other hand. Status of employer, nature of employment and inherent Constitutional limitation on public employer or absence of such fetters on any private employer or absolute freedom available to it to create post/s and recruit, are some of the distinguishing features which prohibit this exercise.

21. Thus, in the light of this discussion, it follows that in absence of vacant sanctioned posts with the Municipal Council, a workman who has put in continuous service of 240 days or more in span of 12 months, cannot invoke Clause 4C of the MSO to claim either permanency or regularization. We accordingly answer the question referred. Registry to place the writ petitions before the learned Single Judge as per roaster assignment for further consideration.

32) In the present case as well, the CGIT has not conducted any enquiry as to whether initial engagement of Respondents was made on regularly sanctioned posts or not. The relief of regularisation cannot be granted in services of the Bank merely on completion of 240 days of service. There is a difference between directing permanency in private establishment on completion of 240 days of service and directing regularisation in services of a State Instrumentality. Petitioner-Bank has a pension scheme and regualrisation would imply grant of pensionary benefits. Therefore, the scheme for conferment of benefit of permanency on completion of 240 days of service needs to be harmoniously construed with the law laid down by the Apex Court in Umadevi (supra) especially when it comes to granting regularisation in services in a State instrumentality.

33) Reliance is placed by the Respondents on judgment of the Apex Court in MSRTC Vs. Casteribe (supra) in order to justify the direction for regularisation granted by CGIT. No doubt, the Apex Court in MSRTC Vs. Casteribe has held that the provisions of MRTU & PULP Act, 1971 are not denuded by ratio of Constitution Bench decision in Umadevi. In Hari Nandan Prasad (supra) the Apex Court has referred to the judgment in MSRTC Vs. Casteribe and has held that if no posts are available, direction for regularisation would be impermissible. The Apex Court held in para-39 as under:-

39. On harmonious reading of the two judgments discussed in detail above, we are of the opinion that when there are posts available, in the absence of any unfair labour practice the Labour Court would not give direction for regularization only because a worker has continued as daily wage worker/ad hoc/temporary worker for number of years. Further, if there are no posts available, such a direction for regularization would be impermissible. In the aforesaid circumstances giving of direction to regularize such a person, only on the basis of number of years put in by such a worker as daily wager etc. may amount to backdoor entry into the service which is an anathema to Article 14 of the Constitution. Further, such a direction would not be given when the concerned worker does not meet the eligibility requirement of the post in question as per the Recruitment Rules. However, wherever it is found that similarly situated workmen are regularized by the employer itself under some scheme or otherwise and the workmen in question who have approached Industrial/Labour Court are at par with them, direction of regularization in such cases may be legally justified, otherwise, non-regularization of the left over workers itself would amount to invidious discrimination qua them in such cases and would be violative of Article 14 of the Constitution. Thus, the Industrial adjudicator would be achieving the equality by upholding Article 14, rather than violating this constitutional provision.

34) In Hari Nandan Prasad, few instances are recognised by the Apex Court where permanency can be grated if a scheme exists for such regularisation or where similarly placed workers are regularised by the employer. In the present case, however the concept of equality cannot be invoked for securing regularisation because the services of the Respondents were terminated well before the Settlement dated 18 March 2008 was entered into. Since this Court has arrived at the conclusion that reinstatement could not have been granted by the CGIT to the Respondents upon holding that termination was unlawful, there is no question of consideration of case of Respondents for regularisation in the light of Memorandum of Settlement dated 18 March 2008. This is because Settlement applied only to those workers who were on rolls of the Bank as on the date of execution of the said rolls. Therefore subsequent absorption of other workers would not be a reason for upholding the direction for regularization, which is granted de-horse the terms of reference. Therefore, though the principle of regularisation on par with similarly situated workmen is recognised in Hari Nandan Prasad, the said principle cannot be applied in the present case on account of termination of services of the Respondents much prior to entering into the Settlement.

35) Respondents have also relied upon judgment of the Apex Court in Dharam Singh (supra) in support of their plea of regularisation. In case before the Apex Court, the Appellants were engaged by the UP Public Service Commission between 1989 to

1992. On 24 October 1991, the Commission resolved to create posts and sought directions from the State Government for regularisation of services of the appellants. The State Government rejected the request of the Commission. In the light of the above factual position, the Apex Court held in paras-17 to 19 as under:-

17. Before concluding, we think it necessary to recall that the State (here referring to both the Union and the State governments) is not a mere market participant but a constitutional employer. It cannot balance budgets on the backs of those who perform the most basic and recurring public functions. Where work recurs day after day and year after year, the establishment must reflect that reality in its sanctioned strength and engagement practices. The long-term extraction of regular labour under temporary labels corrodes confidence in public administration and offends the promise of equal protection. Financial stringency certainly has a place in public policy, but it s not a talisman that overrides fairness, reason and the duty to organise work on lawful lines.

18. Moreover, it must necessarily be noted that “ad-hocism” thrives where administration is opaque. The State Departments must keep and produce accurate establishment registers, muster rolls and outsourcing arrangements, and they must explain, with evidence, why they prefer precarious engagement over sanctioned posts where the work is perennial. If “constraint” is invoked, the record should show what alternatives were considered, why similarly placed workers were treated differently, and how the chosen course aligns with Articles 14, 16 and 21 of the Constitution of India. Sensitivity to the human consequences of prolonged insecurity is not sentimentality. It is a constitutional discipline that should inform every decision affecting those who keep public offices running.

19. Having regard to the long, undisputed service of the appellants, the admitted perennial nature of their duties, and the material indicating vacancies and comparator regularisations, we issue the following directions: i. Regularization and creation of Supernumerary posts: All appellants shall stand regularized with effect from 24.04.2002, the date on which the High Court directed a fresh recommendation by the Commission and a fresh decision by the State on sanctioning posts for the appellants. For this purpose, the State and the successor establishment (U.P. Education Services Selection Commission) shall create supernumerary posts in the corresponding cadres, Class-III (Driver or equivalent) and Class-IV (Peon/Attendant/Guard or equivalent) without any caveats or preconditions. On regularization, each appellant shall be placed at not less than the minimum of the regular pay-scale for the post, with protection of last-drawn wages if higher and the appellants shall be entitled to the subsequent increments in the pay scale as per the pay grade. For seniority and promotion, service shall count from the date of regularization as given above. ii. Financial consequences and arrears: Each appellant shall be paid as arrears the full difference between (a) the pay and admissible allowances at the minimum of the regular pay-level for the post from time to time, and (b) the amounts actually paid, for the period from 24.04.2002 until the date of regularization /retirement/death, as the case may be. Amounts already paid under previous interim directions shall be so adjusted. The net arrears shall be released within three months and if in default, the unpaid amount shall carry compound interest at 6% per annum from the date of default until payment. iii. Retired appellants: Any appellant who has already retired shall be granted regularization with effect from 24.04.2002 until the date of superannuation for pay fixation, arrears under clause (ii), and recalculation of pension, gratuity and other terminal dues. The revised pension and terminal dues shall be paid within three months of this Judgment. iv. Deceased appellants: In the case of Appellant No. 5 and any other appellant who has died during pendency, his/her legal representatives on record shall be paid the arrears under clause

(ii) up to the date of death, together with all terminal/retiral dues recalculated consistently with clause (i), within three months of this Judgment. v. Compliance affidavit: The Principal Secretary, Higher Education Department, Government of Uttar Pradesh, or the Secretary of the U.P. Education Services Selection Commission or the prevalent competent authority, shall file an affidavit of compliance before this Court within four months of this Judgment.

36) In case before the Apex Court in Dharam Singh, the casual employees of the Commission had continued to serve since 1989 onward. Posts were sanctioned for their regularisation but the State had rejected the proposal for regularisation. It is in the light of those peculiar facts that Apex Court directed regularisation of the Appellants therein from 24 April 2002. In my view, the facts of the case in Dharam Singh are distinguishable and the ratio therein cannot be applied in the present case where most of the Respondents have worked for few years.

37) In my view, therefore the direction of CGIT for regularisation of services of Respondents is unsustainable. The direction is issued by traveling outside the scope of Reference and without even framing of an issue. Even on merits, the direction is otherwise unsustainable.

38) Respondent No.20 has relied upon my judgment in Kiran Pawar Versus. Bata India Ltd.15 which in my view has no application to the facts of the present case. In Kiran Pawar, (supra) the issue before this Court was about status of salesmen engaged by Bata India Limited in their showrooms. After upholding their status as workmen, this Court held that their termination was illegal. However, instead of granting reinstatement with backwages, the

Workmen in that case were ultimately awarded lump-sum compensation by this Court, which course of action is also being adopted in the present case.

39) In my view, therefore the finding of the Tribunal about unlawful termination of Respondents need not be disturbed. However, the direction for reinstatement with 30% backwages deserves to be modified by a direction for payment of lump-sum compensation. The direction for regularisation is unsustainable and is liable to be set aside.

40) The next issue that arises for consideration is quantum of lump-sum compensation which is required to be paid to the Respondents/their heirs. If Petitioner-Bank was to follow provisions of Section 25F of the ID Act, Respondents would have received retrenchment compensation and one month’s notice or pay in lieu thereof. In my view, therefore formula needs to be devised for payment of compensation by dividing Respondents into three categories of (i) upto 5 years of service, (ii) between 5 to 10 years of service and (iii)abouve 10 years of service.

41) Considering the position that lump-sum compensation is directed to be paid on account of wrongful termination of the Respondents in August 2002, in my view, award of following compensation to Respondents falling in three categories would meet the ends of justice: (i)0 to 5 years service -Rs. 5,00,000/- (ii)between 5 to 10 years of service -Rs. 8,00,000/- (iii)above 10 years of service -Rs. 10,00,000/-.

42) I accordingly proceed to pass the following order:

(i) Award dated 18 June 2014 is partly set aside to the extent of direction for reinstatement with 30% backwages and direction for regularisation of services.

(ii) In lieu of reinstatement and/or backwages, Respondents are held entitled to receive and Petitioner is directed to pay to each of the Respondents/their legal heirs lump-sum compensation as under:- (I) 0 to 5 years of service: Rs. 5,00,000/-

(II) between 5 to 10 years of service: Rs. 8,00,000/-

(III) above 10 years of service: Rs. 10,00,000/-

(iii) The above amount of compensation shall be paid by the

Petitioner to the Respondents within a period of 2 months, failing which the amount of compensation shall carry interest @ 8% p.a. after expiry of period of 2 months.

(iv) Beyond the lump-sum compensation so awarded, the

43) With the above directions, the Petition is partly allowed and disposed of. Rule is made partly absolute. The Interim Applicati.on also stands disposed of. [SANDEEP V. MARNE, J.]