AF^ HIGH COURT OF CHHATTISGARII AT BILASPUR WRIT PETITION 0) No. 2760 of2008 PETITIONER (Defendant No. 1 in the Labour Court) RESPONDENTS (Petitioner in the Labour Court) State of Chhattlsgarh. VERSUS Poona Ram Yadav & another. AND WRIT PETITION (L) No. 2761 of2008 PETITIONER (Defendant No. 1 inthe Labour Court) RESPONDENTS (Petitioner in the Labour Court) State of Chhattisgarh. VERSUS Arvind Sonkar & another. Post for pronouncenient ofthe Judgment and Order on ^/03/2009 Sd/- SatishK.Agnihotrl Judge HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION CL) No. 2760 of2008 PETITIONER (DefendantNo. 1 inthe Labour Court) RESPONDENTS (Petitioner in the Labour Court) State of Chhattisgarh Through: DFO Bhanupratapur, West Kanker (C.G.) VERSUS 1. Poona Ram Yadav S/o Shri Samam Ram, Aged about 45 years, R/o Khodi Khana Road, Vasatnpur, Rajnandgaon (C.G.) (Defendant No. 2 inthe 2. Managing Director, Zila Vanopaj Labour Court) Sahkari Sangh Maryadit, Bhanupratapur, West Kanker (C.G.) WRIT PETITION (L) No. 2761 of2008 PETITIONER (Defendant No. 1 in the Labour Court) RESPONDENTS (Petitioner in the Labour Court) (Defendant No. 2 in the Labour Court) State of Chhattisgarh Through: DFO Bhanupratapur, West Kanker (C.G.) VERSUS : 1. Arvind Sonkar S/o Shri Gangaram Aged about 40 years, Through: Devendra Cycle Stores^ Nandai Chowk., Rajnandgaon (C.G.) 2. Managing Director., Zila Vanopaj Sahkari Sangh Maryadit, Bhanupratapur^ WestKanker(C.G.) WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA SB : Hon'ble Shri Satish K. Agnihotri, J. Present: Shri M.P.S.Bhatia^ Deputy Government Advocate for the State/petitioner. Shri H.B.Agrawal^ Senior Advocate with Ms. Rinki Tamrakar, Advocate for the respondent No. 1. (Passed on S^day of March, 2009) 1. The Writ Petition (L) No. 2760/2008 and 2761/2008 involve a common question of law asto whether a daily wager, without having proved asto whether he has worked for more than 240 days in one year, particularly in .^^^^. ^ .?- the preceding year, is entitled to reliefunder section 25-F ofthe Industrial Disputes Act^ 1947 (for short 'the Act, 19479) and secondly, whether the daily wager can be reinstated with back wages. Thus, both the petitions are being considered and decided by this common order. 2. The petitioner-State (in both the above writ petitions) impugns the order dated 7.12.2007 passed in Case No. 20/ID.Act/2000 (Ref) and 21/I.D. ^Act/2000 (Ref), by the Labour Court, Rajnandgaon, under provisions ofthe Act, 1947., whereby the removal ofthe respondent No. 1 was held as illegal and improper and the petitioner-State was directed to reinstate the respondent No. 1 (in both writ petitions) with 20 percent back-wages. 3. The indisputable facts, in nutshell, are that the respondent No. 1 (in W.P.(L) No. 2760/2008 and 2761/2008) were appointed on daily wages basis as Godown Keeper. The payment ofwages was made through muster roll. The appointment of the respondent No. 1 (in both petitions) was neither against any vacant post nor was in accordance with the service rules. The respondent No. 1 (in both petitions) were appointed on 1 May, 1991 initially as Labour/Security Guard in the godowns. They were removed from the service on 7.3.2000. In the meantime, a decision was taken by the then State ofMadhya Pradesh to regularize the ser^ices ofthe daily wages employees who have been appointed prior to 31.12.1988 and not thereafter. The matter was referred to the Labour Court for adjudication. The Labour Court, vide its order dated 7.12.2007, held that the respondent No. 1 (in both petitions) were removed from service without one month's notice in advance or payment ofsalary in lieu ofnotice. Thus, the termination was held as illegal and improper. Accordingly, the Labour Court directed reinstatement with 20 percent back-wages. 4. Shri M.P.S. Bhatia, leamed counsel appearing for the petitioner-State (in both petitions) would submit that the Labour Court, Rajnandgaon in identical facts ofthe case, in the matter ofLaxmikant vs. Divisional Forest Offlcer^ Forest Division, Bhanupratappur, has dlsmissed the claim of the employee vide order dated 27.7.2007. (Annexure P/2). The respondent No. 1 is an employee of Forest Department. The Forest Department is not an industry and further^ the respondent No. 1 has not established that the Forest Department is an industry. Thus, the Labour Court has no jurisdiction to entertain the dispute and pass the impugned orders. 5. The respondent No. 2 did not appear in the matter but has filed its return wherein it is contended that the respondent No. 1 (in both petitions) were daily wagers and were not appointed in accordance with the constitutional scheme of employment. Thus, the respondent No. 1 (in both writ petitions) are not entitled to reinstatement and back-wages, or continuation in service. 6. Per contra, Shri H.B.Agrawal^ learned Senior counsel would submit that this was not a case of regularization^ but reinstatement with 20% back- wages. 7. I have heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto. 8. The Supreme Court^ in a catena of decisions has held that forest is not an industry. In State ofGujrat & Others v. Pratamsingh Narsinh Parmar , the Supreme Court observed as under: "5. If a dispute arises as to whether a particular establishment or part of it wherein an appointment has been made is an industry or not, it would be for the person concerned who claims the same to be an industry, to give positive facts for coming to the conclusion that it constitutes "an industry". Ordinarily, a department ofthe Government cannot be held to be an industry and rather it is a part ofthe sovereign function. To find out whether the respondent in the writ petition had made any assertion that with regard to the duty which he was discharging and with regard to the activities of the organisation where he had been recruited, we fmd that there has not been an iota of assertion to that effect though, no doubt, it has been contended that the order of dismissal is vitiated for non-compliance with Section 25-F ofthe Act. The State in its counter-affidavit, on the other hand, refiited the assertion of the respondent in the writ petition and took the positive stand that the Forest Department cannot be held to be an industry so that the provisions of Section 25-F ofthe Act cannot have any application. In the absence of any assertion by the petltioner in the writ petition indicating the nature of duty discharged by the petitioner as well as the job of the establishment where he had been recmited, the High Court wholly erred in law in applying the principles enunciated in (2001) 9 SCC 713 C^7 the judgment ofthis Court mJagannath Maruti Kondhare to hold that the Forest Department could be held to be "an industry"/9 9. The leamed Judge has not examined the case under well-settled positions of law. Firstly, the daily wager who has been appointed dehors the constitutional scheme of employment, is not entitled to remstatement, continuation or regularization. The services of the daily wager can come to end at any day whenever his ser/ices are not required. If appointment itself is not in accordance with constitutional scheme of employment^ the daily wager cannot make a grievance against his termination. Secondly, even if, Section 25 F ofthe Industrial Disputes Act, 1947 (for short 'Act, 1947') is invoked^ the respondent No. 1 may be entitled to get retrenchment compensation ifthe respondent No.l has worked for more than 240 days or more in one year^ but no findings has been recorded by the learned Judge. 10. The Supreme Court, in the m^Uev of Secretary, State of Karnataka and others Vs. Umadevi (3) and others observed in para 47 as under: "47. Wlien a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual .or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concemed, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief ofbemg made permanent in the post." 11. In the matter of Indian Drugs & Pharmaceuticals Ltd. Vs. Workmen, Indian Drugs & Pharmaceuticals Ltd. , the Supreme Court observed as under: 2006 (4) SCC 1 ' 2007 (l)SCC 408 •^?@£^^ y/ %^^ w^.^^ "34.Thus, it is well settled that there is no right vested in any dally-wager to seek regularization. Regularization can only be done in accordance with the rules and not dehorse themles. ....." 35.In Surinder Singh Jamwal (Dr.) v. State ofJ&Kit was held that ad hoc appointment does not give any right for regularization as regularization is governed by the statutory rules." 12. The observations made hereinabove in cases (Supra), with approval^ the Supreme Court in the matter of Official Liquidator Vs. Dayanand and others^ has further explained about the rights of the daily wagers and regularization. Para 70 reads as under: "70. The Shift in the Court's approach became more prominent in A. Umarani v.Coop. Societies, decided by a x three-Judge Bench, wherein it was held that the State cannot invoke Article 162 of the Constitution for regularization of the appointments made in violation of the mandatory statutory provisions." 13. Applying the well settled principles oflaw in case of appointment ofdaily wagers, as enunciated by the Supreme Court.to the facts ofthe case, the respondent No. 1 were appointed on daily wages basis. The respondent No. 1 has failed to establish that they have worked for more than 240 days in a year, particularly in the preceding year. Thus, they are not entitled to the benefits under section 25 F of the Act^ 1947 also. Appointment of daily wagers is dehors the constitutional scheme of employment and is contrary to the provisions ofArticle 14 and 16 ofthe Constitution oflndia. Thus, the impugned orders are bad in law and deser/e to be quashed. 14. For the reasons mentioned hereinabove, these petition are allowed. The impugned orders dated 7.12.2007 passed in Case No. 20/ID/Act/2000 (Ref) and 21/I.D. Act/2000 (Ref) (Annexure P/l), are hereby quashed. No order asto costs. Sd/- Satish KAgnihotri Judge Amit I(2008)10SCC1