Executive Engineer Construction Division, U.P. Jal Nigam vs Presiding Officer, Labour Court and Another

Rakesh Tiwari, J.—Heard counsels for the parties and perused the record.

The Executive Engineer, Construction Division, Allahabad, has instituted the instant writ petition against the award dated 17.11.1994, passed by the Presiding Officer, Labour Court, Allahabad in Adjudication Case No. 3 of 1992, Dina Nath Misra v. U. P. Jal Nigam, Allahabad, having been enforced by publication on the Notice Board on 17.5.1995.

Facts of the case, as disclosed in the writ petition, are that Respondent No. 2 Sri Dina Nath Misra claimed to have worked on the post of Runner w.e.f. 1.4.1985 to 8.7.1991 in the v. Ith Construction Division, U. P. Jal Nigam (hereinafter referred to as ''the Nigam''). His services were terminated w.e.f. 9.7.1991.

Aggrieved by the order of termination he raised an industrial dispute. On failure of the conciliation proceedings, the State Government referred the following matter of dispute to the Labour Court, Allahabad vide Government order No. 929/C. P. 162/91 (Sankhya) Allahabad dated 31.12.1991 where it was registered as Adjudication Case No. 3 of 1992 :

The Petitioner contested the case of the workman in the written statement/statement of demand filed by him. The case of the Petitioner was that Respondent No. 2-the workman concerned was working in U. P. Jal Nigam w.e.f. 1.5.1990. Due to reduction of work a decision was taken by the Nigam to retrench the employees who were appointed after 31.8.1989. Accordingly, all the employees who had joined the Corporation after 31.8.1989 including the Petitioner were retrenched in accordance with Section 6N of the Act and Rules, 1957 framed under the Act. It was also averred that the workman himself had not been coming on duty after 31.3.1991 as such his salary was also not paid on the principle of ''no work no pay'' for his absence from duty. It was further averred in reply by the employers that neither any appointment order was issued in favour of the Respondent-workman nor any order of termination was served upon him.

The claim of the workman was that he worked in v. Ith Construction Division of U. P. Jal Nigam on the post of Runner w.e.f. 1.4.1985 in ''Syaha Kamasin Project, Tahsil Sirathu'' and after 31.3.1991, he was not allowed to join his duties nor any salary was paid to him.

On behalf of the Petitioner U. P. Jal Nigam, Sri R. K. Sharma, Junior Engineer, Construction Division filed an affidavit in August, 1992 inter alia that the workman was engaged on daily wage basis and was a muster roll employee. He was never transferred to ''Syaha Kamasin Project, Tahsil Sirathu'' as alleged by him. It was also categorically stated that the workman was not entitled to any salary w.e.f. 1.4.1991 till the date of award.

In rejoinder the Petitioner-Corporation pleaded before the labour court that even if the contention of the workman is accepted, the Corporation had retrenched all its employees who were appointed after 31.8.1989 due to reduction in work, after complying with the provisions of Section 6N of the Act, as such, the workman was not entitled to receive any salary as his termination/disengagement was legal, valid and justified.

The labour court, after considering the evidence, pleadings and material available on record, by the following impugned award held that termination of services of the workman w.e.f. 9.7.1991 was not legal and justified, consequently, the workman was to be reinstated with continuity in service and full back wages w.e.f. 9.8.1991 apart from Rs. 100 as cost :

Counsel for the Petitioner contended that the labour court has illegally arrived to the conclusion that the workman was liable to be reinstated in service in view of the fact that his order of termination could be passed only after issuance of show cause notice and conclusion of enquiry proceedings. He submitted that the workman was not a permanent or regular employee of the Corporation, as such, question of holding any enquiry or issuance of any show cause notice does not arise. In this view of the matter, he urged that the impugned award is liable to be quashed by this Court.

Contention of counsel for the workman is that after appreciation of evidence available on record, the labour court found that the Respondent No. 3 workman had worked till 9.7.1991 and his services were illegally terminated by the Petitioner thereafter. He submitted that date of appointment of the workman is proved by him before the labour court on the basis of his identity card issued by the Corporation. It is vehemently urged that even if a muster roll employee worked for more than 240 days in a calendar year, he is entitled to retrenchment compensation u/s 6N of the Act and if services of such employee is terminated without payment of retrenchment compensation, it is illegal and the only relief which can be granted by the labour court in such circumstances is reinstatement with full back wages.

In the alternative, he urged that if the services of the Respondent-workman have been terminated on the ground of any misconduct, it is mandatory on the part of the employer to issue charge-sheet and to hold domestic enquiry. He contended that the counsel for the Petitioner''s contention that since the workman was not a permanent employee, no domestic enquiry was required, is incorrect.

It appears that at the time of admission, an interim order dated 29.6.1995 was passed staying the operation of the impugned award dated 17.11.1994 until further orders. The interim order was confirmed vide order dated 28.8.1997. It was thereafter vacated by order dated 12.4.2007 after exchange of counter and rejoinder-affidavits.

After having heard the counsels for the parties, on perusal of the impugned award it appears that the labour court did not take into consideration the vital aspect of the matter regarding the fact as to whether the workman was appointed on or against a substantive vacant post. The workman had not been able to produce any document before the Court by which it could also have been conclusively established that he was appointed on a particular post nor has he filed any letter of appointment. He rather appears to have been engaged on daily wage basis and that his engagement was ad hoc or temporary.

Though, however from the award it appears that the labour court has given a categorical finding of fact that :

Once it is held that the employment of the first Respondent was not for a specified period, the Court shall have to proceed that the denial of employment to the first Respondent by the Corporation for whatever reason shall have to be only according to law, if he had abandoned the employment certainly that could have been a ground for holding an enquiry against him and passing appropriate order. That has not been done in the instant case. In the circumstances, I do not find any merit in the writ petition. It is dismissed."

but it is settled law that where services of a daily wager/temporary or an ad hoc employee are terminated without any stigma on the ground of non-availability of work on any such other ground, there is no requirement of affording opportunity of hearing or holding of domestic enquiry as has been held in State of U.P. and Others Vs. Bhagwant Singh and Another, . In Lochan Prasad Vs. Executive Engineer, Public Works Department Rashtriya Marg Jyoti Chauraha and Another, , it has been held that if the workman himself stopped coming to work, his disengagement does not amount to retrenchment. Moreover, if a workman has continuously worked for more than 240 days in a calander year, he is not entitled for regularization of his services in view of the decision of Hon''ble the Apex Court in Branch Manager, M.P. State Agro Industries Development Corpn. Ltd. and Another Vs. Shri S.C. Pandey, The present case, is squarely covered by the aforesaid decision. In Sushil Kumar Gupta Vs. State of U.P. and Others, it has been held that engagement and appointment are two different connotations in Service Jurisprudence. The appointment on a post is against a sanctioned and created post whereas engagement is made only to meet the exigencies of work. The word ''appointment'' is related to a permanent post whereas the word ''engagement'' is related to temporary work. In essence the ratio laid down in the aforesaid case applies with full force to the facts and circumstances of the instant case. Appointment to a post must be made in terms of existing rules as has been held in State of Madhya Pradesh and Others Vs. Yogesh Chandra Dubey and Others,

In my opinion, that being not the case of the workman in the instant case, who was a daily wage muster roll employee he cannot be granted the relief of reinstatement with continuity of service and full back wages as relief of reinstatement with back wages can only be granted to a permanent employee and not to a daily wage employee. Their work and degree of responsibility as well as applicability of several rules are vital factOrs. 17. For the reasons stated above, the impugned award in so far as reinstatement with continuity of service and full back wages is concerned, cannot be wholly sustained in law as there is clear finding from the records produced by the Petitioner that the workman has worked for more than 240 days of continuous service, the employer is liable to pay retrenchment compensation with interest. The interim order granted by this Court was vacated by order dated 12.4.2007 hence the workman must have been taken back in service. As the Respondent workman was a daily wager any payment of back wages made to him in pursuance of the award would be subject to adjustment from the payments to be made to him in future.

Accordingly, the writ petition is allowed, in part. Impugned award dated 17.11.1994 is quashed to the extent it provides for relief of reinstatement in service with continuity and full back wages. No order as to costs.