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U.P.State Electricity Board, Farrukhabad & Another v. Raj Singh & Another - WRIT - C No. 30686 of 1998 [2007] RD-AH 11001 (2 July 2007)


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(Judgment reserved on 18.04.2007)

(Judgment delivered on 02.07.2007)

Civil Misc. Writ Petition No.30686 of 1998

U.P. State Electricity Board, Farrukhabad and another Vs. Raj Singh and another

Hon'ble S.U. Khan, J.

This writ petition is directed against award dated 10.11.1997 given by Presiding Officer, Industrial Tribunal (3), U.P. Kanpur in adjudication case No.09/1990. Through the said award, it was held that the action of the employer of not giving designation and pay-scale of regular employee to its workman Raj Singh-respondent No.1 was illegal. Ultimately, it was directed that the employer shall give the designation and pay-scale of regular employee to the workman w.e.f. September, 1986 and with effect from the date of reference, i.e. 18.12.1989, he must be given designation and pay-scale of regular skilled labour and he must be deemed to be in continuous service from January, 1970.

The case of the workman as enumerated in Para-2 of the award was that he was employed on work-charge, w.e.f. 01.01.1970 that in accordance with order of the Electricity Board dated 12.10.1971, the workman should have been regularised after completion of three years of service, however he was continued on muster-roll, without any reason and without paying any compensation, he was removed from service and he was assured that whenever work would be available, he would be employed on regular basis.

The case of the employer was that respondent No.1 was not its employee. Copy of written statement of the workman is Annexure-2 to the writ petition. In Para-5 of the written statement, workman clearly stated that instead of regularising him, he was removed from service without payment of any compensation. In Para-9, it was stated that the work was being taken from the workman concerned on the basis of muster-roll, however payment was being made through receipt.

The workman contended before the Labour Court that he was employed to dig pits, stretch wires and fix the polls and to attend the complaints and breakdown of electricity.

Labour Court held that the workman was able to prove that he worked for the following period:-

(i) January, 1970 to June, 1971 on daily wages

(ii) November, 1971 to July, 1973 on daily wages

(iii) September, 1986 to January, 1988

No finding was recorded by the Labour Court that since January, 1970, the workman concerned was working uninterruptedly. In the middle of Para-12 of its award, Labour Court held that accordingly to law, if an employee had worked for more than 240 days in a year, then he was entitled to all such benefits, which were available to regular employee. There is not such law. By virtue of Section 6-N of U.P. Industrial Disputes Act equivalent to Section 25-F of Industrial Disputes  Act, if a person has worked for 240 days or more in a year, then he is entitled to certain compensation before retrenchment.

The Supreme Court in M.P. Electricity Board Vs. Hari Ram, 2004 (8) SCC 246 has held that workman engaged to dig pits whenever required cannot claim continuous service or regularisation. In that case, 240 days' work was not proved.

The most important thing  is that the workman in his written statement himself stated that his services had been terminated without payment of any compensation. Termination order was not challenged. In view of this, there was no question of issuing a direction for giving designation and pay-scale of regular employee. In order to direct regularisation, it is most important that the employee must be in service. By way of order of regularisation retrenchment cannot be set aside. Retrenchment was admitted by the workman and was not challenged by him.

Moreover, now the Supreme Court in a Constitution Bench Authority reported in AIR 2006 SC 1806 "Secretary, State of Karnataka v. Umadevi" has held that merely on the basis of long service, regularisation cannot be directed. In this regard, a later authority of the Supreme Court reported in Mineral Exploration Corporation Employees Union Vs. Mineral Exploration Corporation, 2006 SCC (L & S)1318 has been cited. In the said case, it was held that temporary, casual, contingent employees of the Corporation were doing work of permanent nature and work which used to be done by skilled employees, but were continued as temporary/contingent workmen for long duration of time. In that background, matter was remitted to the Labour Court to consider the question of regularisation strictly in accordance with Constitution Bench Authority of Umadevi particularly Paras-53 and 12 thereof. In the instant case, there is no evidence or finding that respondent no.1 worked continuously. Rather respondent No.1 himself admitted that his service had been terminated. Accordingly, the said authority is not applicable.

In view of the above, impugned award cannot be sustained.

Accordingly, writ petition is allowed. Impugned award is quashed.




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