Labour Court has no jurisdiction to direct regularization when the workman has not been appointed in accordance with the constitutional scheme: Chhattisgarh High Court

 1 HIGH COURT OF CHHATTISGARH AT BILASPUR Writ PetitionNo. 70611 State of Chhattisgarh through the Executive Engineer Public Works Department Khairagarh District Rajnandgaon Chhattisgarh. Represented through Shri HR Dhruw aged about 48 years S o Shri Dhruw presently posted as Executive Engineer Public Works Department Khairgarh District Rajnandgaon and OIC of the case for Petitioner(s Mohit Ram S o Jagat Ram R o Village Chindari Post Chhuikhadan Tehsil Chhuikhadan District RajnandgaonR o C o Through Shri Navjeet Kumar Raman Advocate 25 12 Nehru NagarBhilai District Durg Respondents For Respondent worker Shri Sudeep Verma Dy. Govt. Advocate. Shri Sanket Pandey on behalf of Shri Anup Majumdar Advocate. Hon ble Shri Justice P. Sam Koshy Order on Board 1. The challenge in the present writ petition is to the order Annexures P 1 P 2 dated 25.01.2011 and 10.03.2008 passed by the Industrial Court as also by the Labour Court Rajnandgaon respectively. 2. The facts of the case in brief is that the respondent worker has approached the Labour Court Rajnandgaon under Section 31(3) of the Chhattisgarh Industrial Relations Act 1960against the alleged discontinuance of his service by the petitioner herein. The contention of the worker before the Labour Court was that he was initially appointed at Chhuikhadan Section of the Public Works Department Khairagarh Sub Division in the year 1992 and he continued to work under the petitioner continuously up till the year 1996 when his services were abruptly discontinued. According to the worker he had put in more than four years of service and have worked continuously for a period of 240 2 days before his discontinuance. Before discontinuance in the year 1996 he was not issued with any show cause notice nor compensation of any nature even retrenchment compensation was not paid. The worker thereafter had approached the Labour Court. After a prolonged litigation the Labour Court finally vide order dated 10.03.2008 allowed the application which the petitioner has filed and granted the relief of reinstatement with 50 percent backwages. 3. The said order of the Labour Court was subjected to challenge in an appeal under Section 65 of the CGIR Act before the Industrial Court Raipur where the case was registered as Civil Appeal No. 33 CGIR Act A II 2008. The Industrial Court also after considering all the contentions raised by the petitioner herein rejected the appeal of the petitioner maintaining the order passed by the Labour Court which has led to the filing of the present writ petition. 4. The contention of the petitioner is that the Labour Court has failed to appreciate the evidence which have come on record and have also ignored the pleadings that have been brought by the authorities before the Labour Court and as such the finding was per se contrary to evidence and also is a perverse finding. He also submits that the worker involved in the present dispute has failed to establish the fact that he continuously worked for a period of 240 days prior to date of discontinuance of his service by leading cogent evidence. Moreover the nature of engagement of the worker was purely temporary in nature and he did not have any substantial or indefeasible right created in his favour for claiming the benefit that he has sought for. 5. Learned counsel for the respondent worker on the other hand submits that from the plain reading of the impugned orders it clearly reflects that the award passed by the Labour Court and which has been affirmed by the 3 Industrial Court are based on finding of fact which does not warrant any interference. The contention also is that even otherwise pursuant to the order passed by the Labour Court at the first instance the worker stands reinstated in service way back in the year 2005 and since then he has been continuously working with the petitioner and as such he has now put in about 16 years of service after reinstatement and therefore applying the doctrine of equity the impugned orders do not warrant any interference at this juncture. According to the worker at this stage if the impugned awards are interfered with the worker would not only lose his employment but also would not be able to get any employment elsewhere considering the age that he has reached by efflux of time. Thus prayed for rejection of the writ 6. Very recently the Supreme Court in the matter of Mohd. Ali v. State of H.P and others 2018and others 2006(4)SCC 1 and submit that the Labour Court has no jurisdiction to direct regularisation when the workman has not been appointed in accordance with the constitutional scheme. Therefore order directing regularisation deserves to be quashed 9. The Supreme Court in State of Karnatakahas clearly held that daily wagers have no fundamental right to be absorbed in service as they cannot be said to be holders of a post since a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution of India. The decision in State of 5 Karnatakahas been followed recently by the Supreme Court in the matter of State of Tamil Nadu Through Secretary to Government Commercial Taxes and Registration Department Secretariat and another v. A. Singamuthu 2017(4)SCC 113 in which in paragraph 15 Their Lordships of the Supreme Court observed as under: “15. In a similar issue concerning part time sweepers the State of Tamil Nadu has filed an appeal before this Court and those appeals were allowed by this Court by judgment dated 21 2 2014 in School Education Deptt. State of T.N. v. R Govindaswamy. After referring to various judgments on this issue in paras 5 to 7 this Court held as under:(supra) this Court held as under:48. ... There is no fundamental right in those who have been employed on dailywages or temporarily or on contractual basis to claim that they have a right to be absorbed in service. As has been held by this Court they cannot be said to be holders of a post since a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. 7. In Union of India v. A.S. Pillai9 this Court dealt with the issue of regularisation of part time employees and 6 the Court refused the relief on the ground that part timers are free to get themselves engaged elsewhere and they are not restrained from working elsewhere when they are not working for the authority employer Being the part time employees they are not subject to service rules or other regulations which govern and control the regularly appointed staff of the department Therefore the question of giving them equal pay for equal work or considering their case for regularisation would not arise.” 10.Admittedly the respondent s appointment is not in accordance with the constitutional scheme by regular advertisement and he is merely a daily wager who has been directed to be regularised by the Labour Court. The order of the Labour Court runs contrary to the decision of the Supreme Court in State of Karnataka followed in A. Singamuthu s case 11.Applying the aforesaid principles of law laid down by the Supreme Court in the aforesaid cases the present writ petition stands partly allowed to the extent that the impugned order does not warrant any interference to the order of reinstatement. However so far as grant of 50 percent backwages is concerned the writ petitions of the State so far as two other workers whose cases were also decided along with the order under challenge in the present writ petition i.e. WPL No.7069 of 2011 and 7347 of 2011 wherein this court had already decided the same upholding the order of reinstatement with 50 percent backwages however the order of regularization was set aside. Therefore in view of the identical matters already being disposed of this High Court in the aforesaid two writ petitions vide judgment dated 01.08.2018 the present writ petition also deserves to be and is accordingly partly allowed in similar terms i.e. the order of 7 reinstatement with 50 percent backwages is affirmed however the order of regularization stands set aside quashed. 12.The writ petition accordingly stands partly allowed and disposed of. P. Sam Koshy

Summary: Daily wagers have no fundamental right to be absorbed in service as they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution of India. The High of Court Jharkhand in the case of State of Chhattisgarh vs Mohit Ram S/o Jagat Ram [Writ Petition (L) No. 7062 of 2011] by Single Bench consisting of Hon’ble Shri Justice P. Sam Koshy. The facts of the case, in brief, are that the respondent-worker has approached the Labour Court Rajnandgaon under Section 31(3) of the Chhattisgarh Industrial Relations Act, 1960 (in short, IR Act) against the alleged discontinuance of his service by the petitioner. The contention of the petitioner is that the Labour Court has failed to appreciate the evidence which have come on record and have also ignored the pleadings that have been brought by the authorities before the Labour Court and as such the finding was per se contrary to evidence and also is a perverse finding. He also submits that the worker involved in the present dispute has failed to establish the fact that he continuously worked for a period of 240 days prior to the date of discontinuance of his service by leading cogent evidence. Moreover, “the nature of engagement of the worker was purely temporary in nature and he did not have any substantial or indefeasible right created in his favour for claiming the benefit that he has sought for.” Learned Counsel for the respondent-worker on the other hand submits that from the plain reading of the impugned orders it clearly reflects that the award passed by the Labour Court and which has been affirmed by the Industrial Court is based on a finding of fact which does not warrant any interference. The contention also is that even otherwise pursuant to the order passed by the Labour Court at the first instance the worker stands reinstated in service way back in the year, 2005 and since then he has been continuously working with the petitioner and as such he has now put in about 16 years of service after reinstatement and therefore applying the doctrine of equity the impugned orders do not warrant any interference at this juncture. Relying on the case of State of Karnataka v. Umadevi, the court held that “There is no fundamental right in those who have been employed on daily wages or temporarily or on a contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed.”