State Of Chhattisgarh And ORS. v. Madan Lal Sahu And ORS.
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IN THE HIGH COURT OF JUDICATURE AT BILASPUR
Writ Petition No. 1918 OF 2005 State of Chhattisgarh, Through : Secretary, Government of Chhattisgarh, Public Works Department, D.K.S. Bhawan, Mantralaya, Raipur, Chhattisgarh Chief Engineer, East PWD, Raipur Superintending Engineer, Raipur Zone, PWD, Raipur Executive Engineer, Raipur Division No. 2 PWD Raipur PETITIONER (S) -.^'
3.
4.
VERSUS
Madanlal Sahu S/o Lilaram Sahu Resident of Tikra Para Raipur (C.G.) Presiding Officer Industrial Court Raipur (C.G.) RESPONDENT (S) ;ft APPLICATION UNDER ARTICES - 227 OF THE CONSrTUTION OFINDIA
,^-,^-'-,^,-^ 'sr NAFR HIGH COURT OF CHHATTISGARH. BILASPUR WPNo.1918of2005 State Of Chhattisgarh& Ors.
-- Petitioner
Versus
• Madan Lal Sahu & Ors.
-- Respondent For Petitioner/State Shri Y. S. Thakur, Dy. AG For Respondents None Hon'ble Shri Justice Prashant Kumar Mishra Order On Board 02/03/2016 1.
Challenge in this writ petition is to the order passed by the labour Court on 13.06.2000 and the appellate order passed by the Industrial Court on 23.08.2004 directing permanent classification of the respondent workman, which amounts to regularization.
2.
The respondent workman moved an application before the labour Court seeking permanent classification, amountjng to regularization, on the post ofWatchman/Chowkidar w.e.f. 19.11.1996 togetherwith all consequential benefits on the ground that he was working on daily wages as muster roll labourer from July 1987 in the office ofthe Sub Divisional Officer, Public Works Department, Sub Division No.4, Medical College, Raipur, and was not regularized despite State Government's circular dated 09.01.1990.
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The labour Court allowed prayer directing his permanent classification/regularization w.e.f. 19.11.1996 and the said order has been affirmed bythe Industrial Court.
4.
The Supreme Court has laid down the principle that regularization of an employee working in the government department, who was initially appointed under the constitutional scheme of appointment, is different than permanent classification/regularization of a workman, who was a daily wager having been appointed de hors the constitutional scheme of appointment.
|N'«i1nnin 5.
With regard to regularization of the employees working on temporary basis, the Supreme Court in Secretary, State of Karnataka and others v. Umadevi (3) and others1, observed as under: "Thus, it is clear that adherence to the rule of equality public employment is basis feature of our Constitution and since the rule of law is the coreof our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article Constitution.
Therefore, consistent with scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee."
In State of Uttaranchal & Anr. v. Prantiya Sinchai Avam Bandh Yogana Shramik Mahaparishad2, the Supreme Couri: has held thus in para 10:- The next question which requires consideration is whether completion of 240 days in a year confers any right on an employee or workman to claim (2006)45cci 2007 AIR SCW 6807
regularization service.
In Madhyamik Shiksa Parishad v. Anit Kumar Mishra & Ors. (2005 (5) SCC 122), it was held that the completion of 240 days work does not confer the right to regularization under the Industrial Disputes Act. It merely imposes certain obligations on the employer at the time oftermination of the sen/ice. In M.P. Housing Board and Anr. v. Monoj Srivastava (2006 (2) SCC 702) (paragraph 17) after referring to several earlier decisions it has been re-iterated that it is well settled that only because a person had been working for more than 240 days, he does not derive any legal right to be regularized in service. This view has been reiterated in Gangadhar Pillai v. Siemens Ltd. (2007 (1) SCC 533). The same question has been examined in considerable detail with reference to employee working in a Government Company in Indian Drugs and Pharmaceuticals Ltd. v. Workman, Indian Drugs & Pharmaceuticals Ltd. (2007 (1) SCC 408) and paragraphs 34 and 35 ofthe judgment are being reproduced below:-
34. Thus, it is well settled that there is no right vested any daily wager seek regularization.
Regularization can only be done in accordance with the rules and not de hors the rules. In the case of E. Ramakrishnan and Ors. v. State of Kerala and Ors. (1996) 10 5CC 565) this Court held that there can be no regularization de hors the rules. The same view was taken Dr.
Kishore v.
State of Maharashtra (1997) 3 SCC 209) and Union of India and Ors. v. Bishambar Dutt (1996) 11 SCC 341).
The direction issued by Services Tribunal for regularizing the services of persons who had not been appointed, on regular basis in accordance with the rules was set aside although the petitioner had been working regularly for a long time.
35. In Dr. Surinder Sinqh Jamwal and Anr. v.
State of Jammu & Kashmir and Ors. (AIR SS 2775), it was held that ad hoc appointment, does not give any right for regularization as regularization is governed by the statutory rules.
The above position was highlighted Hindustan Aeronautics Ltd. v. Dan Bahadur Singh and Ors. (2007 (6) SCC 207) It is not in dispute that some of the concerned workmen have been regularized.
Before any direction for regularization can be given, the factual position has to be noted as towhether there was any sanctioned post. Apparently, in the present case, these factual details have not been discussed by
(W either the Labour Court or the High Court. We, therefore, remit the matter to the Tribunal to consider the factual background and to decide the matter afresh in the light of what has been stated jn Uma Devis case (supra) and Hindustan Aeronautics case (supra).
The Supreme Court in Hindustan Aeronautics Ltd. v. Dan Bahadur 7.
Singh & Ors.3, has held thus in paras 12 & 14:- 12.
The appellant, Hindustan Aeronautics Ltd., is government company within meaning Section 617 of the Companies Act. What will be the legal position Government Company and whether its employees can be treated be government servants was examined Heavy Engineering Mazdoor Union v. State of Bihar and Ors. (1969) 1 SCC 765 and it was held as under in para 4 ofthe reports:
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"..... It is an undisputed fact that the company was incorporated under the Companies Act and it is the company so incorporated which carries on^the undertaking. The undertaking, therefore, is not one carried on directly by the Central Government or by any one of its departments as in thecase of posts and telegraphs or the railways....."
In A.K. Bindal v. Union of India (2003) 5 SCC 163 the difference between an employee of a government and an employee Government Company was pointed out and it was held :
"17. The legal position is that identity of Government Company remains distinct from government.
The Government Company is not identified with the Union but has been placed under a special system of control and conferred certain privileges by virtue of provisions contained Sections 619 and 620 of the Companies Act.
Merely because entire share holding is owned by Central Government will not make incorporated company as Central Govemment.
It is also equally well settled that employees Government Company are not civil servants and so are not entitled to the protection afforded by Article AIR 2007 SC 2733
^''^.^ Constitution (See Pyare Lal Sharma v. Managing Director (1989) 3 SCC 448)."
An employee working an industrial establishment enjoys limited kind protection.
He may lose his employment in various contingencies which are provided under the Industrial Disputes Act such as lay off as provided in Section 25-C, retrenchment as provided Section 25-F, transfer industrial establishment or management of an undertaking as provided Section 25-FF, closure of undertaking as provided in Section 25-FFF. He may be entitled to notice orwages in lieu of notice and monetary compensation depending upon the length ofservice putin by him. But the type of tenure of service normally enjoyed by permanent employee Government Service, namely, to continue in service till the age of superannuation, may not be available an employee or workman working an industrial establishment on account of various provisions in the Industrial Disputes Act where his tenure may be cut short not on account of any disciplinary action taken against him, but on account unilateral act of the employer. Therefore, the claim for permanency an industrial establishment has be judged from different angle and would have different meaning.
14. The next question which requires consideration is whether completion of 240 days in a year confers any right on an employee or workman to claim regularization sen/ice.
In Madhyamik Shiksha Parishad v. Anil Kumar Mishra & Ors. (2005) 5 SCC 122 itwas held that the completion of 240 days' work does not confer the right to regularization under the Industrial Disputes Act.
It merely imposes certain obligations on the employer at the time of termination of the services. In M.P. Housing Board & Anr. v. Manoj Shrivastava (2006) 2 SCC 702 (paragraph 17) after referring to several earlier decisions it has been reiterated that it is well settled that only because a person had been working for more than 240 days, he does not derive any legal right to be regularized in service. This view has been reiterated in Gangadhar Pillai v. Siemens Ltd. (2007) 1 SCC 533. The same question has been examined in considerable detail with reference an employee working Government Company Indian Drugs and Pharmaceuticals Ltd. v. Workman, Indian Drugs & Pharmaceuticals Ltd. 2007(1) SCC 408.
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8.
The Supreme Court in State of M.P. and Ors. v. Lalit Kumar Verma4, held thus in para 7:- "7. A workman, therefore, would be entitled to classification permanent or temporary employee, if the conditions precedent therefor are satisfied. Respondent was not appointed against a clear vacancy. He was not appointed in a permanent post or placed on probation.
He had also not been given ticket permanent employee. Working on daily wages alone would not entitle him to the status of a permanent employee"
9.
The law is thus well settled that even the High Court cannot direct regutarization of an employee de hors the scheme framed by the State Government directing consideration of the cases in accordance with the State Government's policy. Even in such cases, the hligh Court can ^- only direct consideration as perthe State Government's policy and not a direction to straightway regularize the workman/daily wager. 10.
For foregoing, impugned order directing permanent classification workman, which amounts regularization, deserves to be and is hereby set aside.
11.
Accordingly, the writ petition stands allowed. Sd/- Prashant Kumar Mishra Judge Nirala/Gowri AIR 2007 SC 528