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Nagar Panchayat Gajraula, District Moradabad v. The Presiding Officer, Labour Court U.P. Rampur & Others - WRIT - A No. 35935 of 1994 [2004] RD-AH 730 (3 September 2004)


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Court No.6

Civil Misc.Writ Petition No.35935 of 1994

Nagar Panchayat, Gajraula,

district Moradabad                   vs                             Presiding Officer,

Labour Court, Uttar     Pradesh, Rampur and others.

Hon'ble R.B.Misra,J.

Heard Sri R.M.Pandey, learned counsel for the petitioner and Sri Prem Chandra, learned counsel for respondent no.2 and learned Standing Counsel.

(1) In this petition prayer has been made to quash the award dated 30.11.1992 and order dated 18.1.1994 for recovery of dues.

(2)    From the pleadings and perusal of records it appears  respondent no.2 was deployed as Clerk on 30.7.1988 on daily wages on the remuneration of Rs.20 per day in Nagar Panchayat, Gajraula, district Moradabad, however, while making such deployment  proper procedure prescribed for recruitment to the Class-III post was not followed but after his continuance for some years when the work and conduct of respondent no.2 was found not satisfactory he was involved in financial irregularities e.g., making irregularities in realizing house tax without any receipt not mentioning any date in the counter foil of the receipt, not putting his signature on the counter foil receipt and keeping for a long time the tax realized in his own custody and Rs.1096/- as a government revenue was found from his possession.  Keeping in view such lapses the respondent-employee's deployment as a  daily wager was dispensed with from 16.9.1989,  however  the respondent-employee claimed before the Deputy Labour Commissioner against the order dated 16.9.1989 for  not reviewing the contractual deployment from 15.7.1991 and dispensing of the service of the respondent -employee by oral order without any notice or show cause or any inquiry or opportunity of hearing and without compliance of Section 6-N of the U.P.Industrial Disputes Act the action of the petitioner/authority is illegal.  A reference case no. 62 of 92 was adjudicated before the Labour Court which reads as below:-

" Kya Sewayojkon  Dwara Shramik Sri Mahboob Deepak Putra Sri Charan Singh Ki Sewayen Dinank 15.7.1991 Se Samapt Kiya Jana Uchit/Vaidhanik Hai, Yadi Nahi to Sambandhit Shramik Kis Hithlabh/Anutosh Pane Ka Adhikari Hai Tatha Anya Kis Vivran Sahit ?"

After taking into consideration the material evidences on behalf of the respondent-employee, the Presiding Officer has indicated that the removal of the respondent employees service from 15.7.1991 was unfair and illegal and he was directed to be reinstated with full back wages and that award was passed on 30.11.1992 which is under challege.  

(3) According to the petitioner the deployment of the daily wager is not made by observing the procedure prescribed for recruitment.   The recruitment of any employee to the Class-III category could be made by observing rules, regulations and Government orders, keeping in view of the observations of reservation policy.   The respondent-employee was given deployment by back door entry not against any existing post and the respondent-employee was kept in the need of work but however, continued for several years.  The deployment of daily wagers commences in the morning and comes to an end in the evening.  The contractual deployment of daily wager is for a day only.  According to the petitioner non renewing of contractual deployment is neither retrenchment nor illegal in view of the judgment of Supreme Court  in (1997) 11 SCC-521 (Escorts Ltd. v. Presiding Officers and another ).  According to the respondent employee without affording opportunity of hearing to him his service was retrenched whereas he had completed 240 days continuously in the preceding calendar year, on the other hand according to the petitioner without proper analysis of facts and evidences the award has been passed in favour of the respondent-employee.   According to the petitioner daily wager has no right to the post and no show cause, notice or opportunity of hearing is to be given to the daily wager while dispensing the service of the daily wager on the ground of misconduct.   According to the petitioner daily wager has no right to the post or protection  under the provisions of Article  311 of the Constitution.  On the other hand learned counsel for the respondent-employee has submitted that after hearing both the sides the award was passed by the Labour Court and the findings of Labour Court could not be upset.  More so, in view of      ( 1989 ) 1 UPLBEC 641 ( Shafqat Ullah Khan v. U.P.State Electricity Board Board and others ) where termination of workman without following procedure contained in Section 6-N and without serving notice on him was quashed.   According to learned counsel for the respondent employee in view of (2003 )1 UPLBEC 70 ( Nagar Nigam, Bareilly v. Assistant Labour Commissioner, Bareilly and another ) where termination of clerk of Nagar Nigam deployed on ad hoc basis for a specified period however, even after expiry of that specified period and for having worked for more than 240 days in calendar year, his termination without compliance of Section -N of Industrial Disputes was said to be illegal. According to respondent-employee the Nagar Palika is a industry however, in the award it has not indicated any findings to that effect.

(4) I have heard learned counsel for the parties, I find that respondent-employee was deployed as a daily wager in Class-III category and he has no right to the post and deployment of daily wager is made purely on temporary basis on day to day basis and respondent-employee could not have been deployed against any class-III post and the appointment is said to have been dehorse the rules and daily wagers are not entitled to opportunity of hearing at the time of dispensation of service on the ground of misconduct.  Here the award impugned passed by the Presiding Officer, Labour Court did not consider that the termination order dated 16.9.1989 was passed in reference to serious irregularities and misconduct.  I find force in the contention of the petitioner.   The deployment of daily wagers are made in exigency of work and when there was no work the deployment of daily wagers is dispensed with without any notice or opportunity of hearing, even non-renewal of appointment in consonance to the terms and conditions of appointment is not illegal.  The petitioners have no right to the post after a limited period.  In view of the ratio of the judgment of  Escorts Ltd.(supra )  given after considering the judgment in M.Venugopal v. Divisional Manager, L.I.C. ( 1994) 2 SCC-323 it would be said that termination of services of a person as a result of non renewal of contract of employment between the employer and employee concern on its expiry or of such contract being terminated under a stipulated conditions can not be said to be retrenchment or illegal and the termination made in accordance with the terms of contract is not fatal.  It was held in ( 1997 ) 4 SCC-391 ( Himanshu Kumar Vidyarthi and others v. State of Bihar and others ) the Supreme Court has held that every department of Government can not be treated as ''Industry' and dispensation of service of persons engaged on daily wagers under the Government department, therefore, is not a retrenchment.   In Himanshu Kumar Vidyarthi (supra) the services of the writ petitioners, who were appointed as daily wagers as Assistant Drivers and Peon in Cooperative Training Institute under the State Government, were terminated and the contention of the writ petitioners that they were retrenched from service in violation of provisions of Section 25-F of the Industrial Disputes Act, 1947 was rejected by the Supreme Court and it was held as under:-

"Every department of the Government cannot be treated to be industry. When the appointments are regulated by the statutory rules, the concept of industry to that extent stands excluded. The petitioners were not appointed to the posts in accordance with the rules but were engaged on the basis of need of the work. They are temporary employees working on daily wages. 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. Since the petitioners are only daily-wage employees and have no right to the posts, their disengagement is not arbitrary."

(5) In view of the above observations the writ petition is allowed and the award of Labour Court is quashed.

Dated 3.9.2004



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