# U.P. State & Sugar Development Corp. Ltd v. The Presiding Officer, Labour Court, Gorakhpur & Ors

- **Citation:** (2020) 2 ILRA 198
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-03
- **Case number:** Writ C No. 4975 of 2001
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/u-p-state-sugar-development-corp-ltd-v-the-presiding-officer-labour-court-45577
- **Pages:** 27

## Headnote

C.S.C., Sri P.C. Singh, Sri Santosh K.
Srivastava,
Sri
Sumitra
Singh,
Sri
Bhoopendra Nath Singh

Industrial
dispute-impugned
order-no
finding that workmen have worked for certain
crushing
seasons-and
completed
their
probationary period under clause B-1(4) of
Standing orders-Labour Court could not have
granted seasonal status-impugned order illegalfindings cannot be recorded -under Article 226being facts-impugned orders quashed-W.P.
partly allowed.

Cases cited:

## Text

_Characters 0–39,927 of 91,353. This is a partial read: ask again with offset=39927 for what follows._

198 INDIAN LAW REPORTS ALLAHABAD SERIES
2018 and 29th December, 2018 are hereby
quashed
in
the
special
facts
and
circumstances of the case.

14. The respondents are directed to
consider the application for extension of
time and renewal of the lease as the
petitioners have already deposited the
renewal amount as per the demand notice
on 25th October, 2017 and positive
direction be issued, positively within a
period six weeks from the date of
production of certified copy of this order.
----------
(2020)02ILR A198

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.01.2020

BEFORE
THE HON'BLE J.J. MUNIR, J.

Writ C No. 4975 of 2001
Connected With
Writ C Cases No. 4976 of 2001, 20683 of 2001
& 20684 of 2001

U.P. State & Sugar Development Corp.
Ltd. ...Petitioner
Versus
The Presiding Officer, Labour Court,
Gorakhpur & Ors. ...Respondents

Counsel for the Petitioner:
Sri R.K. Srivastava, Sri Shakti Swarup
Nigam, Sri Alok Kumar Srivastava

Counsel for the Respondents:
C.S.C., Sri P.C. Singh, Sri Santosh K.
Srivastava,
Sri
Sumitra
Singh,
Sri
Bhoopendra Nath Singh

Industrial
dispute-impugned
order-no
finding that workmen have worked for certain
crushing
seasons-and
completed
their
probationary period under clause B-1(4) of
Standing orders-Labour Court could not have
granted seasonal status-impugned order illegalfindings cannot be recorded -under Article 226being facts-impugned orders quashed-W.P.
partly allowed.

Cases cited:

1. State of Karnataka v. Umadevi (3),
(2006) 4 SCC 1 : 2006 SCC (L&S) 753

2. A. Umarani v. Registrar, Coop. Societies
[(2004) 7 SCC 112 : 2004 SCC (L&S) 918]

3. State of U.P. v. NeerajAwasthi [(2006) 1
SCC 667 :2006 SCC (L&S) 190]

4. State of Karnataka v. KGSD Canteen
Employees' Welfare Assn. [(2006) 1 SCC
567 : 2006 SCC (L&S)158 : JT (2006) 1 SC
84]

5. Union Public Service Commission v.
GirishJayantiLalVaghela [(2006) 2 SCC 482:
2006SCC (L&S) 339 : (2006) 2 Scale 115]

6. KesavanandaBharati v. State of Kerala
[(1973) 4 SCC 225 : 1973 Supp SCR 1]

7. Indra Sawhney v. Union of India [(2000)
1 SCC 168 : 2000 SCC (L&S) 1 : 1999 Supp
(5) SCR 229]

8. Indian Drugs & Pharmaceuticals Ltd. vs.
Workmen, (2007) 1 SCC 408 : (2007) 1 SCC
(L&S) 270

9. Rama Muthuramalingam v. Dy. Supdt. of
Police [AIR 2005 Mad 1]

10. State of Karnataka v. Umadevi (3)
[(2006) 4 SCC 1 : 2006 SCC (L&S) 753]

11. Executive Engineer, ZP Engg. Divn. v.
Digambara Rao, (2004) 8 SCC 262 : 2004
SCC (L&S) 1097

12. BSNL v. Bhurumal, (2014) 7 SCC 177 :
2014 (140) FLR 901 : (2014) 2 SCC (L&S)
373

13.
Chandra
Shekhar
Azad
KrishiEvamProdyogikiVishwavidyalaya
vs.
United Trades Congress, (2008) 2 SCC 552 :
(2008)
1
SCC
(L&S)
504
4 All. U.P. State & Sugar Development Corp. Ltd. Vs. The Presiding Officer, Labour Court, Gorakhpur & Ors.
199
14.
Deputy
Executive
Engineer
vs.
KuberbhaiKanjibhai, (2019) 4 SCC 307 : 2019
(160) FLR 651

15. Syed Yakoob v. K.S. Radhakrishnan [AIR
1964 SC 477] and Surya Dev Rai v. Ram
Chander Rai [(2003) 6 SCC 675]

16. Maharashtra SRTC v. Casteribe Rajya
Parivahan Karmchari Sanghatana

17. Indian Drugs & Pharmaceuticals Ltd. (supra),

18. Mahatma Phule Agricultural University vs.
Nasik ZillaShethKamgar Union, (2001) 7 SCC 346
19. State of Maharashtra vs. R.S. Bhonde,
(2005) 6 SCC 751
20. Aravali Golf Club vs. Chander Hass, (2008)
1 SCC 683
(Delivered by Hon'ble J.J. Munir, J.)

1. These are four writ petitions
arising out of awards passed by the
Presiding Officer, Labour Court, U.P.,
Gorakhpur
dated
11.08.1999
and
13.08.1999 in Adjudication Case nos.103
of 1987 & 118 of 1987 and Misc. Case
nos.404 of 1987, 90 of 1991 & 403 of
1987. The Labour Court has entered
awards in the four industrial disputes
between the U.P. State Sugar Corporation
Limited, Unit Munderwa, District Basti
(since re-named as U.P. Sugar and Cane
Development
Corporation,
Unit
Munderwa,
Basti)
and
its
various
workmen who brought these industrial
disputes, accepting the workmen's claims.
These
various
workmen
are
the
respondents to the writ petitions, whereas
the U.P. Sugar and Cane Development
Corporation, Unit Munderwa, Basti are the
petitioners. The U.P. Sugar and Cane
Development
Corporation,
Unit
Munderwa, Basti is hereinafter referred to
as the Employers whereas the private
respondents in each of the writ petitions
are hereinafter referred to as the workmen
(except for singular reference where the
name of the particular workman is
mentioned).

2. All the four petitions involve
similar questions of fact and law. As such,
all the petitions were connected and heard
together with Writ - C No.4975 of 2001,
being treated to be the leading case.
Nevertheless, in order to indicate precise
facts that are individual to the different
writ petitions, the cause of action and
course of proceedings in each involved,
those facts and the course of proceedings
in the four writ petitions would be set out
separately in a brief statement about it.

3. Writ - C No.4975 of 2001 has been
preferred by the Employer assailing an award
of the Presiding Officer, Labour Court, U.P.,
Gorakhpur passed in Adjudication Case
no.103 of 1987 between the Employer and
the registered Union of their workmen known
as
Sugar
Mill
Munderwa
Mazdoor
Panchayat, Munderwa Bazar, Lalganj Road,
Munderwa, Basti (for short the Union),
representing the interest of the workmen
numbering fifteen, with particulars detailed in
the Annexure to the order of reference.

4. The State Government vide
Government
Order
no.517075(श्र0आ0)/36-श्रम (।) सी0बी0 68/86 बस्ती,
dated 11.02.1987, made the following
reference under Section 2-K of the U.P.
Industrial Disputes Act, 1947 (for short the
Act) to the adjudication of the Presiding
Officer, Labour Court, U.P., Gorakhpur:

क्या सेवायोजकोों द्वारा सोंलग्न सूच में
अोंककत 15 कममचाररयोों को मौसम श्रकमक
घोकित ककया जाना चाकहए? यकि हाों, तो ककस
कतकि से तिा अन्य ककस कववरण सकहत?
200 INDIAN LAW REPORTS ALLAHABAD SERIES

5. The Labour Court proceeded to
hear
and
determine
the
aforesaid
Adjudication Case vide judgment and
award dated 11.08.1999, whereby it held
that the fifteen workmen whose names are
appended to the order of reference are
declared seasonal, and that they would be
entitled to all benefits of seasonal
engagement with effect from the year
1985-86. The Employers were ordered to
pay in costs a sum of Rs.100/-.

6. Aggrieved, this writ petition has
been filed.

7.

Pending
the
aforesaid
Adjudication
Case,
the
Employers
terminated the services of the workmen by
an oral order with effect from 10.03.1987
without service of any notice or pay in lieu
of the period of notice, or payment of
retrenchment
compensation.
This
led
fourteen of the fifteen workmen, for whose
benefit Adjudication Case no.103 of 1987
had been brought by the Union to file
Misc. Case no.404 of 1987, under Section
6-F of the Act, on basis that pending
adjudication of the Industrial Dispute,
termination of their service was one in
violation of Section 6-E. The workmen
through the aforesaid misc. case sought
reinstatement in service with continuity
and back-wages, besides consequential
benefits. A similar application giving rise
to Misc. Case no.90 of 1991 was filed by
the fifteenth workman, Ram Lal, also
under Section 6-F of the Act.

8. Both the misc. cases were heard
together and decided by the Labour Court,
also vide a judgment and award dated
11.08.1999, whereby it was held that the
act of the Employers in terminating the
services of the fifteenth workmen was
unlawful and improper. It was further
awarded that all the workmen are entitled
to reinstatement.

9. Writ - C No.20684 of 2001 has
been brought by the Employers against the
last mentioned award, passed in the two
misc. cases under reference.

10. Writ - C No.4976 of 2001 has
been preferred by the Employers from a
judgment and award of the Presiding
Officer, Labour Court, U.P., Gorakhpur,
dated 13.08.1999, passed in Adjudication
Case no.118 of 1987, between the
Employers and the Union representing the
interest of twenty-five workmen, whose
details are mentioned in the attached
schedule to the order of reference giving
rise to the last mentioned adjudication
case. The twenty-five workmen are
arrayed as respondent nos.3 to 27 to this
petition. Some of these workmen have
died pending this writ petition and their
heirs and legal representatives have been
brought on record. Adjudication Case
no.118 of 1987 was registered on the basis
of
an
order
of
reference,
bearing
Government
Order
no.526166(श्र0आ0)/36-श्रम (।) सी0बी0 69/86 बस्ती,
dated 11.02.1987, which came to be made
after a failed conciliation between the
Employers and the Union representing the
workmen's interest. The order under
Section 2-K of the Act above mentioned,
referred the following dispute to the
adjudication of the Presiding Officer,
Labour Court, U.P., Gorakhpur:

1. क्या सेवायोजकोों द्वारा सोंलग्न
पररकिष्ट में अोंककत 25 श्रकमकोों को मौसम
श्रकमक घोकित न ककया जाना अनुकचत तिा/
अिवा अवैधाकनक है? यकि हाों, तो सोंबन्धित
श्रकमक क्या लाभ/ क्षकतपूकतम (ररल फ) पाने के
अकधकार हैं तिा ककन अन्य कववरणोों सकहत?
4 All. U.P. State & Sugar Development Corp. Ltd. Vs. The Presiding Officer, Labour Court, Gorakhpur & Ors.
201

2. यकि वाि पि सोंख्या-1 श्रकमकोों के
पक्ष में कनणीत होत है तो क्या सोंबोंकधत श्रकमकोों
को कायम के अनुरूप कनधामररत वेतनमान किया
जाना चाकहए? यकि हाों तो ककस कतकि से तिा
अन्य ककस कववरण सकहत?

11. The Labour Court proceeded to
hear
and
determine
the
aforesaid
adjudication case vide judgment and
award dated 13.08.1999, whereby it held
that the twenty-five workmen whose
names are detailed in the schedule
appended to the order of reference are
declared seasonal and entitled to be paid
salary as determined by the Wage Board,
together with other benefits from the
season 1985-86.

12. Aggrieved, this writ petition has
been filed.

13.

Pending
the
aforesaid
adjudication case, it appears that the
Employers terminated the services of
eighteen of the twenty-five workmen, on
whose behalf the Union had raised the
industrial dispute under reference on
various dates without service of any prior
notice or payment of wages in lieu of
notice. These eighteen workmen are
arrayed as respondent nos.3, 4, 5, 6, 7, 9,
10, 11, 12, 13, 15, 17, 20, 21, 23, 24, 25
and 26. The other private respondents
appear
to
have
been
unnecessarily
impleaded. These workmen, accordingly,
filed a miscellaneous application, dated
29.07.1987 in the pending Adjudication
Case no.118 of 1987, under Section 6-F of
the Act, alleging termination of their
services in violation of Section 6-E. This
application came to be registered as Misc.
Case no.403 of 1987. These workmen
sought relief that the industrial dispute be
registered and it be awarded that the
workmen were entitled to reinstatement on
the post that they were working together
with payment of salary, continuity of
service, arrears of salary for the period of
their unlawful termination of services and
other consequential benefits, together with
due interest.

14. The aforesaid miscellaneous case
came up for determination before the
Presiding Officer, Labour Court, U.P.,
Gorakhpur,
who
after
hearing
the
workmen and the Employers, held that the
services of the workmen have been
terminated in violation of Section 6-E of
the Act, and awarded that they be
reinstated to the posts they were working,
together with all consequential benefits.
The workmen were further awarded
Rs.100/- in costs.

15. Aggrieved, Writ - C No.20684 of
2001 has been filed.

16. Heard Sri Shakti Swarup Nigam,
learned Senior Advocate assisted by Sri
Alok Kumar Srivastava, learned Counsel
for the petitioner, Sri Lalloo Singh, learned
Advocate holding brief of Sri B.N. Singh,
learned Counsel appearing on behalf of the
respondent-workmen and Sri Ajeet Kumar
Singh,
learned
Standing
Counsel
appearing on behalf of respondent no.1, in
all the writ petitions.

17. In the leading writ petition upon
issue of notice by the Labour Court, the
Employers and the Union on behalf of the
fifteen workmen, put in their pleadings.
The Union acting on behalf of the
workmen filed their written statement
dated 29.07.1987 whereas the Employers
filed
their
written
statement
on
05.07.1989. The workmen filed their
rejoinder statement whereas the Employers
202 INDIAN LAW REPORTS ALLAHABAD SERIES
filed their rejoinder statement dated
14.04.1993, answering amendments, that
were brought in by the workmen through
an application dated 11.01.1993, also the
basis of two separate miscellaneous cases
in the adjudication case, seeking to assail
the pendentilite termination of their
services, in violation of Section 6-F of the
Act. The Labour Court, of course, while
deciding the adjudication case did not go
into that part of the cause of action, that
was subject matter of Misc. Case no.404
of 1987 and Misc. Case no. 90 of 1991.

18. The case of the workmen before
the Labour Court was to the effect that all
fifteen of them were engaged with the
Employers' establishment regularly for the
past 6 - 7 years as Centrifugal Machine
Men, during each successive season. The
further case was that the workmen were
arbitrarily shown by the Employers, by
manipulating documents that were in their
control,
as
daily-wagers
instead
of
seasonal workmen. It was also pleaded
that the attendance of the workmen was
recorded in the Attendance Register, but
their salary was paid through vouchers in
an arbitrary fashion. It was pleaded that in
order to avoid extending benefit of
emoluments as determined by the Wage
Board and other benefits admissible, the
Employers in an arbitrary fashion would
manipulate
records
relating
to
the
workmen. It is said further in the written
statement that the Employers have in their
establishment
twenty-three
Centrifugal
Machines, that run everyday in successive
shifts. The twenty-three machines worked
during successive shifts require after
taking
into
reckoning
the
reliever
workmen, a total of eight-one Centrifugal
Machine Men, on a regular basis. The
establishment instead retains 32 - 35
workmen as Centrifugal Machine Men on
a seasonal basis. The remainder vacant
posts are manned by the workmen, shown
to be engaged as temporary hands on
daily-wages
during
each
season,
throughout. It is also pleaded that the job
of a Centrifugal Machine Man and the
relative work is regular and seasonal in
nature. The employment of the workmen
on the said job, showing them to be
temporaries is unfair labour practice. It is
pleaded further that the workmen were
paid salary, worked out on the basis of
Rs.7.50 per day, and by manipulating
records regarding rate of wages, the
workmen's attendance is shown short. It is
then specifically pleaded that disbursement
of salary at times is not shown in the
records at all as wages paid to the
workmen, but shown as outgoings under
other heads. It is claimed that all the
workmen are entitled to be declared
seasonal
workmen
and paid
wages,
according to recommendations of the
Wage Board, payable to workman of that
class.

19. The Employers filed their written
statement traversing the workmen's case,
apart
from
certain
pleas
as
to
maintainability of the industrial dispute,
raised on behalf of the workmen by the
Union which does not appear to have been
pressed before the Labour Court. The
Employers pleaded in paragraph 3 of the
written statement that the workmen were
not at all on the rolls of the Corporation at
the time of its takeover, on 28.10.1984.
They were temporary hands with the
erstwhile Employer. At this juncture, it
must be remarked that mention of the
erstwhile Employer and the Corporation
bears reference to the U.P. State Sugar
Corporation Limited that was acquired by
the State of U.P. under the provisions of
the Uttar Pradesh Sugar Undertakings
4 All. U.P. State & Sugar Development Corp. Ltd. Vs. The Presiding Officer, Labour Court, Gorakhpur & Ors.
203
(Acquisition) Act, 1971 with effect from
28.10.1984.

20. It is pleaded that the workmen
were employed, on occasions as temporary
hands, to cope with the absence of regular
hands and to meet the exigencies of extra
work. It is the Employers' further case that
the workmen have never worked against
any vacancy and do not hold lien on any
post. There are breaks in their services. It
is also pleaded that the Employers have
the required strength of unskilled hands
and there is no vacancy. The Union has
raised this industrial dispute on baseless
grounds. It was also specifically pleaded
that before the Conciliation Officer, the
Union were seeking promotion for these
workmen
from
temporary
hands
to
seasonal. It is urged that promotion is an
exclusive right of the Management. Casual
employees have no claim to promotion. It
is also said that the workmen were seeking
renewal of their contract, as they were not
on the rolls of the employers, when the
conciliation proceedings were initiated on
their behalf by the Union. The right of the
workmen to be declared seasonal has been
outrightly disputed.

21. The workmen in order to
establish their case, made an application to
the Labour Court to summon from the
Employers, the Attendance Register for
the crushing seasons 1980-81 to 1986-87,
besides the Cashbook, ledger and vouchers
for the relative period. The Labour Court
has recorded for a fact that the Employers
objected to this prayer. It has also been
recorded that on 14.07.1988, the workmen
filed an inspection note, but that too was
objected to by the Employers.

22. On behalf of the Employers, all
that is offered in evidence are two
witnesses, that is to say, one Ramakar
Prasad Pandey, Time Officer Incharge in
the
Employers'
establishment,
who
deposed as EW-1 and S.N. Tripathi, Chief
Chemist in their establishment, who
deposed as EW-2. For the workmen, three
workmen deposed, to wit, Sumeshar
Tiwari, Kuber Nath and Ram Prasad
Yadav, each of whom testified as DW-1,
DW-2 and DW-3, respectively.

23.

The
Labour
Court
on
consideration of the evidence on record
has passed the impugned award, subject
matter of challenge here.

24. Before this Court, Sri Nigam,
learned Senior Advocate has emphatically
urged that the Labour Court went utterly
wrong in declaring the workmen seasonal,
who were otherwise casual hands, hired
during crushing seasons to cater to the
additional workload as and when required.
He has emphasized that they did not work
against any existing vacancy, and that
there were no vacancies available with the
Employers' Unit, against which these
persons
could
have
been
declared
seasonal.

25. It has been argued that by
declaring
temporary
hands,
seasonal
workmen, the Labour Court has granted
the
workmen
promotion
which
is
essentially a managerial function. That
cannot be done under an award of the
Labour Court. It has been re-emphasized
by the learned Senior Advocate that the
Labour Court fell in manifest error in not
considering that seasonal status can be
conferred depending upon the vacancies
available with the Employers' Unit, and
that too, after taking into account the inter
se seniority of those workmen, who were
retained as temporary hands on daily-
204 INDIAN LAW REPORTS ALLAHABAD SERIES
wages. Also, their eligibility, qualification,
skill etc. have to be appraised by the
Management before taking a decision to
appoint the workmen as seasonal staff
against the available sanctioned strength.

26. It has also been urged on a case
pleaded for the first time before this Court
that pending this petition, the U.P. State
Sugar Corporation Ltd. has been declared
sick under the SICA by the Board of
Industrial and Financial Reconstruction
(BIFR), vide its order dated 21.08.1995.
Subsequently, the State Government have
taken a decision in the year 1999, under
which eleven Units of the Corporation,
including the Employers, that is to say, the
Unit at Munderwa, Basti, has been closed
down. It has been further pleaded that
from 1999, the Employers have been
closed
down,
and
no
production
whatsoever is undertaken there. It has been
argued by Sri S.S. Nigam, learned Senior
Advocate that in these circumstances, the
direction to declare a workman seasonal is
manifestly illegal and impossible to
implement.

27. Learned Senior Counsel for the
Employers has argued that rights of the
workmen involved are to be determined
with reference to the Standing Orders,
governing the conditions of employment
of workmen in Vacuum Pan Factories of
Uttar Pradesh, enforced with effect from
27th September, 1988, and issued by the
State Government, in exercise of their
powers under Clause (b) of Section 3 of
the Act.

28. In the submission of the learned
Senior Counsel, there is no provision
under the Standing Orders which says that
a temporary hand on daily-wages who has
worked for a particular number of seasons,
can be declared seasonal. It is also
submitted by him that there is no scheme
by way of any tripartite agreement adopted
by the sugar factories in Uttar Pradesh that
a daily-wager who has worked in a season,
would be declared seasonal workman. It is
also urged that there is no Government
Order issued in exercise of powers under
Section 3 of the Act, entitling or requiring
a daily-wager to be considered as seasonal,
who has worked during a whole season, or
successive seasons. It is urged also that the
Labour Court did not consider the impact
of the impugned award declaring the
workmen seasonal, which would entitle
them to wages prescribed by the Wage
Board, and its resultant financial impact
upon the Employers. It is in the last
submitted that the Labour Court should
have exercised judicial restraint in the
matter, and not awarded in the manner it
has
done,
which
encroaches
upon
executive functions.

29. In support of his contention,
learned Senior Counsel has placed reliance
upon the decision of the Constitution
Bench of their Lordships of the Supreme
Court in Secretary, State of Karnataka
vs. Umadevi (3), (2006) 4 SCC 1 : 2006
SCC (L&S) 753. He has, in particular,
referred to paragraphs 34, 37, 38 and 40 of
the report, where it has been held:

"34. In A. Umarani v. Registrar,
Coop. Societies [(2004) 7 SCC 112 : 2004
SCC (L&S) 918] a three-Judge Bench
made a survey of the authorities and held
that when appointments were made in
contravention of mandatory provisions of
the Act and statutory rules framed
thereunder and by ignoring essential
qualifications, the appointments would be
illegal and cannot be regularised by the
State. The State could not invoke its power
4 All. U.P. State & Sugar Development Corp. Ltd. Vs. The Presiding Officer, Labour Court, Gorakhpur & Ors.
205
under Article 162 of the Constitution to
regularise such appointments. This Court
also held that regularisation is not and
cannot be a mode of recruitment by any
State within the meaning of Article 12 of
the Constitution or any body or authority
governed by a statutory Act or the rules
framed
thereunder.
Regularisation
furthermore cannot give permanence to an
employee whose services are ad hoc in
nature. It was also held that the fact that
some persons had been working for a long
time would not mean that they had
acquired a right for regularisation.

37. It is not necessary to multiply
authorities on this aspect. It is only necessary
to refer to one or two of the recent decisions in
this context. In State of U.P. v. Neeraj Awasthi
[(2006) 1 SCC 667 : 2006 SCC (L&S) 190]
this Court after referring to a number of prior
decisions held that there was no power in the
State under Article 162 of the Constitution to
make appointments and even if there was any
such power, no appointment could be made in
contravention of statutory rules. This Court
also held that past alleged regularisation or
appointment does not connote entitlement to
further regularisation or appointment. It was
further held that the High Court has no
jurisdiction to frame a scheme by itself or
direct the framing of a scheme for
regularisation. This view was reiterated in
State of Karnataka v. KGSD Canteen
Employees' Welfare Assn. [(2006) 1 SCC 567 :
2006 SCC (L&S) 158 : JT (2006) 1 SC 84]

38. In Union Public Service
Commission v. Girish Jayanti Lal Vaghela
[(2006) 2 SCC 482 : 2006 SCC (L&S) 339
: (2006) 2 Scale 115] this Court answered
the question, who was a government
servant and stated: (SCC p. 490, para 12)

"12. Article 16 which finds place
in Part III of the Constitution relating to
fundamental rights provides that there
shall be equality of opportunity for all
citizens in matters relating to employment
or appointment to any office under the
State. The main object of Article 16 is to
create a constitutional right to equality of
opportunity and employment in public
offices. The words ''employment' or
''appointment' cover not merely the initial
appointment but also other attributes of
service like promotion and age of
superannuation, etc. The appointment to
any post under the State can only be made
after a proper advertisement has been
made inviting applications from eligible
candidates and holding of selection by a
body of experts or a specially constituted
committee whose members are fair and
impartial through a written examination or
interview or some other rational criteria
for judging the inter se merit of candidates
who have applied in response to the
advertisement
made.
A
regular
appointment to a post under the State or
Union cannot be made without issuing
advertisement in the prescribed manner
which may in some cases include inviting
applications
from
the
employment
exchange where eligible candidates get
their names
registered. Any regular
appointment made on a post under the
State
or
Union
without
issuing
advertisement inviting applications from
eligible candidates and without holding a
proper
selection
where
all
eligible
candidates get a fair chance to compete
would violate the guarantee enshrined
under Article 16 of the Constitution (see
B.S. Minhas v. Indian Statistical Institute
[(1983) 4 SCC 582 : 1984 SCC (L&S) 26 :
AIR 1984 SC 363])."

40. At this stage, it is relevant to
notice two aspects. In Kesavananda
Bharati v. State of Kerala [(1973) 4 SCC
225 : 1973 Supp SCR 1] this Court held
that Article 14, and Article 16, which was
described as a facet of Article 14, is part of
206 INDIAN LAW REPORTS ALLAHABAD SERIES
the basic structure of the Constitution. The
position emerging from Kesavananda
Bharati [(1973) 4 SCC 225 : 1973 Supp
SCR 1] was summed up by Jagannadha
Rao, J. speaking for a Bench of three
Judges in Indra Sawhney v. Union of India
[(2000) 1 SCC 168 : 2000 SCC (L&S) 1 :
1999 Supp (5) SCR 229] . That decision
also reiterated how neither Parliament nor
the legislature could transgress the basic
feature of the Constitution, namely, the
principle of equality enshrined in Article
14 of which Article 16(1) is a facet. This
Court stated: (Indra Sawhney case [(2000)
1 SCC 168 : 2000 SCC (L&S) 1 : 1999
Supp (5) SCR 229], SCC p. 202, paras 6465)

"64.
The
preamble
to
the
Constitution of India emphasises the
principle of equality as basic to our
Constitution. In Kesavananda Bharati v.
State of Kerala [(1973) 4 SCC 225 : 1973
Supp SCR 1] it was ruled that even
constitutional amendments which offended
the basic structure of the Constitution
would be ultra vires the basic structure.
Sikri, C.J. laid stress on the basic features
enumerated in the preamble to the
Constitution and said that there were other
basic features too which could be gathered
from the constitutional scheme (para 506A of SCC). Equality was one of the basic
features referred to in the preamble to our
Constitution. Shelat and Grover, JJ. also
referred to the basic rights referred to in
the preamble. They specifically referred to
equality (paras 520 and 535-A of SCC).
Hegde & Shelat, JJ. also referred to the
preamble (paras 648, 652). Ray, J. (as he
then was) also did so (para 886).
Jaganmohan Reddy, J. too referred to the
preamble and the equality doctrine (para
1159). Khanna, J. accepted this position
(para 1471). Mathew, J. referred to
equality as a basic feature (para 1621).
Dwivedi, J. (paras 1882, 1883) and
Chandrachud, J. (as he then was) (see para
2086) accepted this position.

65. What we mean to say is that
Parliament and the legislature in this
country cannot transgress the basic feature
of the Constitution, namely, the principle
of equality enshrined in Article 14 of
which Article 16(1) is a facet."

He has further placed reliance
upon the decision of the Supreme Court in
Indian Drugs & Pharmaceuticals Ltd.
vs. Workmen, (2007) 1 SCC 408 : (2007)
1 SCC (L&S) 270, where it has been held
thus:

"40. The courts must, therefore,
exercise
judicial
restraint,
and
not
encroach into the executive or legislative
domain. Orders for creation of posts,
appointment on these posts, regularisation,
fixing pay scales, continuation in service,
promotions, etc. are all executive or
legislative functions, and it is highly
improper for Judges to step into this
sphere, except in a rare and exceptional
case.
The
relevant
case-law
and
philosophy of judicial restraint has been
laid down by the Madras High Court in
great detail in Rama Muthuramalingam v.
Dy. Supdt. of Police [AIR 2005 Mad 1]
and we fully agree with the views
expressed therein.

47. We are of the opinion that if
the court/tribunal directs that a daily-rated
or ad hoc or casual employee should be
continued in service till the date of
superannuation, it is impliedly regularising
such an employee, which cannot be done
as held by this Court in Secy., State of
Karnataka v. Umadevi (3) [(2006) 4 SCC
1 : 2006 SCC (L&S) 753] and other
decisions of this Court.

48. In view of the above
discussion, we are of the opinion that the
orders of the Labour Court as well as the
4 All. U.P. State & Sugar Development Corp. Ltd. Vs. The Presiding Officer, Labour Court, Gorakhpur & Ors.
207
High Court were wholly unjustified and
cannot be sustained for the reasons already
mentioned above. The appeal is, therefore,
allowed. The impugned judgments of the
High Court and the Labour Court are set
aside and the reference made to the Labour
Court is answered in the negative. There
shall be no order as to costs."

Sri
Nigam,
learned
Senior
Advocate has buttressed his contention
further by referring to a decision of the
Supreme Court in Executive Engineer, ZP
Engg. Divn. v. Digambara Rao, (2004) 8
SCC 262 : 2004 SCC (L&S) 1097, where
it has been held:

"20. It may not be out of place
to mention that completion of 240 days of
continuous service in a year may not by
itself be a ground for directing an order of
regularisation. It is also not the case of the
respondents that they were appointed in
accordance with the extant rules. No
direction
for
regularisation
of
their
services, therefore, could be issued. (See
A. Umarani v. Registrar, Coop. Societies
[(2004) 7 SCC 112 : (2004) 6 Scale 350]
and Pankaj Gupta v. State of J&K [(2004)
8 SCC 353 : (2004) 7 Scale 682] .)
Submission of Mr Maruthi Rao to the
effect that keeping in view the fact that the
respondents are diploma-holders and they
have crossed the age of 40 by now, this
Court should not interfere with the
impugned judgment is stated to be
rejected."

Further reliance has been placed upon
an authority of their Lordships of the Supreme
Court in BSNL v. Bhurumal, (2014) 7 SCC
177 : 2014 (140) FLR 901 : (2014) 2 SCC
(L&S) 373, where it has been held:

"34. The reasons for denying the
relief of reinstatement in such cases are
obvious. It is trite law that when the
termination is found to be illegal because
of
non-payment
of
retrenchment
compensation
and
notice
pay
as
mandatorily required under Section 25-F
of the Industrial Disputes Act, even after
reinstatement, it is always open to the
management to terminate the services of
that
employee
by
paying
him
the
retrenchment compensation. Since such a
workman was working on daily-wage
basis and even after he is reinstated, he has
no right to seek regularisation [see State of
Karnataka v. Umadevi (3) [(2006) 4 SCC
1 : 2006 SCC (L&S) 753] ]. Thus when he
cannot claim regularisation and he has no
right to continue even as a daily-wage
worker, no useful purpose is going to be
served in reinstating such a workman and
he can be given monetary compensation
by the Court itself inasmuch as if he is
terminated again after reinstatement, he
would receive monetary compensation
only
in
the
form
of
retrenchment
compensation and notice pay. In such a
situation,
giving
the
relief
of
reinstatement, that too after a long gap,
would not serve any purpose.

36.
Applying
the
aforesaid
principles, let us discuss the present case.
We find that the respondent was working
as
a
daily-wager.
Moreover,
the
termination took place more than 11 years
ago. No doubt, as per the respondent he
had worked for 15 years. However, the
fact remains that no direct evidence for
working 15 years has been furnished by
the respondent and most of his documents
are relatable to two years i.e. 2001 and
2002.
Therefore,
this
fact
becomes
relevant when it comes to giving the relief.
Judicial notice can also be taken of the fact
that the need of linemen in the Telephone
Department has been drastically reduced
after the advancement of technology. For
all these reasons, we are of the view that
ends of justice would be met by granting
compensation in lieu of reinstatement.
208 INDIAN LAW REPORTS ALLAHABAD SERIES

37. In Man Singh [BSNL v. Man
Singh, (2012) 1 SCC 558 : (2012) 1 SCC
(L&S) 207] which was also a case of
BSNL,
this
Court
had
granted
compensation of Rs 2 lakhs to each of the
workmen when they had worked for
merely 240 days. Since the respondent
herein worked for longer period, we are of
the view that he should be paid a
compensation of Rs 3 lakhs. This
compensation should be paid within 2
months failing which the respondent shall
also be entitled to interest at the rate of
12% per annum from the date of this
judgment. The award of CGIT is modified
to this extent. The appeal is disposed of in
the above terms. The respondent shall also
be entitled to the costs of Rs 15,000
(Rupees fifteen thousand only) in this
appeal."

Sri Nigam has also reposed faith
in the decision of the Supreme Court in
State
of
Uttaranchal
vs.
Prantiya
Sinchai Avam Bandh Yogana Shramik
Mahaparishad, (2007) 12 SCC 483 :
(2008) 2 SCC (L&S) 504 : 2008 (116)
FLR 987. This decision and the others
referred to hereinabove, are all in support
of his submission that the Labour Court
could not have ordered the workmen to be
treated as seasonal hands, and thus confer
upon them the status of a regular employee
which is a matter for the Employers to
consider on the basis of availability of
posts, inter se, seniority of daily-wagers
and other relevant factors. Sri Nigam has
referred to paragraphs 9 and 11 of the
report in State of Uttaranchal vs.
Prantiya Sinchai Avam Bandh Yogana
Shramik Mahaparishad (supra), where it
is held thus:

"9. In Umadevi (3) case [(2006)
4 SCC 1 : 2006 SCC (L&S) 753] the issue
relating to regularisation was examined at
length. It was essentially held that there
was no question of any automatic
regularisation.

11. It is not in dispute that some
of the workmen concerned have been
regularised. Before any direction for
regularisation can be given, the factual
position has to be noted as to whether
there was any sanctioned post. Apparently,
in the present case, these factual details
have not been discussed by either the
Labour Court or the High Court. We,
therefore, remit the matter to the Tribunal
to consider the factual background and to
decide the matter afresh in the light of
what has been stated in Umadevi (3) case
[(2006) 4 SCC 1 : 2006 SCC (L&S) 753]
and Hindustan Aeronautics case [(2007) 6
SCC 207 : (2007) 2 SCC (L&S) 441]."

Again to the same end, Sri
Nigam has invoked the authority of their
Lordships of the Supreme Court in
Chandra Shekhar Azad Krishi Evam
Prodyogiki Vishwavidyalaya vs. United
Trades Congress, (2008) 2 SCC 552 :
(2008) 1 SCC (L&S) 504. In the said
decision, it has been held by their
Lordships:

"12. A feeble attempt, however,
was
made
by
the
learned
counsel
appearing on behalf of Respondent 2 to
state that he had been appointed against a
permanent
vacancy.
In
his
written
statement, he did not raise any such
contention. It does not also appear from
the records that any offer of appointment
was given to him. It is inconceivable that
an employee appointed on a regular basis
would
not
be
given
an
offer
of
appointment or shall not be placed on a
scale of pay. We, therefore, have no
hesitation in proceeding on the premise
that Respondent 2 was appointed on daily
wages. The Industrial Court in passing the
impugned award proceeded on the premise
that Respondent 2 had been working for
4 All. U.P. State & Sugar Development Corp. Ltd. Vs. The Presiding Officer, Labour Court, Gorakhpur & Ors.
209
more than 240 days continuously from the
date of his engagement. It is now trite that
the same by itself does not confer any right
upon a workman to be regularised in
service. Working for more than 240 days
in a year was relevant only for the purpose
of application of Section 6-N of the U.P.
Industrial Disputes Act, 1947 providing
for conditions precedent to retrench the
workmen. It does not speak of acquisition
of a right by the workman to be
regularised in service.

17.
The
Industrial
Court,
therefore, in our opinion, committed a
serious error in passing the impugned
award. The High Court unfortunately did
not pose unto itself a right question. It
referred to a large number of decisions.
Although most of the decisions referred to
by the High Court should have been
applied for upholding the contention of the
appellant herein, without any deliberation
thereupon,
the
learned
Judge
has
proceeded to determine the question posed
before it on a wholly wrong premise. As
noticed
hereinbefore,
it
relied
upon
Mahendra L. Jain [(2005) 1 SCC 639 :
2005 SCC (L&S) 154] which in no
manner assists Respondent 2.

18. What was necessary to be
considered was the nature of work
undertaken
by
the
University.
It
undertakes projects. For the said purpose,
it may have to employ a large number of
persons.
Their
services
had
to
be
temporary in nature. Even for that the
provisions of Articles 14 and 16 are
required to be complied with. In the event,
the
constitutional
and
statutory
requirements are not complied with, the
contract of employment would be rendered
illegal."

Sri Nigam has also referred to
the guidance of their Lordships of the
Supreme Court in Deputy Executive
Engineer vs. Kuberbhai Kanjibhai,
(2019) 4 SCC 307 : 2019 (160) FLR 651,
where following the authority in BSNL v.
Bhurumal (supra), it was held that the
workman who had put in hardly a few
years as a daily-wager, or a muster roll
employee in the R & B Department of the
State, had no right to claim regularization.
It was held that one relevant factor further
was that the dispute has been raised almost
15 years after his termination from service.
The decision modified the award of the
Labour Court ordering the workman to be
reinstated without back-wages to one
awarding a sum of Rs.1 lakh in lieu of
relief of reinstatement, and also his claim
to back-wages.

30. Learned Counsel for the
workmen, Sri Lalloo Singh, on the other
hand submits that the workmen have been
working for the past 6 - 7 years, antedating
their
illegal
termination
of
services
pending this writ petition as Centrifugal
Machine Men in each crushing season, but
the Management by resort to unfair labour
practice, treated them as daily-wage
workers. He has contended that the
workmen in order to support and establish
their case of regular work done during the
entire crushing seasons 1980-81 to 198687 sought to summon the Attendance
Register, the Cashbook, the Ledger and
Salary Payment Vouchers for this period
from the Employers.