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Pankaj Gupta v. Presiding Officer Labour Court I U.P. Kanpur And Others - WRIT - C No. 12379 of 2003 [2006] RD-AH 11188 (10 July 2006)


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Pankaj Gupta.                 ....Petitioner


Presiding Officer, Labour Court  I, U.P.

Kanpur, and others. ......Respondents


Hon'ble Rajes Kumar, J.

By means of the present writ petition, petitioner has challenged the order of the Prescribed Authority Labour Court dated 06.03.2002 under the U.P. Industrial Dispute Act (hereinafter referred to as "Act").

In the writ petition, petitioner stated that he was working with the respondents no.2 and 3 as Accountant Assistant. He was engaged by the respondent no.3 and worked continuously from 21.02.1992 to 31.03.1996.  On 31.03.1996 petitioner was denied the work. Thus, according to the petitioner on the said date, petitioner service was terminated. Petitioner raised an industrial dispute before Deputy Labour Commissioner. Consequently a reference was made by Deputy Labour Commissioner to the Prescribed Authority to decide whether the termination of the service of Sri Pankaj Gupta, son of late M.P.Gupta from 31.03.1996 was justified and legal and if not whether the employee was entitled for the compensation and from which date. Notice were issued to the petitioner as well as to the respondents no.2 and 3. Written statements were filed, evidences were adduced and thereafter, the witnesses were examined. On consideration of entire facts, Prescribed Authority held that the petitioner was not the employee of the respondents no.2 and 3 and there was no relationship of employer and employee. It has been held that the petitioner was employed through a contract and in the labour register he was shown as daily wager. It has been further held that the petitioner has not been appointed by the respondents no.2 and 3 in accordance to the procedure contemplated for the appointment of the employee and the petitioner was not able to show any document that he was appointed by the respondents no.2 and 3. In this view of the matter, it has been held that the denial of work to the petitioner was justified, since the employer has a right to remove daily wager and the petitioner is not entitled for any compensation.

Heard learned counsel for the parties.

Learned counsel for the petitioner submitted that the person employed through a contract is also to be treated as employee and thus, petitioner was the employee of the respondents no.2 and 3. He further submitted that the petitioner worked with the respondents no.2 and 3 during the period 21.02.1992 to  31.03.1996 and thus, the petitioner services could not be terminated in violation of Section 6 N of the Act. Learned counsel for the respondents submitted that the petitioner was not able to show that he was appointed on any post by the respondents no.2 and 3 and was the regular employee of the respondents no.2 and 3. He further submitted that the labour register shows the petitioner as daily wagers and his service started in the morning and ended with the end of the day and has no legal right of regularization. He submitted that even if he has worked for more than 240 days in a year, he has no right of regularization.

Having heard learned counsel for the parties, I do not find any substance in the argument of learned counsel for the petitioner.

Section 6-N of U. P. Industrial Disputes Act, 1947 reads as follows:-

6-N. Conditions precedent to retrenchment of workmen- No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until-

(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired or the workman has been paid in lieu of such notice wages for the period of the notice;

Provided that no such notice shall be necessary if the retrenchment is under an agreement, which specifies a date for the termination of service;

(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year of service or any part thereof an excess of six months; and

(a) notice in the prescribed manner is served on the State Government.

"The word continuous service has been defined by Section 2 (g) of the Act as follows:-

"Continuous service' means uninterrupted service, and includes service which may be interrupted merely on account of sickness or authorized leave or an accident or a strike which is not illegal, or a lock-out or a cessation of work which is not due to any fault on the part of the workman, and a workman, who during a period of twelve calendar months has actually worked in an industry for not less than two hundred and forty days shall be deemed to have completed one year of continuous service in the industry.

In the case of M. P. Housing Board and another Versus Manoj Shrivastava reported in 2006 (2) SCC 702, the Apex Court held as follows:-

"A daily wager does not hold a post unless he is appointed in terms of the Act and the rules framed thereunder. He does not derive any legal right in relation thereto."

The effect of such an appointment recently came up for consideration in State of U. P. v. Neeraj Awasthi" wherein this Court clearly held that such appointments are illegal and void.  It was further held: (SCC pp.690-91, paras 75-76).

"75. The fact that all appointments have been made without following the procedure, or services of some persons appointed have been regularized in past, in our opinion, cannot be said to be a normal mode which must receive the seal of the court.  Past practice is not always the best practice.  If illegality has been committed in the past, it is beyond comprehension as to how such illegality can be allowed to perpetuate.  The State and the Board were bound to take steps in accordance with law.  Even in this behalf Article 14 of the Constitution will have no application.  Article 14 has a positive concept. No equality can be claimed in illegality is now well settled (See State of A. P. Vs. S. B. P. V. Chatapathi Row, SCC para 8; Jalandhar Improvement Trust V. Sampuran Sing, SCC para 13 and State of Bihar Vs. Komeshwar Prasad Singh, SCC para 30).

"76. In the instant case, furthermore, no post was sanctioned.  It is now well settled when a post is not sanctioned, normally, directions for reinstatement should not be issued.  Even if some posts were available, it is for the Board or the Market Committee to fill up the same in terms of the existing rules.  They, having regard to the provisions of the Regulations, may not fill up all the posts."

It is now well settled that only because a person had been working for more than 240 days, he does not derive any legal right to be regularized in service.  (See Madhyamik Shiksha Parishad, U. P. V. Anil Kumar Mishra.  Executive Engineer, ZP Engineering Div. Vs. Digambara Rao; Dhampur Sugar Mills Ltd. V. Bhola Singh.  Manager Reserve Bank of India V. S. Mani and Neeraj Awasthi).

In the case of Manager, Reserve Bank of India Versus S. Mani reported in (2005) 5 SCC 100, Apex Court held that temporary workman does not has any claim of permanence and burden lies upon the workman to prove that it worked continuously for 240 days in a calendar year by adducing evidence.

In the case of State of Madhya Pradesh Versus Arjun Lal reported in 2006 AIR SWC 1128, the Apex Court held that onus to prove that the workman had completed 240 days, is on the workman.

In the case of Punjab State Electricity Board Versus Darbara Singh, reported in (2006) 1 SCC, 121, the Apex Court held that the employment for a specific period ends on the close of the period.

In the case of R. M. Yelatti Versus Asstt. Executive Engineer, reported in (2006) 1 SCC, 106, the Apex Court held that it is for the workman to adduce evidence that he was appointed in service.

In the case of Secretary, State of Karnataka & Ors. Versus Umadevi & Ors reported in 2006 AIR SCW 1991, the Apex Court held as follows:

"Unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the Court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment do not acquire any right.

Employees were engaged on daily wages in the concerned department on a wage that was made known to them. There is no case that the wage agreed upon was not being paid. Those who are working on daily wages formed a class by themselves; they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment even assuming that the principle could be invoked for claiming equal wages for equal work. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. They cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equal with the other employees employed on daily wages, cannot be extended to a claim for equally treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules."

In the present case, there is no dispute that the respondent no. 1 worked as Baildar on daily wage basis.  No evidence has been adduced that he was appointed on any post.  Thus, he cannot derive any legal right in relation thereto as held by the Apex Court.  In the case of M. P. Housing Board and another Versus Manoj. Shrivastava (supra) and in other cases, it has been held that merely because a person had worked for more than 240 days, he does not derive any legal right to be regularized in service.  Petitioner employment was for a specific period and it started every day in the morning and came to end on every day in the evening on the close of the day.  Thus, there was no question of his retrenchment.  Thus, the provisions of Section 6-N of the Act was not applicable.  In the circumstances, I do not find any error in the impugned order and is accordingly, upheld.

In the result, writ petition fails and is accordingly, dismissed. There shall be no order as to costs.




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