ARVIND KUMAR AGARWAL Vs. STATE OF U P

JUDGEMENT

(1.) In this writ petition, under Article 226 of the Constitution of India, it is prayed that a direction be issued to the respondents in the nature of writ of mandamus to treat the petitioner in continuous service and to award all the benefits to which the petitioner is entitled as per service Rules of the Bank.

(2.) Counter and rejoinder affidavits has been exchanged. Heard Sri Subodh Kumar, learned Counsel for the petitioner and Sri Shyam Narain, learned Counsel for the respondent No. 2-Secretary/General Manager, Pilibhit District Co-operative Bank as well as learned Standing Counsel on behalf of the State. It is an admitted fact that the petitioner Arvind Kumar Agarwal was engaged on daily wage basis for specified periods at intervals on the post of Clerk-cum-Cashier, in the Pilibhit District Co-operative Bank. Initially the petitioner was appointed on 18.8.1986 on the daily wage basis at the rate of Rs. 25/- per day for a period of three months. He ceased to work on 11.11,1986 as would be evident from Annexure C.A. 1 and C.A. 2 to the counter affidavit. He was again appointed on 4.12.1986 for a period of six months on ad hoc basis and again on 1.7.1987 and thereafter he continued to be appointed on daily wage basis @ Rs. 35/- per day for three months at a time right upto 13.7.1989. The period of engagement of the petitioner was not extended beyond 7.10.1989. Sri Subhash Kumar, learned Counsel for the petitioner vehemently argued that the termination of ad hoc appointed of the petitioner was wholly illegal and arbitrary and since the petitioner had worked for more than 240 days in every calendar year, in the preceding three years, he was entitled to a regular appointment and in any case, the termination of service was in flagrant breach of provisions of Section 6-N of the U.P. industrial Disputes Act, 1947 (hereinafter referred to as 'the U.P. Act') In the counter affidavit, it is alleged that the petitioner did not work continuously for 240 days in one calendar year and that he is not entitled to the status of a permanent employee, though it is admitted, that the petitioner did work on piece-meal engagement of six months at one time and three months on rest of the occasions during the years 1986 and 1989.

(3.) Sri Subodh Kumar, learned Counsel for the petitioner placed reliance on a number of decisions, such as 1989 (2) U.P.L.B.E.C. (Lucknow Bench) 144, Jai Kishan and Ors. v. U.P. Cooperative Bank Ltd. and Ors.; 1991 (2) U.P.L.B.E.C. 1267, U.P. Bank Employees Union, Fatehpur Unit, Fatehpur and Ors. v. District Co-operative Bank Ltd., Fatehpur and Ors.; 1994 (3) U.P.L.B.E.C. 1714, Prabhu Narain Rai and Anr. v. Secretary-cum-General Manager, Central Co-operative Bank Ltd., Jhansi and Ors., and (1996) 9 SCC 217 : 1997(1) UPLBEC 517 (SC), 217 Inspector General of Registration, U.P. and Anr. v. Avdesh Kumar and Ors., in support of his contention that since the petitioner had worked on daily wage basis and was allowed to continue for years together with certain artificial short breaks and had worked in each calendar year for more than 240 days, the provisions of Section 6-N of the U.P. Act would be application and any order of termination, which does not comply with the aforesaid provisions would be bad in Saw. Regularization of service is claimed on the basis of three years continuous officiation on the post of Clerk-cum-Cashier in the light of the observations made by the Supreme Court in Avdesh Kamar's case, which related to the regularization of service of those employees who worked as Registration Clerks prior to 1.10.1986 for more than 3 years continuous period. The various submissions of the learned Counsel for the petitioner have been repelled by Sri Shyam Narain who appeared on behalf of the respondent No. 2 Bank. It was pointed out that in view of the specific regulations made under the U.P. Cooperative Societies Act, 1965, the provisions of the Industrial Disputes Act (Central) shall not apply to be case of an employee appointed in the Cooperative Bank.