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2004 DIGILAW 1855 (ALL)

Jai Prakash Sharma v. State Of U. P.

2004-09-16

RAKESH TIWARI

body2004
JUDGMENT : Rakesh Tiwari, J. Heard counsel for the parties and perused the record. 2. Mathura Vrindavan Development Authority was constituted on 25.3.1977 u/s 4 of the Urban Planning & Development Act, 1973. It has undertaken various housing and commercial projects and as such required the services of a large number of employees in connection with construction and supervision work. 3. The Petitioner having Diploma in Civil Engineering applied and was appointed as a Junior Engineer in the Mathura Vrindavan Development Authority (hereinafter referred to as the Development Authority) on daily wages by its Chairman on 15.3.1996. The State Government vide G.O. dated 8.11.1996 banned fresh appointments and directed the development authorities to continue with the daily wage/work charge employees until they are regularized on the post created in future. All the development authorities were also required to send a list of daily wage/work charge employees in this regard. The Secretary of Development Authority sent a list of 45 persons including the name of the Petitioner. 4. In 1997 an area of 45 Kms. was added to the area of the Development Authority by including Kosi Kalan Nagar Palika, three Kshetriya Parishads of Chhata, Chanhe, Nandgaon and 49 other villages. A resolution was passed by the Development Authority to sanction 5 additional posts of Junior Engineers. 5. It is submitted that later on the Development Authority could not pay the salaries of some work charged/daily wage employees including the Petitioner. However, they continued to take work from them. The Petitioner and such other daily wage/work charged employees submitted a representation dated 8.6.1998 to the Vice-Chairman of the Development Authority. Consequently they were stopped from work w.e.f. 28.8.1998 and they were also not paid their wages w.e.f. 1.4.1998. 6. The Petitioner thereafter approached this Court by means of Writ Petition No. 34027 of 1998 which was finally disposed of vide judgment and order dated 26.10.1998, the operative portion of which is reproduced as under : This submission in my opinion is constitutionally sound and in tune with the rule of law. The Respondents are supposed to adhere to the rule of law which necessarily implies absence of arbitrariness. In the circumstances of the case, thereof, it is provided that so long the work is available the Petitioner shall not be replaced by another daily rated Junior Engineer/ Supervisor except on valid grounds. The Respondents are supposed to adhere to the rule of law which necessarily implies absence of arbitrariness. In the circumstances of the case, thereof, it is provided that so long the work is available the Petitioner shall not be replaced by another daily rated Junior Engineer/ Supervisor except on valid grounds. At this stage learned Counsel for the Petitioner submitted that albeit the Petitioner has been seized with effect from 28.8.1998, but in view of the resolution dated 31.3.1998 passed by the Respondents, they may be directed to take work from the Petitioner at least on daily wage basis. I am afraid such direction cannot be issued. However, if the work is available, it would be open to the Petitioner to make application and in that event the same shall be considered keeping in view of the past performance of the Petitioner. The writ petition is disposed of accordingly. Sd. S.R. Singh, J. 26.10.1998 7. Pursuant to the judgment and order dated 26.10.1998 the Petitioner moved an application/representation dated 5.12.2001 for providing work to him. The Vice Chairman of the Development Authority rejected the aforesaid application/representation of the Petitioner vide its order dated 9.1.2002. 8. The Petitioner thereafter raised an industrial dispute u/s 4K of the Industrial Disputes Act before the Conciliation Officer/ Assistant Labour Commissioner, Agra accompanied by an application dated 20.5.2002 for condonation of delay. The Conciliation Officer/Assistant Labour Commissioner, Agra vide order dated 17.9.2002 dismissed the application for condonation of delay holding that the Petitioner had filed Writ Petition No. 34027 of 1998 against termination of his services and the Court had disposed of the writ petition with the observations that it would not be proper to pass an order of reinstatement of the Petitioner who was working on daily wages. The Court further directed the Petitioner to move a representation, hence his hands are tied and the matter stands decided by the judgment and order in the aforesaid Writ Petition No. 34027 of 1998 and the dispute could not be referred to him. 9. It is apparent from the G.O. dated 8.11.1996 that the ban was imposed only on fresh regular appointments and the daily wage/work charge employees were permitted to continue till work against regular posts were available or new posts were created in future. Now, the ban has also been removed. 9. It is apparent from the G.O. dated 8.11.1996 that the ban was imposed only on fresh regular appointments and the daily wage/work charge employees were permitted to continue till work against regular posts were available or new posts were created in future. Now, the ban has also been removed. The Conciliation Officer/Deputy Labour Commissioner has no jurisdiction or authority to have adjudicated upon the matter regarding termination of services of the Petitioner. He has travelled beyond his jurisdiction as he could only settle the matter amicably and if the matter cannot be settled amicably he has to refer the matter before the appropriate court. It is settled in a catena of decisions of the Apex Court as well as of this Court that the Conciliation Officer cannot adjudicate upon or refuse to refer a dispute. The order of the Regional Conciliation Officer-cum-Labour Enforcement Officer dated 17.9.2002 is as under : (v) .... (w) .... (x) 10. The 'Conciliation Officer' has been defined in Section 2 (f) of the U.P. Industrial Disputes Act, 1947 as under : Conciliation Officer' means a Conciliation Officer appointed u/s 4F. 11. Section 4F reads as under : 4F. Conciliation Officer.-(1) The State Government may, by notification in the official Gazette, appoint such number of persons as it thinks fit, to be Conciliation Officers, charged with the duty of mediating in, and promoting the settlement of, industrial disputes, in the manner to be prescribed. (2) A Conciliation Officer may be appointed for specified area or areas. 12. In the instant case the grounds taken by the Conciliation Officer for rejecting the reference and delay condonation application of the Petitioner that refusal to refer a matter does not preclude the Government from reconsidering its decision as has been held in Western India Match Co. Ltd. v. Western India Match Co. Workers Union and Ors. 1979 (1) SCC 225 and Mahabir Jute Mills Ltd., Gorakhpore Vs. Shibban Lal Saxena and Others, (1975) 2 SCC 818 , which have been followed in U.P. State Electricity Board, Lucknow and Anr. v. State of U.P. and Ors. 1992 Lab IC 151. 13. The contention of the counsel for the Petitioner that the matter has been decided by the judgment in C.M.W.P. No. 34087 of 1998 regarding termination of services filed by the workmen is misconceived. The aforesaid writ petition was not decided on merits. v. State of U.P. and Ors. 1992 Lab IC 151. 13. The contention of the counsel for the Petitioner that the matter has been decided by the judgment in C.M.W.P. No. 34087 of 1998 regarding termination of services filed by the workmen is misconceived. The aforesaid writ petition was not decided on merits. On the contrary it was directed that the Petitioner could apply to the employer for appointment and his representation shall be considered by the employer in accordance with law. It is apparent from the record that though the State Government vide G.O. dated 8.11.1986 banned fresh appointments but directed the development authorities to continue with daily/work charge employees until their services are regularized on the post available or created in future. The State Government had also required at that time to send a list of daily wage/work charge employees and the Secretary of the Development Authority sent a list of 45 persons in which the name of the Petitioner was also included. The question still requires adjudication as to whether an area of 45 kms. was added to the area of the Development Authority by including Kosi Kalan Nagar Palika, three Kshetriya Parishads of Chhata, Chanhe, Nandgaon and 49 other villages, the services of the Petitioner were required or not and further whether the Petitioner's services are to be continued on daily wage as per order of the State Government till a regular post is available for him and he is regularized on any post created by the State Government. 14. The aforesaid order suffers from illegality. The Conciliation Officer/Labour Enforcement Officer is a Court. Referring or not referring the dispute is only an administrative order. Refusal by the Conciliation Officer in referring the dispute in the facts and circumstances of the case is illegal and arbitrary. 15. For the reasons stated above, the petition is allowed. The Conciliation Officer is directed to reconsider and decide the matter within a period of six months from the date of production of a certified copy of this order before it by the Petitioner. No order as to costs.