JUDGMENT Rakesh Tiwari, J.
1. Heard counsel for the parties and perused the record.
2. By means of this writ petition the petitioner-Board has sought a writ of certiorari quashing the impugned award dated 23.12.1995 passed by respondent No. 1 in Adjudication Case No. 64 of 1988.
3. The case of the petitioner-U. P. State Electricity, Board (hereinafter referred to as the Board), in brief, is that its Panki Thermal Power Station, Kanpur, is controlled by the Board. This power station is registered under the Factories Act. The Board is engaged in power generation, supply and distribution of electricity in the entire State of Uttar Pradesh. Contract Labour is not abolished in this industry. The Board contracts out allied works to the contractors under written contracts. The contractors engage their own labourers under their supervision for the contract work. The contractor as well as the Board is registered under Contract Labour (Regulation and Abolition) Act, 1970. An industrial dispute was raised by respondent No. 2 through Bizli Mazdoor Union inter alia that he was employed as helper by the Board in 1983 and his services were illegally terminated w.e.f. 7.1.1988. The conciliation proceedings before the Regional Conciliation Officer having failed, the State Government through the Labour Court referred the following question for adjudication to the Tribunal under Section 4K of the U. P. Industrial Disputes Act :
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4. In para 3 of the writ petition the petitioner further states that the respondent-workman was never employed by it or by any officer of it. The claim of the workman was totally false. Since the workman was never given any appointment letter, no attendance on the attendance register was shown nor his name occurs in Pay Bill Register, etc. In para 4 of the writ petition the petitioner states that it may be that the respondent-workman may have worked as a contract labourer under some contractor but that will give right against the contractor and not against the petitioner. Admittedly there are rules for direct recruitment according to which all permanent posts are advertised and selection is made by Selection Committee.
5. The respondent-workman controverted the version of the petitioner in his counter-affidavit. In para 4 of the counter-affidavit he has stated that the Managing Committee employed him as a temporary helper in 1983 though work of telephone maintenance was taken from him. He has denied that he was working under a contractor. He has further stated that the petitioner deliberately did not implead the contractor to the writ petition. In para 5 he states that the petitioner has come up with the case only to save his skin because the petitioner had not complied with the provisions of Section 6N of the Industrial Disputes Act, 1947.
6. The labour court gave the impugned award in favour of the respondent-workman treating him to be an employee of the petitioner-Board and directed it to reinstate him in service with full back wages and all consequential benefits holding that his termination was bad, illegal and unjustified being without notice or complying with the provisions of Section 6N of the Act.
7. Both parties produced oral and documentary evidence. The name of workman was not found in attendance register, pay register or any other register maintained in ordinary course of business. The burden of proving 240 days' continuous working lies on workman. He examined himself. In his statement he has stated that he never applied for service in the Corporation nor any interview was held before his appointment. He admitted that one Shri D. P. Yadav, Assistant Engineer, asked him to work and he started working. No appointment letter was given to him and he was paid Rs. 400 by a Junior Engineer. He admitted that pay of the helpers was Rs. 1,400 per month. He relied on few pages of a register, which according to him is complaint register in which he has noted numbers of defective telephones. There is no mention of any date of these entries. The labour court by relying on these entries has held that respondent was employee of the Corporation.
8. The learned counsel for petitioner submits that it is not denied that petitioner is a State-owned Corporation, which has framed service rules under Section 79C of the Electricity Supply Act. There is prescribed procedure for recruitment and appointing authority is also prescribed. A Junior Engineer has no power to take any person in service of the Corporation. Not a single document about his appointment or to show for how many days the respondent-workman worked had been produced. On what post he was recruited is also not proved. The respondent has admitted that he knows that the Corporation is an establishment of Government. The labour court has not recorded any finding as to how the respondent has worked for 240 days in a year. The complaint register even does not disclose the period of complaints. According to respondent workman he was employed in the Corporation for about six years but he could not produce even a chit of paper about his service. The worker therefore, failed to prove that he had continuously worked and completed 240 day in a year, hence the award is perverse.
9. Recently the Supreme Court in the case of Surendra Kumar Sharma v. Vikas Adhikari, 2003 (2) SCCD 700 : 2003 (5) SCC 12, has cautioned about the tendency of granting appointments in Government Corporations by illegal means. The Supreme Court held thus :
"The Court 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 prospectus. 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 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." (SCC pp. 111-12, para 23).
10. This case is also of the same nature. The labour court has not recorded any findings that the respondent has continuously worked for more than 240 days in a year. It is evident from record that the respondent-workman could not file any evidence of his working in the Corporation much less any evidence for six year working as claimed by him. It is not in dispute that there are recruitment rules in the Corporation for appointment of employees. There is no iota of evidence on record in what manner and on which post he was appointed as admittedly the workman alleges to have been appointed by a Junior Engineer who has no power or authority to make appointments. Any appointment made de hors the rules is void. The appointment has to stand judicial scrutiny as held in Surendra Kumar Sharma (supra). It is admitted fact that the respondent-workman was paid Rs. 400 by Sri D. P. Yadav, Junior Engineer, personally and not by the Corporation. The pay scale of helper in the Corporation was Rs. 1,400 per month and no dispute was raised by him at any time in this regard prior to his alleged termination. This itself establishes that he was a personal employee of Sri D. P. Yadav, Junior Engineer, and was neither appointed by the Corporation nor was its employee. The Labour Court has committed an illegality on the face of record on relying upon some stray entries in the Telephone Register wherein defective numbers of the telephones are alleged to have been noted by the respondent-workman on some pages. He had ample opportunity to make such entries, which cannot be a basis for coming to conclusion that he was appointed by the Department and was their employee. The findings of the labour court are perverse and without application of mind to the totality of the circumstances of the case.
11. In view of these reasons the writ petition is allowed and the Award dated 23.12.1995 given in Adjudication Case No. 64 of 1988 is quashed. No order as to costs.