Rakesh Tiwari, J.@mdashHeard learned Counsel for the parties and perused the record.
2. This petition arises out of the award of Labour Court, Agra dated 24.7.1979. The petitioner owns a Powerhouse at Hardwaganj, in the DistrictAligarh. Workman respondent No. 1 was appointed temporarily in the Powerhouse as Token Collector initially for a period of 4 months with effect from 1.9.1975. By order dated 12.1.1976 his services were extended till 31.3.1976, thereafter, by letter dated 11.3.1976, the services of workman were terminated along with other persons with effect from 31.3.1976 The respondent workman raised an industrial dispute, which was referred by the State Government for adjudication by the Labour Court, Agra, where it was registered as Adjudication case No. 320/1977.
3. The case of the workman was that he had initially been appointed as Token Collector for a period of 4 months against one of the 4 permanent posts of Token Collector and that one Sri Ashok Kumar, who was subsequently appointed on 24.9.1975. Sri Ashok Kumar was continued in service after a post was created under order dated 12.1.1976 but the services of the petitioner were terminated by order dated 11.3.1976. It is alleged by the workman thatthough he continued to work up to 9.5.1976 but he was paid salary only up to 31.3.1976. Neither he was served with any notice nor was given one month''s salary in lieu thereof, as such the order of termination is the violation of mandatory provision of Sections 25F and 6N of the U.P. Industrial Disputes Act, 1947. It is further alleged that the termination of his services is by way of victimization, as he had refused to work at the residence of the Officers as Domestic Servant.
4. The case of the employer is that Personnel Management Division came into existence in 1975, Some appointments were made on newly created post on purely temporary basis. These temporary appointments were made for definite period, which have liable to be terminated at any time. Subsequently due to some pending work the period of appointment was extended for 3 months and the services of the new staff including the respondent workman were terminated with effect from 31.3.1976. The further case of the employers before the Labour Court was that the Personnel Management Division has also since been abolished and as such there is no question of any reinstatement of the workman concerned.
5. The Labour Court on perusal of the record found that the appointment of Ashok Kumar was against the Sports quota but no documentary evidence was led to prove that there was any express provision in the Service Rules or otherwise for appointment of persons in quota of Sportsmen as such his appointment is in violation of Article 14 of the Constitution of India. It is admitted by Sri Singhal witness for the management before the Labour Court that there was no complaint against the workman and from the allegations in the written statement of the employers, it appears that the Personnel Management Division of the employer wherein respondent workman working was abolished with effect from 23.3.1977. The Labour Court also found that Sri Ashok Kumar was junior to the workman concerned in the case. He was continued in service while service of respondent No. 3 was discontinued. The termination of service of respondent No. 3 as such was not a result of abolition of the Personal Management Division, as persons junior to respondent workman were continued in service.
6. The Labour Court by the impugned award held that the respondent workman was entitled to reinstatement with back wages for the entire period from 1.7.1976, till his reinstatement, except for a period of 7 months at the rate, which he was getting on 31.3.1976.
7. Aggrieved by the award of the Labour Court, this petition has been filed mainly on the ground that appointment of Sri Ashok Kumar was against the quota for Sportsman and respondent workman Ramesh Chandra cannot claim any parity with Ashok Kumar and further that the. respondent No. 1 was appointed for the time bound period and he has no right for the post. The award was also challenged on the ground that services of Sri Ramesh Chandra were terminated with effect from 31.3.1976 but in the reference another date has been incorrectly given.
8. The petitioner also placed reliance on the case of Himanshu Kumar Vidyarlhi and others v. State of Bihar and others. Supreme Court of India, 1974 (4) S.C.C. 391. in which it 1ms been held that that all departments of the Government cannot be treated as Industry'' and dispensing with service of the. person engaged on Daily Wages in Government Department is not a retrenchment.
9. Reliance has also been placed by the Counsel for the petitioner on Zakir Hussain v. EngineerinCharge, (1993) 1 UPLBEC 15. In this case, the Court has held that the employee appointed on daily wages has no right to the post and his services can be terminated at any time.
9A. The Counsel for the petitioner has then cited, The District Cooperative Bank Ltd. v. The Presiding Officer, Labour Court, Kanpur and others, 1999 (81), FLR 246; Ramesh Prasad v. The Registrar, V.P. Coop. Societies and others, 1998 (80) FLR 735; State of U.P. v. Labour Court, Haldwani and others, 1999 (81) FLR 319; State of U.P. and others v. Ajay Kumar, Supreme Court of India, Judgments Today, 1997 (3) SC 219, 1999 (81) FLR 246. The District Cooperative Bank Ltd. v. The Presiding Officer, Labour Court, Kanpur and others, AIR 1996 SC 1001; State of Rajasthan and others v. Rameshwar lal Gahlot, 1994 (68) FLR No. 1195; U.P. Rajya Sahakari Krishi Evam Graminya Vikas Bank Ltd. v. Labour Court, Allahabad and another, 1994 (69) FLR 945; Arvind Kumar v. The Dy. Director, Rajya Krishi Utpadan Mandi Parishad and another, 2001 (5) SCC 540; Harmohinder Singh v. Kharga Canteen, Ambala Cantt and Ram Kumar Sonkar v. Zila Nirvachan Adhikari, Fatehpur, 1977 (77) FLR 977.
10. The facts and the law in the aforesaid cases are clearly distinguishable both on facts in law. In the District Cooperative Bank Ltd. v. The Presiding Officer. Labour Court, Kanpur and others (supra), it has been held that the appointment of the employee being time bound came to an end after 3 months. Employee cannot claim benefit of Section 6(N) of U.P. Industrial Disputes Act. Order settingaside termination order quashed petition allowed, in Ramesh Prasad v. The Registrar. U.P. Coop. Societies and others, 1998 (80) FLR 735, held that Daily Wagerpetitioner appointed for limited period. Since period being limited and no extension givenpetitioner cannot claims any right to continue. AppointmentMade without following procedure prescribed under regulations for appointmentNor the appointment was approved by the BoardSuch appointment, therefore, docs not confer any right to such person. U.P. Coop. Societies Employee Regulations, 1975, Regulation 5. U.P. Industrial Disputes Act, 1947, Section 6NAppointmentSince was for limited timeThere was no ground for continuation beyond the period limitedRefusal of extension cannot be termed as retrenchment, in State of U.P. v. Labour Court, Haldwani and others, 1999 (81) FLR 319, held that Industrial Disputes Act, 1947, Section 25FDaily wagerRespondent was appointed on a daytoday basis. In Irrigation Department by Executive Engineer The same, therefore, came to an end every evening Refusal to employ him from a particular dayDid not amount to retrenchment Provisions of Section 25F would not be ''attracted.
11. Casual workersDaily and casual workersWho are engaged in disregard of all rulesCannot be allowed to enter Government Servicethrough the back doorLabour Court cannot be allowed to be used as a legal means for such back door entryLabour Court committed error in reinstating him as a regular employee, in State of U.P. and others v. Ajay Kumar, Supreme Court of India, Judgments Today, 1997 (3) SC 219, held that RegulationHeld that daily wage appointments are in relation to contingent establishment in which there cannot exist any post and continue as along as work existsHeld High Court erred in directing appellant to regularize services of respondent when vacancy arisesDirection being illegal is setaside, in 1999 (81) FLR 246, The District Cooperative Bank Ltd v. The Presiding Officer, Labour Court, Kanpur and others, held that U.P. Industrial Disputes Act, 1947, Section 6NBenefit of Time bound appointmentAppointment came to an end after a period of three monthsEmployee not entitled to any benefit of Section 6NOrder settingaside termination order quashedPetition allowed, in AIR 1996 SC 1001, State of Rajasthan and others v. Rameshwar lal Gahlot, held that Industrial Disputes Act, (14 of 1947), Sections 2(oo)(bb), 25FAppointment for fixed periodIs covered by Section 2(oo)(bb)Termination is not retrenchment and not illegal unless it is mala fide Provisions of Section 25F do not apply. Civil Special Appeal No. 292 of 1992, D/26.4.1994 (Raj.) reversed, in 1994 (68) FLR 1195, U.P. Rajya Sahakari Krishi Evan Graminya Vikas Bank Ltd. v. Labour Court, Allahabad and another, held that U.P. Industrial Disputes Act, 1947, Section 6NNotice underNecessity ofAs the workman was appointed for fixed period of three monthsHis services came to an end automatically after expiry of such periodAnd no notice under Section 6N of Act for termination of service is necessary, in 1994 (69) FLR 945, Arvind Kumar v. The Dy. Director, Rajya Krishi Utpadan Mandi Parishad and another, held that Industrial Disputes Act, 1947, Section 2(oo)(bb)Termination of serviceAppellant appointed as TypistFor a fixed term of thirdly daysFor clearing of excess workAs the excess work could not be completedThe term was extended from time to time up to 16 monthsHis service terminated on completion of such excess workCase falls in one of exceptions in clause (bb) of Section 2(oo)Termination not unjustified.
12. ServicesRegularization ofAppellant, appointed for clearing of excess workHis service was terminated on completion of such excess workHis services cannot be regularized, merely because he has completed 240 days in service, in 2001 (5) SCC 540, Harmohindek Singh v. Kharga Canteen Ambala Cantt., held that
(A) Labour LawTermination of ServiceStanding Orders regarding terminationStanding order prescribing a maximum period of service or date of retirement for existing temporary employees, held not ultra vires Sections 9A, 25F and 25J, ID ActIndustrial Disputes Act, 1.947, Sections 9A, 25J and 2(oo)(bb)Industrial Employment (Standing Orders) Act, 1946, Sections 2(g) and 5.
(B) Labour LawIndustrial Disputes Act, 1947, Section 9ANature ofHeld, MandatoryInterpretation of StatutesSubsidiary rulesMandatory or directory.
(C) Labour LawIndustrial Disputes Act, 1947, Section 9A and Schedule IV Provision in Section 9A for notice of change of conditions of service mentioned in Schedule IV and does not extend to other changesHowever, conditions of service other than those expressly mentioned therein can be brought within the scheduled items by a process of interpretation.
(D) Labour LawIndustrial Disputes Act, 1947, Sections 25F and 2(oo)(bb)Applicability of Section 25FHeld, not applicable in case of termination of service on expiry of contract of service for a fixed term.
(E) Labour LawIndustrial Disputes Act, 1947, Section 25J (Chapter V)Overriding effect of Chapter VHeld, not applicable to a standing order providing for a maximum period of service or a retirement age.
(F) Constitution of India, Articles 226 and 12MaintainabilityGenerallyImpleadment of partiesResoling from the stand taken in the forum belowImpermissibilityEmployee''s writ petition against employer canteen to challenge the Labour Court''s award upholding the termination of the writ petitioner''s service by the canteenUnion of India not having been impleadment before the Labour Court as according to the petitioner the canteen was neither carrying on business under the authority of Government nor was the management and working of the canteen controlled by the GovernmentIn such circumstances, High Court rightly dismissed the writ petition as not maintainableWrit petitioner could not take a different stand before High CourtMore so when the question whether the institution concerned was a "State" or "Other authority" was a question of fact, in Ram Kumar Sonkar v. Zila Nirvachan Adhikari, Fatehpur, 1977 (77) FLR 977, held that in this case, the Hon''ble High Court has laid down that if the appointment is on daily wage basis and is time bound, then in that case, the said employed will have no right to claim the post.
13. The workman respondent has in fact actually worked for 212 days in a year counting backwards from his date of termination. His ''chart'' of actual working days is as under :
September, 1975 30 days January, 1976 31 days
October, 1975 31 days February, 1976 28 days
November, 1975 30 days March, 1976 31 days
December, 1975 31 days
Total...... 122 days 90 days
Grand Total...... (122 + 90) ............ 212 days
14. From the chart it is apparent that he has not completed 240 days of actual service in a year counting backward from the date of his termination for the purposes of computation of 240 days of actual continuous service. In the case of Mohan lal v. Bharat Electronics Ltd., AIR 1981 SC 1253, it has been held that :
"Both on principle and precedent it must be held that Section 25B(2) comprehends a situation where a workman is not in employment for a period of 12 calendar months, but has rendered service for a period of 240 days within the period of 12 calendar months commencing and counting backwards from the relevant date, i.e., the date of retrenchment. If he has, he would be deemed to be in continuous service for a period of one year from the purpose of Section 25B and Chapter VA."
15. Admittedly, the respondent No. 1 was not appointed against any post and had only worked for a period of 4 months to meet out the exigencies of the work. In so far as the continuous service of Ashok Kumar is concerned, he is not in the Sports quota and the Labour Court has committed illegality in comparing the case of Ashok Kumar with that of the petitioner. It has nowhere come on record whether Ashok Kumar was also appointed against the temporary post for aspecified period? Law is settled in the Himanshu Kumar Vidyarlhi and others v. State of Bihar and another''s case that person who has been given temporary appointment for a specified period cannot claim any right, to the post.
16. In view of the aforesaid reasons, the award of the Labour Court is perverse and against the law laiddown by the Apex Court which is binding under Article 141 of the Constitution of India for all Courts. The petition succeeds and is allowed and the award of the Lower Court is setaside. The matter is remanded back to the Lower Court for deciding the same in accordance with the law and in the light of the observation made in the body of this judgment. No order as to costs.
