Research › Search › Judgment

Rajasthan High Court · body

2003 DIGILAW 1415 (RAJ)

District Education Officer v. Bapu Lal

2003-10-16

H.R.PANWAR

body2003
JUDGMENT 1. - All these writ petitions arise out of the impugned Award passed by the Labour Court. The Department has filed the writ petitions for setting-aside the impugned Awards whereas the workmen have filed the writ petitions seeking modification of the impugned Awards by way of granting the relief of reinstatement and back wages. Since identical questions of facts and law are involved, these writ petitions are being decided by this common order taking SBCWP No. 694/2003 as the leading case. 2. The facts and circumstances giving rise to SBCWP No. 694/2003 are that reference having been made, the workman filed a claim petition before the Labour Court. The Labour Court, after appreciating the evidence, passed the impugned Award and directed the department to pay a sum of Rs. 15,000/- to the workman. Petition-department has filed the writ petition for setting aside the impugned Award dated 3.11.2001. Hence this writ petition. 3. I have heard learned counsel for the parties and perused the record. 4. The gist of the controversy is that the petitioner-Department has come with the case that there was no sanctioned post of Class IV employee and the workmen were appointed on part-time basis; their appointments were not made by the competent authority as per provisions of the relevant service rules; there was no violation of the provisions of Section 25-F of the Industrial Disputes Act, 1947 (for short, "the I.D. Act") and as such the impugned Awards are liable to be set-aside. The workmen have filed the writ petitions for modification in the Awards by granting the relief of reinstatement and back wages instead of lump-sum amount of compensation on the ground that the Division Bench of this Court, in Bhawani Singh v. State of Rajasthan, 2002(4) SCT 954 (SC), DBCWP No. 3271/2001 decided on 23.7.2002, has declared the provisions of Sections 9, 11 and 19 of the Rajasthan (Regulation of Appointment to Public Servant and Rationalisation of Staff) Act, 1999 (for short, "the Act, 1999") as ultra vires and unconstitutional. 5. The pertinent question arises for consideration is : whether the claim of the workmen for regularisation and reinstatement is sustainable in the eyes of law. 6. 5. The pertinent question arises for consideration is : whether the claim of the workmen for regularisation and reinstatement is sustainable in the eyes of law. 6. In State of Haryana v. Piara Singh, 1992(3) SCT 201 (SC) : AIR 1992 SC 2130 , the Hon'ble Supreme Court has held that if rules are silent about the method to be adopted for making ad hoc or urgent temporary appointments, the employer is under an obligation to advertise the posts in the official gazette or in the newspaper and consider the claims of all eligible persons to be appointed otherwise the appointment shall be hit by the provisions of Articles 14 and 16 of the Constitution of India. 7. In Sita Ram Mali v. State of Rajasthan, 1995(1) SCT 235 (Raj.)(Jaipur Bench) : 1994(2) WLC 177, a coordinate Bench of this Court, after considering various judgments of the Hon'ble Supreme Court, held as under:- "Making appointment on daily wages without the availability of the post and without following the provisions of Articles 14 and 16 of suffers from patent illegality. Apparently for the reasons which are only extraneous, the Officers of the Department have given appointments on daily wages to few favoured. Those who have waited in queue at the employment exchange have been altogether ignored. In fact, while the length of the queue continuously increase, the back-door entrants got the entry in service as daily wages employee and got the order of appointment on salary in the regular pay scale and ultimately the order of regularisation on the service." 8. In Dr. Arundhati A. Pargaonkar v. State of Maharashtra, 1994(4) SCT 398 (SC) : AIR 1995 SC 962 , the Hon'ble Supreme Court rejected the claim of the petitioner therein for regularisation on the ground of long continuous service and held as under:- "Eligibility and continuous working for however long period should not be permitted to over-reach the law. Requirement of rules of selection cannot be substituted by humane consideration. Law must take its course." 9. In Khagesh Kumar & ors. v. Inspector General of Registration & ors., 1996(1) SCT 14 (SC) : AIR 1996 SC 417 , the Hon'ble Apex Court held that even if the appointment on daily wage basis is made with a special sanction of the Governor, it was not in the nature of regular appointment made in accordance with Rules. In Khagesh Kumar & ors. v. Inspector General of Registration & ors., 1996(1) SCT 14 (SC) : AIR 1996 SC 417 , the Hon'ble Apex Court held that even if the appointment on daily wage basis is made with a special sanction of the Governor, it was not in the nature of regular appointment made in accordance with Rules. In the instant case, the appointments were not made on daily wages basis but the same were made on part-time basis and there was no sanctioned post. 10. In State of Karnataka & ors. v. P.M. Bhaskara Gowda & ors., 2003(4) SCT 942 (SC) : 2003 AIR SCW 6187, the Hon'ble Supreme Court held as under:- "Although they were appointed on contract basis for a period of five years, they are still continuing. In view of the fact that the validity of the Karnataka Village Abolition Act has been upheld by this Court and no appointment on hereditary basis could be made, we are of the view that no order for regularisation of services could be passed in their favour. As a logical corollary, no scheme for regularisation of service could be framed." 11. The Hon'ble Apex Court has deprecated the practice of appointing persons on temporary/ad hoc basis even without there being a sanctioned post. The Apex Court has also observed from time to time that appointment de hors the rules and back-door entries are in violation of the provisions of the Articles 14 and 16 of the Constitution of India. 12. There is no dispute that the workmen were appointed on part-time basis. The sanctioned posts were not available and their appointments as part-time employees were not made even as per the provisions of the relevant rules. Further, their appointments were made without calling the names from the employment exchange. As such, it is a clear case of appointing the persons on part-time basis in flagrant violation of the rules and procedure. Thus, the appointment of the workmen were made de hors the rules. In view of the law laid down by the Hon'ble Apex Court, the appointment of the workmen on daily wages basis does not provide them any right of regularisation. Thus, the Labour Court has committed no illegality in denying regularisation and reinstatment to the workmen. Thus, the writ petitions filed by the petitioner-workmen lacks merit and the same are liable to be dismissed. 13. Thus, the Labour Court has committed no illegality in denying regularisation and reinstatment to the workmen. Thus, the writ petitions filed by the petitioner-workmen lacks merit and the same are liable to be dismissed. 13. The next pertinent question arises for consideration is : whether a part- time employee, even though appointed de hors the Rules, is a "workman" and if so, to what relief he is entitled ? 14. In State of Assam & ors. v. K.C. Dutta, AIR 1967 SC 884 , the Constitution Bench of the Hon'ble Supreme Court held that even a part-time employee was a civil servant for purpose of Article 311(2) of the Constitution of India. The Apex Court further observed that though the case is that of a civil servant, the principle enunciated therein can be safely borrowed in the case of workman under the Act and when a part-time employee can be taken to be a civil servant, a part-time employee in an industry should then also be taken to be a workman under the I.D. Act. 15. In Guru Darshan Singh v. State of Punjab, 1983(1) SLJ 399, the Punjab & Haryana High Court held that the word 'part-time' has nothing to do with the nature of appointment and it only regulates the duration of working hours for which an employee is required to work in the capacity he has been appointed. 16. A Division Bench of this Court, in Managing Director & Anr. v. Faily Ram, (1996) 74 FLR 2459, held that a part-time worker employed by the employer is a workman within the meaning of I.D. Act. 17. In State of Rajasthan v. Lal Bahadur Yadav, 2003(1) RLR 193 , a coordinate Bench of this Court, after following the law laid down by the Hon'ble Apex Court as well as other Hon'ble High Courts, held that a 'part-time' employee is a 'workman' within the meaning of the I.D. Act; however he cannot claim back wages on the basis of wages which a full-time employee is entitled and he can be paid the wages as had been paid to him as part-time employee. 18. In these instant case, the workmen were appointed on part-time basis on the fixed wages. In view of the above settled proposition of law, they are 'workmen' and as such the provisions of I.D. Act are applicable to their cases. 18. In these instant case, the workmen were appointed on part-time basis on the fixed wages. In view of the above settled proposition of law, they are 'workmen' and as such the provisions of I.D. Act are applicable to their cases. Their services have been terminated in violation of the mandatory provisions of Section 25-F of the I.D. Act despite the fact that they had completed 240 days service in a calender year. However, in view of the settled legal proposition, discussed above, the workmen are not entitled for reinstatement, regularisation or salary in the regular pay scale. Nevertheless, as the workmen had completed 240 days service in a calendar year and their services have been terminated in flagrant violation of the mandatory provisions of the I.D. Act and in this view of the matter, the Labour Court was justified in awarding them compensation. 19. Consequently, the writ petitions filed by the petitioner-Department as well as by the petitioner-workmen are dismissed. There shall be no order as to costs. The stay petitions also stand dismissed.Petitions dismissed. *******