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2003 DIGILAW 609 (ALL)

SUDHIR PRAKASH SHARMA v. DISTRICT MAGISTRATE PILIBHIT

2003-03-24

RAKESH TIWARI

body2003
RAKESH TIWARI, J. Heard the learned Counsel for the parties and perused the records. 2. The petitioner has challenged the order of his termination from service dated 22-2-1993 passed by respondent No. 1. Annexure-3 to the writ petition. 3. The brief facts giving rise to the present writ petition are that the petitioner was appointed as peon in Tehsil Bisalpur, District Pilibhit by letter dated 1-6-1992 with the condition that he shall continue to work till a regularly selected candidates comes and joins the post. The appointment was purely temporary and liable to be terminated at any time. He worked as a seasonal collection peon for a period of 791 days as per certificate dated 4-5-1991 issued by the Tehsildar Sadar, Pilibhit : Period Number of days worked 1-4-1988 to 15-5-1988 46 days 18-5-1988 to 29-8-1988 103 days 1-5-1989 to 14-6-1989 45 days 16-6-1989 to 22-4-1990 301 days 2-5-1990 to 31-7-1990 91 days 7-8-1990 to 26-9-1990 51 days 24-10-1990 to 30-12-1990 68 days 4-1-1991 to 30-3-1991 86 days Total number of days worked 791 days 4. From the order-sheet dated 5-7-1999 it appears that the Standing Counsel has made a statement that he had already filed a counter-affidavit on 24-1-1996. The office was directed to trace it out and place it on the record. A copy of the counter-affidavit was also served upon Sri B. B. Paul and he was directed to file a rejoinder-affidavit. 5. It is alleged that the appointing authority of the peons is Sub-Divisional Magistrate, Bisalpur, respondent No. 2, but the impugned order of termination from service was passed in compliance of the order of the District Magistrate, Pilibhit, respondent No. 1. It is further alleged that before passing the impugned order dated 22-2-1993, neither the District Magistrate, Pilibhit, respondent No. 1 nor Sub- Divisional Magistrate, Pilibhit, respondent No. 2 issued any show-cause notice to the petitioner nor any opportunity of hearing was given to him. It is further contended that the provisions of Section 6-N of the U. P. Industrial Disputes Act, 1947 have been violated. 6. The petitioner has come out with the case that he is a Class-IV employee and he was liable to have been continued in service in view of the bye-laws applicable to him known as Employees Services Bye- laws, 1985 framed under Article 309 of the Constitution of India. 6. The petitioner has come out with the case that he is a Class-IV employee and he was liable to have been continued in service in view of the bye-laws applicable to him known as Employees Services Bye- laws, 1985 framed under Article 309 of the Constitution of India. He submits that in pursuance of the bye-laws 23 (3) and 28 the appointment of an ad hoc appointee is to continue for a period of one year or till such date on which a candidate duly selected by the selection committee comes and joins the post, whichever, is earlier. He further submits that the petitioner has a right of regularization in service due to non-availability of candidate who has been duly selected by selection committee. 7. The Counsel for the petitioner has submitted that as the petitioner has worked on the post of seasonal collection peon on daily wages for more than 240 days and is entitled to continue in service. He further contends that his services are also liable to be regularized. Reliance has been placed on the judgment in 1987 (1) LIJ 87, Workman v. Municipal Corporation, Delhi, in which it has been held that Section 25-F is applicable even to the daily rated workman and the retrenchment without complying the provisions of Section 25-F of the U. P. Industrial Disputes Act renders the termination is void ab initio. 8. It is submitted that since the petitioner has worked for more than 240 days and as such he is entitled to continue in service in view of the decision in Writ Petition No. 30208 of 1993, Bhagwan Singh v. State of U. P. , and 2002 (3) AWC 2375, State of U. P. v. Putti Lal. 9. Reliance has further been placed on the judgment in 1981 (3) SCC 225 , Mohan Lal v. Bharat Electronics, where it has been held by the apex Court that the termination of services is illegal and the concerned workman is deemed to be in continuous service and is entitled to reinstatement with full wages. 10. 9. Reliance has further been placed on the judgment in 1981 (3) SCC 225 , Mohan Lal v. Bharat Electronics, where it has been held by the apex Court that the termination of services is illegal and the concerned workman is deemed to be in continuous service and is entitled to reinstatement with full wages. 10. The last submission of the Counsel for the petitioner is that the termination of services of the petitioner violates his fundamental right guaranteed under Articles 14 and 16 of the Constitution of India and the order of termination having been passed at the behest of respondent No. 1, who is not authorized to pass the order of termination of services of the petitioner and as such the order of termination cannot be sustained in law. 11. The law is well-settled by a catina of decisions of the Honble Supreme Court in Gujrat Steel Tubes Ltd. and others v. Gujrat Steel Tubes Mazdoor Sabha, (1980)2 SCC 593 ; Aswari Kumar and others v. State of Bihar and Naxlse Begum v. State of Assam, AIR 2001 SC 102 and this Court in Sujeet Kumar Singh v. Union of India, 2003 (1) LBESR 27 (All) : 2003 (1) ESC All, following the aforesaid decisions, has held that a temporary employee has no right to claim regularization without exhausting the alternate and efficacious remedy available to him. It is not proper for the petitioner to come before this Court as the question would require adjudication by taking evidence on facts which cannot be taken in the proceedings under Article 226 of the Constitution. According to the own pleadings of the petitioner, he is a workman and his services have been terminated in violation of the provisions of Section 6-N of the U. P. Industrial Disputes Act, 1947. It is not disputed that the appointment of the petitioner was temporary and liable to be terminated at any time. He was given temporary appointment without there being any selection process in accordance with law, only on the basis of comments submitted by the Tehsildar Bisalpur in place of permanent peon Kishan Lal (peon), who was transferred from Bisalpur. From the appointment letter it transpires that the petitioner was given ad hoc/temporary appointment as a peon to meet the above contingencies. The petitioner is not in service since the date of termination i. e. , for more than 11 years. From the appointment letter it transpires that the petitioner was given ad hoc/temporary appointment as a peon to meet the above contingencies. The petitioner is not in service since the date of termination i. e. , for more than 11 years. His prayers to be deemed in continuous service and to regularize him in service cannot be granted at this stage as the reliefs claimed by him have not only become stale after the period of more than 11 years but also in view of the fact that he was not granted any interim order of continuing him in service. In the case of Mohan Lal (supra) filed by the petitioner-worker had challenged the award of the labour Court where finding of fact had been adjudicated and had not come directly in writ petition in violation of the provisions of U. P. Industrial Disputes Act, 1947. In the aforesaid circumstances the reliefs prayed for by him cannot be granted in this writ petition. 12. The Counsel for the petitioner could not inform this Court whether the temporary vacancy caused due to transfer of the permanent peon Kishan Lal has been filled up or not during the pendency of the writ petition. The order of termination of appointment also states that the services of the petitioner could be terminated at any time and as such he has no right to continue in service. A temporary employee has no vested right for regularization in service even if he is given extension of service from time to time. 13. For the reasons stated above, the writ petition is devoid of merits and is dismissed. Petition dismissed. .