- (1.) R. B. Misra, J. Heard Sri H. S. N. Tripathi learned counsel for the petitioner and Sri M. L. Srivastava learned counsel for the respondents. In this petition prayer has been made for quashing the order dated 25-8-1990 (Annexure-3 to the writ petition) passed by Adhyaksh Nagar Palika, Mahrajganj dismissing the deployment of petitioner as daily wager on disciplinary ground with immediate effect.
(2.) ACCORDING to the petitioner he was deployed as a Chungi Muharrir from 5-12-1988 and has continued upto 25-8-1990, on 25-8-1990 he was given experience certificate, however it was on the same day that the petitioner's service was dismissed without any show cause notice, without any rhyme or reason or without affording opportunity of hearing and without complying the provisions of Section 6-N of the U. P. Industrial Disputes, Act the said order had imposed stigma on the petitioner. According to the petitioner when he filed the present writ petition he got stay by the order dated 12- 11-1990 of this Court and by virtue of this stay he is working and getting salary, however these aspects are being specifically denied by the learned counsel for the respondents stating that from 30th April, 1990 he is not in deployment, however the petitioner's assertion though denied by the respondents. According to the petitioner more-so after completing 240 days in service in the preceding calendar year and by virtue of his continuance in service for long time and by virtue of provisions of Uttar Pradesh Procedure for Direct Recruitment for Group 'c' Posts (out side the purview of Uttar Pradesh Public Service Commission) Rules, 1998 (in short called 'rules 1998' hereinafter) the petitioner was deemed to have been regularized, therefore, being regular employee the order dated 25-8-1990 could not have been passed. Mr. Tripathi has contended that in the dismissal order it has not been mentioned that the petitioner is a daily wager. It has been submitted that writ petition and the prayer therein have not been amended and no prayer has been made in respect of regularisation. Counter affidavit has been filed indicating that the petitioner's deployment was purely on daily wager basis and he was deployed for exigency of work and when the work was not available he was not recruited. The deployment of the daily wager commences in the morning and came to an end in the evening as contractual deployment was in the need of work, since the daily wagers have no right to the post, they have no protection of Article 311 of the Constitution as the same is made by back door entry. Non-renewal of contractual deployment is not illegal or retrenchment in view of (1997) 11 S. C. C. 521, Escorts Ltd. v. Presiding Officer and another, therefore, assessing the performance of the petitioner the deployment of petitioner was not renewed and was dispensed with on 25-8-1990. The experience certificate was never issued and the forge and fictitious documents cannot strengthen the case of the petitioner.
(3.) ON the other hand learned counsel for the petitioner has placed reliance on the following judgments : (i) In 2002 (1) LBESR 171 (All) : 2001 (3) E. S. C. (All.) 943, Birbal Sharma v. Chief Medical Officer and others, where the termination without affording opportunity of hearing of temporary Assistant Lab Technician at Primary Health Centre was held to be illegal. The case of Birbal Sharma was different as he was a temporary employee. (ii) In (1992) 2 UPLBEC 1110, Karnataka State Private College Stop-Gap Lecturers Association v. State of Karnataka and others, where the Supreme Court has observed that the persons deployed on ad-hoc basis were not allowed to continue on ad-hoc basis for being considered for regularization, however this case shall not protect the petitioner. (iii) In (2002) UPLBEC 337, Santosh Kumar Mishra v. State of U. P. and others, which is in respect of giving benefit of appointment on compassionate ground under Dying in Harness Rules, 1974, by virtue of the person who had continued for several years and despite the rules of regularization available the person could not be regularized and had died in harness during deployment as daily wager. In those circumstances, Sri Santosh Kumar Mishra, writ petitioner was directed to be considered for appointment on compassionate ground treating his father deemed to have been regularized. In my respectful consideration the facts of above case were different and could not applicable to the petitioner as the daily wager has not right to the post. (iv) Learned counsel for the petitioner Sri Tripathi has also placed reliance on judgment passed on 15-9- 1999 by this Court (D. B.) in Special Appeal No. 922 of 1999, Bimal Chand Pandey v. Engineer in Chief, P. W. D. , Lucknow and others, which too has no relevance as the writ petitioner after having served several years was entitled to be regularized and for equal pay or equal work this case is not covered to the case of the petitioner. (v) In (1993) 1 UPLBEC 714, Govind Singh v. Presiding Officer, Labour Court, Agra and others, the petitioner retrenchment after having served several years was held not to be justified in respect of the U. P. Industrial Dispute Act and in view of Section 25-F of Industrial Dispute Act however the facts of above case also cannot be made applicable to the present case. If the petitioner is taking protection of the provisions of Industrial Dispute Act then it was necessary to approach to the Industrial Tribunal or Labour Court, otherwise also daily wagers have no right of protection under Section 25-F of Industrial Dispute Act. (vi) In 2002 (1) LBESR 92 (All) (LB) : 2002 (1) E. S. C. (AII.) 69, Satish Kumar Shukla v. Union of India and others, the writ petitioner working as Constable in Railway Protection Force was found to have suppressed information for getting the employment, his termination was found not to be justified on the ground that Sri Satish Kumar Shukla, writ petitioner in above case was recruited on the suppressed information and had no right to the post after being appointed, the petitioner being daily wager, too has no right to the post and therefore, this judgment has no relevance. (vii) In 1992 All. C. J. 514, Brijesh Kumar Srivastava v. Director, Rajya Krishi Utpadan Mandi Parishad and others, the appointment of the writ petitioner was said not to be retrenched without provisions of Section 2 (8) and Section 6-N of U. P. Industrial Disputes Act, 1947 while on deployment in Rajya Krishi Utpadan Mandi Parishad. In the case of Brijesh Kumar Srivastava specific pleadings were made and were tested in respect of applicability of 6-N of U. P. Industrial Disputes Act. In the facts and circumstances above judgment was passed in the year 1992 by Single Judge of this Court whereas, the said judgment is per incuriam, has not considered large number of decisions on the issue. (viii) In 2002 (1) LBESR 443 (All) (LB) : 2002 (1) H. C. L. B. 486, Shashi Bala Sinha and others v. State of U. P. and others, the petitioner having worked for more than three years was relieved without given any opportunity of hearing, the termination was held against the principle of natural justice. The facts and circumstances of the case of Shashi Bala Sinha were different as in those cases the juniors were regularized and the writ petitioner's service was dismissed on the ground of misconduct, therefore, the termination was held to be unjustified. Here the petitioner's deployment and service was dismissed as a daily wager. In these circumstances, above judgment does not help the petitioner. To strengthen the cause on behalf of petitioner following submissions have also been made: (a) The main contention of the learned counsel for the petitioner is that when the petitioner had been engaged for such a long period and had been working for more than 240 days in each calendar year, then the respondents must regularize his services and that he should not be thrown on roads. In support, he has placed reliance upon 2000 (3) LBESR 1 (SC) : JT 1996 (8) SC 1, Central Welfare Board and others v. Ms. Anjali Bepari and others and 2001 (1) LBESR 1029 (SC) : (2001) 3 SCC 574, Gujarat Agricultural University v. Rathod Lahhu Bechar and others. (b) The learned Counsel, therefore, contended that the policy decision adopted by the respondents is unconscionable in nature and the petitioners had to accept the said appointments, as they have no power to bargaining. It was submitted that appointment having been made according to the prevailing norms and service of the petitioner is entitled to be regularised and the petitioner is entitled to the same scale of pay, which were being paid to the permanent employees. (c) It has been contended on behalf of petitioner that for sake of argument if treating the petitioner as daily wager since the petitioner was deployed as such irrespective of the fact where there was any vacancy, but his continuous deployment should be reckoned with merits consideration that there is regular need for his service and he is being made to work on daily wage basis with the specific purpose and he is performing duties qua the regular employees and by virtue of the continuous deployment irrespective of the fact whether he is having minimum eligibility criteria and qualification and he is entitled for regularization and for equal pay and equal salary qua regular employees in the Government department. (d) To strengthen the submission of the cause learned counsel for the petitioner has placed reliance on the judgment of the Supreme Court in State of Haryana v. Piara Singh, JT 1992 (5) SC 179; Khagesh Kumar and others v. I. G. Registration and others, 1996 (1) LBESR 113 (SC) : JT 1995 (7) SC 545 and State of U. P. and others v. Putti Lal, (1988) 1 UPLBEC 313. Learned counsel for the petitioner has submitted that in view of the observations made by the Supreme Court in Khagesh Kumar (supra), the petitioner is entitled to be considered for regularization under the 'rules 1998' learned counsel for petitioner pressed for regularization especially on the decision of the Supreme Court in the case of Dharvad District P. W. D. Literate Daily Employees' Association and others v. State of Karnataka and others, (1990) 3 UPLBEC 2151, and the decision of this Court in the case of State of U. P. v. Putti Lal (supra ). (e) The learned Counsel in support of the aforementioned contentions has relied upon the decision of Surinder Singh v. The Engineer in Chief, CPWD & Ors. , AIR 1986 SC 584; Sushil Kumar Yadunath Jha v. Union of India, AIR 1986 SC 1636; Jacob M. Puthuparambil v. Kerala Water Authority & Ors. , AIR 1990 SC 2228 and Karnataka State Private College Stop Gap Lecturers Association v. State of Karanataka & Ors. , AIR 1992 SC 677, as well as the decision of A. K. Jain v. Union of India, 2 S. C. Service Law Journal 203 (Sic) and Rajbinder v. State of Punjab & Ors. , 2 S. C. Service Law Journal 521 (Sic ). (f) The references were made on behalf of the petitioner on Daily-rated Casual Labour through Bharatiya Dak Tar Mazdoor Manch v. Union of India & Ors. , AIR 1987 SC 2342; Bhagwati Prasad v. Delhi State Mineral Development Corporation, 1990 (1) SCC 361, Bharat Petroleum Management v. Bharat Petroleum Co. Ltd. 1990 (2) SCC 356, Dhirendra Chamoli & Anr. v. State of U. P. , 1986 (1) SCC 637. (g) Learned counsel for the petitioner has claimed petitioner's regularisation on the strength of judgment of this Court (Hon'ble Om Prakash, J.) in (1991) 1 UPLBEC 401, Tejpal and others v. Director of Education and others, where this Court has observed that regularisation is imperative under Constitutional philosophy when the daily wagers have put in deployment for several years, however, the decision of this Court in Tejpal (supra) cannot be a binding precedence in view of large number of subsequent decisions of this Court and Supreme Court. (h) In view of three Judges' Bench decision of the Supreme Court in (1990) 1 SCC 361, Bhagwati Prasad v. Delhi State Mineral Development Corporation, the learned Counsel for the petitioner has submitted that the writ petitioner was having relevant educational qualification and had served for long period, could be considered for regularization. (i) The petitioner has claimed regularisation on the strength of a judgment of this Court (Hon'ble D. K. Seth, J.) in 1997 (2) LBESR 980 (All) : 1998 (78) FLR 100, Ram Sundar Yadav and another v. The Regional Sports Officer, Sports Stadium, Meerut and others, where the writ petitioner after having worked about 7-8 years in the sports stadium were directed for being considered for regularisation following the decision of Bhullar Nath Yadav and others v. Mayo Hall Sports Complex Allahabad and others, 1990 (61) FLR 68. The facts of Ram Sundar Yadav (supra) are different and distinguishable and the decision is in per enqurium as the same is not taking upto date decision of the Supreme Court on the subject of regularisation while passing above judgment. (j) In 2001 (1) LBESR 1029 (SC) : (2001) 3 SCC 574, Gujarat Agricultural University v. Rathod Labhu Bechar and others, the Supreme Court observed that daily rated labourers engaged dehors the rules as plumbers, carpenters, sweepers, pump operators, helpers and masons by fully State-aided University were allowed to continue as such for a long period of 10 years, therefore, non-regularising the services of such daily wagers by university was held as an unfair labour practice and the daily rated labourers were indicated to be considered for absorption against existing vacant posts in accordance with the rules and if necessary by relaxing qualification and creating necessary number of posts.;