R.B.Misra - (1.) -Heard Sri P.K. Mukherji, learned counsel for the petitioner and Smt. Durga Tiwari, learned counsel for respondent No. 3 and learned standing counsel for the State.
(2.) IN this petition prayer has been made to quash the award dated 16.11.1999 published on 19.4.2000, passed by Labour Court, U. P., Gorakhur in Adjudication Case No. 125 of 1990 whereby respondent No. 3 (Jugal Kishore Tripathi) was reinstated as a workman with continuity of service with full back wages. The brief facts necessary for adjudication of the present writ petition are that the respondent No. 3 was appointed as a workman/peon in class IV category on temporary basis for the fixed period of 180 days as a stop gap arrangement in terms of the resolution dated 6.6.1986 of managing committee of the 'The Deoria Kasia Zila Sahkari Bank (in short called 'Bank'). By appointment order dated 24.6.1986 the respondent No. 3 was appointed as a temporary employee in stop gap arrangement in view of the Regulation 5 (iii) of the U. P. Co-operative Societies Employee's Service Regulation, 1975 (in short called 'Regulation 1975'). The Regulation 5 is indicated as below : Recruitment.-(i) Recruitment for appointment in a co-operative society shall be made through Board whether the recruitment is : (a) direct, or (b) by promotion........ (c) by taking on deputation or otherwise............ (ii) Notwithstanding anything in clause (i) no reference to the Board shall be necessary in following cases: (a) ....................................... (b) when a Managing Committee or any other authority competent to make appointment proposes to fill up as stop-gap measure for a period not exceeding six months a post by promotion from a months the employee : Provided that ......................... Provided further that .............. (iii) The Board may, pending selection for the post to be filled in any direct recruitment, permit stop gap arrangement to be made by appointing authority for a period not exceeding 180 days : Provided that the intimation of such appointment is given to the Board forthwith and it is ensured that proper requisition for the post, as also additional information required by the Board, if any, has been furnished to it : Provided further that Board may in special circumstances, and at the request of the appointing authority, extend the period of 180 days, by a period not exceeding 120 days : Provided also that the appointment made under this clause shall cease to have effect from the date on which the original "period or the extended period appointment under this clause expires." It also appears that to cope of the work of the 'Bank' the Management Committee 'Bank' again resolved by a resolution dated 26.12.1986 to appoint the respondent workman for another period of 58 days by separate appointment letter dated 9.2.1987. According to the petitioner since U. P. Co-operative Institutional Service Board has conducted an open recruitment and many of the persons have been appointed, therefore, the respondent's deployment was not needed and there was a break in the service of the respondent employee from 19.12.1986 to 8.2.1987. Therefore, his deployment was ceased from 9.4.1987, in these circumstances the following question was referred before the labour court : "Kya Sewayojkon Dwara Apne Shramik Jugul Kishore Tripathi Putra Shri Sharda Prasad Tiwari, Pad-Chaprasi Ko Dinank 9.4.1987 Se Karya Se Prathuk Kiya Jane Uchit Tatha/Athawa Vaidhanik Hai? Yadi Nahin, To Sambandhit Shramik Kya Labh/Anutosh (Relief) Paney Ka Adhikari Hai, Tatha Anya Kis Vivran Sahit?" After considering the oral and documentary evidence produced on behalf of the respondent and for on behalf of the petitioner the labour court arrived at finding that the respondent employee was working without any break and he was paid the salary for the period he had worked. It has been noted by the Presiding Officer in its award dated 16.11.1999 that the respondent was given appointment twice and the compliance of Section 6N of U. P. Industrial Disputes Act has not been followed, therefore, the employee respondent was entitled to reinstate with full back wages. According to the respondent he appeared before the authorities concerned for interview for regular appointment along with others, but for the reasons best known to the petitioner he was not recruited for the permanent post, however, according to the respondent employee he has worked 240 days however he has been terminated without any notice, charge-sheet or without affording opportunity of hearing and in utter disregard to the provisions of Sections 6N and 6P of U. P. Industrial Disputes Act. According to the employee respondent break in service upto 30 days was to be ignored if he had continued in view of Regulation IV of 1985 as amended from time to time as observed in Employees Union, Fatehpur Unit, Fatehpur and others v. District Cooperative Bank Ltd. Fatehpur and others, (1991) 2 UPLBEC 1267, it was observed as below : "Regulation 1975 has been framed under sub-section (2) of Section 122 of U. P. Cooperative Societies Act, 1965, by the Board. The object behind framing these regulations is to regulate the appointments of the employees in Co-operative Societies so that management of the Co-operative Societies, which is generally in the hands of the elected persons, may not be misused by appointing persons of choice and liking and the claim of the qualified and competent persons may be ignored. The regulations also provide protection to the employees against arbitrary actions of the management."
(3.) BEFORE examining the claim of petitioners on merits regarding regularization to the post on the basis of their continuance for long time, it would be more appropriate to examine the provisions of the Uttar Pradesh Regularisation of Ad Hoc Appointment (of Posts Within the Purview of the U. P. Co-operative Institutional Board) Regulations, 1985. Regulation 4 of the aforesaid regulations provides as under : "4. Regularisation of ad hoc appointment.-(1) An employee who- (i) was directly appointed on any post on ad-hoc basis in any Co-operative Society falling within the purview of the Board on or before May 1, 1985 and is continuing in service, as such, on the date of commencement of these regulations ; (ii) possessed requisite qualifications prescribed for regular appointment at the time of such ad-hoc appointment ; and (iii) has completed or, as the case may be, after he has completed three years continuous service, shall be considered for regular appointment in permanent or temporary vacancy as may be available on the basis of his record and suitability before any regular appointment is made in such vacancy in accordance with the relevant rules, regulations or orders. Explanation.-In computing the period of continuous service every break in the service for a period not exceeding thirty days shall be ignored and the employee shall be deemed to be continuing in service." ;