IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.487 of 2002 Decided on : September 9, 2008 Keshav Singh and another …Petitioners. Versus Union of India and others …Respondents. Coram The Hon’ble Mr. R.B. Misra, Judge. The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes. For the Petitioners : Mr. Surinder Sharma, Advocate. For the Respondents : Ms Shilpa Sood, Central Government Counsel. Per R.B. Misra, Judge( Oral ) The present writ petition has been preferred under Article 226/227 of the Constitution of India against the order, dated 6th November, 2001, passed by the Central Administrative Tribunal (in short “learned Tribunal”), in Original Application No.1186/HP/97, whereby the prayers of the petitioners for declaring the action of the respondents of creating a fiction of contract labour in place of daily wage engagement of the petitioners as drivers as illegal; and for allowing the petitioners to continue as daily waged drivers till the regularly appointed drivers were made available with further prayer for setting aside the verbal disengagement of the petitioners, as drivers were adjudicated upon and the Original Application of the petitioners was dismissed. Whether reporters of the local papers may be allowed to see the judgment? …2… 2. Petitioners’ case before the learned Tribunal was that they were qualified and eligible for the post of drivers and, as such, they were engaged as drivers by Executive Engineer (Civil), Telecommunication Civil Division, Padam Cottage, Mandi, District Mandi, H.P., on 13th March, 1995 and 6th April, 1996, respectively. Thereafter, the respondents created a fiction in the name of contractual labour for daily waged drivers, whereas, the petitioners were performing daily waged duty and were being paid wages at the daily rates. According to the petitioners, the posts of drivers were available, but despite their endeavour they were not allowed to continue as daily wage drivers and were disengaged from Department on 5th November, 1997 and 7th November, 1997, respectively. 3. Respondents, herein, filed their written reply before learned Tribunal contending that the petitioners were never employed by the respondents, but were kept by the contractor who was to provide services of drivers to the Executive Engineer, Telecommunication and as such they were not holding civil posts under the Central Government. According to the respondents, the petitioners have no legal right to be adjudicated upon before the learned Tribunal as the work was being executed through the contractor for which the contractor had deployed the petitioners who were rendering service as drivers and were being paid by the contractors and not by the respondents. According to the respondents, there was no appointment order ever issued in favour of the petitioners. 4. After perusal and analysis of the documents, in the absence of any written appointment order, learned Tribunal came …3… to the conclusion that the petitioners were deployed and paid by the contractor and as such were not under the direct employment of the respondents. There was also no relationship of employer and employee between the petitioners and the respondents. Learned Tribunal by observing that the petitioners were not holding any civil post and, therefore, the Original Application was held not maintainable, and was accordingly dismissed. 5. It has been submitted by Ms Shilpa Sood, learned counsel for the respondents, that in the absence of any written order of employment, the petitioners cannot be said to have been deployed directly by the respondents. However, issuance of certificate by a contractor that the petitioners were serving under the Executive Engineer shall not be treated to be a material and conclusive document in favour of the petitioners that they were actually employed by respondent No.3. According to Ms Sood, in view of the decision of Hon’ble Supreme Court in (1997) 11 SCC 521, Escorts Limited versus Presiding Officer and another the termination of the service of the workman as a result of the non-renewal of the contract of employment or in view of the conditions of contractual deployment, does not amount to retrenchment, and does not attract the provisions of Section 25-F of the Industrial Disputes Act, 1947 (for short “I.D. Act”), by virtue of insertion of clause (bb) in Section 2(oo) of the I.D. Act. The judgment of the Hon’ble Supreme Court in Escorts case (supra) was based on an earlier decision in M. Venugopal v. Divisional Manager, LIC, (1994) 2 SCC 323. 6. Ms Shilpa Sood has further submitted that Hon’ble Supreme Court in Secretary, State of Karnataka and others …4… versus Umadevi (3) and others, (2006) 4 SCC 1, has held that the daily wager has no right to post. As such, non-renewal of the contractual employment, as daily wage driver, cannot be said to be illegal. 7. We have heard the learned counsel for the parties and have also gone through the record. In our respectful consideration, we find sufficient force in the submissions of Ms Sood. We have noticed that neither any written employment order was ever issued in favour of the petitioners nor any document has been shown before the learned Tribunal as well as before us that the petitioners were deployed directly by the respondents. In absence of any of the document, we find that the learned Tribunal has rightly arrived at the conclusion that the petitioners were employed on contractual basis, as drivers, by the contractor, who was being paid consolidated amount for disbursement to the petitioners, therefore, we are of the considered view that the petitioners were deployed on contractual basis and were not holding any civil post under the respondents, therefore, non-renewal of their deployment as daily wager cannot be said to be illegal. We see no illegality in the order of the learned Tribunal. The writ petition is devoid of merit, therefore, the same is dismissed. ( R.B. Misra ), J. September 9, 2008(sd) ( Surjit Singh ), J.