B.L.Yadav - (1.) BY this petition under Article 226 of the Constitution of India, the relief claimed is for issuance of a writ of Certiorari quashing the orders dated 22-1-87, 10-3-87 and 16-11-90 (Annexure-2, 3 and 9 respectively), and for issuance of a writ of Mandamus directing (he respondent nos. 3 and 4, the Bank to regularize the services of petitioner and to pay him arrears of his wages.
(2.) PORTRAYAL of the essential facts are that the petitioner was appointed by respondent nos. 3 and 4, namely, the State Bank of India, Main Branch, Farrukhabad and the Regional Manager, State Bank of India, Mahatma Oandhi Marg, Kanpur, as Water Boy on 13-8-79 and *was serving the State Bank of India, Farrukhabad, respondent no. 3. He was appointed on daily wages at the rate of Rs. 6/- per day. He worked in that capacity till 3-12-79. He discharged his duties in the Bank on working days and served at the residence of the Manager of the State Bank of India on holidays. Even though for that period he was not paid any wages. The petitioner has completed 113 days of service including holidays. The petitioner was paid his wages for 96 days. In para 4 of the writ petition it was stated that he was paid a total sum of Rs. 597/- as his wages from 13-8-79 to 3-12-79 on 12 different dates. The amount on different dates was paid thus Rs. 54/, Rs. 48/, Rs. 36/, Rs. 36/, Rs. 45/-, Rs. 66/-, Rs. 60/-. Rs. 48/-, Rs. 54-, Rs. 30/-, Rs. 54/ and Rs. 48/-. The amounts, however included the payment of wages for 7 days and a half for holidays, i.e., 14th, 15th, 19th, 25th and 26th August, 1979, 2nd September, 8th September and 9th September, 1979. For 15th August, however, he was paid only half of the wage. In view of the circular issued by the respondent Bank as the petitioner served more than 90 days, he acquired a right to be regularised and a right for being offered permanent appointment. On 28-5-86 he made a representation with a prayer to permit him to serve the Bank (Annexure-1 to the petition). Another representation was made on 12-12-86. A reply was received, however, from the State Bank of India, Farrukhabad that the petitioner was not entitled to be regularised as he has served only 83 days (Annexure-2 to the petitioner). A similar order was passed by respondent no. 3 on 10-3-87. The petitioner had preferred a writ petition no. 9822 of 1988 in this Court which was dismissed by a Division Bench of this Court on 11-1-90 (Annexure-4 to the petition), on the ground that he has an alternative remedy and he can make an application to the Central Government for making a reference under section 10 of the Central Industrial Disputes Act. The application was, however, filed before the Labour Commissioner for making reference. But the same was rejected by the Central Government on 16-11-90 on the ground that the petitioner has worked for 83 days, there was delay in making reference. Against these orders the present petition has been filed. Learned counsel for the petitioner urged that the petitioner has worked continuously as Water Boy for 96 1/2 days and was paid wages at the rate of Rs. 6/- per day. Even though he has worked 113 days, consequently he was entitled to be regularised. These facts were stated in paras 2, 3 and 4 of the writ petition, but an evasive reply was given in paras 5 and 6 of the counter affidavit, and even though para 4 of the writ petition gives details of the wages paid, but the same was not replied. The amount of wages received by the petitioner was a conclusive proof as to for how many days he has worked. The reply of para 4 of the writ petition giving details of the wages to the tune of Rs. 579/- at the rate of Rs. 6/- per day was conspicuous by its absence from the counter affidavit, rather a chart has been prepared as to how the amount was paid. But as para 4 of the writ petition has not been replied nor the details of payment has been replied, hence the only inference to be drawn is that the petitioner was paid a sum of Rs. 579/- and he has worked for 96 1/2 days. In such matters che proceedings in a writ petition are civil proceedings and consequently at least the substance of the relevant provisions of the Code of Civil Procedure, 1908, (for short the Code), would apply. In the instant case, in view of Order 8 Rules 3, 4, 5 of the Code read together, in a case an averment in the plaint or the writ petition was not specifically denied, as in the instant case, there was no denial to the facts stated in para 4 and other facts were not specifically denied in the corresponding paragraphs of the counter affidavit, hence it would be assumed that it has been admitted to the respondents. 1 this view of the matter considering entire facts and circumstances, the petitioner has completed requisite number of days more than 90 days and he was entitled to be regularized.
(3.) CONVERSELY learned counsel for the respondents refuted the submissions made by the learned counsel for the petitioner and urged that the petitioner has worked only for 83 days. The chart Annexure-C.A, 1 appended to the counter affidavit indicates the number of days the petitioner worked. Hence the claim of the petitioner for regularisation was unfounded, and that as the petitioner was a Law Graduate when he accepted the Job as a Water Boy, was over qualified for regularization as he was in the capacity of Class IV employee. Much emphasis was laid by the learned counsel on this aspect of the matter and he pointed out that Annexure-I2 to the counter affidavit was a circular relevant for the purpose, which indicates that 90 days must have been completed as a daily wager and his qualification must not have been more than Class VIII. Reliance was placed on State Bank of India v. S. N. Sunderamoney, AIR 1976 SC 1111 and Hoshnak Singh v. Union of India, AIR 1979 SC 1328. The petition is being decided on merits as learned counsel for both the parties have agreed to that effect.;