important point
Services of daily wagers employed without following the recruitment procedures cannot be regularized.

judgment

Dr. Arijit Pasayat, J. —

1.Leave granted.

2.Challenge in this appeal is to the judgment of a learned Single Judge of the Himachal Pradesh High Court by which two Writ Petitions filed by the respondent were disposed of. The controversy lies within a very narrow compass.

3.The present dispute relates to Civil Writ Petition No.354 of 2000. Before dealing with the rival contentions the factual background needs to be noted.

Respondent was appointed on 3.9.1980 as a daily-rated worker in the Horticulture Department of the State. In the Writ Petition the prayer was for regularization as a clerk on completion of ten years of service on daily wages basis. It is to be noted that the union of the employees had moved the Labour Court for regularization of all daily wagers. The same was adjudicated by the Industrial Disputes Tribunal. A reference was made to the Labour Court and the State filed its response questioning maintainability of the reference. Initially the Labour Court had decided in favour of the workers but on a Writ Petition being filed, the High Court held in favour of the State holding that the claim for regularization was not maintainable. It was noted that no appointment order was issued and the case of the respondent was not sponsored by the employment exchange. It was also noted that the claim for equal work for equal pay was not maintainable as daily-rated persons were not required to perform duties at par with those in regular service and they did not also fulfil the procedure at the time of recruitment. Two Writ Petitions were filed; in one the challenge was to the order of the Industrial Disputes Tribunal while the Writ Petition to which this Appeal relates to the Award by the Labour Court. It is to be noted that the Labour Court had observed that the employer had regularized the respondent as a Chowkidar with effect from 5.7.1997 which was refused by him. Thereafter the engagement as daily wager was terminated. This order was challenged before the Industrial Disputes Tribunal, under Section 33 which was dismissed. However, as noted above the High Court has remanded the matter to the Tribunal.

4.The High Court in the impugned order held that the approach of the Labour Court was wrong as it has introduced concepts which are unnecessary. It was noted by the High Court that there was no dispute that the respondent was employed as a clerk.

5.Learned counsel for the respondents submitted that the question whether the appointment was as a clerk has been concluded by an earlier order of the High Court which has become final and, therefore, the present appeal is misconceived.

6.The High Court had rightly observed that the Labour Court embarked upon an uncalled enquiry upon the status of daily-wage workers vis-à-vis regular workers, therefore, the direction was given that the respondent was entitled to be regularized as clerk under the scheme of the Government with effect from 11th July, 1995.

7.It is to be noted that the High Court proceeded on erroneous premises. It has observed that there was no dispute that respondent was employed as daily wage worker as clerk with effect from 3rd September, 1980. The High Court itself has observed that the stand of the State was specific that the respondent was engaged as daily-paid labourer for carrying out horticulture operations such as spraying of plants, cleaning the floors etc. and therefore, the question of discharging the duties of clerk/supervision does not arise. It was also to be noted that the Labour Court had rightly dismissed the claim of the respondent by holding that he and others, being daily wagers, cannot be treated at par with the regular employees. It also noted that the conditions for regularizations under the policy of the Government have not been noticed. The parameters of regularization have been examined by this Court in Secretary, State of Karnataka & Ors. v. Uma Devi & Ors.,1 (2006(4) SCC 1). Paras 22, 27, 36, 39, 42 and 43 of the decision read as follows :

“22