R.B. Misra, J. - (1.) In this petition prayer has been made to quash the award dated 30.11.1992 and order dated 18.1.1994 for recovery of dues.
(2.) From the pleadings and perusal of records it appears respondent No. 2 was deployed as Clerk on 30.7.1988 on daily wages on the remuneration of Rs.20 per day in Nagar Panchayat, Gajraula, district Moradabad, however, while making such deployment proper procedure prescribed for recruitment to the Class-III post was not followed but after his continuance for some years when the work and conduct of respondent No. 2 was found not satisfactory he was involved in financial irregularities e.g., making irregularities in realizing house tax without any receipt not mentioning any date in the counter foil of the receipt, not putting his signature on the counter foil receipt and keeping for a long time the tax realized in his own custody and Rs.1096/- as a government revenue was found from his possession. Keeping in view such lapses the respondent-employee's deployment as a daily wager was dispensed with from 16.9.1989, however the respondent-employee claimed before the Deputy Labour Commissioner against the order dated 16.9.1989 for not reviewing the contractual deployment from 15.7.1991 and dispensing of the service of the respondent -employee by oral order without any notice or show cause or any inquiry or opportunity of hearing and without compliance of Section 6-N of the U.P. Industrial Disputes Act the action of the petitioner/authority is illegal. A reference case No. 62 of 92 was adjudicated before the Labour Court which reads as below: "Kya Sewayojkon Dwara Shramik Sri Mahboob Deepak Putra Sri Charan Singh Ki Scwayen Dinank 1.5.7.1991 Se Samapt Kiya Jana Uchit/Vaidhanik Hai, Yadi Nahi toSambandhit Shramik Kis Hithlabh/Anutosh Pane Ka Adhikari Hai Tatha Anya Kis Vivran Sahit ?" After taking into consideration the material evidences on behalf of the respondent-employee, the Presiding Officer has indicated that the removal of the respondent employees service from 15.7.1991 was unfair and illegal and he was directed to be reinstated with full back wages and that award was passed on 30.11.1992 which is under challege.
(3.) According to the petitioner the deployment of the daily wager is not made by observing the procedure prescribed for recruitment. The recruitment of any employee to the Class-Ill category could be made by observing rules, regulations and Government orders, keeping in view of the observations of reservation policy. The respondent-employee was given deployment by back door entry not against any existing post and the respondent-employee was kept in the need of work but however, continued for several years. The deployment of daily wagers commences in the morning and comes to an end in the evening. The contractual deployment of daily wager is for a day only. According to the petitioner non renewing of contractual deployment is neither retrenchment nor illegal in view of the judgment of Supreme Court in (1997 )11 SCC521 (Escorts Ltd. v. Presiding Officers and Anr. ). According to the respondent employee without affording opportunity of hearing to him his service was retrenched whereas he had completed 240 days continuously in the preceding calendar year, on the other hand according to the petitioner, without proper analysis of facts and evidences the award has been passed in favour of the respondent-employee. According to the petitioner daily wager has no right to the post and no show cause, notice or opportunity of hearing is to be given to the daily wager while dispensing the service of the daily wager on the ground of misconduct. According to the petitioner daily wager has no right to the post or protection under the provisions of Article 311 of the Constitution. On the other hand learned counsel for the respondent-employee has submitted that after hearing both the sides the award was passed by the Labour Court and the findings of Labour Court could not be upset. More so, in view of (1989) 1 UPLBEC 641 (Shafqat Ullah Khan v. U.P. State Electricity Board Board and Ors. ) where termination of workman without following procedure contained in Section 6-N and without serving notice on him was quashed. According to learned counsel for the respondent employee in view of (2003 )1 UPLBEC 70 (Nagar Nigam, Bareilly v. Assistant Labour Commissioner, Bareilly and Anr. ) where termination of clerk of Nagar Nigam deployed on ad hoc basis for a specified period however, even after expiry of that specified period and for having worked for more than 240 days in calendar year, his termination without compliance of Section -N of Industrial Disputes was said to be illegal. According to respondent-employee the Nagar Palika is a industry however, in the award it has not indicated any findings to that effect.;