UDAI PRATAP SINGH Vs. ADHYAKSH NAGAR PALIKA MAHARAJGANJ

JUDGEMENT

(1.) R. B. Misra, J. Heard Sri H. S. N. Tripathi learned counsel for the petitioner and Sri M. L. Srivastava learned counsel for the respondents. In this petition prayer has been made for quashing the order dated 25-8-1990 (Annexure-3 to the writ petition) passed by Adhyaksh Nagar Palika, Mahrajganj dismissing the deployment of petitioner as daily wager on disciplinary ground with immediate effect.

(2.) ACCORDING to the petitioner he was deployed as a Chungi Muharrir from 5-12-1988 and has continued upto 25-8-1990, on 25-8-1990 he was given experience certificate, however it was on the same day that the petitioner's service was dismissed without any show cause notice, without any rhyme or reason or without affording opportunity of hearing and without complying the provisions of Section 6-N of the U. P. Industrial Disputes, Act the said order had imposed stigma on the petitioner.

(3.) ON the other hand learned counsel for the petitioner has placed reliance on the following judgments : (i) In 2002 (1) LBESR 171 (All) : 2001 (3) E. S. C. (All.) 943, Birbal Sharma v. Chief Medical Officer and others, where the termination without affording opportunity of hearing of temporary Assistant Lab Technician at Primary Health Centre was held to be illegal. The case of Birbal Sharma was different as he was a temporary employee. (ii) In (1992) 2 UPLBEC 1110, Karnataka State Private College Stop-Gap Lecturers Association v. State of Karnataka and others, where the Supreme Court has observed that the persons deployed on ad-hoc basis were not allowed to continue on ad-hoc basis for being considered for regularization, however this case shall not protect the petitioner. (iii) In (2002) UPLBEC 337, Santosh Kumar Mishra v. State of U. P. and others, which is in respect of giving benefit of appointment on compassionate ground under Dying in Harness Rules, 1974, by virtue of the person who had continued for several years and despite the rules of regularization available the person could not be regularized and had died in harness during deployment as daily wager. In those circumstances, Sri Santosh Kumar Mishra, writ petitioner was directed to be considered for appointment on compassionate ground treating his father deemed to have been regularized. In my respectful consideration the facts of above case were different and could not applicable to the petitioner as the daily wager has not right to the post. (iv) Learned counsel for the petitioner Sri Tripathi has also placed reliance on judgment passed on 15-9- 1999 by this Court (D. B.) in Special Appeal No. 922 of 1999, Bimal Chand Pandey v. Engineer in Chief, P. W. D. , Lucknow and others, which too has no relevance as the writ petitioner after having served several years was entitled to be regularized and for equal pay or equal work this case is not covered to the case of the petitioner. (v) In (1993) 1 UPLBEC 714, Govind Singh v. Presiding Officer, Labour Court, Agra and others, the petitioner retrenchment after having served several years was held not to be justified in respect of the U. P. Industrial Dispute Act and in view of Section 25-F of Industrial Dispute Act however the facts of above case also cannot be made applicable to the present case. If the petitioner is taking protection of the provisions of Industrial Dispute Act then it was necessary to approach to the Industrial Tribunal or Labour Court, otherwise also daily wagers have no right of protection under Section 25-F of Industrial Dispute Act. (vi) In 2002 (1) LBESR 92 (All) (LB) : 2002 (1) E. S. C. (AII.) 69, Satish Kumar Shukla v. Union of India and others, the writ petitioner working as Constable in Railway Protection Force was found to have suppressed information for getting the employment, his termination was found not to be justified on the ground that Sri Satish Kumar Shukla, writ petitioner in above case was recruited on the suppressed information and had no right to the post after being appointed, the petitioner being daily wager, too has no right to the post and therefore, this judgment has no relevance. (vii) In 1992 All. C. J. 514, Brijesh Kumar Srivastava v. Director, Rajya Krishi Utpadan Mandi Parishad and others, the appointment of the writ petitioner was said not to be retrenched without provisions of Section 2 (8) and Section 6-N of U. P. Industrial Disputes Act, 1947 while on deployment in Rajya Krishi Utpadan Mandi Parishad. In the case of Brijesh Kumar Srivastava specific pleadings were made and were tested in respect of applicability of 6-N of U. P. Industrial Disputes Act. In the facts and circumstances above judgment was passed in the year 1992 by Single Judge of this Court whereas, the said judgment is per incuriam, has not considered large number of decisions on the issue. (viii) In 2002 (1) LBESR 443 (All) (LB) : 2002 (1) H. C. L. B. 486, Shashi Bala Sinha and others v. State of U. P. and others, the petitioner having worked for more than three years was relieved without given any opportunity of hearing, the termination was held against the principle of natural justice. The facts and circumstances of the case of Shashi Bala Sinha were different as in those cases the juniors were regularized and the writ petitioner's service was dismissed on the ground of misconduct, therefore, the termination was held to be unjustified. Here the petitioner's deployment and service was dismissed as a daily wager. In these circumstances, above judgment does not help the petitioner.