Nagar Ayukt Nagar Nigam Kanpur ... vs Presiding Officer Labour Court ...
2013 Latest Caselaw 2199 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 1
 

 
Case :- WRIT - C No. - 3427 of 2009
 
Petitioner :- Nagar Ayukt Nagar Nigam Kanpur Nagar
 
Respondent :- Presiding Officer Labour Court Kanpur And Others
 
Petitioner Counsel :- Y.S. Sachan
 
Respondent Counsel :- C.S.C.,Fasiha Fatima,R.S. Yadav
 

 
Connected with
 

 
Case :- WRIT - C No. - 38314 of 2010
 
Petitioner :- Nagar Ayukt Nagar Nigam Motijheel Kanpur Nagar
 
Respondent :- Santosh Kumar & Others
 
Petitioner Counsel :- Y.S. Sachan
 
Respondent Counsel :- C.S.C.,Smt. Fasiha Fatma
 

 
And
 

 
Case :- WRIT - C No. - 48826 of 2009
 
Petitioner :- Nagar Ayukt Nagar Nigam, Motijheel
 
Respondent :- Presiding Officer, Labour Court And Others
 
Petitioner Counsel :- Y.S. Sachan
 
Respondent Counsel :- C.S.C.,Mrs. Fasiha Fatima
 

 
Hon'ble Tarun Agarwala,J.

The petitioner was engaged as a sweeper in the Nagar Nigam w.e.f. 1st November, 1994 on a temporary basis, but was working on a permanent post, and in this fashion continued to work for more than 10 years. In 2000, the Regularization Rules came into existence, and the workman applied for regularization of his services. The employers took action on his application by putting a note and forwarding it to the Competent Authority who recommended the matter and sent it to the Selection Committee. Inspite of this direction, the matter of regularization of the services of the workman was not placed before the Selection Committee between the years 2000 to 2005, and when a government order dated 12th March, 2005 imposed a ban on appointments, the Competent Authority conveniently consigned the application of the workman on the ground that the State Government has now imposed a ban. The workman being dissatisfied with the action of the Competent Authority in not making him permanent, raised an industrial dispute, which was referred by the State Government to the labour court for adjudication. The terms of the reference order was "whether the employers justified in not making the workman permanent in the service of the Nagar Nigam as Sweeper? If not, to what relief was the workman entitled to."

Before the Labour Court, the workman contended that he has been working for more than 10 years on a permanent post. The duty which the workman was performing was permanent in nature and that he had worked for more than 240 days in a calender year, but was being paid a sum of Rs. 1500/- per month whereas a pay scale of Rs. 2550-3200 was being given to the regular workers who were performing the same kind of work as that being performed by the workman. The written statement also contended that a junior has been made permanent in the Nagar Nigam.

The employers in their written statement admitted the factum of the employment of the workman from 1991 onwards, but contended that he was appointed on a temporary basis on a fixed pay and that he was not entitled to be regularized or made permanent. The respondents in their evidence, however, admitted that a notesheet was prepared and the case of the workman was forwarded to the Selection Committee, but no action was taken on the regularization of the service of the workman, and eventually, a ban order was issued by the State Government.

The labour court, after considering the material evidence on record held that the work performed by the workman was a permanent nature of work and that the workman had worked continuously without any break in service for more than 10 years, and accordingly, concluded that the workman had worked for more than 240 days in a calender year. The labour court, accordingly, held that the workman was entitled to be made permanent and be given the pay scale of a permanent employee with effect from the date of the award. The petitioner, being aggrieved for the said award, has filed the present writ petition.

Heard Sri Y.S. Sachan, the learned counsel for petitioner and Ms. Fasiha Fatima for the respondents.

The learned counsel for the petitioner contended that there is no finding that the workman had worked for more than 240 days in a calender year nor there is any finding that the workman was a permanent employee, and therefore, the labour court committed a manifest error in making him permanent coupled with the fact that the State Government had issued the Regularization Rules of 2001, under which the workman could be considered.

Having heard the learned counsel for the petitioner at some length, the Court finds that the award of the labour court does not suffer from any error of law. The award of the labour court is perfectly justified in the facts and circumstances of the given case. The Court finds that the workman was working for more than 11 years without any break in service. The muster roll of the year 2005 was produced by the workman to prove that he had worked for all the days in the month. The best evidence was with the employer to produce the attendance register to indicate the number of working days, which the workman has been done in a year and which they have miserably failed to produce.

The Court finds that a clear averment was made by the workman that he was working on a substantive post, which fact has not been denied by the employers. The Court also finds that a specific averment was made that junior to the workman was regularized, which fact has also not been denied by the employers.

In the light of these evidences, which have been brought on record, it is difficult to accept the contention of the petitioner that the workman was only appointed as a temporary employee and that he had never worked for more than 240 days in a calender year. The notesheet clearly indicates that the claim of the workman for regularization under the 2001 Regularization Rules was sent to the Selection Committee, but for the reasons best known, the claim of the workman was not considered from 2001 to 2005, and then, the employer conveniently threw the claim of the workman in the dustbin on the ground that the Government has now imposed a ban.

The Court is of the opinion that the ban imposed by the State Government was with regard to fresh appointments and that the ban did not apply for the regularization of the services of existing employees. In view of the fact that the employers miserably failed to perform their work, which they were statutorily bound to perform, namely, to regularize the services of the workman in accordance with the Rules, the dispute was rightly referred and the claim was rightly allowed.

In the light of the aforesaid, the writ petition fails and is dismissed.

Pursuant to the award, the workers were not paid the wages of a regular workman in the pay-scale of Rs. 2550-3200, and accordingly, moved an application under Section 6-H(1) of the U.P. Industrial Disputes Act for computation of the wages. The Deputy Labour Commissioner after inviting objections has calculated the wages payable to a permanent workman and issued a recovery certificate. The petitioners, being aggrieved, has filed the present writ petition.

The only ground urged is, that the matter with regard to to the calculation of wages of a permanent employee can only be done in proceedings under Section 6-H(2) of the Act and not under Section 6-H(1) of the Act. The arguments seems to be attractive, but the same can not be sustained for the simple reason that the pay scale of a permanent employee has not been disputed, and consequently, only a arithmetical calculation is required to be done, which the Deputy Labour Commissioner is competent to do so in proceedings under Section 6-H (2) of the Act. It would have been a different case if the pay scale or the wages claimed was disputed, but in the instant case, the Court finds that the claim made by the workman before the labour court was with regard to being made a permanent employee in the pay-scale of Rs. 2550-3200.

In the light of the aforesaid, the Court does not find any error in the recovery certificates issued by the Deputy Labour Commissioner.

All the writ petitions fail and are dismissed.

Order Date :- 16.5.2013

Sanjeev

(Tarun Agarwala,J.)