Full Judgment Text
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CASE NO.:
Appeal (civil) 4856 of 2007
PETITIONER:
State of Uttranchal and Anr
RESPONDENT:
Prantiya Sinchai Avam Bandh Yogana Shramik Mahaparishad
DATE OF JUDGMENT: 12/10/2007
BENCH:
Dr. ARIJIT PASAYAT & P. SATHASIVAM
JUDGMENT:
J U D G M E N T
(Arising out of S.L.P. (C) NO.17823 OF 2006)
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the order passed by a
learned Single Judge of the Uttaranchal High Court dismissing
the writ petition filed by the appellants.
3. The factual position in a nutshell is as follows:-
On the basis of a dispute raised, reference was made to
the Labour Court, Haldwani, Uttar Pradesh, referring the
following question for adjudication:-
\023Whether the non-regularization of 14
members mentioned in the Schedule by the
employers is improper or unjustified? If yes, to
what relief/benefit the concerned workmen are
entitled, from which date and with what other
details?\024
The employer took the stand that the concerned
workmen were being engaged from time to time on temporary
basis and wages and other benefits as admissible were being
paid. The question of any regularization does not arise. The
Labour Court found that the employees were not regularized
because of non-creation of posts by the Government. Stand of
the workmen was that several permanent posts were lying
vacant in the Irrigation Department. The Labour Court
accordingly directed that salary and other benefits ought to be
paid to the concerned workers while considering them regular
with effect from the date of judgment of the Labour Court. It
was, accordingly, held that non-regularization was illega1.
4. A writ petition was filed before the Uttaranchal High
Court which was dismissed by the impugned order. The High
Court was of the view that all the 14 workmen, in question,
were working on daily wages for more than six years and had
completed 240 days in each calendar year and they ought to
be regularized. Accordingly, the writ petition was dismissed.
5. In support of the appeal, learned counsel for the
appellant submitted. that the directions given by the Labour
Court and the High Court were clearly contrary to what has
been stated by a Constitution Bench of this Court in
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Secretary, State of Karnataka and Ors. Vs. Uma Devi (3) and
Ors. (2006 (4) SCC 1).
6. Learned counsel for the respondent, on the other hand,
submitted that the concerned workmen had worked for more
than 240 days in each of the six years they were engaged.
Therefore, they were entitled to be regularized.
7. With reference to the order of the Labour Court, it is
submitted that payments were being made to them on the
basis of sanctioned wages. From this, it was contended, it is
clear that there were sanctioned posts.
8. In Uma Devi\022s case (supra), the issue relating to
regularization was examined at length. It was essentially held
that there was no question of any automatic regularization.
9. In B.N. Nagarajan & Ors. v. State of Karnataka & Ors.
(1979) 4 5CC 507), it was held that the words \023regular\024 or
\023regularization\024 do not connote permanence and cannot be
construed so as to convey an idea of the nature of tenure of
appointments. They are terms calculated to condone any
procedural irregularities and are meant to cure only such
defects as are attributable to methodology followed in making
the appointments. Further, when rules framed under Article
309 of the Constitution of India are in force, no regularization
is permissible in exercise of the executive powers of the
Government under Article 162 thereof in contravention of the
rules. This view has been approved by the Constitution Bench
in Uma Devi\022s case (supra) at para 16. It was emphasized here
that only something that is irregular for want of compliance
with one of the elements in the process of selection which does
not go to the root of the process, can be regularized and that it
alone can be regularized and granting permanence of
employment is totally different and cannot be equated with
regularization.
10. The next question which requires consideration is
whether completion of 240 days in a year confers any right on
an employee or workman to claim regularization in service. In
Madhyamik Shiksa Parishad v. Anil Kumar Mishra & Ors.
(2005 (5) SCC 122), it was held that the completion of 240
days\022 work does not confer the right to regularization under
the Industrial Disputes Act. It merely imposes certain
obligations on the employer at the time of termination of the
service. In M.P. Housing Board and Anr. v. Monoj Srivastava
(2006 (2) SCC 702) (paragraph 17) after referring to several
earlier decisions it has been re-iterated that it is well settled
that only because a person had been working for more than
240 days, he does not derive any legal right to be regularized
in service. This view has been reiterated in Gangadhar Pillai
v. Siemens Ltd. (2007 (1) SCC 533). The same question has
been examined in considerable detail with reference to
employee working in a Government Company in Indian Drugs
and Pharmaceuticals Ltd. v. Workman, Indian Drugs &
Pharmaceuticals Ltd. (2007 (1) SCC 408) and paragraphs 34
and 35 of the judgment are being reproduced below:-
\02334. Thus, it is well settled that there is no
right vested in any daily wager to seek
regularization. Regularization can only be
done in accordance with the rules and not de
hors the rules. In the case of E.
Ramakrishnan and Ors. v. State of Kerala
and Ors. (1996) 10 5CC 565) this Court held
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that there can be no regularization de hors
the rules. The same view was taken in Dr.
Kishore v. State of Maharashtra (1997) 3 SCC
209) and Union of India and Ors. v.
Bishambar Dutt (1996) 11 SCC 341). The
direction issued by the Services Tribunal for
regularizing the services of persons who had
not been appointed, on regular basis in
accordance with the rules was set aside
although the petitioner had been working
regularly for a long time.
35. In Dr. Surinder Sinqh Jamwal and Anr.
v. State of Jammu & Kashmir and Ors. (AIR
1996 SS 2775), it was held that ad hoc
appointment, does not give any right for
regularization as regularization is governed
by the statutory rules.
The above position was highlighted in Hindustan
Aeronautics Ltd. v. Dan Bahadur Singh and Ors. (2007 (6)
SCC 207).
It is not in dispute that some of the concerned workmen
have been regularized. Before any direction for regularization
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 Uma Devi\022s case (supra) and
Hindustan Aeronautics case (supra).
The appeal is al1owed to the aforesaid extent with no
order as to costs.