TARA CHANDRA TEWARI v. PRESIDING OFFICER INDUSTRIAL TRIBUNAL-I U P ALLAHABAD
2004-02-17
RAKESH TIWARI
body2004
DigiLaw.ai
RAKESH TIWARI, J. Heard Counsel for the parties and perused the record. 2. By means of this writ petition the petitioner has challenged the correctness and validity of the award dated 29-3-2001 in adjudication case No. 70 of 1999. By the aforesaid award the Tribunal has decided the reference against the petitioner holding that he had not completed 240 days of continuous service in the last preceding 12 months, as is not entitled to any relief. 3. The petitioner was appointed as daily wager Class IV employee by the Executive Engineer Gramin Abhiyantran Sewa Prakhand Vikash Bhawan, Pratapgarh w. e. f. 1-1-1990. It is alleged that he has continuously worked till 2-12-1996 thereafter his services were terminated orally w. e. f. 3-12-1996. It is also alleged that prior termination of service of the petitioner he also claimed regularization and had set the representation to respondent No. 3 in this regard. 4. Aggrieved by his termination the petitioner filed an application raising an Industrial Dispute before regional conciliation officer, where it was registered as C. B. Case No. 13/1979. On conciliation proceedings having failed the Regional Officer, Allahabad referred the following matter of dispute to Industrial Tribunal, Allahabad. The reference was registered before the Tribunal as adjudication case No. 70 of 1999. 5. On receipt of summons the parties filed their respective written statements and rejoinder statements. The petitioner moved an application for summoning attendance and payment register for the period from 1-1-1990 to 2-12-1996 and pay roll for the period of 1-1-1997 to 31-12-1997 for proving that he had continuously worked till the period. The respondent filed objection stating that document are preserved only for one year. The petitioner thereafter filed 11 documents vide list-dated 13-8-1999 in support of his case in evidence and also examined the witnesses. The tribunal by the impugned award held that the petitioner had not worked for more than 240 days in preceding 12 months from the date of termination. Thus, there is no question of violation of Section 6-N of the U. P. Industrial Dispute Act, 1947. It further held that the petitioner has failed to prove that any person junior to the petitioner was retained and the service of the workman were terminated. Considering the entire facts and circumstances of the case, the Tribunal held that the workman was not entitled to relief and decided the reference against the petitioner.
It further held that the petitioner has failed to prove that any person junior to the petitioner was retained and the service of the workman were terminated. Considering the entire facts and circumstances of the case, the Tribunal held that the workman was not entitled to relief and decided the reference against the petitioner. The Labour Court has also given finding of fact that the petitioner had not discharged his burden of proof that he was appointed against any post and that his appointment was purely on daily wage. The Tribunal has believed the case of the employer that respondent No. 3 was only engaged from time to time for specified period in the exigencies of work. 6. Counsel for the petitioner has contended that petitioner is retrenched employee and entitled to get preference under Section 6-Q of the U. P. Industrial Disputes Act. This contention has no force as Labour Court has held that he has not worked for 240 day and is not a retrenched employee. 7. The Tribunal relied upon the judgment in case of Chaturath Sherni Karamchari Sangh v. State of U. P. , 1998 (2) LBESR 942 (All) : (1998) 80 FLR 802, where in this Court has held that: "persons working on daily wages and on ad hoc basis do not have a right to the post and their services can be terminated any time. They cannot claim regularization of their services merely because they have completed 240 days of services. Such employees are also not entitled to pay equal to that of regular employees. " 8. The Tribunal also relied upon Madhyamik Shiksha Parishad U. P. , 1994 LIC 1197, wherein similar controversy has arisen, in which it has been held by the Apex Court that: The completion of 240 days work does not, under that law import the right of regularization. It merely imposes certain obligations on the employer at the time of termination of the service. It is not appropriate to import and apply that analogy in an extended or enlarged form here. 9. In Delhi Development Horticulture Employees Union v. Delhi Administration, 1992 (4) SCC 99 , in which it was emphasized how judicial sympathy with such workman engaged in daily wages employed in project scheme or programme of the State Government could boomrang leading to pernicious consequences.
9. In Delhi Development Horticulture Employees Union v. Delhi Administration, 1992 (4) SCC 99 , in which it was emphasized how judicial sympathy with such workman engaged in daily wages employed in project scheme or programme of the State Government could boomrang leading to pernicious consequences. Para 23 of the Delhi Development Horticulture Employees Union (supra) is as under: "the Courts can take judicial notice of the fact that such employment is sought and given directly for various illegal considerations including money. The employment is given first for temporary periods with technical breaks to circumvent the relevant rules, and is continued for 240 or more days with a view to give the benefit of regularization knowing the judicial trend that those who have completed 240 or more days are directed to be automatically regularized. A good deal of illegal employment market has developed resulting in a new source of corruption and frustration of those who are waiting at the employment exchanges for years. Not all those who gain such back-door entry in the employment are in need of the particular jobs. Though already employed elsewhere, they join the jobs for better and secured prospects. That is why most of the cases, which come to the Courts, are of employment in Government departments, public undertakings or agencies. Ultimately it is the people who bear the heavy burden of the surplus labour. The other equally injurious effect of indiscriminate regularization has been that many of the agencies have stopped undertaking casual or temporary works through they are urgent and essential for fear that if those who are employed on such works are required to be continued for 240 or more days have to be absorbed as regular employees although the works are time- bound and there is no need of the workmen beyond the completion of the works undertaken. The public interests are thus jeopardized on both counts. " 10. The Apex Court in Surendra Kumar Sharma v. Vikas Adhikari, 2003 (5) S. C. C. 12, has held: "the Court can take judicial notice of the fact that such employment is sought and given directly for various illegal considerations including money.
The public interests are thus jeopardized on both counts. " 10. The Apex Court in Surendra Kumar Sharma v. Vikas Adhikari, 2003 (5) S. C. C. 12, has held: "the Court can take judicial notice of the fact that such employment is sought and given directly for various illegal considerations including money. The employment is given first for temporary periods with technical breaks to circumvent the relevant rules and is continued for 240 or more days with a view to give the benefit of regularization knowing the judicial trend that those who have completed 240 or more days are directed to be automatically regularized. A good deal of illegal employment market has developed resulting in a new source of corruption and frustration of those who are waiting at the employment exchanges for years. Not all those who gain such back door entry in the employment are in need of the particular jobs. Though already employed elsewhere, they join the jobs for better and secured prospectus. That is why most of the cases which come to the Courts are of employment in Government departments, public undertakings or agencies. Ultimately it is the people who bear the heavy burden of surplus labour. The other equally injurious effect of indiscriminate regularization has been that many of the agencies have stopped undertaking casual or temporary works though they are urgent and essential for fear that if those who are employed on such works are required to be continued for 240 of more days have to be absorbed as regular employees although the works are time bound and there is no need of the workmen beyond the completion of the works undertaken. The public interests are thus jeopardized on both counts. " (SCC pp. 111-12, para 23) 11. On similar analogy this Court in State of U. P. v. Labour Court, Haldwani, 1999 (1) LBESR 312 (All) : 1999 (81) FLR 319 , where in it has been held by this High Court that: "daily and casual workers who are engaged in disregard of all rules cannot be allowed to enter Government service through the back door. Labour Court cannot be allowed to be used as a legal means for such back door entry. Labour Court committed error in reinstating such an employee as a regular employee. " 12.
Labour Court cannot be allowed to be used as a legal means for such back door entry. Labour Court committed error in reinstating such an employee as a regular employee. " 12. In view of the findings recorded by the Labour Court and the law above there is no illegality or infirmity in the order of Labour Court rejecting the review application and the award passed by the Tribunal. No case for interference in the award on the ground of perversity and illegality has been made out under Article 226 of the Constitution of India. The petition therefore fails and is dismissed. No order as to costs. .