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CASE NO.: Appeal (civil)  5875 of 2007

PETITIONER: Mahboob Deepak

RESPONDENT: Nagar Panchayat Gajraula & Anr.

DATE OF JUDGMENT: 13/12/2007

BENCH: S.B. Sinha & G.S. Singhvi

JUDGMENT: J U D G M E N T (Arising out of SLP (C) No.6506 of 2005)

S.B. Sinha, J.

1.      Leave granted. 2.      Appellant was appointed as a daily wager on a remuneration of  Rs.20/- per day in the services of respondent No. 1 on 30.7.1988.  He is said  to have been involved in financial irregularities.  His services were  terminated on and from 16.7.1989.  He raised an industrial dispute  contending that his services were to be regularized after three months of the  joining the services.  The said contention was accepted by the Presiding  Officer, Labour Court in his award dated 30th November, 2002.  On the said  premise, the termination of services of the appellant was found to be illegal.   It was directed : \023\005since the date of adopted this award employee  Shree Mehboob Deepak s/o Shri Varan Singh shall  be reestablished on his post in the investigation of  old service and the other facililities or payment of  the middle period after discharging date along with  which he were obtain in service period should be  paid.\024

    It is difficult to understand the reasoning of the learned Presiding  Officer, Labour Court.

3.      The High Court, however, by reason of the impugned judgment  passed in the writ petition filed by the respondent herein set aside the said  award holding : \023I have heard learned counsel for the parties, I find  that respondent-employee was deployed as a daily  wager in Class-III category and he has no right to  the post and deployment of daily wager is made  purely on temporary basis on day to day basis and  respondent-employee could not have been  deployed against any class-III post and the  appointment is said to have been de hors the rules  and daily wagers are not entitled to opportunity of  hearing at the time of dispensation of service on  the ground of misconduct.  Here the award  impugned passed by the Presiding Officer, Labour  Court did not consider that the termination order  dated 16.9.1989 was passed in reference to serious  irregularities and misconduct.  I find force in the  contention of the petitioner.  The deployment of  daily wagers are made in exigency of work and  when there was no work the deployment of daily

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wagers is dispensed with without any notice or  opportunity of hearing, even non-renewal of  appointment in consonance to the terms and  conditions of appointment is not illegal.  The  petitioners have no right to the post after a limited  period.\024

4.      Ms. Suresh Kumari, learned counsel appearing for the appellant, inter  alia, submitted that as the services of the appellant were to be made  permanent after three months, the High Court committed an error in passing  the impugned judgment, particularly, in view of the fact that other persons  similarly situated have been made permanent.  In any event, it was urged, as  the statutory requirements for valid termination of service have not been  complied with, the award of the Presiding Officer should be restored. 5.      The High Court, in its impugned judgment, inter alia, took into  consideration the purported misconduct committed by the appellant herein.   If services were to be terminated on the ground that he was involved in  financial irregularities, a departmental proceeding was required to be  initiated against him.  As indicated hereinbefore, he was asked not to join his  duties w.e.f 16.7.1989. 6.      Such termination of service, having regard to the fact that he had  completed 240 days of work during a period of 12 months preceding the said  date, required compliance of the provisions of Section 6N of the U.P.  Industrial Disputes Act.  An order of retrenchment passed in violation of the  said provision although can be set aside but as has been noticed by this  Court in a large number of decisions, an award of reinstatement should not,  however, be automatically passed.   7.      The factors which are relevant for determining the same, inter alia,  are:  (i)     whether in making the appointment, the statutory rules, if any, had  been complied with;  (ii)    the period he had worked;  (iii)   whether there existed any vacancy; and  (iv)    whether he obtained some other employment on the date of  termination in passing of the award.   8.      Respondent is a Local Authority.  The terms and conditions of  employment of the employees are governed by a statute and statutory rules.   No appointment can be made by a Local Authority without following the  provisions of the recruitment rules.  Any appointment made in violation of  the said rules as also the constitutional scheme of equality as contained in  Articles 14 and 16 of the Constitution of India would be a nullity.   9.      Due to some exigency of work, although recruitment on daily wages  or on an ad hoc basis was permissible, but by reason thereof an employee  cannot claim any right to be permanently absorbed in service or made  permanent in absence of any statute or statutory rules.  Merely because an  employee has completed 240 days of work in a year preceding the date of  retrenchment, the same would not mean that his services were liable to be  regularized.    10.     Applying the legal principles, as noticed hereinbefore, the relief  granted in favour of the appellant by the Labour Court is wholly  unsustainable.  The same also appears to be somewhat unintelligible. 11.     The High Court, on the other hand, did not consider the effect of non- compliance of the provisions of Section 6N of the U.P. Industrial Disputes  Act, 1947.  Appellant was entitled to compensation notice and notice pay.    12.    It is now well settled by a catena of decisions of this Court that in a  situation of this nature instead and in place of directing reinstatement with  full back wages, the workmen should be granted adequate monetary  compensation.  [See Madhya Pradesh Administration v. Tribhuban, 2007 (5)  SCALE 397]. 13.     In this view of the matter, we are of the opinion that as the appellant  had worked only for a short period, the interest of justice will be subserved if  the High Court judgment is modified by directing payment of a sum of  Rs.50,000/- (Rupees fifty thousand only) by way of damages to the appellant  by the respondent.  Such payment should be made within eight weeks from

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this date, failing which the same will carry interest  at the rate of 9% per  annum. 14.     The appeal is allowed to the aforementioned extent with costs.   Counsel\022s fee assessed at Rs. 10,000/-.