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State Of U.P. And Anr. vs Presiding Officer, Labour Court, ...

High Court Of Judicature at Allahabad|24 May, 2002


1. The present writ petition is directed against the judgment and award dated 26.4.1996 passed by Presiding Officer, Labour Court, Varanasi in adjudication Case No. 122 of 1990.
Heard learned counsel for the petitioner as well as learned counsel for the respondents.
2. The relevant facts necessary for the adjudication of case are that the respondent No. 2 Sri Kailash Pandey was engaged on the post of Beldar w.e.f. 1.6.1984 to 31.10.1987 in the department of Irrigation Flood Division I, State Government of U. P. He had continuously worked for more than 240 days in a calendar year. On the claim of the respondent for regularisation, the respondent was removed from service without giving any notice ignoring the Provision of Section 6N of the U. P. Industrial Disputes Act. Contrary to it, it as contended on behalf of the respondents that the respondent workman did not present himself from 1.11.1987 for work, as such, neither his service was terminated nor he was retrenched. In support of the contention of the respondent-workman had filed a document as evidence Exhibit-1 in the form of application dated 18.4.1988 indicating that he has already been removed like other workman in the month of October 1987. He met the Assistant Engineer, who had given him assurance to give re-employment after giving deployment to others. Exhibit-2 dated 12.9.1987 (in the form of the application), Exhibit-3 dated 22.9.1989 (in the form of the application), Exhibit-4 dated 19.10.1989, Exhibit-5 dated 1.2.1990, Exhibit-6 dated 13.2.1990 have been filed in that context.
3. The respondent workman was also examined and during the cross-examination, nothing was found in contravention or derogation of his interest. Only one witness Sri Paras Nath Verma was produced by the employer-petitioner. Since the above witness had joined on 2.7.1993, therefore, he could not be treated to be witness of oral termination. There no material was produced, which may indicate that the respondent-workman had left the work on his own.
4. The question of adjudication before the labour court was whether the services of the respondent workman was terminated or he himself left the work. It appears that the respondent-workman repeatedly made a representation to the employer indicating that he has been orally removed, however, no response has ever been given to him by the employer. The employer had not given any heed to the repeated request of the respondent-workman to allow him to work. In these circumstances, the presiding officer found that the respondents-workman has worked for three years. The labour court has believed the version and submission of the respondent-workman because the labour court has accepted the factual aspects and the submissions of the respondent-workman as these were not controverted by the petitioner on the basis of the record.
5. By his order dated 26.4.1996, the aware has been given in favour of the respondent-workman treating the removal of respondent-workman from 1.11.1987 as illegal and direction for payment of wages from 1.3.1990 and continuance in service was made.
6. The above award dated 26.4.1996 (Annexure-1 to the writ petition) has been challenged by the State of U. P. through the Executive Engineer, Flood Division-I, Ballia. In para 6 of the writ petition, it has been stated that the respondent-workman has falsely claimed to have worked continuously from 1.6.1984 to 31.10.1987 for more than 240 days in each calendar year whereas he was engaged only from time to time in the exigency of work and on completion of work, he was disengaged like other workman also. For the first time in para 6 of the writ petition, it has been indicated that the respondent-workman has worked as follows :
Calendar year Period
(i) 1.1.1984 to31.12.1984 7/84 31 days 8/84 31 days 9/84 30 days 10/84 31 days 11/84 30 days 12/84 31 days Total 184 days
(ii) 1.1.1985 to 31.12.1985 1/85 31 days 2/85 28 days 4/85 30 days 9/85 30 days Total 119 days
7. In para 8 of the writ petition, the petitioners have stated that the eight documents, referred and relied by the respondent-workman, are not available on the record of the office of the petitioners.
8. In para 9 of the writ petition, it was asserted that the daily wage workers are not the regular employees of the establishment of the petitioners and no notice is required to be issued to such daily wagers as is done in respect of regular employees, rather they are engaged in the exigency of work and after completion of the work and their engagement automatically came to an end.
9. This Court on 17.5.1999 has been pleased to pass the order, which reads as below :
"The implementation of the Award dated 26.4.1996 passed in Adjudication case No. 122 of 1990 shall remain stayed provided the petitioners pay to respondent No. 2 wages in accordance with Section 17B of the Industrial Disputes Act with effect from 1.6.1999. respondent No. 2 would be treated to be reinstated and would be entitled to monthly wages at the rate last drawn by him when his services were dispensed with. However, it will be open to the petitioners to take or not to take work from respondent No. 2."
10. The counter-affidavit on behalf of the respondent workman has been filed with the assertion that he had worked for more than 240 days. It is slated that the chart given by the petitioners themselves in paragraph 6 of the writ petition shows that during the period July. 1984 to April. 1985 the respondent-workman had worked for more than 240 days which is significant and not for twelve calendar months lor the entitlement of an employee for getting retrenchment benefit. The respondent-workman could not be blamed as records are not kept properly in the office of the petitioners and merely saying that the records are not available would not absolve them from their responsibility. It was for the petitioners to have placed the attendance register or attendance sheets before the Labour Court, which burden they did not discharge and, therefore, the labour court could correctly reply on the evidence produced on behalf of the respondent-workman that he had worked for more than 240 days in a calendar year. According to para 7 of the counter-affidavit the provisions relating to retrenchment do not make any distinction between a casual, a temporary, a probationer or a regular employee.
11. On the other hand, the petitioners have reiterated the same averments of the writ petition in the rejoinder-affidavit. It has been stated on behalf of the petitioners that the respondent No. 2 was engaged purely on daily wage basis, who was required to do the work only for 8 hours in a day. The engagement of respondent No. 2 was based on each day working i.e.. the daily wager starts working in the morning and after completion of 8 hours his engagement automatically comes to an end. The daily wage employee is neither issued any appointment letter nor he is issued any termination order, however, this aspect of the matter has not been considered by the labour court while passing the impugned award.
12. The Civil Misc. Application No. 5617 of 2001 has been filed by the respondent-workman with the prayer to modify the interim order dated 17.5.1999 passed by this Court with a direction to the petitioners to pay equal pay for equal work to the worker who were working on the post of Beldar.
13. Learned counsel for the petitioner has placed reliance on the order dated 26.3.1997 in S.L.P. No. 7957 of 1996. Himanshu Kumar Vidgarthi and Ors. v. State of Bihar and Ors., 1997 (76) FLR 237. Where the Court has observed that :
"Admittedly, they were not appointed lo the posts in accordance with the rules but were engaged on the basis of need of the work. They are lemporary 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. Since they are only daily-wage employees and have no right to the posts, their disengagement is not arbitrary."
14. Learned counsel for the petitioners has placed reliance on the order dated 16.12.1992 passed in Writ Petition No. 5582 of 1992, Channey Lal and Ors., v. Director, Malaria Research Centre, New Delhi and Anr., 1999 (82) FLR 76, where it was held that the provision of Article 311 does not apply in the case of daily wager are treated not to hold any civil post, admittedly, they are not members of any civil service, therefore, workman employed on a daily wage basis in a project does not hold a civil post under the State. Unless the persons hold a post, there is no question of distinction of temporary or permanent.
15. Learned counsel for the petitioners has placed reliance on the judgment dated 17.9.1998, passed in Writ Petition No. 108 of 1993, State of U. P. v. Labour Court, Haldwani and Ors., 1999 (1) AWC 768 : 1999 181) FLR 319, wherein it was held that the engagement of daily wager in the Irrigation Department came to an end every evening. Refusal to employ him from a particular day, his disengagement was not under the provision of Section 25F of Industrial Disputes Act. It was observed in para 6 of the above case as below :
"6. Employment to Government service in the Irrigation Department is regulated by statutory rules Patently, the respondent No. 2 was not employed in accordance with the rules. For engaging a person casually on day to day basis the statutory rules are not required to be followed under which the posts have to be advertised and only the best from the market have to be picked up keeping in view reservation provided for certain classes. Thus, every eligible person has an opportunity to participate in the recruitment process. This is not so in the case of daily wager in whose case even regulations regarding age. medical fitness, character etc. are not observed. Therefore, daily and casual workers who are engaged in disregard of all rules cannot be allowed to enter Government service through the back door and the labour court cannot be allowed to be used as a legal means for such back door entry. The anomalous situation that the impugned award creates can be seen from the fact that till before his alleged retrenchment the respondent No. 2 was on engagement from day to day. The impugned award makes him a permanent employee with the necessary consequence that he would have to be paid salary for all the 365 days as a regular employee and the other benefits of a regular employment can also not be denied to him. Thus, the award put him in a much better position than he was before the alleged retrenchment. Such a result is not conceived."
16. In the circumstances of the case, prima facie, there was no occasion and point to interfere in the award, however, keeping in view, the above referred judgments and factual averments stated in the writ petition for the first time, which goes to the root of the case, therefore, it is necessary that such aspects are analysed by the fact-finding authority.
17. For this purpose, the award dated 26.4.1996 is set aside with a direction to give a fresh award to be given by the presiding officer. Labour Court, Varanasi to take into consideration the factual averments regarding working of the respondent No. 2 for analysing work of respondent-workman for more than 240 days and analyse the correctness of the factual detail given by the petitioners in paragraph 6 of the writ petition and to adjudicate and finalise the award in the light of the above observations in the referred cases. However, since the respondent No. 2 has been working on a daily wage basis since last several years, more so on the strength of the interim order dated 17.5.1999 of this Court, therefore, his services has been dispensed with in the meantime and he had remained in employment on the payment of rate admissible to daily wager and in the meantime if his case comes in the criteria of regularisation of daily wager, the petitioners are liable to consider his case also for regularisation in accordance with the law as well as the Uttar Pradesh Regularisation of Daily Wages Appointment on Group 'C' Post (Outside the Purview of the Uttar Pradesh Public Service Commission) Rules. 1998. also according to the Uttar Pradesh Regularisation of Daily Wages Appointments on Group 'D' Posts Rules, 2001.
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State Of U.P. And Anr. vs Presiding Officer, Labour Court, ...


High Court Of Judicature at Allahabad

24 May, 2002
  • R Misra