Allahabad High Court
State Of U.P. Through Executive ... vs Malkhan Singh & Others on 22 July, 2010
Author: Prakash Krishna
Bench: Prakash Krishna
Court No. - 6 Case :- WRIT - C No. - 45205 of 2007 Petitioner :- State Of U.P. Through Executive Engineer & Another Respondent :- Malkhan Singh & Others Petitioner Counsel :- Prashant Mathur,M.C. Chaturvedi Respondent Counsel :- Alok Kumar Srivastava,C.L. Chaudhary,M.L. Ahirwar,Sc,Surya Prakash Srivastava Hon'ble Prakash Krishna,J.
By means of the present petition, the petitioners have sought the quashing of the Labour Court award dated 16th of November, 2006 passed in adjudication case no.111 of 2003 published on 23rd of April, 2007 whereby the Labour Court has ordered the reinstatement of the respondent no.1, workman, after holding that his services were wrongly terminated on 15th of November, 1999 and also awarded continuity in service and back wages etc.. The facts of the case lie in a narrow compass.
The petitioner claims that it is a construction division and is mainly involved in construction of canals for irrigation purposes based on the periodical sanction received from the State against their scheme to be completed within time bound spell for the welfare of the farmers and to ensure smooth flow of the water during Kharif Fasal. Under the Madhya Ganga Canal System, Somna Cross regulator is situated at Km. 20.00 at Matt Branch Feeder, which is under Division No.19 and there is regulatory gate system after Amarpur Rajwaha Minor Canal to manage the water system of the said canal and further regulates the flow of water to the adjacent Division No.12. To manage the permanent flow of the water, the work is being manned by regular staff and sometimes temporary staff of adjacent villages are also engaged on daily wages against periodical sanction. Respondent no.1, Malkhan, was temporarily engaged on daily basis for certain duration as against the periodical sanction. He raised an industrial dispute against his disengagement dated 15th of November, 1999 and the matter was referred by the State Government to the Labour Court for adjudication which was numbered as adjudication case no.111 of 2003. The workman claimed that he was appointed as Chowkidar in the month of April, 1996 to 15.11.1999 on a permanent and regular post on daily wages and he performed his duties with utmost devotion and honesty. He was getting 1,250/- per month as wages at the end of the month. His services were wrongly terminated without any notice or compensation on 15th of November, 1999.
In reply, the petitioners came out with the case that the workman was never appointed on any sanctioned post. He was never in government service nor was he ever removed from the government job. He never worked in department and as such is not entitled for any relief.
It appears that the case proceeded exparte so far as the petitioners are concerned. The workman examined himself and filed an affidavit reiterating his stand as set out in the written statement. The Labour Court taking into consideration the fact that the employer petitioner failed to appear at the subsequent stages of hearing of the case and the matter proceeded exparte, believed the oral testimony of the workman and passed the impugned award.
Heard Sri Babulal Ram, learned standing counsel for the petitioners and Sri K.P. Agrawal, learned senior counsel for the contesting workman.
The learned standing counsel raised number of grounds in support of the writ petition and one of them being that an opportunity of hearing be afforded to the petitioners to contest the matter on merits by setting aside the award and restoring the matter to the Labour Court. The said plea was hotly contested by the respondent workman on the ground that sufficient opportunity of hearing was afforded to the employer. It is not necessary to enter into the said controversy as the matter can be disposed of on another point i.e. the respondent workman was a daily wager.
The fact that the respondent workman was a daily wager is not in issue. Even from the reference made by the State Government, it is evident that the respondent workman was a daily wager. Even the case of the respondent workman is that he was engaged as a daily wager. Question arises as to what relief can be granted to such a daily wager even if engaged in a government department.
In Himanshu Kumar Vidyarthi and others Vs. State of Bihar and others, JT 1997 (4) SC 560 the Apex Court has held that when the appointments are regulated by the statutory rules, the concept of "industry" to that extent stands excluded. Admittedly, they were not appointed to the post in accordance with the rules but were engaged on the basis of need of the work . They are temporary employees working on daily wages. Under these circumstances, their disengagement from service cannot be construed to be a retrenchment under the Industrial Disputes Act. The concept of "retrenchment" , therefore, cannot be stretched to such an extent as to cover these employees.
In M.P. State Agro Industries Development Corporation Limited and another Vs. S.C. Pandey, (2006) 2 SC 716 it has been held that an appointment to the post of a temporary employee can be made where the work is essentially of temporary nature. In a case where there existed a vacancy, the same was required to be filled up by resorting to the procedures known to law i.e. upon fulfilling the constitutional requirements as also the provisions contained in the 1976 Regulations, governing the Corporation in question. With regard to the status of a daily wager/casual labourer/temporary employee it has been held that the daily wager does not hold a post as he is not appointed in terms of provisions of the Act and Rules framed thereunder and therefore he does not derive any legal right. In this very case, the Apex Court has relied upon its earlier judgment in the case of M.P. Housing Board & Anr. v. Manoj Srivastava, (2006) 2 SCC 702.
In Executive Engineer, Construction Division, U.P. Jal Nigam, Allahabad Vs. Presiding Officer, Labour Court, Allahabad and another, 2008 LIC 216 the Apex has held that it is settled law that where services of a daily wager/temporary or ad hoc employee are terminated without any stigma on the ground of non availability of work or any such other ground, there is no requirement of offering opportunity of hearing or holding of domestic inquiry.
In view of the above, the order of the Labour Court in so far as it relates to reengagement is concerned cannot be allowed to stand.
In Municipal Council Sujanpur Vs. Surinder Kumar (2006) 5 SCC 173 it has been held by the Apex Court that the employer being a State within the meaning of Article 12 of the Constitution of India for the purposes of recruiting its employees is bound to follow the recruitment rules. Any recruitment made in violation of such rules will be void being in violation of constitutional scheme enshrined under Articles 14 and 16 of the Constitution of India.
"It is not disputed that the appointment of the respondent was not in a sanctioned post. Being a "State" within the meaning of Article 12 of the Constitution of India, the appellant for the purpose of recruiting its employees was bound to follow the recruitment rules. Any recruitment made in violation of such rules as also in violation of the constitutional scheme enshrined under Articles 14 and 16 of the Constitution of India would be void in law." (See M.V. Bijlani v. Union of India, (2006) 5 SCC 88; State of Punjab v. Jagdip Singh, (1964) 4 SCR 964; and Secy., State of Karnataka v. Umadevi (3), (2006) 4 SCC1) It cannot be disputed that the petitioners are State within the meaning of Article 12 of the Constitution of India and as such, it being a government department, no appointment could be made on daily wages without following the prescribed procedure. The appointment of the respondent no.1 assuming for the sake of argument, even if made, is therefore void and therefore, the award for reinstatement could not be passed.
Taking into consideration the entire facts and circumstances of the case, the award of the Labour Court is hereby set aside by providing that the petitioners shall pay a sum of Rs.25,000/- (Twenty Five Thousand only) as compensation amount towards the final claim and dues of the respondent workman.
Subject to above the writ petition succeeds and is allowed in part.
(Prakash Krishna, J.) Order Date :- 22.7.2010 LBY