State of U.P. and another vs Presiding Officer, Labour Court, Kanpur and another

Prakash Krishna, J.—The present writ petition is on behalf of the employer. Challenging the legality, and validity of the award of Labour Court published on 16th of October, 1997 on the notice board whereby the respondent No. 2 herein has been ordered to be reinstated from the date of his termination i.e. 1st of December, 1989, be paid back wages and be treated in continuity of service, the present writ petition has been filed. The facts of the case lie in a narrow compass.

The State Government referred a dispute for adjudication to the Labour Court as to whether the services of the respondent No. 2, Balveer Singh were validly terminated on 1st of December, 1989 and if not, then, to what relief, he is entitled?

The respondent No. 2 filed a written statement on the plea''s inter alia that he is in continuous service since 1st of December, 1988 and was posted in Akbarpur area of District Kanpur as miner. His services were terminated as certain officers were annoyed, without giving any notice or retrenchment.

The petitioner filed written statement and objection on the ground that the Social Forestry Department, Nawabganj, Kanpur Dehat is a department of State Government and not an ''industry'' within the meaning of U.P. Industrial Disputes Act and as such, the employee is not a workman within the meaning of the Act. The dispute sought to be raised is not an industrial dispute. The employee Balveer Singh was taken in employment as daily paid employee from time to time as and when required. After the end of his last employment, neither he turned up to work nor was taken in employment thereafter at any stage by the department.

The parties led evidence in support of their respective cases and the impugned award has been passed by the Labour Court on the finding that the respondent No. 2 was in employment for the period 1st of December, 1988 to 27th of February, 1989. The muster role has not been produced. The dispute raised in the reference is an industrial dispute and the petitioner is an industry as it sells trees etc.

Heard Sri Babu Lal Ram, learned Standing Counsel for the petitioner and Sri A.K. Srivastava, learned Counsel for the contesting respondent No. 2.

Before examining the matter on merits of the case, it may be noticed that a supplementary affidavit was filed in the writ petition annexing certain documents to show that in pursuance of the impugned award, from time to time the petitioner asked the respondent No. 2 to come and join the duties but the respondent No. 2 failed to give joining. The learned Counsel for the respondent No. 2 justifies the action of the respondent No. 2 on the ground that the engagement which was offered to him was hot a regular employment but was on daily wage basis, therefore; the respondent No. 2 is not obliged to accept the offer.

The learned Counsel for the petitioner submits that the respondent No. 2 was engaged on daily basis and as such, he does not fall within the definition of workman. The engagement of a daily wage employee automatically comes to an end at the end of the day. There is no question of payment of any retrenchment compensation or any notice.

In Himanshu Kumar Vidyarthi and others v. State of Bihar and others 1997 (76) FLR 237 (SC) the Apex Court has held that when the appointments are regulated by the statutory rules, the concept of "industry" to that extent stands excluded. Admittedly, they were not appointed to the post in accordance with the rules but were engaged on the basis of need of the work. They are temporary employees working on daily wages. Under these circumstances, 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.

In M.P. State Agra Industries Development Corporation Limited and another v. S.C. Pandey (2006) 2 SC 716 it has been held that an appointment to the post of a temporary employee can be made where the work is essentially of temporary nature. In a case where there existed a vacancy, the same was required to be filled up by resorting to the procedures known to law i.e. upon fulfilling the constitutional requirements as also the provisions contained in the 1976 Regulations, governing the Corporation in question. With regard to the status of a daily wager/casual labourer/temporary employee it has been held that the daily wager does not hold a post as he is not appointed in terms of provisions of the Act and Rules framed thereunder and therefore he does not derive any legal right. In this very case, the Apex Court has relied upon its earlier judgment in the case of M.P. Housing Board and Another Vs. Manoj Shrivastava,

In Executive Engineer, Construction Division, U.P. Jal Nigam, Allahabad, v. Presiding Officer, Labour Court, Allahabad and another 2008 LIC 216 = 2007 (114) FLR 17 (Sum.) (Alld.) this Court has held that it is settled law that where services of a daily wager/temporary or ad hoc employee are terminated without any stigma on the ground of non availability of work or any such other ground, there is no requirement of offering opportunity of hearing or holding of domestic inquiry.

As against the above, the learned Counsel for the respondent No. 2 could not place any material before this Court to take a different view of the matter. Indisputably, the respondent No. 2 was daily wager and the petitioner is a Government department. The respondent No. 2 has failed to file any appointment letter showing that he was appointed against a sanctioned post. It appears that he was engaged as and when some extra hands were needed. Law, as has been delineated above, does not require payment of retrenchment compensation to such disengagement. In this view of the matter, the Labour Court was not justified in passing the award of reinstatement or awarding of wages. Even otherwise also, the respondent No. 2 has failed to report on duty in spite of several letters issued to him asking him to come and join the duties. The excuse given by him is not excuse in the eyes of law. He was working earlier as a daily wager employee and would be continuing to work as such unless his services are regularized in accordance with law.

The learned Standing Counsel informs the Court that in pursuance of the interim order passed by this Court a sum of Rs. 51,940/- was deposited before the Labour Court. A sum of Rs. 25,000/- (Rupees Twenty Five Thousand) may be paid to the respondent No. 2 instead of reinstatement, back wages etc. The remaining amount and the interest accrued thereon may be refunded to the petitioner.

The writ petition succeeds and is allowed in part.