Allahabad High Court
State Of U.P. & Others vs P.O. Labour Court & Another on 7 April, 2015
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Court No. - 7 Case :- WRIT - C No. - 57502 of 2009 Petitioner :- State Of U.P. & Others Respondent :- P.O. Labour Court & Another Counsel for Petitioner :- Shekhar Kumar,Sc Counsel for Respondent :- S.C.,C.V.Pachauri,Himanshu Upadhyay,M.P.S.Chauhan,P.C. Sharma,Santosh Kumar Srivastava Hon'ble Surya Prakash Kesarwani,J.
1. Heard Sri A.K. Upadhyay, learned counsel for the petitioners and Sri Santosh Kumar Srivastava, learned counsel for the respondent no.2.
2. Learned counsel for the petitioners submits as under :-
(i) Petitioners is a department of the State Government and is engaged in developing and maintaining irrigation facilities.
(ii) Services of the employees of the petitioner's department are governed by the statutory Rules.
(iii) There is no certified standing order applicable to workmen of the petitioner's department and as such the question of applicability of Section 13-A of the Industrial ( Standing Orders) Act, 1946 or the provision of Section 11- C of the U.P. Industrial Dispute Act, 1947 do not arises at all.
(iv) The respondent no. 2 workmen were engaged on daily wage basis in case of need of extra hands to meet the requirement of extra work. There is no scheme of regularization.
(v) The impugned order dated 7.1.2009 passed by the respondent no.1 in Miscellaneous Case No. 20/2008 directing for regularization of respondent no. 2 workmen as per list annexed ( 18 workmen) is wholly without authority of law and beyond the scope of Section 11-C of the U.P. Industrial Dispute Act, 1947.
(vi) The alleged regularization orders in compliance to the impugned award were not issued by the petitioners. The operation of the impugned award dated 7.1.2009 was stayed by this Court vide interim order dated 3.11.2009 and as such in any circumstances, the alleged orders filed as Annexure No. SCA-4, SCA-5 and SCA-6 by the respondent no. 2 is of no consequence. He further submits that even if any order has been procured or manipulated by some person illegally, the same cannot made basis to obtain a relief. Illegality cannot be allowed to be perpetuated.
(vii) Without prejudice to the above neither any appointment letters were issued to the respondent no. 2 nor they produced any appointment letters as there were merely daily wager engaged in need of extra hands and as such the impugned award could not have been passed. The question of applicability of any standing order does not arise at all under the facts and circumstances of the case. No standing order could be produced by the respondent no. 2 which may be said to be applicable to the petitioners under the facts and circumstances of the case. No appointment letters could be produced by the respondent no. 2 in terms of Clause -4 of the U.P. Industrial Employment Order ( Standing Order), 1991 which necessarily requires the mentioning of the standing order in the appointment letter itself.
3. In support of his submissions, learned Standing Counsel has relied upon the judgments of Hon'ble Supreme Court in the case of U.P. State Road Transport Corporation Vs. U.P. Rajya Sadak Parivahan Karamchari Union, 2007 (10) SCC 758 and the judgment of this Court in the case of Hindi Sahitya Sammelan Vs. Presiding Officer, Labour Court , 2005(104) FLR 834 para 14.
4. Learned counsel for the respondent no. 2 submits as under : -
(i) Out of 18 employees in respect of whom the impugned order dated 7.1.2009 was passed by the respondent no.1, the petitioners have regularized 10 workmen. The orders of regularization as passed by the Executive Engineer Irrigation Division, Etah, dated 21.8.2009, 1.1.2010 and 20.3.2010 have been filed as Annexure No. SCA-4, SCA-5 and SCA-6. Therefore, the remaining employees are also entitled for regularization.
(ii) Section 13 A of Industrial Employment ( Standing Orders) Act, 1946 is applicable.
(iii) The respondent no.1 has considered the entire facts and circumstances of the case and evidences on record and thereafter passed the impugned order which does not suffer from any infirmity.
5. I have carefully considered the submissions of learned counsel for the parties and perused the records.
6. It is wholly undisputed that the respondent no. 2 workmen were daily wager. Eighteen workmen as per list annexed with the impugned award are represented by the respondent no. 2. The impugned award has been passed by the respondent n. 1 on the ground that the respondent no. 2 workmen worked for more than three months as daily wager, and therefore, as per provision of Section 11-C of the U.P. Industrial Dispute Act, 1947 and the provision of Section 13-A of the Industrial Employment (Standing Orders) Act, 1946, the respondents are entitled for regularization. In the impugned order, no specific certified standing order has been recorded which may be said to be applicable to the petitioner's department. The petitioners took specific stand that it is a department of the State Government and the services of employees of the department are governed by statutory Rules. It was specifically stated that there is no certified standing order applicable to the petitioner's department.
7. The specific stand taken by the petitioners in paragraph nos. 5, 6, 7, 8, 9 and 10 of the writ petition as under :
"5. That the petitioner concerned is a Govt. Department & their Rule and Regulation framed by the State Government to the state employee is fully applicable to the petitioner department and there is no such any standing order as well as model standing order applicable to the petitioner's department.
6. That the daily wagers who are engaged under the petitioner's department on the basis of exigency of work and the payment has been made to the daily wager by the specific fund by the department concerned.
7. That due daily wager has no right to claim of his Regularization of his service because his engagement was purely temporary in nature and on the basis of need of work and his appointment was not made against the sanctioned and vacant post as such he has no right to claim of his Regularization of his service.
8. That the respondent no. 2 has wrongly filed an application under Section 11C of the U.P. Industrial Dispute Act, 1947 for interpretation of standing order for his Regularization of his service to the daily wager.
9. That no such any standing order is exists under the petitioner's department so no any action can be raised for interpretation of the standing order so far.
10. That the petitioner's department is a Govt. department and their Rule and Regulation is applicable to its employee made by the State Government."
8. The reply to the aforesaid paragraphs have been given by the respondent no. 2 in paragraph no. 4 and 5 of the counter affidavit as under : -
"4. That the contents of paragraphs nos. 5, 6 and 7 and 8 of the writ petition are not correct and stated, hence, denied. In reply, it is stated that Irrigation Department is an Industry as held by this Hon'ble Court as well as Apex Court of India and, as such, the application filed by the deponent under Section 11C, U.P. Industrial Dispute Act, 1947 has rightly been filed under the provision of Section 11C of the Act and the daily wagers have right to claim their regularization of service under the law and they can seek interpretation of standing order for their regularization of their service under the law and in this view of the matter, the labour court has taken a correct and legal view in passing the impugned order.
5. That in paragraph no. 9 and 10 of the writ petition are not correct as stated hence, denied. In reply, it is stated that the standing order is fully applicable to the daily wager working in petitioner's department and, as such, it can be raised for interpretation before the labour Court and the every daily wagers has right to seek regularization of his service in the department."
9. Thus, from the above averments of the petitioners in paragraph nos. 5 to 10 of the writ petition and reply thereof given by the respondent no. 2 in paragraph no. 4 and 5 of the counter affidavit leaves no manner of doubt that the petitioner is a Government department. It has its own Rules and Regulations applicable to employees of the department. There is no standing order applicable to the petitioner's department. The respondent no. 2 workmen were engaged as daily wager on the basis of exigency of work and the payments were made to them as daily wager. They were engaged purely on temporary basis in case of need of extra hands. Their engagement was not against any sanctioned or vacant post. They have no right to claim regularization. The application under Section 11-C of the U.P. Industrial Dispute Act, 1947 was filed by the respondent no. 2 for interpretation of standing order for regularization whereas there is no standing order at all. In the light of these undisputed facts a question that arises for consideration is "whether the respondent no. 1 was justified to pass the impugned order under Section 11-C of the U.P. Industrial Dispute Act, 1947 directing for regularization of the respondent no. 2 workmen ?".
10. The question is concluded by the judgment of this Court in the case of Hindi Sahitya Sammelan (supra) in which it has been held that in the absence of any certified standing order, the model standing order would not apply automatically. In paragraph 14 of the judgment in the case of Hindi Sahitya Sammelan (supra) this Court held as under : -
"14. The Labour Court was duty bound to have considered that this aspect of applicability of the Model Standing Orders. The Industrial Employment (Standing Orders) Act, 1946 as stated above, do not apply to the petitioner establishment as it is not factory. State of Uttar Pradesh, has issued notification that the Act shall apply to all the industrial establishments in the State which employ less than 100 workmen, in which the employers voluntarily apply for certification of the Standing Orders in accordance with the Act. (Vide Notification No. 2828 (LL)/XVIII-450 (LL)-50, dated November 15, 1950, published in U.P. Gazette, dated November 18, 1950, Pt. I, p. 894). Further the Government has directed that the Act shall apply to all industrial establishments which are factories within the meaning of Section 2(m) of the Factories Act, 1948 vide Notification No. 5022(V)/XXXVI-3-57/SO(1)-77 dated January 20, 1978 (1978 LLT-V-80). The admitted fact is that there are no Certified Standing Orders in the petitioner educational institution and they have not applied for certification of the Standing Orders in respect of its educational society. Hence, the Model Standing Orders would not apply automatically. The Labour Court without verifying the fact as to whether the Industrial Employment (Standing Orders) Act, 1946 apply to the petitioner establishment or not, taking the statement of EW-1 as gospel truth applied the provisions of Section 2(e) of the Model Standing Orders and held that the termination of services of the workman were illegal as second show cause notice under the Model Standing Orders had not been given to him. In the State of Uttar Pradesh, the Model Standing Orders were notified on July 24, 1992 and came into force with effect from that date after publication in the gazette. The termination of the services of the workman are alleged to have taken place in the year 1988. There is also no material on record by which the Labour Court could have come to the conclusion that the petitioner establishment were employing more than 100 employees and Industrial Employment (Standing Orders) Act was applicable, hence the Labour Court has committed an error apparent on the face of the record in holding that the Industrial Employment (Standing Orders) Act, 1946 will be applicable to the petitioner establishment. The position is that even if the Model Standing Orders have been applicable in a subsequent amendment the same will not apply as it is incorporated in the Certified Standing Orders. The Apex Court in para 18 of the judgment given in Management, Shahdara (Delhi) Saharanpur Light Railway Co. Ltd. v. S.S. Railway Workers Union (supra) has held that under the Industrial Employment (Standing Orders) Act, 1946 modification of the Standing Orders requiring of giving a second show cause notice at the stage of imposition of punishment of removal was not considered to be fair or reasonable and should therefore be set aside. In industrial matters such a requirement of Article 311 does not appear to be either necessary or proper and will not be equated with civil servants."
11. In the case of U.P. State Road Transport Corporation (supra), Hon'ble Supreme Court considered the scope of Section 11-C of the U.P. Industrial Dispute Act, 1947 read with Section 13-A of the Industrial Employment ( Standing Orders) Act, 1946 in the context of an application for regularization dated 19.9.2001 allowed by the Labour Court, and held as under :-
"4. It may be noted that the scope of Section 11-C is much narrower than the scope of a regular reference under Section 10 of the Industrial Disputes Act or Section 4-K of the U.P. Industrial Disputes Act.
Section 11-C of the U.P. Industrial Disputes Act states :
11-C. Interpretation, etc. of standing orders - If any question as to the application or interpretation of a standing order certified under the Industrial Employment ( Standing Orders) Act, 1946, any employer or workman may refer the question to any one of the Labour Courts specified for the disposal of such proceeding by the State Government by notification in the Official Gazette, and the Labour Court to which the question is so referred shall, after giving the parties an opportunity of being heard, decide the question and such decision shall be final and binding on the parties.
5. Similarly Section 13A of the Industrial Employment ( Standing Orders) Act, 1946 states :
13A. Interpretation etc of Standing Orders -if any question arises as to the application or interpretation of a standing order certified under this Act, any employer or workman or a trade union or other representative body of the workmen may refer the question to any one of the Labour Courts constituted under the Industrial Disputes Act, 1947, and specified for the disposal of such proceedings by the appropriate Government by notification in the Official Gazette, and the Labour Court to which the question is so referred shall, after giving the parties an opportunity of being heard, decide the question and such decision shall be final and binding on the parties.
6. In our opinion, the power of the Labour Court under Section 11-C of the U.P. Industrial Disputes Act or under Section 13A of the Industrial Employment ( Standing Orders) Act, 1946 is much narrower than the power of the Labour Court on a reference under Section 10 of the Industrial Disputes Act which corresponds to Section 4-K of the U.P. Industrial Disputes Act. In our opinion, the Labour Court could not have granted the relief it granted by the order dated 19.9.2001, as that could only have been granted on a regular reference under Section 4-K of the U.P. Industrial Disputes Act or under Section 10 of the Industrial Disputes Act.
7. A perusal of the order of the Labour Court dated 19.9.2001 shows that it has not referred to any standing order of the appellant. On the other hand, paragraph 3 of the said order refers to Rule 2 of the 1981 Regulations which clearly provides that the Regulations do not apply to employees engaged on contract basis. In our opinion, the Labour Court cannot amend the Regulations while hearing an application under Section 11-C of the Industrial Disputes Act. As already stated above, the scope of Section 11-C is limited to decide a question arising out of an application or interpretation of a standing order and the Labour Court cannot go beyond the scope of Section 11-C of the U.P. Industrial Disputes Act.
12. Thus, in any circumstances, the respondent no. 1 could not have traveled beyond the scope of Section 11-C of the U.P. Industrial Dispute Act, 1947. The nature of relief which has been granted by the impugned order may be considered in a reference under Section 4K of the Act on the facts of a particular case but no relief could have been granted by the respondent no. 1 under Section 11-C of the U.P. Industrial Dispute Act, 1947 read with Section 13-A of the Industrial Employment (Standing Orders) Act, 1946 in the absence of a certified standing order applicable to petitioner's department. Since, the operation of the impugned order dated 7.1.2009 was stayed by this Court and the said order is being set aside and as such the respondent no. 2 shall not be entitled to any benefit of the impugned order.
13. In result, writ petition succeeds and is hereby allowed. The impugned order dated 7.1.2009 passed by the respondent no. 1 in Miscellaneous Case No. 20/2008 is hereby set aside. It is declared that the respondent no. 2 ( 18 workmen as per list annexed to the impugned order) are not entitled for any benefit of the impugned order and their regularization as directed under the impugned order or any consequential order passed by any authority, is held to be wholly illegal and void.
14. In result, writ petition succeeds and is hereby allowed.
Order Date :- 7.4.2015 Mukesh (Surya Prakash Kesarwani,J. )