Court No. - 6 Case :- WRIT - C No. - 45205 of 2007 Petitioner :- State Of U.P. Through Executive Engineer & Another Respondent :- Malkhan Singh & Others Petitioner Counsel :- Prashant Mathur,M.C. Chaturvedi Respondent Counsel :- Alok Kumar Srivastava,C.L. Chaudhary,M.L. Ahirwar,Sc,Surya Prakash Srivastava Hon'ble Prakash Krishna,J.
By means of the present petition, the petitioners have sought the quashing of
the Labour Court award dated 16th of November, 2006 passed in adjudication
case no.111 of 2003 published on 23rd of April, 2007 whereby the Labour
Court has ordered the reinstatement of the respondent no.1, workman, after
holding that his services were wrongly terminated on 15th of November, 1999
and also awarded continuity in service and back wages etc.. The facts of the
case lie in a narrow compass.
The petitioner claims that it is a construction division and is mainly involved
in construction of canals for irrigation purposes based on the periodical
sanction received from the State against their scheme to be completed within
time bound spell for the welfare of the farmers and to ensure smooth flow of
the water during Kharif Fasal. Under the Madhya Ganga Canal System,
Somna Cross regulator is situated at Km. 20.00 at Matt Branch Feeder, which
is under Division No.19 and there is regulatory gate system after Amarpur
Rajwaha Minor Canal to manage the water system of the said canal and
further regulates the flow of water to the adjacent Division No.12. To manage
the permanent flow of the water, the work is being manned by regular staff
and sometimes temporary staff of adjacent villages are also engaged on daily
wages against periodical sanction. Respondent no.1, Malkhan, was
temporarily engaged on daily basis for certain duration as against the
periodical sanction. He raised an industrial dispute against his disengagement
dated 15th of November, 1999 and the matter was referred by the State
Government to the Labour Court for adjudication which was numbered as
adjudication case no.111 of 2003. The workman claimed that he was
appointed as Chowkidar in the month of April, 1996 to 15.11.1999 on a
permanent and regular post on daily wages and he performed his duties with
utmost devotion and honesty. He was getting 1,250/- per month as wages at
the end of the month. His services were wrongly terminated without any
notice or compensation on 15th of November, 1999.
In reply, the petitioners came out with the case that the workman was never
appointed on any sanctioned post. He was never in government service nor
was he ever removed from the government job. He never worked in
department and as such is not entitled for any relief.
It appears that the case proceeded exparte so far as the petitioners are
concerned. The workman examined himself and filed an affidavit reiterating
his stand as set out in the written statement. The Labour Court taking into
consideration the fact that the employer petitioner failed to appear at the
subsequent stages of hearing of the case and the matter proceeded exparte,
believed the oral testimony of the workman and passed the impugned award.
Heard Sri Babulal Ram, learned standing counsel for the petitioners and Sri
K.P. Agrawal, learned senior counsel for the contesting workman.
The learned standing counsel raised number of grounds in support of the writ
petition and one of them being that an opportunity of hearing be afforded to
the petitioners to contest the matter on merits by setting aside the award and
restoring the matter to the Labour Court. The said plea was hotly contested by
the respondent workman on the ground that sufficient opportunity of hearing
was afforded to the employer. It is not necessary to enter into the said
controversy as the matter can be disposed of on another point i.e. the
respondent workman was a daily wager.
The fact that the respondent workman was a daily wager is not in issue. Even
from the reference made by the State Government, it is evident that the
respondent workman was a daily wager. Even the case of the respondent
workman is that he was engaged as a daily wager. Question arises as to what
relief can be granted to such a daily wager even if engaged in a government
department.
In Himanshu Kumar Vidyarthi and others Vs. State of Bihar and others,
JT 1997 (4) SC 560 the Apex Court has held that when the appointments are
regulated by the statutory rules, the concept of “industry” to that extent stands
excluded. Admittedly, they were not appointed to the post in accordance with
the rules but were engaged on the basis of need of the work . They are
temporary employees working on daily wages. 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.
In M.P. State Agro Industries Development Corporation Limited and
another Vs. S.C. Pandey, (2006) 2 SC 716 it has been held that an
appointment to the post of a temporary employee can be made where the work
is essentially of temporary nature. In a case where there existed a vacancy, the
same was required to be filled up by resorting to the procedures known to law
i.e. upon fulfilling the constitutional requirements as also the provisions
contained in the 1976 Regulations, governing the Corporation in question.
With regard to the status of a daily wager/casual labourer/temporary
employee it has been held that the daily wager does not hold a post as he is
not appointed in terms of provisions of the Act and Rules framed thereunder
and therefore he does not derive any legal right. In this very case, the Apex
Court has relied upon its earlier judgment in the case of M.P. Housing Board
& Anr. v. Manoj Srivastava, (2006) 2 SCC 702.
In Executive Engineer, Construction Division, U.P. Jal Nigam, Allahabad
Vs. Presiding Officer, Labour Court, Allahabad and another, 2008 LIC
216 the Apex has held that it is settled law that where services of a daily
wager/temporary or ad hoc employee are terminated without any stigma on
the ground of non availability of work or any such other ground, there is no
requirement of offering opportunity of hearing or holding of domestic inquiry.
In view of the above, the order of the Labour Court in so far as it relates to
reengagement is concerned cannot be allowed to stand.
In Municipal Council Sujanpur Vs. Surinder Kumar (2006) 5 SCC 173 it
has been held by the Apex Court that the employer being a State within the
meaning of Article 12 of the Constitution of India for the purposes of
recruiting its employees is bound to follow the recruitment rules. Any
recruitment made in violation of such rules will be void being in violation of
constitutional scheme enshrined under Articles 14 and 16 of the Constitution
of India.
“It is not disputed that the appointment of the respondent was not in a
sanctioned post. Being a “State” within the meaning of Article 12 of the
Constitution of India, the appellant for the purpose of recruiting its employees
was bound to follow the recruitment rules. Any recruitment made in violation
of such rules as also in violation of the constitutional scheme enshrined under
Articles 14 and 16 of the Constitution of India would be void in law.” (See
M.V. Bijlani v. Union of India, (2006) 5 SCC 88; State of Punjab v.
Jagdip Singh, (1964) 4 SCR 964; and Secy., State of Karnataka v.
Umadevi (3), (2006) 4 SCC1)
It cannot be disputed that the petitioners are State within the meaning of
Article 12 of the Constitution of India and as such, it being a government
department, no appointment could be made on daily wages without following
the prescribed procedure. The appointment of the respondent no.1 assuming
for the sake of argument, even if made, is therefore void and therefore, the
award for reinstatement could not be passed.
Taking into consideration the entire facts and circumstances of the case, the
award of the Labour Court is hereby set aside by providing that the petitioners
shall pay a sum of Rs.25,000/- (Twenty Five Thousand only) as compensation
amount towards the final claim and dues of the respondent workman.
Subject to above the writ petition succeeds and is allowed in part.
(Prakash Krishna, J.)
Order Date :- 22.7.2010
LBY