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2003 DIGILAW 1330 (ALL)

State of U. P. v. Presiding Officer, Labour Court

2003-05-23

R.B.MISRA

body2003
JUDGMENT : R.B. Misra, J. Heard learned Counsel for the Petitioner as well as learned Counsel for the Respondents. 2. The brief facts necessary for the adjudication of the writ petition are that the Respondent No. 2 was appointed as a daily wager from 26.3.88 to 28.2.90 on the post of mate. He was deployed to render assistance in construction work and when the same was over the service of the daily wager Respondent No. 2 was dispensed with effect from 1.3.90. The Respondent No. 2 being aggrieved raised an industrial dispute and the Adjudication Case No. 172 of 1992 was registered for: "Whether the termination of the services of the labour Sri Ishaq son of Babloo Khan, mate by the employer is just and legal: If not, then to what relief the concerned labour is entitled to get and with which detail?" 3. The labour court on 31.3.1994, passed an ex-parte award holding that no body appeared for and on behalf of the Petitioner employer, despite the full knowledge of the proceedings of the case ultimately labour court set aside termination of the Respondent No. 2 reinstated with full back wages. An affidavit alongwith an application against the ex-parte award was filed on behalf of Petitioner on 27.5.94 which too was dismissed by labour court on 8.4.96, even the execution proceedings were initiated for recovery of the money awarded. Being aggrieved by the orders dated 31.3.94 and 8.4.96 the State of U.P. the Petitioner has filed the present writ petition. 4. According to the Respondent No. 2, he had worked for more than 240 days even then his service has been dispensed without a show cause notice and without providing opportunity of hearing. 5. On the other hand it has been contended on behalf of Petitioner that the award dated 31.3.94 was passed ex-parte without considering the contents of affidavit (Annexure-2 to this writ petition), where sufficient explanation was given for not able to pursue the case properly, It has been also argued for Petitioner that opportunity of hearing to the Petitioner was not provided. 6. According to the Petitioner, daily wagers have no right to the post, as they are not appointed according to the proper procedure for recruitment as they are appointed by back door entry. 6. According to the Petitioner, daily wagers have no right to the post, as they are not appointed according to the proper procedure for recruitment as they are appointed by back door entry. The principle of natural justice cannot be said to be infringed in the dispensation of the service of daily wager simply because the daily wager have rendered only 240 days in a calendar year (which fact is disputed by the Respondent). The Respondent daily wager cannot be regularised on the basis of ex-parte award which did not consider the materials and evidences. 7. The counter-affidavit on behalf of Respondent No. 2 daily wager has been filed endeavouring to controvert the contents of the writ petition and further submitted in support of the award. 8. Learned Counsel for the Petitioner has placed reliance on the order dated 26.3.1997 in SLP No. 7957 of 1996, Himansu Kumar Vidyarthi and Ors. v. State of Bihar and others 1997 (76) FLR 230, where the court has observed that: "Admittedly, they 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 wager. 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." 9. Learned Counsel for the Petitioner 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. 1998 (4) AWC 222, where it was held that the provision of Article 311 does not apply in the case of daily wager on they are treated not to hold any civil post. Admittedly, they are not members of any civil services, 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. 10. 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. Vs. 10. 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. Vs. Labour Court, Haldwani and another, (1999) 1 AWC 768 , wherein it was held that the engagement of daily wager in the Irrigation Department comes to an end every evening. Refusal to employ him from a particular day, his disengagement was not under the provisions 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. Presently, 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 thought 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 regular employee and the other benefits of regular employment can also not be denied to him. Thus, the award put him, inasmuch better position than he was before the alleged retrenchment. Such a result is not conceived." 11. Non-renewal of contractual employment and dispensation of engagement of at any stage without any reason in term of appointment does not amount to retrenchment u/s 2(oo) of Industrial Disputes Act as held by the Supreme Court in Escorts Limited v. Presiding Officer, (1997) 11 SCC 521 . Such a result is not conceived." 11. Non-renewal of contractual employment and dispensation of engagement of at any stage without any reason in term of appointment does not amount to retrenchment u/s 2(oo) of Industrial Disputes Act as held by the Supreme Court in Escorts Limited v. Presiding Officer, (1997) 11 SCC 521 . The similar view was also taken by the Supreme Court in M. Venugopal v. Divisional Manager L.I.C. (1994) 11 SC 323. 12. I have heard learned Counsel for the parties. I find that the daily wagers are deployed in the need of the work on their engagement they have no right to the post and they have to protection of Articles 311 of Constitution of India as they are not member of any civil service, and when the project is not available, they have no legal right to be deployed as daily wager. 13. By simply more than 240 days in the calendar year the daily wagers are not entitled to be regularised. The award which was passed ex parte did not take into consideration the material on record and evidences, therefore, award is set aside and labour court is directed to hear the adjudication case No. 172/92 afresh within one year from the production of certified copy and the Respondent shall not be reinstated in service on daily basis till finalisation of the above case by the labour court. 14. In view of the above observation this writ petition is allowed.