The Union Of India Through The Post ... vs The State Of Bihar And Ors
2023 Latest Caselaw 207 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.2758 of 2019
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The Union of India through the Post Master General, Mahendra Prasad Rajak North Bihar Circle, Gaushala Road, Muzaffarpur- 842002.

... ... Petitioner Versus

1. The State of Bihar through the Labour Commissioner, Government of Bihar Patna, Niyojan Bhawan, Patna.

2. The Presiding Officer State Industrial Tribunal Patna.

3. The National Insurance Employees Association through its General Secretary, B M P Srivastava, J.P. Colony, Chandwara, Muzaffarpur, Bihar.

4. Sri Umesh Kumar Son of Baiju Ram, resident of Village Chandwara Soda Godown, Bharat Mata Gali, Muzaffarpur.

... ... Respondents

====================================================== Appearance :

For the Petitioner/s : Mrs. Kanak Verma, Advocate For the State : Mr. Raghwendra Kumar (SC 22) For the Respondent No.4 : Mr. Kaushalesh Choudhary, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR CAV JUDGMENT Date : 18-01-2023

Heard Mrs. Kanak Verma, learned counsel

appearing on behalf of the petitioner, Mr. Kaushalesh

Choudhary, learned counsel for the respondent no.4 and Mr.

Raghwendra Kumar, learned counsel for the State.

2. By invoking the extraordinary writ jurisdiction

of this Court under Article 226 of the Constitution of India, the

petitioner seeks following reliefs:-

"(i) For quashing of the Award dated Patna High Court CWJC No.2758 of 2019 dt.18-01-2023

24.02.2016 passed by Sri Bipin Dutta Pathak, the Presiding Officer, Industrial Tribunal, Patna in Reference No.04 of 2014 by virtue of which it has been held that workman Sri Umesh Kumar is in continuous service and workman has right to absorption having been engaged for the considerable period of time regularly even though on daily wages, and hence Management (Post Master General, North Bihar Circle, Muzaffarpur) is directed to given him a permanent status of a permanent regular employees with immediate effect with all consequential benefits after 09.08.2002.

(ii) For quashing of the impugned Notification no. L-40017/78/2013-1 R (DU) dated 06.02.2014 issued by the Respondent Government of India, Ministry of Labour, New Delhi whereby the Award passed by the Industrial Tribunal Patna Bihar under Reference no.04 of 2014.

(iii) For a declaration that the respondent workman not being covered by the definition of workman prescribed under the Industrial Dispute Act, 1947 the Reference of the dispute by the Respondent Ministry of Labour Government of India itself is illegal and without jurisdiction and bad in the eye of law.

(iv) For a declaration that the Reference of the dispute raised by the National Life Insurance Employees Association on behalf of the Patna High Court CWJC No.2758 of 2019 dt.18-01-2023

Respondent workman itself being not an industrial dispute within the meaning of the Act, the impugned Award is bad in law and been passed without jurisdiction as such liable to be quashed by this Hon'ble Court and for any other relief(s) for which the petitioner may legally be found entitled to in the facts and circumstances of the present case.

3. The short facts which led to the filing of the

present writ application is that the respondent no.4 was

engaged/appointed on daily wages as Sweeper in the month of

1999 in the office of Head Post Office, Muzaffarpur.

4. From the materials on record, it is evident that

on account of retirement of one Shri Ram Gopal Ram, who was

working as sweeper, the post became vacant, against which the

petitioner has been performing his duty of sweeper regularly. In

the year 2002, the Senior Post Master, Muzaffapur issued a

letter dated 03.08.2002, by which he recommended to grant

temporary status to the respondent no. 4 and two other similarly

situated persons, namely Sri Vishwa Vijay Kumar and Sri Brij

Bhushan Prasad. On the basis of the aforesaid recommendation,

the services of the respondent no.4 along with aforesaid two

persons had given temporary status vide Order No. Sr.

P.M./MISC/2002 dated 09.08.2002, a copy of which has been Patna High Court CWJC No.2758 of 2019 dt.18-01-2023

annexed as Annexure-R/2. After working so many years, when

the service of the respondent no.4 has not been regularized by

the authority concerned, he filed representation before the Post

Master General, North Region, Muzaffarpur, on 21.11.2011

submitting therein that he is possessing Intermediate

qualification and has been working on vacant and sanctioned

post of Sweeper on the basis of daily wages since 1999, in the

meantime, the services of the several junior persons have been

confirmed but his case has not been considered. Hence, he

prayed for regularization of his services.

5. When the grievance of the respondent no.4 has

not been redressed by the concerned authority, he approached

before the Regional Labour Commissioner (Central), Patna on

04.12.2012. Thereafter, a notice was issued to the Senior Post

Master, Muzaffarpur. In response to the aforesaid notice, he

filed a reply negating the claim of the respondent no.4.

6. It would be relevant to mention here that on

06.02.2014, vide Notification No. L-40011/78/2013-IR (DU)

dated 06.02.2014 issued by the Ministry of Labour, Government

of India, the Central Government under clause (d) of sub-

section(1) and sub-section (2A) of Section 10 of the Industrial

Disputes Act, 1947 (hereinafter referred to as the 'Act'). The Patna High Court CWJC No.2758 of 2019 dt.18-01-2023

reference has been made as to "whether the workman has earned

right of absorption having been engaged for a considerable

period of time regularly even though on daily wages? and

'whether the management of Post Master General, Northern

Region should give him a permanent regular employees status

with immediate effect? Respondent no.4 moved before the

Central Government Industrial Tribunal No.2, Dhanbad, vide

Reference Case No. I.D. 4 of 2014 on 08.03.2014 through the

General Secretary and NLI Employees Association,

Muzaffarpur. The aforesaid Reference Case has been transferred

to the State Industrial Tribunal, Patna on 07.05.2014 and the

Reference Case has been numbered as 17(C)/2014/04/2014. The

notices were sent to the concerned parties and they have filed

their respective written statements. Four witnesses have been

examined on behalf of the Management whereas single witness

has been examined on behalf of the workman (respondent no.4),

the workman himself.

7. Considering the deposition of witnesses and the

materials exhibits, the learned Presiding Officer of Industrial

Tribunal, Patna, has passed an award directing the concerned

authorities (petitioner) to grant status of a permanent regular

employee to the respondent no.4. Paragraph-20 of the said Patna High Court CWJC No.2758 of 2019 dt.18-01-2023

award is as follows:

"Considering all the aforesaid facts and circumstances and law cited in this case it is very clear that workman Sri Umesh Kumar is in continuous service and workman has right to absorption having been engaged for the considerable period of time and regularization even though working on daily wages and management of post master general, northern region should given him (the workman) a permanent regular employees status with immediate effects."

8. Learned counsel for the Union of India while

challenging the award dated 24.02.2016 vehemently submits

that there are errors of record with respect to the fact that the

respondent no.4 was engaged against permanent vacant

sanctioned post whereas the fact is otherwise, he used to be

engaged as daily wages employee and used to be paid salary by

way of voucher and further he has raised that daily wager

cannot be absorbed directly merely because he has worked for

long unless his engagement is in terms of Articles 14 and 16 of

the Constitution of India, placing reliance on the judgment of

Secretary, State of Karnataka And Others Vs. Umadevi (3)

And Others reported in (2006) 4 SCC 1. She further submits

that respondent no.4 has been working as daily wager Mazdoor Patna High Court CWJC No.2758 of 2019 dt.18-01-2023

from 1999. The Department of Posts, Government of India vide

letter no. 66-52/92-SPB-1 dated 1.11.1995 subsequently

amended vide letter no. 08.11.1995 clearly stipulated that

engagement like casual labours after 01.09.1993 is not subject

to be regularization in the Department. Thus, the Department

has no liability of confirmant of temporary status to respondent

no.4. She also submits that the Hon'ble Supreme Court in its

judgment reported in (2015) 5 SCC 786 [Durgapur Casual

Workers Union And Others Vs. Food Corporation of India

And Others] has held that Uma Devi case has not overridden

powers of Industrial and Labour Courts in passing appropriate

orders. She lastly submits that compliance of the impugned

award by the petitioner would amount to negation of the role of

equality of opportunity to be given to the citizens in matters of

employment, which would be expressly violative of Articles 14

and 16 of the Constitution of India.

9. Per contra, Mr. Kaushalesh Choudhary, learned

counsel for the respondent no.4 by referring to the statements

made in the counter affidavit as well as reply filed to the writ

petition and the supplementary affidavit on behalf of the

petitioner submits that from the materials available on record, it

is admitted that the service of the respondent no.4 was given Patna High Court CWJC No.2758 of 2019 dt.18-01-2023

temporary status way back in the year 2002, w.e.f. 09.08.2002

and, since then, he has been discharging his duty to the entire

satisfaction of the authorities concerned. He has also drawn

attention of this Court towards the instances where several

persons, who were appointed on daily/casual basis, their

services have been regularized/absorbed in different

Departments but, discrimination has been caused to respondent

no.4. He further submits that in the Reference Case No.

04/2014, the witnesses who were examined on behalf of the

Management have also stated that the respondent no.4 has been

working in its office as the permanent Sweeper, had already

retired and, as such, it is apparent that the respondent no.4 was

working against vacant and permanent post. In sum and

substance, all the witnesses have admitted the fact of his

working since 2000 as a Coolie/Sweeper and he was allowed

minimum wages of pay-scale of Group "D" plus usual

allowances admissible to the post. Mr. Choudhary next submits

that the person along with whom the respondent no.4 has been

given the temporary status, namely, Sri Brij Bhushan Prasad was

also absorbed later on and who is presently working in the

Department of Post and Telegraph. He also submits that the

letter dated 01.11.1995, subsequently amended by the letter Patna High Court CWJC No.2758 of 2019 dt.18-01-2023

dated 08.11.1995 issued by the Department of Post, Government

of India, by which it is stated that any engagement like casual

workers after 01.09.1993 is not subject to regularization in the

Department, has never been adhered to, as the several

casual/daily wages engaged between 21.01.1992-18.08.2007,

their services have been regularized by the Department of Post,

but with regard to the respondent no.4, the petitioner has taken a

different stand. He lastly draws the attention of this Court

towards the award passed by the Presiding Officer, Industrial

Tribunal, Patna and vehemently submits that the same has been

passed after taking into consideration the continuous service of

respondent no.4 for a considerable period of time and,

moreover, the Management had granted the temporary status to

him since 09.08.2002. The award has been passed in accordance

with law after taking into account the various judgments

rendered by the highest Court of land wherein it has been held

that "if the work is taken by the employer continuously from

daily wages workers for a long number of years without

considering their regularization for its financial gain as against

employees legitimately claim, has been held as an unfair labour

contract. In such a situation, a legal obligation is cast upon an

employer if there be vacant post to fill it up with such workers Patna High Court CWJC No.2758 of 2019 dt.18-01-2023

in accordance with law, if any."

10. This Court has heard the learned counsel for the

petitioner as well as the respondent no.4 at length and also given

careful consideration to the award passed by the Industrial

Tribunal, Patna and having seen the materials on record came to

the conclusion that the respondent no.4 is in continuous service

at the Head Post Office, Muzaffarpur since 1999 against the

permanent perennial post of Sweeper on daily wage basis. There

had never been any allegation against his disciplinary conduct

and work culture and he had been allowed temporary status with

other daily wager/workman vide Memo No. Sr.PM/MISC/2002

dated 09.08.2002 issued under the signature of Senior Post

Master, Muzaffarpur, Head Office. From the evidence of the

Management witnesses, it also transpired that the cleaning work

is done by daily wagers and respondent no.4 and one Raju

Kumar were working as Sweeper. It also contended that in the

aforesaid Memo dated 09.08.2002, the name of Sri Umesh

Kumar (respondent no.4) was at the top. However, only one

person Sri Brij Bhushan Prasad had made permanent but the

respondent no.4 has never been given the status of permanent.

The reliance made by learned counsel for the petitioner on a

Constitution Bench judgment of the Hon'ble Supreme Court Patna High Court CWJC No.2758 of 2019 dt.18-01-2023

rendered in the case of Secretary, State of Karnataka (supra),

in the opinion of this Court, strengthen the case of the

respondent no.4 which observed that where a duly qualified

person has been regularly appointed on daily wage basis against

a sanctioned vacant post and has been continued for ten years or

more, without intervention of any order of the Court or Tribunal,

the question of regularization of service of such employees may

have to be considered on merit.

11. Further the highest Court of the land in the case

of Durgapur Casual Workers (supra) has been held that Uma

Devi case has not overrideen powers of Industrial and Labour

Courts in passing appropriate orders.

12. It would also be apt to observe that the Hon'ble

Apex Court in the case of Hari Nandand Prasad And Another

Vs. Employer I/R To Management of Food Corporation of

India And Another reported in AIR 2014 SC 1848 has been

pleased to observe in paragraph nos. 31 and 34 which are as

follows:

"31. The Court in Maharashtra SRTC case [Maharashtra SRTC v. Casteribe Rajya Parivahan Karmchari Sanghatana, (2009) 8 SCC 556 : (2009) 2 SCC (L&S) 513] also accepted the legal proposition that courts cannot direct creation of posts, as held in Patna High Court CWJC No.2758 of 2019 dt.18-01-2023

Mahatma Phule Agricultural University v. Nasik Zilla Sheth Kamgar Union [(2001) 7 SCC 346 : 2001 SCC (L&S) 1180] . Referring to this judgment, the Court made it clear that inaction on the part of the State Government to create posts would not mean an unfair labour practice had been committed by the employer (University in that case) and as there were no posts, the direction of the High Court to accord the status of permanency was set aside. The Court also noticed that this legal position had been affirmed in State of Maharashtra v. R.S. Bhonde [State of Maharashtra v. R.S. Bhonde, (2005) 6 SCC 751 : 2005 SCC (L&S) 907] . The Court also reiterated that creation and abolition of post and regularisation are purely executive functions, as held in a number of judgments and it was not for the court to arrogate the power of the executive or the legislature by directing creation of post and absorbing the workers or continue them in service or pay salary of regular employees. This legal position is summed up in para 41 which reads as under:

(Maharashtra SRTC case [Maharashtra SRTC v. Casteribe Rajya Parivahan Karmchari Sanghatana, (2009) 8 SCC 556 : (2009) 2 SCC (L&S) 513] , SCC p. 576) "41. Thus, there is no doubt that creation of posts is not within the domain of judicial functions which obviously pertains to the executive. It is also true that the Patna High Court CWJC No.2758 of 2019 dt.18-01-2023

status of permanency cannot be granted by the Court where no such posts exist and that executive functions and powers with regard to the creation of posts cannot be arrogated by the courts."

34. A close scrutiny of the two cases, thus, would reveal that the law laid down in those cases is not contradictory to each other. In U.P. Power Corpn. [U.P. Power Corpn. Ltd. v. Bijli Mazdoor Sangh, (2007) 5 SCC 755 : (2007) 2 SCC (L&S) 258], this Court has recognised the powers of the Labour Court and at the same time emphasised that the Labour Court is to keep in mind that there should not be any direction of regularisation if this offends the provisions of Article 14 of the Constitution on which the judgment in Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 :

2006 SCC (L&S) 753] is primarily founded. On the other hand, in Bhonde case [Food Corporation of India v. Union of India, (2005) 106 FLR 1171 : 2005 AIR Jhar R 1962], the Court has recognised the principle that having regard to the statutory powers conferred upon the Labour Court/Industrial Court to grant certain reliefs to the workmen, which includes the relief of giving the status of permanency to the contract employees, such statutory power does not get denuded by the judgment in Umadevi (3) case [State of Karnataka v.

Patna High Court CWJC No.2758 of 2019 dt.18-01-2023

Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] . It is clear from the reading of this judgment that such a power is to be exercised when the employer has indulged in unfair labour practice by not filling up permanent posts even when available and continuing to employ workers on temporary/daily-wage basis and taking the same work from them and making them do some purpose which was being performed by the regular workers but paying them much less wages. It is only when a particular practice is found to be unfair labour practice, as enumerated in Schedule IV of the MRTP and PULP Act, and it necessitates giving direction under Section 30 of the said Act, that the court would give such a direction."

(emphasis supplied)

13. This Court would also observe that there is

unexplained delay of almost three years in assailing the award

passed by the Industrial Tribunal, Patna though no law of

limitation has been prescribed for filing a petition under Article

226 of the Constitution but undisputedly the delay must be

reasonable, as it may adversely affect the settled/crystallized

rights of the parties.

14. The Hon'ble Supreme Court in the case of

Banda Development Authority, Banda Vs. Motilal Agarwal Patna High Court CWJC No.2758 of 2019 dt.18-01-2023

And Others reported in (2011) 5 SCC 394 has been pleased to

observe in paragraph no. 18, which is as follows:

"18. In State of M.P. v. Bhailal Bhai [AIR 1964 SC 1006] the Constitution Bench considered the effect of delay in filing writ petition under Article 226 of the Constitution and held: (AIR pp. 1011-12, paras 17 & 21)

"17. ... It has been made clear more than once that the power to give relief under Article 226 is a discretionary power. This is specially true in the case of power to issue writs in the nature of mandamus.

Among the several matters which the High Courts rightly take into consideration in the exercise of that discretion is the delay made by the aggrieved party in seeking this special remedy and what excuse there is for it. ... It is not easy nor is it desirable to lay down any rule for universal application. It may however be stated as a general rule that if there has been unreasonable delay the court ought not ordinarily to lend its aid to a party by this extraordinary remedy of mandamus.

***

21. ... The learned counsel is right in his submission that the provisions of the Patna High Court CWJC No.2758 of 2019 dt.18-01-2023

Limitation Act do not as such apply to the granting of relief under Article 226. It appears to us however that the maximum period fixed by the legislature as the time within which the relief by a suit in a civil court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured. This Court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period, it will almost always be proper for the court to hold that it is unreasonable."

15. This Court cannot lose sight of the fact that writ

against the award of the Industrial Tribunal can be filed on only

limited grounds, inter alia, if the order suffers from an error of

jurisdiction or breach of principles of natural justice or is

vitiated by an error of law. However, no justifiable ground has

been shown for interference. Even otherwise, the respondent

no.4 has brought on record by filing reply to the supplementary

affidavit filed on behalf of the petitioner giving instances of

various persons whose services were absorbed in different

Departments under the Post and Telegraph. Though, the Patna High Court CWJC No.2758 of 2019 dt.18-01-2023

petitioner tried to controvert but finally failed to explain the

facts of their absorption/regularization, having taken place.

16. In view of the discussions made herein above

and the position obtaining in law, this Court does not find any

ground to interfere in the award passed by the Presiding Officer,

Industrial Tribunal, Patna.

17. Accordingly, the present writ application stands

dismissed, sans any merit.

18. The petitioner is, therefore, directed to ensure

the compliance of the award with all consequential benefits as

has been granted in favour of the respondent no.4 forthwith.

(Harish Kumar, J) rohit/-

AFR/NAFR                NAFR
CAV DATE                14-12-2022
Uploading Date          19-01-2023
Transmission Date       NA