JUDGMENT Shishir Kumar, J.
1. This writ petition has been filed for quashing the award-dated 30.5.1998 passed by respondent No. 1 published on 25.2.1999, Annexure-6 to the writ petition.
2. The facts arising out of the writ petition is that the petitioner is Chandra Shekhar Azad University of Agriculture and Technology, Kanpur (hereinafter referred to as the University) is State under Article 12 of the Constitution of India. Its basic object is to undertake various training and project for the betterment of the agriculture. It employs persons from time to time in respect of particular project. It is further respectfully submitted that the University is not an industry as defined in U.P. Industrial Disputes Act. Respondent No. 2 was appointed on daily wage basis by the University on 1.7.1980 for a particular period and was working even today on daily wage basis. From 1.9.1980 to 6.8.1993 respondent No. 2 worked as Lab. Assistant/attendant on daily wage basis which is a class-IV post. When the services of respondent No. 2 were not regularized, he raised a dispute. The same was referred by the State Government before respondent No. l, which was registered as Claim Petition No. 30 of 1994 for a relief to declare him as a permanent and regular clerk of the University. A written statement was filed on behalf of the Administrative Officer of the University and a reply to that effect was also filed by respondent No. 2 but the Labour court has illegally given an award dated 30.5.1998 with a direction that respondent No. 2 will be treated to be regular from the date of award.
3. It has been submitted on behalf of the petitioner that respondent No. 1 has no power or jurisdiction to pass an award for the purpose of regularization of services of an employee. The Labour Court has exceeded its jurisdiction in terms of the reference. The Labour Court has wrongly held that the juniors have been regularized and the allegations to this effect made in the impugned order are absolutely vague as in the matter of regularization several factors are to be considered, as Articles 14 and 16 cannot be said to be applicable. It has clearly been stated in the written statement filed on behalf of the petitioner that there is no industrial dispute and the reference has been made without applying its mind and the reference is incompetent and is not maintainable for want of industrial dispute. It has also been stated that the employees are temporarily engaged on the basis of daily wage for specific job of casual nature which cannot be said to be regular work, as such respondent No. 1 has got no jurisdiction to direct the petitioner to pass an order of regularization. The reliance has been placed upon a judgment reported in 2003 (2) ESC 1007, State of U.P. v. Presiding Officer, Labour Court Meerut and has placed reliance on para 25 of the said judgment which is reproduced below:
25. In view of the above, the law of secularizations be summarized that the appointment should be made at initial stage in accordance with rules. Incumbent must possess the requisite qualification for the post on the date of appointment and if appointment had been made on temporary ad hoc basis, the workman should be permitted to continue for long rather the vacancies should be filled up on permanent basis in accordance with law. If the statutory provision or executive instruction provides for regularization after completing a particular period only then regularization is permissible. In special circumstances, Court may give direction to consider the case for regularization provided continuation on ad hoc basis is so long that it amounts to arbitrariness and provisions of Article 14 are attracted. There must be sanctioned post against which regularization is sought. At the same time policy of the state enforcing the reservation for particular classes like S.C., S.T., O.B.C. etc. and further for women, handicapped and ex-service men cannot be ignored.
4. Further reliance has been placed upon , State of U.P. and Ors. v. Ajay Kumar and has submitted that the Apex Court has clearly held that High Court has no jurisdiction to hold that a daily wager is entitled for regularization. There must exist a post and either administrative instructions or statutory rules must be in operation to appoint a person to that post, Daily wage appointment will obviously be in relation to contingent establishment in which there cannot exist any post and it continues so long as the work exists. Further reliance has been placed by the counsel for the petitioner on , Mahendra Lal Jain and Ors. v. Indore Development Authority and Ors. and has placed reliance upon paras 18, 19, 29, 33, 34 and 35 which are reproduced below:
18. The posts of Sub-Engineers in which the appellants were appointed, it is nobody's case, were sanctioned ones. Concededly the respondent Authority before making any appointment neither intimated the employment exchange about the existing, vacancies, if any, nor issued any advertisement in relation thereto. Indisputably, the conditions precedent for appointment of the officers and servants of the Authority, as contained in the service Rules had not been complied with. The appointments of the appellants were, therefore, void ab initio being opposed to public policy as also violative of Articles 14 and 16 of the Constitution.
19. The question, therefore, which arises for consideration is as to whether they could lay a valid claim for regularization of their services. The answer thereto must be rendered in the negative. Regularization cannot be claimed as a matter or right. An illegal appointment cannot be legalized by taking recourse to regularization. What can be regularized is an irregularity and not an illegality. The constitutional scheme which the country has adopted does not contemplate any back-door appointment. A State before offering public service to a person must copy with the constitutional requirements of Articles 14 and 16 of the Constitution. All actions of the State must conform to the constitutional requirements. A daily-wager in the absence of a statutory provision in this behalf would not he entitled to regularization. (See State of U.P. v. Ajay Kumar and Jawaharlal Nehru Krishi Vishwa Vidyalaya v. Bal Kishan Soni).
29. It may be true that the appellants had been later on put on a monthly salary but there is nothing on record to how as to how the same was done. They might have been subjected to the provisions of ' the employees' provident fund and might have been granted the benefit of leave or given some employment code and their names might have found place in the seniority list amongst others, but thereby they cannot be said to have been given a permanent ticket. The so-called seniority list which is contained in Annexure P-27, whereupon strong reliance has been placed by Dr. Dhavan merely itself goes to show that it was prepared in respect of office muster employees. The said seniority list was not prepared in terms of the classification of employees within the meaning of the 1961 Act and the Rules framed thereunder but was based on the date of joining probably for the purpose of maintenance of records. The 1973 Act or the Rules framed thereunder do not provide for appointments on ad hoc basis or on daily wages. The 1961 Act itself shows that the employees are to be classified in six categories, namely permanent, permanent seasonal, probationers, badlies, apprentices and temporary. The recruitments of the appellants do not fall in any of the said categories. With a view to become eligible to be considered as a permanent employee or a temporary employee, one must be appointed in terms thereof. Permanent employee has been divided in two categories (i) who had been appointed against a clear vacancy in one or more posts as probationers and otherwise; and (ii) whose name had been registered at muster roll and who has been given a ticket of permanent employee. A "ticket of permanent employee" was, thus, required to be issued in terms of Order 3 of the Standard Standing Orders. Grant of such ticket was imperative before permanency could be s claimed. The appellants have not produced any such ticket.
33. For the purpose of this mater, we would proceed on the basis that the 1961 Act is a special statute vis-a-vis the 1973 Act and the Rules framed thereunder. But in the absence of any conflict in the provisions of the said Act, the conditions of service including those relating to recruitment as provided for in the 1973 Act and 1987 Rules would apply. If by reasons of the latter, the appointment is invalid, the same cannot be validated by taking recourse to regularization. For the purpose of regularization which would confer on the employee concerned a permanent status, there must exist a post. However, we may hasten toad that regularization itself does not imply permanency. We have use the term keeping in view the provisions of the 1963 Rules.
34. We have noticed the provisions of the Act and the Rules. No case was made out by the appellants herein in their statements of claims that they became permanent employees in terms thereof. There is also nothing on record to show that such a claim was put forward even in the demand raising the industrial dispute. Presumably, the appellants were aware of the statutory limitations in this behalf. Furthermore, the Labour court having derived its jurisdiction from the reference made by the State Government, it was found to act within the four corners thereof. It could not enlarge the scope of the reference nor could deviate therefrom. A demand which was not raised at the time of raising the dispute could not have been gone into by the Labour court being not the subject-matter thereof.
35. The questions which have been raised before us by Dr. Dhavan had not been raised before the Labour Court. The Labour Court in the absence of any pleadings or any proof as regards application of the 1961 Act and the 1963 Rules had proceeded on the basis that they would become permanent employees in terms of Orders 2(ii) and 2(vi) of the annexure appended thereto. The appellants did not adduce any evidence as regards nature of their employment or the classification under which they were appointed. They have also not been able to show that they had been issued any permanent ticket, Dr. Dhavan is not correct in his submission that a separate ticket need not be issued and what was necessary was merely to show that the appellants had been recognized by the State as its employees having been provided with employment code. We have seen that their names had been appearing in the muster rolls maintained by the respondent. The scheme of the employees' provident fund or the leave rules would not alter the nature and character of their appointments. The nature of their employment continues save and except a case where a statute interdicts which in turn would be subject to the constitutional limitations. For the purpose of obtaining a permanent status, constitutional and statutory conditions precedent therefore must be fulfilled.
5. In such a situation the counsel for the petitioner submits that in view of the aforesaid fact, the award of the Labour Court as it relates to the directions issued in the award regarding regularization of the services of the respondent No. 2 is liable to be set aside.
6. Further it has been submitted on behalf of the petitioner that the Labour Court ought to have dismissed the case of respondent No. 2 on the ground of delay and has placed reliance upon the judgment of the Apex Court reported in Judgment Today 2006 Vol. (1) SC Page 411.
7. On the other hand Sri B.N. Singh who appears for the respondents has submitted that admittedly respondent No. 2 was appointed in the year 1980 and he is being treated as daily wager though various persons junior to the respondent No. 2 have been regularized as such the Labour Court has passed an award directing the petitioner to regularize the services of the respondent-workman from the date of award. Further submission has been made on behalf of the respondent that from the perusal of the reference by the State Government, it is clear that issue involved in the present case was that whether the action of the petitioner regarding non-declaration of workman as regular is an illegal and unreasonable and if so, what relief he is entitled and from what date he is entitled to be regularized. The reference-dated 23.9.1994 is being reproduced below:
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8. It has also been argued on behalf of the respondent that in view of the provisions of the Act, the action of the petitioner amounts to unfair labour practice. In such a situation the respondents submit that the writ petition is liable to be dismissed. Reliance has been placed upon a judgment reported in AIR 1987 SC 117, Chandravalkar v. Ashalata P.S. Gauram and has submitted that the Apex Court has clearly held that if there is a finding of fact recorded by the Court, there should not be any interference by the High court. Further reliance has been placed upon 1978 Labour and Industrial Cases 437 Swadeshi Cotton Mills Ltd. v. Labour Court and has placed reliance upon paras 11,15 and 16 of the said judgment which are reproduced below;
11. So far as the finding recorded by the Labour Court that the work of operating comptometer machine in petitioner's establishment is different from that of a clerk and that a clerk cannot fully operate such a machine unless he undergoes training for it is concerned, it is a finding of fact recorded on the basis of evidence produced in the case. The petitioners cannot question the correctness of this finding in a petition under Article 226 of the Constitution. On this finding, no exception can be taken to the conclusion of the Labour Court that the clerks who operate comptometer machine should be designated as comptometer operators-cum-clerks and should he paid salary in a pay scale higher than that is applicable to clerks.
15. Article 226 of the Constitution as it stands after amendment made by the Constitution 42 Amendment Act 1976, empowers the High Court to issue writs for the following purposes only and for no other purpose:
(a) For the enforcement of any of the right conferred by the provisions of part III: or
(b) for the redress of any injury of a substantial nature by reason of the contravention of any other provision of the Constitution or any provision of any enactment or ordinance or any order, rule, regulation, bye-law or other instrument made thereunder; or
(c) for the redress of any injury by reason of any illegality in any proceedings by or before any authority under any provision referred to in Sub-clause (b) where such illegality has resulted in substantial failure of justice.
It is not the case of the petitioner that the impugned award has the effect of contravening rights conferred by Part III of the Constitution. He has also not been able to show that while making the award, the Labour court has contravened any provision of the Constitution or that of any enactment or ordinance, order, rule, regulation, bye-law or other instrument made thereunder. The case therefore does not fall either under Clause (a) or (b) of Article 226 mentioned above. If at all, the petitioner's grievance relates to some illegality alleged to have been committed by the Labour court as envisaged by Clause (c) mentioned above. Redress for an injury as contemplated by Clause (c) mentioned above, can be granted in a petition under Article 226 of the Constitution only where the illegality complained of has resulted in substantial failure of justice. Even assuming that as alleged by the petitioner the Labour Court was not justified in fixing the wages of the workmen in the pay scale of Rs. 130/- to 352/- merely on the basis of the award given by it in Industrial Dispute Case No. 72 of 1971, in as much as the industry run by British India Corporation in that case was not comparable to the Textile Mill run by the petitioner, and also because that award has since been set aside by the High court by its judgment D/- 28-10-1977 in writ petition No. 6710 of 1972(All), it will not be possible for this Court to interfere with the impugned award unless it comes to the conclusion that there has been substantial failure of justice. Accordingly, we proceed to examine as to whether or not the award in this case has resulted in a substantial failure of justice.
16. A perusal of the impugned award shows that the clerical staff in petitioner's establishment was drawing salary in the pay scale of Rs. 105/- to 313.75. As already indicated the Tribunal has found that the workman in question who were required to operate comptometer machines were to do work which was different from clerical work and that such workmen deserved a salary higher than that of a clerk. This is a finding of fact which cannot be interfered with in a petition under Article 226 of the constitution. Accordingly, the salary of the concerned workmen had to be fixed in a scale higher than the pay scale of Rs. 105-313.75. The report of the Commissioner clearly shows that in other textile mills at Kanpur (it cannot be denied that those textile mills were engaged in an industry similar to that of the petitioner) pay scales applicable to similar workmen ranged between Rs. 6-/ - to Rupees 268 and Rupees I50/- to Rupees 400/-. Accordingly, the salary of the workmen working on comptometer machines in petitioners establishment had to be fixed somewhere between the pay scale ranging between Rs. 105/- to 31.3.75, and Rs. 150/- to Rupees 400/-. Considering that in the case of petitioner's establishment, the workmen in question had to operate comptometer machines for about six hours, out of total of eight hours per day, it cannot be said that infixing the salary of the concerned workmen in the pay scale of Rs. l30/- to 352 which lies almost mid-way in the pay scales of Rs. 105/- to Rs. 313.75 and Rs. 150/- to Rs. 400/- has resulted in any substantial failure of justice. It is therefore, not necessary for us to go into the question whether or not the tribunal has committed any illegality in relying upon the award given by the Labour Court in Industrial Dispute A case No. 72 of 1971 specially when it has since been set aside. In the view which we have taken, the fact that the award made by the Labour Court Kanpur in Industrial Dispute case No. 72 of 1971 has been set aside by the High Court is not material and the application for amendment filed by the petitioner on 21.11.77 deserves to be rejected.
Reliance has also been placed upon the judgment or the Apex Court in 1996 Labor and Industrial Cases 967 Chief Conservator of Forest v. Jagannath Kondhare and has placed reliance upon paras 16 to 19 of the said judgment which are reproduced below:
16. The aforesaid being the crux of the scheme to implement which some of the respondents were employed, we, are of the view that the same cannot be regarded as a part of inalienable or inescapable function of the state for the reason that the scheme was intended even to fulfill the recreational and educational aspirations of the people. We are in no doubt that such a work could well be undertaken by an agency which is not required to be even an instrumentality of the State.
17. This being the position, we hold that the aforesaid scheme undertaken by the Forest Department cannot be regarded as a part of sovereign function of the State, and so, it was open to the respondents la invoke the provisions of the state Act. We would say the same qua the social foresting work undertaken in Ahmednagar district. There was, therefore, no threshold bar in knocking the door of the Industrial Courts by the respondents making a grievance about adoption of unfair labour practice by the appellants.
18. This takes us to the second main question as to whether on the facts of the present case would it be held that the appellants were guilty of adopting unfair labour practice. As already pointed out, the respondents alleged the aforesaid act by relying on what has been stated under item 6 of Schedule IV of the State Act which reads as below:
To employ employee as "badlis", casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent employees.
19. The Industrial court has found the appellants as having taken recourse to unfair labour practice in the present cases because the respondents-workmen who had approached the Court had admittedly been in the employment of the State for 5 to 6 years and in each year had worked for period ranging from 100 to 330 days. Ms. Jaising draws our attention in this context to the statement filed by the appellants themselves before the Industrial Court, a copy of which is at pages 75 to 76 of C.A. No. 4375/90. A perusal of the same shows that some of the respondents had worked for a few days only in 1977 and 1978, though subsequently they themselves had worked for longer period, which in case of Gitaji Baban Kadam, whose name is at serial No. 4 went up to 322 in 1982, though in 1978 he had worked for 4-1/2 days. (Similar is the position qua some other respondents.)
9. Further reliance has been placed on a division bench judgment of Gujrat High Court reported in LLR 1993 Page 45, Kalol Municipality and Anr. v. Shantabem Kalidas and Ors. and has placed reliance upon paras 12 and 13 of the said judgment. The same are reproduced below:
12. It is contended that the Tribunal ought not to have given direction, implementation of which would require sanction of another authority, namely, the State Government of Gujarat. The argument is based on assumption that the direction given by the Tribunal cannot be implemented without the sanction of the State Government. There is no provision in the Municipal Act to which our attention is drawn by the learned Counsel for the petitioners that the award passed by the Labour Court or Industrial Tribunal cannot be implemented by the Municipality without the sanction of the State Government. However, it is contended that if the Municipality wished to change its permanent set up it would be required to amend the rules framed under Section 271(d) of the Municipal Act. Proviso (a) to Section 271 of the Municipal Act inter alia provides that no rule or alteration or rescission of a rule made under this section shall have effect unless and until it has been approved by the State Government. Therefore, it is contended that unless the rules are altered and the same is approved by the State Government, the Municipality cannot treat the respondent-workmen as permanent employees.
13. As indicated hereinabove, the direction that may be given by the Labour Court or the Tribunal while deciding an industrial dispute may enable the Municipality to amend the rules framed by it under Section 271 of the Municipal Act. But if there is no provision in the rules or that the permanent set up fixed by the Municipality is already determined and the same is limited it cannot be set up as a defence by the Municipality that the Labour Court or the Industrial Tribunal cannot give direction which is not in conformity with the rules framed by it. The rules framed by the Municipality are unilaterally framed without involving the workmen employed by it. Even the procedure for framing the rules laid down under the Act, no where provides that the employees or representatives of the employees engaged by the Municipality shall be consulted at any stage before the rules are framed and got approved by the State Government. Thus unilateral determination of the number of staff by the Municipality cannot bind the workmen engaged by it. Such unilateral decision about the number of staff cannot truncate the powers of the Labour Court or that of the Industrial Tribunal to adjudicate the dispute referred to it in accordance with the provisions of the Act. In fact in many cases the root of the dispute would be the faulty determination of the number of permanent staff of the Municipality. If the argument is accepted it would amount to saying that unless the Municipality alters or amends its rules and increase the number of permanent staff and gets the approval of the State Government no workmen can be ordered to be made permanent or can be ordered to be given permanency benefits by the Labour Court or the Industrial Tribunal as the case may he. If the argument is accepted it would lead to unreasonable and absurd consequences. It would amount to saying that no dispute is raised by workmen engaged by a Municipality in respect of which there is no provision in the rules framed by the Municipality. Moreover, even if such dispute is raised the Labour Court or Industrial Tribunal will have no power to give any direction to a Municipality which is not in conformity with the provisions of the rules framed by the Municipality. In short it would amount to saying that the unilateral decisions that may be taken by the Municipality while framing its rules would determine the scope of powers of the Labour Courts or Industrial tribunals.
Obviously such intention could never be imputed to the legislature when it enacted the provisions of Section 271 of the Municipal Act and the relevant provisions of the I.D. act.
Reliance has also been placed upon a judgment of this Court reported in 1997 (75) FLR Page 65 and has submitted that this Court has held that as the reference was made for deciding the scale and question of creation of post also impliedly referred, as such the same is ancillary to the reference and the writ petition filed by the employer was dismissed.
10. In view of the aforesaid fact the counsel for the respondents submitted that the Labour Court has no option except to decide the dispute in accordance with the reference made before him and the Labour Court has on the basis of the aforesaid reference come to the conclusion that the workman is admittedly working in the petitioner's organization continuously from 1.9.1990 to 6.8.1993 and he was also paid bonus for the year 1993-94. A finding of fact has also been recorded that from the perusal of the muster roll it is also clear that the workman has completed above 240 days in one calendar year. The finding to this effect has also been recorded that junior to the workman respondent No. 2 namely, Bachchu Singh and Anil Kumar Mishra have been confirmed. The story set up by the employer has also been disbelieved by the Labour Court that various persons senior to the respondent No. 2 has not been regularized. A finding of fact has also been recorded by the Labour Court that the workman is entitled to get the salary according to his work on the post on which he is working and as such he is also entitled for regularization.
11. I have heard the learned Counsel for the petitioner and the Standing Counsel and have also perused the record. From the record it is clear that admittedly the respondent workman was first time engaged in the year 1980 and is working continuously, There is no denial by the employer to this effect. A finding to this effect has also been recorded by the Labour Court that junior persons to respondent No. 2 have been made regular. The Labour Court has also recorded a finding to this effect that some daily wagers had approached the High Court and the High Court has directed to consider their claim and various persons on the basis of the order passed by the High Court have been regularized. A finding to this effect has also been recorded by the Labour Court that from July 1980 to August 1983 respondent No. 2 has worked on the post of Lab. Assistant /Attendant and the post of Lab Assistant is in the nature of permanent and from the record it also appears that there is not break in the service of respondent No. 2. The Court has perused the reference. From the reference it is clear that the Labour Court has answered the reference, which was referred to the Labour Court. It is now well settled that in view of the judgment of the Apex Court reported in 2005 SCC (L&S) 154, Mahendra Lal Jain v. Indore Development Authority that the Labour Court can only decide the dispute referred to it and the Labour Court has got no jurisdiction to go beyond it. In such a way the Labour Court has decided the dispute according to the reference made before him. The Labour Court is bound to decide the said issue.
12. In the case of The Workmen of Bhurkunda Colliery of Central Coalfields Ltd. v. The Management of Bhurkunda Colliery of Central Coalfields Ltd. reported in JT 2006 (2) SC 1 the Apex Court has held that if the Labour court has passed an orders on the basis of evidence on record regarding continuous service and has directed for regularization, there is no necessity for interference. In paragraphs 21 and 22 the Apex Court has observed as under:
21. The industrial jurisprudence, likewise, seeks to evolve a rational synthesis between the conflicting scheme of the employers and employees. In finding out solutions to industrial disputes great care is always taken, as it ought to he, to see that the settlement of industrial disputes does not go against the interests of the community as a whole. In the decision of major industrial disputes, three facts are thus involved. The interests of the employees which have received constitutional guarantees under the Directive Principles, the interests of the employers which have received a guarantee under Article 19 and other Articles of Part III, and the interests of the community at large which are so important in a Welfare State. It is on these lines that industrial jurisprudence has developed during the last few decades in our country.
22. When we modulate our thinking process and attitude according to the underlying philosophy of industrial and labour jurisprudence and apply the laws meant for industrial peace and harmony, then the conclusion becomes irresistible that the employees who have been working since 1973-74 are required to be regularized as expeditiously as possible.
13. After perusal of the judgment passed by the Labour Court it is clear that the Labour Court has considered each and every aspect and has come to the conclusion that in spite of the fact that respondent workmen is working from 1980 and is being treated as daily wager, this clearly amount to unfair labour practice. The finding recorded by the Labour Court is a finding of fact in view of the judgment Management of Madurakattam Cooperative Sugar Mills Ltd. v. S. Vishwanathan, the Apex Court has clearly held that there is very little scope of interference in the finding recorded by the Labour Court. The finding recorded by the Labour Court is a finding of fact and unless and until it is proved beyond doubt that the Labour Court has exceeded its jurisdiction and the finding recorded by the Labour Court is against the evidence on record and is perverse then the High Court while exercising the jurisdiction under Article 226 of the Constitution of India has the jurisdiction to interfere otherwise there is very little scope for interference.
14. In view of the aforesaid fact, I find no merit in the writ petition and the writ petition is hereby dismissed. There shall be no order as to costs.