JUDGMENT Rakesh Tiwari, J.
1. Heard counsel for the parties and perused the record.
2. This writ petition has been filed challenging the validity and correctness of the award in adjudication case No. 3 of 1994 passed by the Labour Court, Varanasi.
3. The petitioner claims that he was appointed as "beldar" against a permanent post on dally wages w.e.f. 26.3.1991 and had worked under the Executive Engineer P.W.D. Rashtriya Nirman Khand Jyoti Chauraha, Bareilly, continuously for more than 240 days in a year that he was denied duty by the respondent orally w.e.f. 26.1.1993 without complying with the provisions of Section 6N of the Industrial Disputes Act, 1947.
4. The petitioner raised an industrial dispute before the Regional Conciliation Officer, Bareilly alleging illegal termination of service which was registered as C.P. Case No. 1331 of 1983. When the efforts for settlement of dispute by the Regional Conciliation Officer failed, the following matter of dispute was referred to the Labour Court, Varanasi vide G. O. dated 31.12.1993. The reference of the Labour Court is as under :
^^D;k lsok;kstdksa }kjk muds deZpkjh Jh ykspu izlkn iq= Jh lqUnj yky vLFkkbZ nSfud Hkksxh csynkj dks fnukad 26-5-1993 ls lsok ls i`Fkd fd;k tkuk mfpr o oS/kkfud gS A**
5. The Labour Court relying upon the law laid down by the Apex Court in Bombay Telecom Canteen Employees' Association v. Union of India, 1998 (1) AWC 25 (SC) (NOC) : 1997 (77) FLR 25 (SC), held that Public Works Department is not an industry and that the petitioner was a dally wager employee as such he does not fall within the ambit of definition of workman in Section 2 (s) under the Industrial Disputes Act, 1947. It further held that the petitioner had himself stopped coming to work and had abandoned his services there being no termination by any overt act of the employer and that disengagement of a daily wager is not retrenchment within the meaning of Section 2 (s) of the aforesaid Act.
6. In so far as the question whether the P.W.D. is an industry or not is concerned it is now firmly settled by a catena of judgments of the Apex Court that Public Works Department is an industry. Reference in this regard may be had to Division Bench judgment of the Apex Court in Executive Engineer, C.P.W.D., Indore v. Madhukar Purshottam Kolharkar and Anr., 2002 (4) AWC 3373 (SC) : (2002) 2 SCC 622. Relying upon the decision in Bangalore Water Supply and Sewerage Board v. A. Rqjappa, (1978) 2 SCC 213, the Apex Court held that the Central Public Works Department is an industry and further that there was no substance to the argument to the contrary.
7. In so far as the contention of the petitioner that he was a daily wager and not a workman under Section 2 (s) of the Industrial Disputes Act, 1947, the Labour Court has given a finding of fact based on the evidence of the workman that the workman had not been given any appointment letter and was engaged at the site in exigency of work as daily wager. The appointments in the department are regulated by rules. Neither any averments nor any material had been brought on record by the petitioner that he was appointed against a post in accordance with rules. On the contrary it is evident from the pleadings of the workman that he was engaged on daily wages on day-to-day basis. He was a temporary employee and his disengagement from service cannot be construed as retrenchment as defined in Section 2 (s) of the U. P. Industrial Disputes Act, 1947 as per law laid down by the Apex Court in Himanshu Kumar Vidyarthi and Ors. v. State of Bihar, (1997) 4 SCC 391 :
"2. (s) "Retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as punishment inflicted by way of disciplinary action, but does not include--
(i) voluntary retirement of the workman ; or
(ii) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and workman concerned contains a stipulation in that behalf ;
8. The workman had himself stopped coming to work and there was no act of "termination by the employer" of the services of the workman, the key to phrase to bring the termination for any reason whatsoever within the ambit of the word "Retrenchment" as defined in the Act is that there has to be an act of the employer in termination of the services of the workman. The termination brought about by the workman himself like abandonment, refusal to work etc. would not fall within the ambit of the definition of "Retrenchment". Applying the keywords it is evident that in the instant case the workman was not retrenched by the employer and it is not a case of retrenchment. Disengagement of a daily wager also does not fall within the ambit of retrenchment even though such daily wager may have worked for 240 days in a year. I am strengthened in my view by the judgment of Apex Court in Himanshu Kumar Vtdyarthi and Ors. v. State of Bihar and Ors. (supra), in which it has been held that :
Every department of the Government cannot be treated to be industry. When the appointments are regulated by the statutory rules, the concept of industry to that extent stands excluded. The petitioners were not appointed to the posts in accordance with the rules but were engaged on the basis of need of the work. They are temporary employees working on daily wages. 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. Since the petitioners are only daily wage employees and have no right to the posts, their disengagement is not arbitrary,"
9. In Delhi Development Horticulture Employees Union v. Delhi Administration, (1992) 4 SCC 99 para 23, it was emphasised by the Apex Court as to how judicial sympathy with such workman engaged in daily wages employed in project scheme or programme of the State Government could boomrang leading to pernicious consequences. The concern of the Apex Court in ordering indiscriminate regularisation of daily wages by the Courts is reflected thus :
"The Courts can take judicial notice of the fact that such employment is sought and given directly for various illegal considerations including money. The employment is given first for temporary periods with technical breaks to circumvent the relevant rules, and is continued for 240 or more days with a view to give the benefit of regularisation knowing the judicial trend that those who have completed 240 or more days are directed to be automatically regularised. A good deal of illegal employment market has developed resulting in a new source of corruption and frustration of those who are waiting at the employment exchanges for years. Not all those who gain such back-door entry in the employment are in need of the particular jobs. Though already employed elsewhere, they join the jobs for better and secured prospects. That is why most of the cases, which come to the Courts, are of employment in Government departments, public undertakings or agencies. Ultimately it is the people who bear the heavy burden of the surplus labour. The other equally injurious effect of indiscriminate regularisation has been that many of the agencies have stopped undertaking casual or temporary works though they are urgent and essential for fear that if those who are employed on such works are required to be continued for 240 or more days have to be absorbed as regular employees although the works are time-bound and there is no need of the workmen beyond the completion of the works undertaken. The public interests are thus jeopardized on both counts."
10. After appreciation of evidence and pleadings of the parties the Labour Court has given a finding of fact that workman was a daily wager not appointed against any post. This fact was also admitted by the workman in his evidence and that he was not given any appointment letter and it was proved by the Labour Court from exhibit W-1 that he had himself not gone on duty. The petitioner was thereafter not a workman.
^^eSus nksuksa i{kksa ds fo}ku izfrfuf/k;ksa dks lquk gS nkf[ky vfHkys[kksa ,oa lk{;kssa dk c[kqch voyksdu fd;k gS A mijksDr nkf[ky fd;s x;s dkxtkr ,oa bZ- Mcyw-&1 ujir flag ds c;ku ls ;s ckr Li"V gS fd fnukad 26-3-1991 ls 25-1-1993 rd lacaf/kr Jfed nSfud osru Hkksxh deZpkjh ds :i esa cgSfl;r csynkj dke dj jgk Fkk ,oa mldh lsok;sa fnukad 26-1-1993 ls lekIr gks xbZ mls dksbZ fu;qfDr i= ugha fn;k x;k Fkk A bl ckr dks Jfed us Hkh vius ekSf[kd c;ku esa Lohdkj fd;k gS mlus bl ckr dks Hkh Lohdkj fd;k gS fd eghus esa ,d ckj iwjs eghus dk Hkqxrku mls dj fn;k tkrk Fkk A mlds bl c;ku ls rFkk bZ-Mcyw-&1 ds c;ku ,oa nkf[ky fd;s x;s vfHkys[k fnukad 20-9-1993 rFkk mlds lkFk layXu fyLV rFkk Jfed dh vksj ls nkf[ky fd;k x;k vfHkys[k izn'kZ Mcyw&1 ls fl) gS ,oa mleas fy[kk gqvk gS fd og vLFkkbZ nSfud osru Hkksxh csynkj Fkk A izn'kZ Mcyw&1 ,oa bZ-Mcyw- 1 ds c;ku ls ;s ckr fl) gS fd og Lor% dk;Z ij ugha vk;k rFkk dk;Z gsrq buds LFkku ij vko';drkuqlkj nwljs Jfed dks j[kuk iM+k A vr% ;s ckr fl) ikbZ tkrh gS fd 25-1-1993 ds ckn lacaf/kr Jfed Lo;a dk;Z ij ugha vk;k A pwafd tSlk fd iSjk 1 esa fy[kk tk pqdk gS fd lacaf/kr Jfed ykspu izlkn nSfud osru Hkksxh deZpkjh Fkk rFkk mldh dksbZ fu;qfDr ugha dh xbZ Fkh rFkk oSls gh tSls yscj j[ks tkrsa gSaa ml dks j[k fy;k tkrk gS A blfy, lacaf/kr Jfed ykspu izlkn vkbZ- Mh- ,DV esa nh xbZ Jfed dh ifjHkk"kk esa ugha vkrk gSa A blfy, mldh lsok fdlh Hkh le; fcuk uksfVl ds lekIr dh tk ldrh Fkh rFkk /kkjk 6&,u ds vuqlkj mls dksbZ vuqrks"k ikus dk vf/kdkj ugh gS A bu ifjfLFkfr;ksa eas ykspu izlkn ds c;ku ls mls dksbZ enn ugha feyrh gS A**
11. Applying the principles laid down in the case of Bangalore Water Supply and Sewerage Board (supra) and considering the ratio laid down in General Manager Telecom v. S. Sriniwashan Rao and Ors., 1998 (1) AWC 658 (SC) ; 1998 (78) FLR 143 and Executive Engineer C.P.W.D., Indore v. Madhukar Purshottam Kolharkar (supra), the finding of the Labour Court that P.W.D. is not industry is quashed. In so far as the findings of the Labour Court that termination of services of the petitioner is not retrenchment as he had himself not come to work is not liable to be disturbed under Article 226 of the Constitution of India. The petitioner was engaged on daily wage and was not appointed against any post, he has no right to be regularised in service as he failed to prove before the Labour Court that he was appointed against a sanctioned post in substantive vacancy. Engagement for 240 days from time to time on daily wage would not attract the provision of Section 6N of the U. P. Industrial Disputes Act unless it could established that he had continuously worked for 240 days in previous year counting backward from the date of termination of service and even in that eventuality he would have only been entitled to retrenchment compensation with interest.
12. For the reasons stated above, the writ petition is allowed in part. The finding of the Labour Court that Public Works Department is not an industry is quashed. Other findings particularly that termination of the petitioner does not fall within the ambit of the definition of 'Retrenchment' is upheld. No order as to cost.