R.B.MISRA,J. - (1.) HEARD Sri V.S. Dwivedi, learned Counsel for the petitioner and Sri Khurshid Alam, holding brief of Sri B.D. Madhyan for Respondent Nos. 3, 4, and 5 and Sri Raj Kumar, learned Standing Counsel for respondent Nos. 1 and 2.
(2.) IN this petition the order dated 28.7.1993 (Annexure-15 to the writ petition) has been challenged, whereby the service of the petitioner was dismissed. It appears that the petitioner was initially appointed as Clerk in the Tax department of Municipal Board on 15.6.1982 and was working as daily wager up to 31.8.1982, thereafter the petitioner along with few others was given appointment on adhoc basis which was extended from time to time on the basis of sanction of the post given by the State Government. The Uttar Pradesh Regularisation on adhoc Employees (out side the purview of U.P. Public Service Commission, Rules, 1979 was extended from time to time. According to the petitioner, petitioner and four other co-employees were continuously working and they were not regularised but they were stopped without any written order from attending the work. The petitioner and others filed writ petition and this Court directed on 21.10.87 to represent the State Government. However, the petitioner had made a representation to the Deputy Secretary of the State Government who requested the State Government for sanctioning some posts for absorption of the petitioner and his co-employees., The Deputy Secretary of State Government also wrote on 8.2.88 to Nagar Mahapalika or the Vice-Chairman of Development Authority for regularisation of the petitioner and his colleagues and the petitioner was deployed for some times in Goraklipur Development Authority on daily wage. According to the petitioner a letter dated 12.2.1992 was also written by the Vice-Chairman of Gorakhpur Development Authority to the State Government for regularisation of the services of the persons in which the name of the petitioner was placed at Serial No. 11. The petitioner was deployed to the Development Authority, Gprakhpur at the relevant time to the post of clerk as a daily wagers and was assigned for receiving the application for allotment of house constructed by the 'Authority' while so working, the petitioner had given report in respect of house No. 269 in Shastri Nagar Avasiya Yojna relating to economically weaker sections that same had fallen vacant due to the cancellation of its allotment of one Mohd. Israil but the 'Authority' had not taken its possession, therefore, Smt. Bindu Srivastava and Smt. Durgawati Pandey applied for allotment on 29.1.1993 and 25.5.1993 respectively. The petitioner made a report on the application of Smt. Durgawati Pandey that the house is not available as the possession was not taken by the 'Authority' and the petitioner had given a report in favour of Smt. Hindu Srivastava then the explanation was sought from the petitioner as to why he had given the report on Durgawati Pandey's application that the possession was not taken, whereas the same was already taken over on 23.5.1993. Keeping in mind this irregularities the petitioner's deployment as a daily wager working as clerk was dispensed with by the impugned order 28.7.1993. According to the petitioner, daily wagers have no right to the post as they are not appointed according to the proper procedure for recruitment as they are appointed by back done entry. The principle of natural justice cannot be said to be infringed in the dispensation of the service of daily wager simply because the daily wager have rendered only 240 in a calendar year (which fact is disputed by the respondent). According to the respondent, daily wager cannot be regualrised on the basis of ex-parte award which did not consider the materials and evidences. The counter affidavit on behalf of Respondent No. 2 daily wager has been filed endeavoring to controvert the contents of the writ petition and further submitted in support of the award.
(3.) LEARNED Counsel for the petitioner has placed reliance on the order dated 26.3.1997 in SLP No. 7957 of 1996, Himansu Kumar Vidyarthi and others v. State of Bihar and others, 1997 (76) FLR 230, where the Court has observed that: - "Admittedly, they 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 employee working on daily wager. 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. Since they are only daily wage employees and have no right to the posts, their disengagement is not arbitrary." ;