IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1196 of 2004 (M/S) Khadi and Village Industry Commission Through its Director Khadi and Village Industry Kashipur ………Petitioner Versus 1. Industrial Tribunal/Labour Court Uttaranchal, Haldwani, Nainital. 2. Ramesh Chandra Singh S/o Ram Charan Singh R/o Village Kharkpur Devipura, P.O. Kashipur District Udham Singh Nagar. ….Respondents. Shri Anil Kumar Joshi, Advocate for the petitioner. Shri K.S. Bhaskar, Advocate for respondent No. 2. Hon’ble Prafulla C. Pant, J. By means of this petition, moved under Article 226 read with 227 of Constitution of India, the petitioner has sought writ in the nature of certiorari quashing the order dated 26.04.2004, passed by Industrial Tribunal/Labour Court, Uttarakhand, Haldwani, whereby said court has declared that the respondent No. 2-Ramesh Chandra Singh, is entitled to be regularised in service. 2. Heard learned counsel for the parties and perused the affidavit, counter affidavit and rejoinder affidavit, filed by the parties. 2 3. Following question was referred by the Government to the Industrial Tribunal/Labour Court, Haldwani:- Whether not regularising the services of Ramesh Chandra Singh (respondent No. 2), a daily wage worker w.e.f. 23/26.07.1989, by the employer, is just and lawful? If not, to what benefits/compensation, with particulars, the workman is entitled? 4. Brief facts of the case are that the petitioner is Khadi and Village Industry Commission, who used to run a Match Box Factory in Kaliapur (Kashipur). Respondent No. 2- Ramesh Chandra Singh was engaged on daily wages in said factory in the year 1981. It appears that his services of the respondent No. 2 were terminated earlier, in the year 1986, but the same was challenged before the Labour Court by the workman and he was directed to be reinstated, vide order dated 23.05.1992 by the Labour Court, which was affirmed vide order dated 29.03.1996, passed by Allahabad High Court in the writ petition, filed by the employer. Consequently, respondent No. 2 was reinstated as daily wage worker. Now the case of respondent No. 2 is that a settlement was entered between the workman and the employer on 23.07.1989 under which the employer (present petitioner) agreed to 3 regularise the services of respondent No. 2. The grievance of respondent No. 2 is that his services were not regularised in pursuance to the settlement dated 23.07.1989. Both the parties filed their written statements before the Labour Court after the reference was made in respect of the above question to the Industrial Tribunal/Labour Court, Haldwani. The employer denied the alleged settlement under which the respondent No. 2 claims to be regularised. The parties led their evidence. After hearing the parties, the Industrial Tribunal/Labour Court, Haldwani found that though the alleged settlement was not proved, but since for more than five years, respondent No. 2 was working on daily wages, non regularisation of his services is improper. Accordingly, Industrial Tribunal/Labour Court directed vide impugned award dated 26.04.2004, held that the workman (present respondent No. 2) is entitled to regularisation w.e.f. 01.04.2001. 5. Learned counsel for the petitioner submitted that the Industrial Tribunal/Labour Court has erred in law in holding that the respondent No. 2 is entitled to regularisation, without referring to any law. On the other hand, Shri K.S. Bhaskar, learned counsel for respondent No. 2 contended that since respondent No. 2 was engaged on daily wages 4 in the year 1981, and there was enough evidence to show that the workman (respondent No. 2) had worked for more than 240 days in a calendar year, as such, he was entitled to regularisation, as directed by the Industrial Tribunal. But learned counsel for respondent No. 2 could not show me any law, which provides that on completion of five years of service, as daily wage worker, a person is entitled to regularisation in service. Learned counsel for respondent No. 2 referred to Section 6N of U.P. Industrial Disputes Act, 1947, and submitted that after completing more than 240 days in a calendar year, a daily wage worker is entitled to compensation like a regular employee. I have gone through provisions of Section 6N of the Act. It only talks of compensation to which a workman is entitled on retrenchment. This provision has nothing to do with the entitlement of regularisation. 6. Having considered submissions of learned counsel for the parties, and after going through the impugned award, passed by the Industrial Tribunal/Labour Court, this Court finds that neither there is any settlement proved on the record nor any law referred under which a daily wage worker after completion of five years of service, is entitled to regularisation. As such, the approach and direction given by the 5 Industrial Tribunal/Labour Court, holding that non regularisation of workman (respondent No. 2) is illegal, is wrong. 7. On behalf of respondent No. 2, attention of this Court is drawn to annexure C.A. 1 to the counter affidavit, whereby five persons namely Munib Ram, Dalep Ram, Hari Gopal, Mahendra Singh and Tota Singh, are appointed under regular establishment by the petitioner, vide its order dated 28.08.1995. Learned counsel for respondent No. 2 submitted that all these persons were daily wage workers. But he failed to state if the petitioner was senior to aforesaid persons. There is no pleading to that effect either before the Labour Court or before this Court that anyone junior to respondent No. 2 was regularised. Mere regularisation of some of the employees in the year 1995, does not entitle the petitioner’s regularisation in service. For the purposes of regularisation, a post is required to be vacant against which the employee may draw his salary. Apart from this, even if the post is vacant, unless there is some law to regularise the services of a daily wage worker, against such post, the post is required to be filled, as per the procedure under the rules. 8. Since the Labour Court without referring to any law, has simply declared that after 6 completion of five years, as daily wage worker, the respondent No. 2 is entitled to regularisation, the same cannot be upheld. For entitlement of regularisation, there must be some law under which daily wage worker is to be regularised. There is no settlement found to have arrived at between the parties under which it can be said that respondent No. 2 was entitled to regularisation. Therefore, the impugned award, passed by the Industrial Tribunal/Labour Court is liable to be quashed. Accordingly, the writ petition is allowed. The impugned award, passed by the Industrial Tribunal/Labour Court, is quashed. (Prafulla C. Pant, J.) Dt:26.08.2009 Sweta