Mahboob
Deepak Vs. Nagar Panchayat Gajraula & Anr. [2007] Insc 1279 (13 December 2007)
S.B.
Sinha & G.S. Singhvi
(Arising
out of SLP (C) No.6506 of 2005) S.B. Sinha, J.
1.
Leave granted.
2.
Appellant was appointed as a daily wager on a remuneration of Rs.20/- per day
in the services of respondent No. 1 on 30.7.1988. He is said to have been
involved in financial irregularities. His services were terminated on and from
16.7.1989. He raised an industrial dispute contending that his services were to
be regularized after three months of the joining the services. The said
contention was accepted by the Presiding Officer, Labour Court in his award dated 30th November, 2002. On the said premise, the
termination of services of the appellant was found to be illegal.
It was
directed:
since
the date of adopted this award employee Shree Mehboob Deepak s/o Shri Varan
Singh shall be reestablished on his post in the investigation of old service
and the other facililities or payment of the middle period after discharging
date along with which he were obtain in service period should be paid. It
is difficult to understand the reasoning of the learned Presiding Officer, Labour Court.
3. The
High Court, however, by reason of the impugned judgment passed in the writ
petition filed by the respondent herein set aside the said award holding :
I
have heard learned counsel for the parties, I find that respondent-employee was
deployed as a daily wager in Class-III category and he has no right to the post
and deployment of daily wager is made purely on temporary basis on day to day
basis and respondent-employee could not have been deployed against any
class-III post and the appointment is said to have been de hors the rules and
daily wagers are not entitled to opportunity of hearing at the time of
dispensation of service on the ground of misconduct. Here the award impugned
passed by the Presiding Officer, Labour Court did not consider that the termination order dated 16.9.1989
was passed in reference to serious irregularities and misconduct. I find force
in the contention of the petitioner. The deployment of daily wagers are made in
exigency of work and when there was no work the deployment of daily wagers is
dispensed with without any notice or opportunity of hearing, even non-renewal
of appointment in consonance to the terms and conditions of appointment is not
illegal. The petitioners have no right to the post after a limited period.
4. Ms.
Suresh Kumari, learned counsel appearing for the appellant, inter alia,
submitted that as the services of the appellant were to be made permanent after
three months, the High Court committed an error in passing the impugned
judgment, particularly, in view of the fact that other persons similarly
situated have been made permanent. In any event, it was urged, as the statutory
requirements for valid termination of service have not been complied with, the
award of the Presiding Officer should be restored.
5. The
High Court, in its impugned judgment, inter alia, took into consideration the
purported misconduct committed by the appellant herein.
If
services were to be terminated on the ground that he was involved in financial
irregularities, a departmental proceeding was required to be initiated against
him. As indicated hereinbefore, he was asked not to join his duties w.e.f
16.7.1989.
6.
Such termination of service, having regard to the fact that he had completed
240 days of work during a period of 12 months preceding the said date, required
compliance of the provisions of Section 6N of the U.P. Industrial Disputes Act.
An order of retrenchment passed in violation of the said provision although can
be set aside but as has been noticed by this Court in a large number of
decisions, an award of reinstatement should not, however, be automatically passed.
7. The
factors which are relevant for determining the same, inter alia, are:
(i) whether
in making the appointment, the statutory rules, if any, had been complied with;
(ii) the
period he had worked;
(iii) whether
there existed any vacancy; and (iv) whether he obtained some other employment
on the date of termination in passing of the award.
8.
Respondent is a Local Authority. The terms and conditions of employment of the
employees are governed by a statute and statutory rules.
No
appointment can be made by a Local Authority without following the provisions
of the recruitment rules. Any appointment made in violation of the said rules
as also the constitutional scheme of equality as contained in Articles 14 and
16 of the Constitution of India would be a nullity.
9. Due
to some exigency of work, although recruitment on daily wages or on an ad hoc
basis was permissible, but by reason thereof an employee cannot claim any right
to be permanently absorbed in service or made permanent in absence of any statute
or statutory rules. Merely because an employee has completed 240 days of work
in a year preceding the date of retrenchment, the same would not mean that his
services were liable to be regularized.
10.
Applying the legal principles, as noticed hereinbefore, the relief granted in favour
of the appellant by the Labour
Court is wholly
unsustainable. The same also appears to be somewhat unintelligible.
11.
The High Court, on the other hand, did not consider the effect of non-
compliance of the provisions of Section 6N of the U.P. Industrial Disputes Act,
1947. Appellant was entitled to compensation notice and notice pay.
12. It
is now well settled by a catena of decisions of this Court that in a situation
of this nature instead and in place of directing reinstatement with full back
wages, the workmen should be granted adequate monetary compensation. [See
Madhya Pradesh Administration v. Tribhuban, 2007 (5) SCALE 397].
13. In
this view of the matter, we are of the opinion that as the appellant had worked
only for a short period, the interest of justice will be subserved if the High
Court judgment is modified by directing payment of a sum of Rs.50,000/- (Rupees
fifty thousand only) by way of damages to the appellant by the respondent. Such
payment should be made within eight weeks from this date, failing which the
same will carry interest at the rate of 9% per annum.
14.
The appeal is allowed to the aforementioned extent with costs.
Counsels
fee assessed at Rs. 10,000/-.
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