Important Point
Merely because an employee has completed 240 days of work in a year preceding the date of retrenchment, the same does not mean that his services are liable to be regularized.

JUDGMENT

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 :

“–since 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.”

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 :

“I 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 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.”

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