# Sanjay Kumar v. State of U.P. and others

- **Citation:** (2004) 1 ILRA 138
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-10-10
- **Case number:** Civil Misc. Writ Petition No.4028 of 1999
- **Bench:** Rakesh Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sanjay-kumar-v-state-of-u-p-and-others-40247
- **Pages:** 5

## Headnote

act
1947,
sections 2 (s), 6-N-daily wager not
appointed against any post not entitled
for
regularisation-even
if
has
continuously worked for 240 days in
previous
year-he
entitled
to
retrenchment
compensation,
with
interest, but can not for regularisation.

Held- Para 11

The petitioner was engaged on daily
wage and was not appointed against any
post, he has no right to be regularized in
service as he failed to prove before the
http:\\allahabadhighcourt.nic.in
1 All] Sanjay Kumar V. State of U.P. and others
139
Labour Court that he was appointed
against a sanctioned post in substantive
vacancy. Engagement for 240 days from
time to time on daily wage would not
attract the provision of Section 6-N of
the U.P. Industrial dispute Act unless it
could
established
that
he
had
continuously worked for 240 days in
previous year counting backward from
the date of termination of service and
even in that eventuality he would have
only
been
entitled
to
retrenchment
compensation with interest.
Case Laws discussed:-
1992(4)SCC 99
1997(4)SCC 391
1978(2)SCC 213
2002(2)SCC 622
1998(78) FLR 143
1997(77) FLR25 (SC)

## Text

http:\\allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
138
15. The Divisional Commissioner
i.e. Appellate Authority in his order dated
12th Nov. 2001, had imposed large
number of conditions and one of them
contained in Clause 5 has been that the
application of the licenses for a renewal
shall be considered only if they shift from
the present premises to a safer place and
close their business in the existing
premises.

16. The said order had never been
challenged by any of the licensees and
attained finality. We fail to understand as
on what basis the petitioner can claim any
relief at subsequent stage and how he can
be permitted to agitate the issue that the
said condition was not binding upon him.

17. Undoubtedly, in the instant case
the petitioner is being asked for the last 3
years to shift his business outside the
thickly populated area and the order is
being passed in the larger public interest
and it is settled legal proposition that the
public interest is much higher than the
interest of the individual. We fail to
understand how the petitioner has not yet
made an appropriate arrangement for
shifting his business outside the thickly
populated area. There is nothing on record
to show that during the last 3 years, any
attempt has been made by the petitioner to
shift his business outside the densely
populated area.

18. Undoubtedly, orders are being
passed time and again only in larger
public interest and the public interest is
the supreme law and Court's should not
come to rescue such an individual, if the
public interest demands for a particular
action on the part of the statutory
authority.

Thus, in view of the above, we are of
the considered opinion that the impugned
order does not require any interference by
this Court.

19. Needless to say, that if petitioner
makes an alternative arrangement and
shifts his businesses outside the densely
populated area and satisfies the licensing
authority that he would fulfill all the
conditions for grant of license and his
application
shall
be
considered
for
renewal strictly in accordance with law.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.10.2003.

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No.4028 of 1999

Lochan Prasad

...Petitioner
Versus
Executive
Engineer
Public
Works
Department

 ...Respondent

Counsel for the Petitioner:
Sri Bhoopendra Nath Singh

Counsel for the Respondents:
S.C.

U.P.
industrial
Disputes
act
1947,
sections 2 (s), 6-N-daily wager not
appointed against any post not entitled
for
regularisation-even
if
has
continuously worked for 240 days in
previous
year-he
entitled
to
retrenchment
compensation,
with
interest, but can not for regularisation.

Held- Para 11

The petitioner was engaged on daily
wage and was not appointed against any
post, he has no right to be regularized in
service as he failed to prove before the
http:\\allahabadhighcourt.nic.in
1 All] Sanjay Kumar V. State of U.P. and others
139
Labour Court that he was appointed
against a sanctioned post in substantive
vacancy. Engagement for 240 days from
time to time on daily wage would not
attract the provision of Section 6-N of
the U.P. Industrial dispute Act unless it
could
established
that
he
had
continuously worked for 240 days in
previous year counting backward from
the date of termination of service and
even in that eventuality he would have
only
been
entitled
to
retrenchment
compensation with interest.
Case Laws discussed:-
1992(4)SCC 99
1997(4)SCC 391
1978(2)SCC 213
2002(2)SCC 622
1998(78) FLR 143
1997(77) FLR25 (SC)

(Delivered by Hon'ble Rakesh Tiwari, J.)

Heard counsel for the parties and
perused the record.

2. This writ petition has been filed
challenging the validity and correctness of
the award in adjudication case no.3 of
1994 passed by the Labour Court,
Varanasi.

3. The petitioner claims that he was
appointed as "beldar" against a permanent
post on daily wages w.e.f. 26.3.1991 and
had worked under the Executive Engineer
P.W.D. Rashtriya Nirman Khand Jyoti
Chauraha, Bareilly continuosly for more
than 240 days in a year that he was denied
duty by the respondent orally w.e.f.
26.1.1993 without complying with the
provisions of section 6N of the Industrial
Dispute Act 1947.

4. The petitioner raised an industrial
dispute before the Regional Conciliation
Officer,
Bareilly
alleging
illegal
termination
of
service
which
was
registered as C.P.Case No. 133b of 1983.
When the efforts for settlement of dispute
by the Regional Conciliation Officer
failed, the following matter of dispute was
referred to the Labour Court Varanasi
vide
G.O.
dated
31.12.1993.
The
reference of the labour Court is as under:-
ßD;k lsok;kstdksa }kjk muds deZpkjh Jh ykspu çlkn
iq= Jh lqUnj yky vLFkkbZ nSfud Hkksxh csynkj dks fnuk¡d
26-05-1993 ls lsok ls i`Fkd fd;k tkuk mfpr o
oS/kkfud gSAÞ

5. The Labour Court relying upon
the law laid down by the Apex Court in
Bombay Telecom Canteen Employees
Association versus Union of India
1997(77) FLR 25 SCC, held that Public
Work Department is not an industry and
that the petitioner was a daily wager
employee as such he does not fall within
the ambit of definition of workman in
Section 2 (s) under the Industrial Dispute
Act 1947. It further held that the
petitioner had himself stopped coming to
work and had abandoned his services their
being no termination by any over act of
the employer and that disengagement of a
daily wager is not retrenchment within the
meaning of section 2(s) of the aforesaid
Act.

6. In so far as the question whether
the P.W.D. is an industry or not is
concerned it is now firmly settled by a
catena of judgments of the Apex Court
that Public Works Department is an
industry. Reference in this regard may be
had to Division Bench judgement of the
Apex Court in Executive Engineer,
CPWD,
Indore
Versus
Madhukar
Purshottam Kolharkar and another,
(2002) 2 SCC 622. Relying upon the
decision in Bangalore Water Supply
and Sewerage Board Versus A.Rajappa
(1978) 2 SCC 213 the Apex Court held
http:\\allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
140
that the central Public Works Department
an industry and further that there was no
substance to the argument to the contrary.

7. In so far as the contention of the
petitioner that he was a daily wager and
not an workman under Section 2 (s) of the
Industrial Dispute Act 1947, the Labour
Court has given a finding of fact based on
the evidence of the workman that the
workman had not been given any
appointment letter and was engaged at the
site in exigency of work as daily wager.
The appointments in the department are
regulated by rules. Neither any averments
nor any material had been brought on
record by the petitioner that he was
appointed against a post in accordance
with rules. On the contrary it is evident
from the pleadings of the workman that
he was engaged on daily wages on day-today basis. He was a temporary employee
and his disengagement from service
cannot be construed as retrenchment as
defined in Section 2(s) of the U.P.
Industrial dispute Act 1947 as per law laid
down by the Apex Court in Himanshu
Kumar Vidyarthi and others Versus
State of Bihar 1997(4) SCC 391.

2. (s) "Retrenchment" means the
termination by the employer of the service
of a workman for any reason whatsoever,
otherwise than as punishment inflicted by
way of disciplinary action, but does not
include-

(i)
Voluntary
retirement
of
the
workman or
(ii)
Retirement of the workmen on
reaching the age of superannuation
if the contract of employment
between the employer and workman
concerned contains a stipulation in
that behalf;

8. The workman had himself
stopped coming to work and there was no
act of "termination by the employer" of
the services of the workman, the key to
phrase to bring the termination for any
reason what so ever within the ambit of
the word "Retrenchment" as defined in
the Act is that there has to be an act of the
employer in termination of the services of
the workman. The termination brought
about by the workman himself like
abandonment, refusal to work etc. would
not fall within the ambit of the definition
of
"Retrenchment".
Applying
the
keywords it is evident that in the instant
case the workman was not retrenched by
the employer and it is not a case of
retrenchment. Disengagement of a daily
wager also does not fall within the ambit
of retrenchment even though such daily
wager may have worked for 240 days in a
year. I am strengthened in my view by the
judgement of Apex Court in Himanshu
Kumar Vidyarthi and Others Versus
State of Bihar and others (Supra) in
which it has been held that:-

"Every
department
of
the
Government cannot be treated to be
industry. When the appointments are
regulating by the statutory rules, the
concept of industry to that extent stands
excluded.
The
petitioners
were
not
appointed to the posts in accordance with
the rules but were engaged on the basis of
need of the work. They are temporary
employees working on daily wages. Their
disengagement from service cannot be
construed to be as retrenchment under the
Industrial Disputes Act. The concept of
retrenchment
therefore
cannot
be
stretched to such an extent as to cover
these employees. Since the petitioners are
only daily wage employees and have no
http:\\allahabadhighcourt.nic.in
1 All] Lochan Prasad V. Executive Engineer Public Works Department and another
141
right to the posts, their disengagement is
not arbitrary."

9.

In
Delhi
Development
Horticulture Employees Union Versus
Delhi Administration 1992 (4) SCC 99
Para 23, it was emphasized by the Apex
Court as to how judicial sympathy with
such workman engaged in daily wages
employed
in
project
scheme
or
programme of the State Government
could boomrang leading to pernicious
consequences. The concern of the Apex
Court
in
ordering
indiscriminate
regularization of daily wages by the
Courts is reflected thus:-

"The Courts can take judicial notice
of the fact that such employment is
sought and given directly for various
illegal considerations including money.
The employment is given first for
temporary periods with technical breaks
to circumvent the relevant rules, and is
continued for 240 or more days with a
view to give the benefit of regularization
knowing the judicial trend that those who
have completed 240 or more days are
directed to be automatically regularized.
A good deal of illegal employment market
has developed resulting in a new source
of corruption and frustration of those who
are waiting at the employment exchanges
for years. Not all those who gain such
back-door entry in the employment are in
need of the particular jobs. Though
already employed elsewhere, they join the
jobs for better and secured prospects. That
is why most of the cases, which come to
the
courts,
are
of
employment
in
government
departments,
public
undertakings or agencies. Ultimately it is
the people who bear the heavy burden of
the surplus labour. The other equally
injurious
effect
of
indiscriminate
regularization has been that many of the
agencies have stopped undertaking casual
or temporary works though they are
urgent and essential for fear that if those
who are employed on such works are
required to be continued for 240 or more
days have to be absorbed as regular
employed although the works are time
bound and there is no need of the
workmen beyond the completion of the
works undertaken. The public interests are
thus jeopardized on both count."

10. After appreciation of evidence
and pleadings of the parties the Labour
Court has given a finding of fact that
workman was a daily wager not appointed
against any post. This fact was also
admitted by the workman in his evidence
and
that
he
was
not
given
any
appointment letter and it was proved by
the Labour Court from exhibit W-1 that
he had himself not gone on duty. The
petitioner was thereafter not a workman.

ß eSus nksuksa i{kksa ds fo}ku çfrfuf/k;ksa dks lquk gS
nkf[ky vfHkys[kksa ,oa lk{;ksa dk c[kwch voyksdu fd;k gSA

mijksä nkf[ky fd;s x;s dkxtkr ,oa bZ0MCyw0-1
ujir flag ds c;ku ls ;s ckr Li"V gS fd fnuk¡d 26-031991 ls 25-01-1993 rd lacaf/kr Jfed nSfud osru
Hkksxh deZpkjh ds :i esa cgSfl;r csynku dke dj jgk Fkk
,oa mldh lsok;sa fnuk¡ 26-01-1993 ls lekIr gks xbZ mls
dksbZ fu;qfä i= ugha fn;k x;k FkkA bl ckr dks Jfed us
Hkh vius ekSf[kd c;ku esa Lohdkj fd;k gS mlus bl ckr
dks Lohdkj fd;k gS fd egksu esa ,d ckj iwjs eghus dk
Hkqxrku mls dj fn;k tkrk FkkA mlds bl c;ku ls rFkk
bZ0MCyw&1 ds c;ku ,oa nkf[ky fd;s x;s vfHkys[k fnuk¡d
20-09-1993 rFkk mlds lkFk layXu fyLV rFkk Jfed dh
vksj ls nkf[ky fd;k x;k vfHkys[k çnÓZ MCyw&1 ls fl) gS
,os mlesa fy[kk gqvk gS f dog vLFkkbZ nSfud osru Hkskxh
osynkj FkkA çnÓZ MCyw&1 ,oa bZ0MCyw0&1 ds c;ku ls ;s
ckr fl) gS fd og Lor% dk;Z ij ugh vk;k rFkk dk;Z gsrq
buds LFkku vko';drkuqlkj nwljs Jfed dks j[kuk iMkA
vr% ;s ckr fl) ikbZ tkrh gS fd 25-01-1993 ds ckn
lacaf/kr Jfed Lo;a dk;Z ij ugha vk;kA
http:\\allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
142

pwafd tSlk fd iSjk 1 es fy[kk tk pqdk gS fd lacaf/kr
Jfed ykspu çlkn nSfud osru Hkksxh deZpkjh Fkk rFkk
mldh dksbZ fu;qä ugha dh xbZ Fkh rFkk oSls gh tSls yscj
j[ks tkrs gSa ml dks j[k fy;k tkrk gSA blfy;s lacaf/kr
Jfed ykspu çlkn vkbZ0Mh0,DV esa nh xbZ Jfed dh
ifjHkkÔk esa ugha vkrk gSA blfy;s mldh lsok fdlh Hkh
le; fcuk uksfVl ds lekIr dh tk ldrh Fkh /kkjk 6&,u
ds vuqlkj mls dksbZ vuqrksÔ ikus dk vf/kdkj ugha gSA bu
ifjflFkfr;ksa esa ykspu çlkn ds c;ku ls mls dksbZ enn ugha
feyrh gSAÞ

11. Applying the principles laid
down in the case of Banglore Water
Supply and Sewerage Board (supra)
and considering the ratio laid down in
General Manager Telecom Versus S.
Sriniwashan Rao and others 1998 (78)
FLR page 143 and Executive engineer
CPWD,
Indore
Versus
Madhukar
Purshottam Kotharkan (supra) the
finding of the Labour Court that P.W.D. is
not industry is quashed. In so far as the
findings of the Labour Court that
termination of services of the petitioner is
not retrenchment as he had himself not
come to work is not liable to be disturbed
under Article 226 of the Constitution of
India. The petitioner was engaged on
daily wage and was not appointed against
any post, he has no right to be regularized
in service as he failed to prove before the
Labour Court that he was appointed
against a sanctioned post in substantive
vacancy. Engagement for 240 days from
time to time on daily wage would not
attract the provision of Section 6-N of the
U.P. Industrial dispute Act unless it could
be established that he had continuously
worked for 240 days in previous year
counting backward from the date of
termination of service and even in that
eventuality he would have only been
entitled to retrenchment compensation
with interest.

12. For the reasons stated above, the
writ petition is allowed in part. The
finding of the Labour Court that Public
works Department is not an industry is
quashed. Other findings particularly that
termination of the petitioner does not fall
within the ambit of the definition of
"Retrenchment" is upheld. No order as to
cost.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.09.2003.

BEFORE
THE HON'BLE ANJANI KUMAR, J.

Civil misc. Writ Petition No. 27788 of 2003

Smt. Krishna Devi

...Petitioner
Versus
District
Magistrate,
Ghaziabad
and
others

 ...Respondents

Counsel for the Petitioner:
Sri D.K.S. Rathor

Counsel for the Respondents:
Sri Vishnu Sahai
Sri B. Dayal
S.C.

U.P. Panchayat Raj Act 1997, See 95 (1) (g)-
U.P. Panchayat Raj (Removal of Pradhan,
Uppradhan and members Enquiry) Rules
1997 the two enquries under first
Provision and Second proviso of the Actdistinction between explained

Held- Para 9

The first proviso introduced in the year
1994
clearly
makes
a
distinction
between the two enquiries conducted
under the first proviso and the second
proviso and if this interpretation is not
followed, both the proviso cannot be
reconciled, as held by the Division Bench