JUDGMENT
S.U. Khan, J.
1. Heard learned Counsel for the parties.
2. These three writ petitions have been filed by U.P. Rajkiya Nirman Nigam Limited and its Project Manager against U.P. Rajkiya Nirman Nigam Karamchari Sangh (Workers Union) and Presiding Officer Industrial Tribunal Allahabad. The first writ petition is directed against award dated 27.11.1990 given by the Industrial Tribunal (I) U.P. Allahabad in Adjudication case No. 77 of 1988. The matter which was referred was to the effect that as to whether the employer shall declare 7 of its employees whose names were given in the schedule attached with the reference as permanent. Through the impugned award, Labour Court directed that one of the employees Surendra Kumar Shukla was entitled to permanent status with effect from 20.3.1984 and the other employee Budhi Ram with effect from 1.12.1984 and from the said dates they should be placed in the graded scale of pay and entitled to all the benefits to which permanent employees doing similar work were entitled. It was further held that they were also entitled to all allowances and future revision of pay scale etc. as admissible to similarly situate employees. The given dates were the dates on which the two employees completed three years services. It is mentioned in the award that the cases of the other five workmen were not pressed.
3. The second writ petition is directed against award dated 20.8.1991 given by the presiding officer Industrial Tribunal (I) U.P Allahabad in Adjudication Case No. 11 of 1989. The matter which was referred was as to whether action of the employer of not declaring 7 employees (mentioned in the schedule annexed with the reference) permanent was valid or not. This was another set of seven employees distinct from the employees whose cases were referred through the award challenged in the first writ petition. The presiding officer through the impugned award directed that all the seven workman should be deemed to have been confirmed from the dates on which they completed three years of their service.
4. Third writ petition is directed against award dated 24.2.1992 given by the Presiding Officer, Industrial Tribunal (I) U.P. Allahabad in Adjudication case No. 46 of 1989. The matter which was referred was as to whether the action of the employer of not confirming 28 employees whose names were given in the schedule annexed with the reference and not giving all the benefits available to permanent employees was proper or not. The Labour Court directed that the 22 workmen should stand confirmed with effect from the dates on which they completed three years of their continuous service and they would be entitled to all benefits consequent upon the said direction. Six workmen out of 28 whose cases were referred had left the service hence no direction was given in respect of them.
5. In respect of 22 employees made permanent through award impugned in the third writ petition, it has been stated that six workmen have left the job in 1995 and one has retired and one has died. Learned Counsel for the petitioner employer stated that since 1994 all the concerned employees have been placed in the pay scale and are being paid salary in accordance therewith and it has also been directed that they will not be removed until they reach the age of Superannuation (of course unless there is some charge of misconduct against them and they are found guilty in enquiry). Copy of Government Order dated 2.7.1994 has been placed on record through which 1005 work charge/ muster roll employees have been regularised. Admittedly all the concerned workmen in these writ petitions are included in those 1005 employees. Regularisation order already passed by the competent authority in proper way i.e. by framing rules or issuing Government Orders is not hit by the Constitutional Bench Authority of Uma Devi (para 44)(Op. cit).
6. The Constitution bench of Supreme Court in Secretary, State of Karnataka v. Uma Devi has held that court can not pass order of regularisation of an employee. Sri K.P. Agarwal Learned senior counsel for the workmen in these writ petitions has firstly contended that the said Constitution Bench Authority does not lay down the correct law and requires reconsideration. This argument can not be considered by the High Court; it can only be raised before the Supreme Court.
7. The other argument in respect of aforesaid Constitution Bench authority is that the said authority is applicable only when regularisation is directly sought by employees from the High Court in exercise of writ jurisdiction and it does not apply to those cases where workmen approach the Labour Court for regularisation. Learned Counsel has elaborated his argument by contending that in labour matters Labour Courts have got wider power than the other courts including High Court while exercising writ jurisdiction in the matter of disputes between employer and employees. In this regard two authorities have been cited one is of Western India Automobile Association v. Industrial Tribunal AIR 1949 FC 111 and the other is of Bharat Bank Limited v. Bharat Bank Employees Association and it has further been contended that Labour Court has got power even to substitute new contract between the employer and employee.
8. An ancillary question also arises in this regard and that is as to whether the principle laid down in the aforesaid Constitution Bench authority of Uma Devi applies to the case of workmen as defined under Industrial Disputes Act or it is confined only to those employees who are either the employees of Government or of instrumentalities of the Government (naturally including Corporation). Learned Counsel has contended that the Constitution Bench authority was mainly concerned with Article 16 of the Constitution of India by virtue of which equality in employment i.e. at the point of entry in service must be maintained while Industrial Dispute Act mainly deals with the disputes coming into existence in between workman and employer after entry of the workmen into service and for deciding the said dispute in between the workman and the employer, it is not at all necessary to ascertain the manner in which workman was engaged in service. It has further been argued that at the time of entry in service no workmen is expected to enquire from the employer as to whether the appointment which is being given to him is legal or not.
9. Supreme Court in some recent judgments has considered the applicability of the aforesaid Constitution Bench Authority of Uma Devi on labour matters i.e. on the cases of the workmen under Industrial Disputes Act. The first authority is reported in Indian Drugs and Pharmaceuticals v. Workmen 2006 AIR SCW 5994. In the said case the labour court had directed regularisation of ten casual daily rated employees and payment of wages and benefits as given to other regular employees form the date of the award. The High Court modified the award of the Labour Court and it was directed that until their superannuation workers should be allowed to be continued in service and paid wages like the regular employees and if their services were not required they should not be terminated except in accordance with the industrial law. The Supreme Court held that a temporary employee has no right to the post (para 14); No direction can be given that a daily wage employee should be paid salary of a regular employee (Para 15); if an employee is not appointed against a sanctioned post he is not entitled to any scale of pay (para 18); From paras 21 to 33 of this authority, the Constitution Bench judgment of the Supreme Court of Uma Devi was discussed and applied to the workmen under Industrial Disputes Act. Para 37 of Indian Drugs Authority is quoted below:
37. Thus, it is well settled that there is no right vested in any daily wager to seek regularization. Regularization can only be done in accordance with the rules and not dehors the rules. In the case of E. Ramakrishnan and Ors. v. State of Kerala and Ors. , this Court held that there can be no regularization dehors the rules. The same view was taken in Dr. Kishore v. State of Maharashtra ; Union of India and Ors. v. Bishambar Dutt . The direction issued by the services tribunal for regularising the services of persons who had not been appointed on regular basis in accordance with the rules was set-aside although the petitioner had been working regularly for a long time.
10. The other authority is of Gangadhar Pillai v. Siemens Limited 2006 AIR SCW 6414. In the said case the facts were that the employers were getting contract from different clients and they engaged the workers at different periods in different numbers as per the requirement.
11. The Supreme Court held that only because an employee has been engaged as a casual or temporary employee or that he had been employed for a number of years the same by itself may not lead to the conclusion that such appointment had been made with the object of depriving him of the status and privilege of a permanent employee. Unlike other statutes, the employer does not have any statutory liability to give permanent status to an employee on completion of a period specified therein (Para 25 and 29). In the said case also aforesaid Constitution Bench authority of the Uma Devi was applied (para 32). In the said case on behalf of worker reliance was placed upon Chief Conservator of Forest v. J.N. Kandhar .
12. The third authority is State of U.P v. Deshraj 2007 AIR SCW 222 and the fourth is M.D Karnataka Handloom Development Corportation v. M.L Raval 2007 AIR SCW 226. In the said cases also reliance was placed upon aforesaid Constitution Bench authority of Uma Dew (particularly paragraphs 45 and 47)
13. In the instant case also the employer gets contract to perform particular jobs and engages the workmen for executing the contract. Moreover since 1994 all the workmen have been regularised and placed on pay scales and it has been clarified that they would not be removed. Direction of the Labour Court for regularising employees concerned since completion of three years of service and paying them the same benefits etc. as were being paid to regular employees can not be sustained in view of the aforesaid Supreme Court authorities particularly Uma Devi and Indian Drugs and Pharmaceuticals.
14. Learned Counsel for the workmen has further argued that similar matter concerning some other employees of the same employer has been decided by this Court on 23.1.1996 in writ petition No. 6155 of 1991 and 21079 of 1994. In those writ petitions also similar awards directing regularisation were challenged by the same employer against respondents in the said writ petitions. In the said judgment reliance was mainly placed upon the Supreme Court authority of State of Haryana v. Pyara Singh which has been overruled by Uma Devi constitution bench authority. It appears that the said judgment dated 23.1.1996 was challenged before the Supreme Court and the Supreme Court remanded the matter back to the Industrial Tribunal. Thereafter Industrial Tribunal through award dated 10.9.1999 given in Adjudication case No. 26 of 1989 granted the relief of regularisation and in pursuance of the said direction a sum of Rs. 25 Lakhs was paid to the 56 concerned employees.
15. The written arguments filed by Sri K.P. Agarwal learned Senior counsel for the workmen are placed on record. They shall form part of the record.
16. Accordingly all the writ petitions are allowed. Impugned awards are set-aside. However, it is clarified that in view of stand of the employer that since 1994 all the concerned employees have been regularised, are being paid salary in the pay scale and their services would not be terminated until they attain the age of superannuation except on the ground of misconduct etc (as contained in G.O. Dated 2.7.1994) the same must strictly be adhered to. However, employees concerned are not entitled to any difference in back wages up till 1994 when they were regularised and placed in pay scales by virtue of G.O.