Allahabad High Court
Rajesh Singh Son Of Shri Ram Kishore ... vs Labour Court, State Of Uttar Pradesh ... on 14 July, 2006
Equivalent citations: 2006(4)AWC3661
Author: Rajes Kumar
Bench: Rajesh Kumar
JUDGMENT Rajes Kumar, J.
1. By means of the present writ petition under Article 226 of the Constitution of India the petitioner has challenged the award dated 22,06.2002 of the Prescribed Authority, Labour Court, Allahabad on a reference made by the Deputy Labour Commissioner.
2. The brief facts of the case are that the petitioner worked with respondent Nos. 3 and 4 during the period 1.4.1988 to 31.8.1989 without any break as a labour on daily wage basis and has been removed from service after 31.7.1989. The case of the petitioner is that he worked for more than 240 days in a year continuously and therefore, could not be removed from service without following the provisions of Section 6 N and 6 P of the U.P. Industrial Dispute Act. He submitted that he has given various representations right from the year 1989 in this regard. When the representation was not decided, he filed writ petition No. 150 of 1999 in which direction has been issued by this Court to dispose of the representation. The representation has been decided by the Executive Engineer vide order dated 27th March, 1999 in which, it has been held that the petitioner himself left the job on 1.8.1989. The petitioner filed writ petition No. 23519 of 1999, which has been dismissed on the ground of alternative remedy on 18th January, 2000. The petitioner approached the Labour Commissioner who has made the reference to the Prescribed Authority. The Prescribed Authority, Labour Court by the impugned order has held that the petitioner worked for the period 1.4.1988 to 31.8.1989 continuously for more than 240 days, hence his removal without prior notice is not justified. He has been removed from service and has approached the Labour Court after 11 years and has been allowed compensation to the extent of Rs. 5000/- and his reinstatement is not found justified.
3. Heard Sri Ashok Mehta, learned Counsel for the petitioner, Sri Piyush Shukla and learned Standing Counsel for the respondents.
4. Learned Counsel for the petitioner submitted that since the petitioner has worked for more than 240 days continuously and once his removal is found to be unjustified without following the procedure as contemplated under section 6 N, namely, without giving opportunity, the petitioner is to be reinstated. In support of his contention, he relied upon the decisions in the case of General Manager, Haryana Roadways v. Rudhan Singh .
5. Learned Standing Counsel submitted that the petitioner was a daily wager and has not been appointed on any post following the procedure as contemplated for the appointment of employee and, thus, had no right to claim his regularization. He submitted that even if he has worked for 240 days in a year continuously, he could not get any right to claim the regularization. In support of his contention, he relied upon the various decisions.
6. Having heard the learned Counsel for the parties and perused the impugned order.
7. There is no dispute that the petitioner was a daily wager and was not a regular employee appointed against any post following the procedure contemplated, thus, petitioner has no right of regularization. Merely because the petitioner has worked for more than 240 days as claimed, he would not get right for the regularization of his service. The daily wager has no right to claim his engagement. His status would remain the same as daily wager. The service of the daily wager begins in the morning and ends at the close of the day, therefore, even though the Prescribed Authority has taken the view that since the petitioner has worked for more than 240 days, the procedure contemplated under Section 6-N and 6-P of the U.P. Industrial Dispute Act should be followed, the petitioner is not entitled for his reinstatement inasmuch as the petitioner was not the regular employee and was daily wager.
8. In the case of M. P. Housing Board and Anr. v. Manoj Shrivastava , the Apex Court held as follows:
A daily wager docs 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 arc 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 till 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).
9. 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.
10. 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.
11. In the case of Punjab State Electricity Board v. Barbara Singh , the Apex Court held that the employment for a specific period ends on the close of the period.
12. 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.
13. In the case of Manager, Reserve Bank of India, Bangalore v. S. Mani and Ors. , the Apex Court held as follows:
As noticed hereinbefore, ticca mazdoors are not regarded as regular mazdoors. Two waiting lists are maintained by the appellant. The first waiting list contains the names of such mazdoors who may be appointed as regular mazdoors whereas the second list is maintained for those who are to be engaged as ticca mazdoors.
maintained for those who are to be engaged as ticca mnzdoors.
The service of ticca mazdoors being not permanent in nature can be dispensed with subject to compliance with the statutory or contractual requirements, if any. Their status is not higher than that of a temporary workman or a probationer (See Karnataka SRTC V. S.G. Kotturappa).
14. In the case of Secretary, State of Karnataka and Ors. v. Umadevi and Ors. reported in 2006 AIR SCW 1991. the Constitutional Bench of the Five Judges of the Apex Court held as follows.
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 employees who by the very nature of their appointment do not acquire any right.
Employees were engaged on daily wages in the concerned department on a wage that was made known to them. There is no case that the wage agreed upon was not being paid. Those who are working on daily wages formed a class by themselves; they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can he founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment even assuming that the principle could be invoked for claiming equal wages for equal work. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. They cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equal with the other employees employed on daily wages, cannot be extended to a claim for equally treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules.
15. The decisions cited by the learned Counsel for the petitioner are not applicable to the present case.
16. In the case of Haryana Roadways v. Rudhan Singh (supra), dispute relates to the back wages. There was no dispute about the reinstatement of daily wager.
17. For the reasons stated above, there is no merit in the present writ petition and is liable to be dismissed.
18. In the result, writ petition is, accordingly, dismissed. However, there shall be no order as to costs.