Allahabad High Court
State Of U.P. Through Executive ... vs Shri Sarv Jeet Son Of Shri Ram Bharose And ... on 26 April, 2006
Author: Rajes Kumar
Bench: Rajes Kumar
JUDGMENT Rajes Kumar, J.
1. By means of present writ petition, the petitioners have challenged the award dated 06.03.2003 passed by the Presiding Officer, Labour Court, Gorakhpur.
2. The respondent No. 1 was working with the petitioners as a Baildar on daily wage basis. It is claimed by the petitioners that the respondent No. 1 has never been appointed against any post or vacancy and Ins services ended every day at the end of the day. The respondent No. 1 claimed that he has been removed from his services with effect from 1.9.1991. It is claimed that he was engaged as a Baildar since 1980 and has worked for more than 240 days in a calendar year and without any notice, his services has been terminated by the petitioner. The respondent No. 1 filed an application before the Deputy Labour Commissioner. Gorakhpur. The Deputy Labour Commissioner, Gorakhpur vide letter dated 12.8.1992 referred the matter being industrial dispute under Section 4-K of U.P. Industrial Disputes Act, 1947 before the respondent No. 2 for adjudication of the issue namely:
Whether the termination of the services of the workman i.e. respondent No. 1 Shri Sarv Jeet by its employer w.e.f. 01.09.1991 is legal and justified? If not, then what relief the labourer/workman is entitled or to get any other relief?
3. The said reference was registered as a Adjudication Case No. 493 of 1992 The respondent No. 2 issued notices to both the parties. The respondent No. 1 filed his written statement and alleged that he was engaged as Baildar since 1980 and had worked for more than 240 days in a calendar year and without any notice for retrenchment and compensation, his services have been terminated by the petitioner w.e.f. 01.09.1991. The petitioner also filed an objection/written statement denying the allegations made by the respondent No. 1 and also stated that the respondent No. 1 was simply engaged on daily wage basis for a specific period on the availability of work and funds. When no work was available for him, his engagement came to an end. It is also stated that the respondent No. 1 was never terminated from services. It was also pleaded that the petitioner's Department is a Government Department and dogs not come within the meaning of an 'industry', as such the provisions of Industrial Disputes Act. are not applicable and hence, respondent No. 2 has no jurisdiction to adjudicate the matter. The respondent No. 2 proceeded to decide the case and passed the impugned award on 06.03.2003, whereby, reinstated the respondent No. 1 with 50% back wages alongwith the continuity of service.
4. Heard learned Counsel for the parties. Counter and Rejoinder-affidavits have been exchanged.
5. With the consent of both the parties, the present petition is being disposed of.
6. Sri B.K. Pandey, learned Standing Counsel submitted that the respondent No. 2 has erred in not adjudicating the issue that whether the petitioner is an 'industry' or not within the meaning of Industrial Disputes Act. He submitted that the petitioner is a Government Department and does not come within the meaning of 'industry' and as such, the provisions of Industrial Disputes Act are not applicable. He submitted that on account of difference of opinion between the Benches of Apex Court, the matter has been referred to a larger Bench in the case of State of U.P. v. Jai Bir Singh and the matter is pending. He submitted that it is settled principle of law that the burden lies upon the person who claimed to be workman and claimed to have worked for more than 240 days in a calendar year. He submitted that in the present case, workman failed to prove that he was appointed or engaged in service as a workman and also failed to prove that he worked for more than 240 days in a calendar year. He submitted that the respondent No. 1 was working as a baildar on daily wage basis and his services came to end on every day in the evening on the close of the day on payment of daily wages. He submitted that the Presiding Officer has illegally observed that he worked for more than 240 days in a calendar year merely on the basis of vague statement of Shri Vindhyachal Prasad, Avar Abhiyanta. Deokali Pump Nahar Khand-II, Ghazipur. He submitted that Sri Vindhyachal Prasad. in his statement, no where stated any specific date of continuous working for more than 240 days in a calendar year, therefore, no reliance could be placed on his statement. He further submitted that the Presiding Officer has illegally held that the termination of services of the respondent No. 1 was in violation of Section 6-N of the U.P. Industrial Disputes Act, inasmuch as, no notice was given and has been illegally awarded with 50% back wages and continuity of service. Learned Counsel for the respondent Sri S.K. Srivastava submitted that the respondent No. 1 was working with the petitioner since 1980 as a baildar and worked for more than 240 days in a calendar year, therefore, was a workman and could not be removed from the services without any notice as provided under Section 6-N of the Act. He submitted that the Presiding Officer has recorded finding of fact that the respondent No. 1 has worked with the petitioner for more than 240 days in a calendar year, which does not require any interference and the petition is liable to be dismissed.
7. I have given my anxious consideration to the submissions made by the learned Counsel for the parties and have gone through the impugned award and other relevant documents.
8. In the case of State of U.P. v. Jai Bir Singh (supra), the issue that whether the Government Department comes within the meaning of 'industry' has been referred to a larger Bench and the matter is subjudice. Since on the other issue, matter can be decided in favour of the petitioner keeping this issue open, the present petition is being disposed of.
9. Section 6-N of U.P. Industrial Disputes Act, 1947 reads as follows:
6-N. Conditions precedent to retrenchment of workmen No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until-
(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired or the workman has been paid In lieu of such notice wages for the period of the notice;
Provided that no such notice shall be necessary if the retrenchment is under an agreement, which specifies a date for the termination of service;
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year of service or any part thereof an excess of six months; and
(d) notice in the prescribed manner is served on the State Government.
10. The word continuous service has been defined by Section 2(g) of the Act as follows:
Continuous service' means uninterrupted service, and includes service which may be interrupted merely on account of sickness or authorized leave or an accident or a strike which is not illegal, or a lock-out or a cessation of work which is not due to any fault on the part of the workman, and a workman, who during a period of twelve calendar months has actually worked in an industry for not less than two hundred and forty days shall be deemed to have completed one year of continuous service in the industry.
11. In the case of M.P. Housing Board and Anr. v. Manoj Shrivastava reported in 2006 (2) SCC 702, the Apex Court held as follows:
A daily wager does not hold a post unless he is appointed in terms of the Act and the rules framed thereunder. He does not derive any legal right in relation thereto.
The effect of such an appointment recently came up for consideration in State of U.P. v. Neeraj Awasthi" wherein this Court clearly held that such appointments are illegal and void. It was further held: SCC pp. 690-91, paras 75-76.
75. The fact that all appointments have been made without following the procedure, or services of some persons appointed have been regularized in past, in our opinion, cannot be said to be a normal mode which must receive the seal of the court. Past practice is not always the best practice. If illegality has been committed in the past, it is beyond comprehension as to how such illegality can be allowed to perpetuate. The State and the Board were bound to take steps in accordance with law. Even in this behalf Article 14 of the Constitution will have no application. Article 14 has a positive concept. No equality can be claimed in illegality is now well settled See State of A.P. v. S.B.P. V. Chatapathi Row SCC para 8; Jalandhar Improvement Trust V. Sampuran Sing, SCC para 13 and State of Bihar v. Komeshwar Prasad Singh, SCC para 30.
76. In the instant case, furthermore, no post was sanctioned. It is now well settled when a post is not sanctioned, normally, directions for reinstatement should not be issued. Even if some posts were available, it is for the Board or the Market Committee to fill up the same in terms of the existing rules. They, having regard to the provisions of the Regulations, may not fill up all the posts.
It is now well settled that only because a person had been working for more than 240 days, he does not derive any legal right to be regularized in service. See Madhyamik Shiksha Parishad, U.P. v. Anil Kumar Mishra. Executive Engineer, ZP Engineering Div. v. Digambara Rao; Dhampur Sugar Mills Ltd. v. Bhola Singh. Manager Reserve Bank of India v. S. Mani and Neeraj Awasthi.
12. In the case of Manager, Reserve Bank of India v. S. Mani , Apex Court held that temporary workman does not has any claim of permanence and burden lies upon the workman to prove that it worked continuously for 240 days in a calendar year by adducing evidence.
13. In the case of State of Madhya Pradesh v. Arjun Lal reported in 2006 AIR SWC 1128, the Apex Court held that onus to prove that the workman had completed 240 days, is on the workman
14. In the case of Punjab State Electricity Board v. Darbara Singh, , the Apex Court held that the employment for a specific period ends on the close of the period.
15. In the case of R.M. Yelatti v. Asstt. Executive Engineer, , the Apex Court held that it is for the workman to adduce evidence that he was appointed in service.
16. In the present case, there is no dispute that the respondent No. 1 worked as Baildar on daily wage basis. No evidence has been adduced that he was appointed on any post. Thus, he cannot derive any legal right in relation thereto as held by the Apex Court. In the case of M.P. Housing Board and Anr. v. Manoj Shrivastava (supra) and in other cases, it has been held that merely because a person had worked for more than 240 days, he does not derive any legal right to be regularized in service. Respondent No. 1 employment was for a specific period and it started every day in the morning and came to end on every day in the evening on the close of the day. Thus, there was no question of his retrenchment. Thus, the provisions of Section 6-N was not applicable. The view of the Presiding Officer to the contrary is erroneous.
17. Moreover, no evidence has been adduced by respondent No. 1 to prove that he worked for more than 240 days in a calendar year continuously. The statement of Sri Vindhyachal Prasad, Avar Abhiyanta, Deokali Pump Nahar Khand-II, Ghazipur which is (enclosed as Annexure-C.A. 3) has not given any specific date of working. He simply stated that he worked for more than 240 days in a calendar year. No specific date on which he worked, has been specified, inasmuch as, he has not stated that he worked continuously for 240 days in a calendar year. Thus, reliance placed on the statement of Sri Vindhyachal Prasad for coming to the conclusion that the respondent No. 1 worked for more than 240 days continuously in a calendar year, is erroneous. In my view, the view of Presiding Officer that the respondent No. 1 worked for more than 240 days in a calendar year, is perverse and based on no material, hence, in the circumstances, the provisions of Section 6-N does not apply.
18. So far as, back wages are concerned, the order of the Presiding Officer is liable to be set aside. However, the respondent No. 1 is entitled to receive only the wages for the period during which, he actually worked. On the evidence being adduced by the respondent No. 1, the payment of wages be made for such period.
19. In the result, writ petition is allowed. The order 06.03.2003 passed by the Presiding Officer, Labour Court, Gorakhpur is set-aside with the direction to the petitioners to pay wages to the respondent No. 1 for the period during which he worked on the evidence being adduced by him.