JUDGMENT Rajes Kumar, J.
1. By means of the present writ petition, the petitioner has challenged the award dated 28.11.2003 passed by the respondent No. 1 in Industrial Dispute No. 71 of 2001, Smt. Anita Sharma v. Youth Hostel, annexure No. 7 to the writ petition.
2. In the writ petition, the petitioner has stated the following facts:
In the year 1956 the then Prime Minister Pt. Jawaharlal Nehru summed up on the philosophy of youth hostel in a very precise manner, with that passion which characterized his love and passion for youth; the Indian Chapter of Youth Hostel Scheme was initiated in 1949 when Youth Hostel of India was formed at Mysore. The association built its own Youth Hostel at New Delhi in December, 1977. The Government of India extended its support to the movement in 1966 when it decided to provide one model Youth Hostel for each State with its own funds during the Fourth and Fifth Five Year Plan. Subsequently, in the Seventh Five Year Plan 60 Youth Hostels were made by the Department of Youth Affairs, Government of India. The petitioner Youth Hostel was also completed during the Seventh Five Year Plan and the aim and object of the Youth Hostel was a home away from home The Youth Hostels are not like a hotel or commercial institution where guests pay stay charges. In fact, in Youth Hostel one never feels like a stranger. There is one Warden (mostly husband and wife team), ever prepared to listen to the problems of the young guests, advise them, help them and make them feel at home among friends. The Youth Hostel is based on the principle of community accommodation and is working on the principle of no profit no loss. The silent features of Youth Hostel are:
a) It is a non-religious, non-political and noncommercial unit without discrimination to race, colour, sex, caste, creed or social background.
b) Overnight charges are kept to the minimum so that the youth with limited means can avail the stay facility. Concession in overnight charges is given to members of Youth Hostel Associations and Students in organized groups of educational institutions.
c) Its functioning is as per the norms, rules and regulations laid down by International Youth Hostel Federation with a slight variation suiting to local conditions.
d) It promotes youth travel and youth activity programmes.
e) It should not be sued for political party meetings and social functions like marriages.
The petitioner Youth Hostel is managed by Management Committee constituted by the Central Government as per guidelines laid down by the Department of Youth Affairs and Sports, Government of India. The Central Government for establishment and infrastructure of the hostel provides funds and from time to time grant amount for its maintenance or for payment of honorarium to the Warden as the post of Warden is honorarium post and there is no regular salary post. The selection of the Warden is made by the Ministry of Youth Affairs and Sports, Government of India. The Youth Hostel has us own manual under which Chapter 5 deals with staff pattern, Chapter 5 provides with employment and removal of staff of the Youth Hostel. Chapter 5 Rule 1 states that employment and removal of the staff of the hostel is the responsibility of the Hostel Management Committee. Rule 1 of Chapter 5 is being reproduced below:
1. The employment and removal of staff of the Hostel is the responsibility of the Hostel Management Committee. However, the Committee may delegate the power to the Wardens, The staff will work under the administrative control of the Wardens. HMC will function as authority on disciplinary matters relating to staff, if need be. The wages/salary of the staff will be paid from the Hostel funds and the funds received from the State Government/Union Territory. The Hostel will, therefore, employ minimum essential staff' Keeping in view Chapter 5 Rule 1, the Hostel Management Committee in their resolution No. 2 dated 29.04.1987 sanctioned following posts:
1) 4 posts of Chowkidar wherein one will work Mali.
2) 2 as Receptionist.
3) Part time Sweepers - 3.
4) Cook - 1.
5) Asstt. Cook-1.
6) Part time Supervisor/clerk for 4 hours - 1.
7) Part time Electrician - 1.
8) Part time Plumber- 1.
3. The except for the above mentioned posts there is no other sanctioned post. In the month of May, 1999, one post of Asstt. Cook fell vacant against which respondent No. 2 made an application to the District Magistrate/Chairman, Youth Hostel, Agra The respondent No. 2 stated in her application that from time to time she had been serving as home guard but now desired to serve as Assistant Cook in the Youth Hostel. On the application of respondent No. 2, the Chairman, Youth Hostel recommended the same to the Warden of the Youth Hostel and accordingly respondent No. 2 was temporarily appointed as Assistant Cook and worked as such since 12.05.1999. During the course of her employment as Assistant Cook, the respondent No. 2 on 21.06.1999 made an application to the Chairman, Youth Hostel, Agra requesting for appointment as Peon. The aforesaid application of the respondent No. 2 was referred to the Warden, Youth Hostel, Agra. It is relevant to state here that at that time there was no permanent Warden posted in the Youth Hostel and the charge of the Youth Hostel was with the SDM, Agra who passed an order to the extent that the respondent No. 2 be posted as Peon in place of Assistant Cook. It is not worthy to state here that salary of respondent No. 2 was paid from the funds of the Youth Hostel. The regular appointment of Warden was made on 1st June, 2000 and after joining the regular post of Warden, Youth Hostel, Agra, and after taking charge it came to the notice of the present Warden that the respondent No. 2 is getting salary out of the funds of the Youth Hostel in spite of the fact that there is no sanctioned post of Peon in the Youth Hostel. Keeping in view non-approval of the post of Peon, the Warden-petitioner brought this fact to the notice of the Chairman, Youth Hostel vide its letter dated 30.07.2000. Keeping in view that there is no sanctioned post of Peon, the Chairman/District Magistrate, Agra approved that services of the respondent No. 2 be dispensed with. Accordingly, services of the respondent No. 2 was terminated by giving notice on 08.08.2000 and since 09.08.2000 respondent No. 2 did not attend the office.
4. In the counter affidavit, the aforesaid paragraphs have been replied as follows:
That the contents of paragraph Nos. 5 to 11 of the writ petition are not admitted for the purpose of the controversy raised in the writ petition hence need no reply.
That the contents of paragraph No. 12 of the writ petition are based on record of the writ petition hence need no reply.
That the contents of paragraph Nos. 13, 14 and 15 of the writ petition are not admitted. It is further stated that respondent No. 2 was appointed on the post of peon on 1.7.98 and he was confirmed on that post. It is stated that it was a sanctioned post.
That the contents of paragraph 16 of the writ petition are based on record of the case, hence need no reply.
That the contents of paragraph 17 of the writ petition are not admitted. It is stated that the services of the respondent No. 2 was terminated on 9.8,2000 without any reason and no notice was ever given to the respondent No. 2.
5. Respondent No. 2 raised the industrial dispute before the State Government and the State Government on 30.07.2001 referred the matter to the Presiding Officer, Labour Court, U.P., Agra under Section 4-K of the U.P. Industrial Disputes Act (hereinafter referred to as "Act") Accordingly, case was registered as 71 of 2001. Respondent No. 2 filed its written statement on 09.01.2002 mentioning therein that she was appointed on 01.07.1999 as peon and worked regularly for 240 days. Petitioner also filed its written statement stating therein that die respondent No. 2 was working as daily wager and she was not appointed on a sanctioned post of peon. It was claimed that the petitioner does not fall within the purview of "Industry" within the meaning of Section 2-K of the Act. Presiding Officer, by the impugned order held that the petitioner falls within the meaning of Industry as defined under Section 2-K of the Act. Presiding Office held that the petitioner worked continuously for more than 240 days and hence can not be removed without following the procedure as contemplated under Section 6-N of the Act, which has not been followed in the present case. Presiding Officer accordingly, held that the removal of respondent No. 2 was the retrenchment and the, provisions of Section 6-N of the Act could not be followed. Presiding Officer, accordingly, directed the reinstatement of respondent No. 2 with full wages.
6. Heard Sri S.K. Rai, learned Counsel for the petitioner and Sri V.N. Agarwal, learned Counsel for the respondent No. 2.
7. Learned Counsel for the petitioner submitted that the petitioner is not involved in any trading or commercial activities. Petitioner is the manager appointed by managing committee, constituted by Central Government as per guidelines laid down by the Department of Youth Affairs and Sports, Government of India. The funds are being provided by the Central Government for its maintenance and for the payment of honorarium to the warden. A nominal amount is charged for the stay of the youth for the purpose of maintenance only. It is not like a hotel. No commercial activities is being carried out. He further 8. submitted that by resolution dated 29.04.1997; post of peon has not been sanctioned. Respondent No. 2 has been kept as a peon only as daily wagers and not on a sanctioned post and when it was found that her service was not required, she was removed. He further submitted that after the removal from 08.08.2000 she did not attend the office. He further submitted that the Presiding Officer, Kanpur in another case No. 5 of 1999 in its award dated 18.08.2001 held that petitioner is not industry and the provisions of the Act does not apply.
8. Learned Counsel for the respondent relied upon the award.
9. Having heard learned Counsel for the parties, 1 have perused the impugned award.
10. The averments made in paragraph Nos. 1 to 8 have not been specifically disputed. Paragraph No. 10 has also not been specifically disputed. Respondent No. 2 is not able to show that her appointment was regular appointment on the sanctioned post. No documents whatsoever had been adduced in this regard. The claim that the respondent No. 2 was the regular employee and the service was retrenched is based on the plea that she had worked for more than 240 days continuously.
11. In my opinion, Presiding Officer has wrongly held that the petitioner fall within the definition of "Industry" under Section 2-k of the Act. Section 2-k of the Act reads as follows:
"Industry" means any business, trade, undertaking, manufacture of calling of employers and includes any calling, service, employment handicraft, of industrial occupation or avocation of workmen.
12. Presiding Officer has illegally held the petitioner is an undertaking within the definition of "Industry" referred hereinabove. Aim and object of the petitioner referred hereinabove shows that it is not an undertaking in as much as the undertaking has to be read with reference to the other words alongwith which it is used, namely, business, trade or manufacture. Thus any undertaking which undertakes any activity of business, trade or manufacture only falls within the definition of industry. The petitioner is not involved in any commercial activity and any nature of business, trade or manufacture. Thus, in my opinion, it does not fall within the definition of "Industry" and the provisions of the Act does not apply.
13. Six Judges Bench of the Apex Court in the case of Safdarjung Hospital case, expressed the view that keeping in view the other provisions of the Act and words used in the definition clause, although "profit motive" is irrelevant, in order to encompass the activity within the word "Industry", the activity must be "analogous to trade or business in a commercial sense" that the mere enumeration of "public utility services" in Section 2 (n) read with the First Schedule of the ID Act, 1947 should not be held decisive, unless the public utility service answers the test of it being an "industry" as defined in clause (j) of Section 2. It may be mentioned here that the decision in the case of Bangalore Water Supply & Sewerage Board v. A. Rajappa has been doubted by Constitution Bench in the case of of State of UP v. Jai Bir Singh and the matter has been referred to the Larger Bench to consider the scope of "Industry" as defined under Section 2(j) of the Industrial Disputes Act, 1947.
14. Section 6-N of U.P. Industrial Disputes Act, 1947 reads as follows:
6-N. Conditions precedent to retrenchment of workmen- No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until-
(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired or the workman has been paid in lieu of such notice wages for the period of the notice;
Provided that no such notice shall be necessary if the retrenchment is under an agreement, which specifies a date for the termination of service;
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year of service or any part thereof an excess of six months; and
(a) notice in the prescribed manner is served on the State Government.
15. "The word continuous service has been defined by Section 2(g) of the Act as follows:
Continuous service' means uninterrupted service, and includes service which may be interrupted merely on account of sickness or authorized leave or an accident or a strike which is not illegal, or a lock-out or a cessation of work which is not due to any fault on the part of the workman, and a workman, who during a period of twelve calendar months has actually worked in an industry for not less than two hundred and forty days shall be deemed to have completed one year of continuous service in the industry.
16. In the case of M.P. Housing Board and Anr. v. Manoj Shrivastava , the Apex Court held as follows:
A daily wager does 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 are 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 fill 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).
17. In the case of Manager, Reserve Bank of India v. S. Mani , Apex Court held that temporary workman docs 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.
18. In the case of Punjab State Electricity Board v. Darbara Singh , the Apex Court held that the employment for a specific period ends on the close of the period.
19. 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.
20. In the case of Secretary, State of Karnataka and Ors. v. Umadevi and Ors. reported in 2006 AIR SCW 1991, 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 be 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.
21. In the present case, respondent is not able to show that she was appointed permanently on a sanctioned post. The post of peon on which she was working was never sanctioned by Hostel management Committee and she was working temporarily on daily wages. Merely because she had worked for more than 240 days, she is not entitled to claim the benefit of Section 6N of the Act. In as much as Section 6N of the Act applies to those workman in any industry, who is properly appointed on sanctioned post.
22. For the reasons stated above, writ petition is allowed. The award dated 28.11.2003 passed by the respondent No. 1 in Industrial Dispute No. 71 of 2001, Smt. Anita Sharma v. Youth Hostel is set aside.