Holding

The direction for regularisation was impermissible as it contravenes Article 14 and the principles laid down in Uma Devi; therefore the Tribunal’s award ordering regularisation is set aside.

Summary

U.P. Power Corporation Ltd terminated two daily‑wage Chowkidars in 1979. The Industrial Tribunal held the termination illegal under s.25‑F of the Industrial Disputes Act, 1947 and s.6‑N of the U.P. Industrial Disputes Act, 1947, ordered their reinstatement and deemed them regularised after three years. The High Court dismissed the corporation’s writ petition challenging that award. The corporation appealed, contending that the direction for regularisation conflicted with the Supreme Court’s decision in Secretary, State of Karnataka v. Uma Devi, which held that regularisation cannot be ordered if it violates Article 14 of the Constitution. The Supreme Court agreed, observing that regularisation is linked to the constitutional guarantee of equality and that an industrial adjudicator cannot grant relief that breaches Article 14. Consequently, the Tribunal’s direction for regularisation was set aside and the appeal was allowed.

Issues considered

Whether an industrial adjudicator can direct regularisation of daily‑wage workers under s.25‑F of the Industrial Disputes Act and s.6‑N of the U.P. Industrial Disputes Act in view of the Supreme Court’s ruling in Uma Devi.
Whether such a direction would violate Article 14 of the Constitution.
The scope of powers of an industrial adjudicator to vary the terms of employment.

Legislation cited

Code of Criminal Procedure, 1973s. 482
Constitution of Indias. Article 14
Industrial Disputes Act, 1947s. 25-F
U.P. Industrial Disputes Act, 1947s. 6-N

Subjects

regularisationre‑trenchmentdaily‑wage workersindustrial adjudicatorArticle 14Industrial Disputes ActU.P. Industrial Disputes Acttermination of servicereinstatement

Judgment

A U.P. POWER CORPORATION LTD. AND ANR.
v. t •
BIJLI MAZDOOR SANGH AND ORS.

APRIL 17, 2007

B [DR. ARIJIT PASAYA T AND LOKESHWAR SINGH PANTA, 11.]

Labour Laws: ~ .
Industrial Disputes Act, 1947:
c
Section 25-F-Terminaton of service of daily wagers-Claim for
reinstatement and regularization-Industrial Tribunal holding termination
as violative of s.25-F of the Act and s.6-N of U.P. Industrial Disputes Act,
1947, and directing reinstatement and regularization of workmen-Held,
concept ofregularization is clearly linked with Article 14 of the Constitution-
D However, if in a case fact situation is covered as stated in para 45 in Uma
Devi's case* industrial adjudicator can modifY the relief. but that does not
dilute observations made in said case about regularization-On/acts, direction
for regularization could not have been given in view of Uma Devi's case* - "'
U.P. Industrial Disputes Act, 1947-Section 6-N-Constitution ofIndia, 1950- ...
E Article I4.

Respondent Nos. 2 and 3 were engaged by the appellant Corporation as
Chowkidars on daily wage basis on 1.6.1977. Since the construction work
was over, their services were terminated by an order dated 17.1.1979. This
gave rise to Adjudication Case No.168of1980 before the Industrial Tribunal,
F which opined that the termination was improper, as the workmen had completed ,..._ __
240 days of service and their retrenchment was violative of s.25-F of the
Industrial Disputes Act, 1947 and Section 6-N of the U.P. Industrial Disputes
Act, 1947 and they were entitled to be reinstated; and, ultimately, held that
respondent nos.2 and 3, after three years of their joining the service, were
deemed to have been regularized. The writ petition of the appellant Corporation
G ~
against the decision of the Tribunal having been dismissed by the High Court,
it filed the present appeal.
A._- .
It was contended for the appellant that in view of the decision of the
Secretary, State of Karna/aka & Ors. v. Uma Devi & Ors., [2006] 3 SCR 953.
..
H 256
U.P. POWER CORPRN. LTD. v. BIJLI MAZDOOR SANGH 257

Supreme Court in Uma Devi's case*, the direction for regularization could A
not have been given. For the respondents, it was contended that in Uma Devi's
case powers of industrial adjudication were not under consideration. It was
submitted that the Labour Court, in order to maintain industrial peace, could
vary the terms of the contract.

Allowing the appeal, the Court B
HELD: 1.1. It is true that the question as regards the effect of the
Industrial Adjudicators' powers was not directly in issue in Uma Devi's case*,
but the foundational logic in the said case is based on Article 14 of the
Constitution of India. Though the Industrial Adjudica~or can vary the terms C
of the contract of the employment, he cannot do something which is violative
of Article 14. If the case is one which is covered by the concept of
regularization, same cannot be viewed differently. [Para 6) [260-C-D]

Secretary, State of Karnataka & Ors. v. Uma Devi & Ors., [2006) 3 SCR
953 [200614 sec 1, explained and relied on. D
1.2. There cannot be a case for regularization without there being
employee-employer relationship. The concept of regularization is clearly
linked with Article 14 of the Constitution. However, if in a case the fact
situation is covered by what is stated in para 45 of the Uma Devi's case*, the
industrial adjudicator can modify the relief, but that does not dilute the E
observations made by this Court in the said case about the regularization.
[Para 7) (260-E-F)

1.3. Looked at from any angle, the direction for regularization, as given,
could not have been given in view of what has been stated in Uma Devi's* case.
[260-G[ (Para 8) F
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2541 of2005.

From the Judgment and Order dated 28.04.2003 of the High Court of
Allahabad in Civil Writ Petition No. 4324 of 1991.
G
S. Borathakur, Aneesh Mittal and Sunil Kumar Jain for the Appellants.

> Bharat Sangal, R.R. Kumar, Samyadip Chatterji and Suchita Sharma for
the Respondents.

The Judgment of the Court was delivered by H
258 SUPREME COURT REPORTS (2007) 5 S.C.R.

A DR. ARIJIT PASAY AT, J. I. Challenge in this appeal is to the order
passed by a learned Single Judge of the Allahabad High Court dismissing the
writ petition filed by the appellants. Challenge in the writ petition was to the
Award made by the Industrial Tribunal, Uttar Pradesh, Allahabad (in short the
'Tribunal') in adjudication case No. 168 of 1980.

B 2. Background facts in a nutshell are as follows:

Respondent Nos. 2 & 3 were appointed as Chowkidars as muster roll
employees on daily wage basis in the Fatehpur Sub-station on 1.6.1977. By ;....... ....... 1

order dated 17.1.1979, the appellant-Corporation decided that no one will be
engaged as casual worker. Accordingly services of respondent Nos. 2 & 3
c and others were terminated as the construction work at Fatehpur Sub-station
was over. Respondent Nos. 2 & 3 disputed their termination on the ground
that they were not paid the retrenchment compensation. The dispute was
referred to the Tribunal in Adjudication Case No.168of1980. The Tribunal
held that the termination was improper as they had completed 240 days of
D service and their retrenchment was violative of Section 25(F) of the Industrial
Disputes Act, 1947 (in short the 'l.D. Act'), and Section 6N of the U.P.
Industrial Disputes Act, 1947 (in short the 'U.P. Act') and they were entitled
to be reinstated with effect from 1979. Though there was a prayer for being ii" .
declared as permanent employee, the Tribunal did not. consider that question.
Respondent Nos. 2 & 3 were reinstated in compliance of the Award dated
E 17.8.1981. Respondent No.2 raised another industrial dispute i.e. Adjudication
Case No.50 of 1985 claiming that he was a Pump Operator cum Electrician and,
therefore, he was entitled to a declaration that he was to be paid salary
applicable to the post he was holding. Respondent No.2 filed Misc. Writ
Petition No.15509 of 1983 challenging the Award in Adjudication Case No.168
F of 1980 on the ground that the second question relating to regularization was
not decided. The questions referred read as follows: "-
"(I) Whether termination of service by employers of Labourers
Mohammad Jamil (s/o Shahamat Ulla) and Nand Lal (S/o Ram Kishan
Patel) dated 1.2.1979 from Civil Construction Department is correct or
G legal? If not, then what relief do these labourers are entitled to get and
on what basis?"

(2) If the above-stated reference-I is answered in favour of the labourers {·
then whether the employers should declare the disputed labourer as
permanent. If yes, then on what basis?"
H
U.P. POWERCORPRN. LTD. v. BIJLIMAZDOORSANGH [PASAYAT,J.]259

3. Respondent No.2 was again tenninated under Section 6 No. of the A
U.P. Act as there was no suitable work to be offered. While another industrial
dispute i.e. Adjudication Case No. I of l 98S was raised. In the said case it was
held that tennination was illegal but it was also held that he was not a regular
employee. Direction was, however, given to consider the possibility of
absorbing him on the job of regular nature. In the Adjudication Case No.SO
of l 98S it was held that respondent No.2 worked as a casual Chowkidar as B
against the claim that he was working as Pump Operator cum Electrician. The
claim made in that regard was negated by the Tribunal. The Award was not
challenged by respondent No.2. Appellants filed writ petition No.17727 of
l 98S inter alia challenging the Award dated 9 .8.l 98S in Adjudication Case
No.I of 198S. The same was subsequently withdrawn in the year 1990. On
1.6.1986 respondent No.2 was reinstated as a Chowkidar. According to the C
appellants, respondent No.2, after reinstatement, absented from duty illegally
for several days. Respondent No.2 again filed Adjudication Case No.106 of
1987. When it was pointed out by the appellants that the issues raised by
the claimants were already decided, respondent No.2 withdrew the case.
Another Misc. Case No.IS of 1987 was lodged by respondent No.2 claiming D
wages from the period 1.6.1986 to 31.1.1987. The Labour Court directed the
appellants to pay for the said period at the rate of Rs. I 0/- per day amounting
to Rs.1640/- which has been paid. Respondent No.2 filed Case No.S of 1989
before the Deputy Labour Commissioner for payment of wages. The same was
again withdrawn by the claimant. The High Court in W.P. No.1S509of1983
remanded the matter to the Tribunal to decide whether respondent No.2 was E
entitled to regularization which related to Adjudication Case No.168of1980.
On remand the Tribunal held that after three years of their joining in service,
respondent Nos.2 & 3 were deemed to have been regularized. Appellants filed
Writ Petition No.4324 of 1991 challenging the said Award of the Tribunal
dated 3.9.1990. Respondent No.2 filed a Criminal Contempt against the
appellants alleging non-compliance of the Award. Appellants filed a Criminal F
Misc. Case under Section 482 of the Code of Criminal Procedure, 1973 (in
short the 'Code') praying for quashing the proceedings. Respondent No.2
was asked on 23.7.1992 to report for duty as a daily wages Chowkidar. Similar
directions were given on 4.1.1993. The Criminal Misc. Application was allowed
by the High Court. Respondent No.2 was asked to join the duties which he G
did not do. The High Court dismissed the CMWP No.4324 of 1991 on the
ground that respondent No.2 was entitled to regularization.

4. In support of the appeal, learned counsel for the appellants submitted
that the order of the High Court is clearly untenable being cryptic. In any
event in view of the decision in Secretary, State of Karna/aka and Ors v. Uma
Devi and Ors., [2006] 4 sec 1 the direction for regularization could not have H
260 SUPREME COURT REPORTS [2007] 5 S.C.R.

A been given. It was pointed out that the Tribunal relied on a decision of this
Court which specifically overruled in Uma Devi's case (supra).

5. On the other hand learned counsel for the respondent submitted that
in Uma Devi's case (supra) the powers of the Industrial Adjudicator were not
under consideration. There is a difference between a claim raised in Civil Suit
B or a writ petition and one adjudicated by the Industrial adjudicator. It was
submitted that the Labour Court can create terms existing in the contract to
maintain industrial peace and, therefore, it can vary the terms of the contract.
Therefore, it was submitted that the orders of the High Court do not warrant
any interference.

C 6. It is true as contended by learned counsel for the respondent that
the question as regards the effect of the Industrial Adjudicators' powers was
not directly in issue in Uma Devi's case (supra). But the foundational logic
in Uma Devi's case (supra) is based on Article 14 of the Constitution oflndia,
1950 (in short the 'Constitution'). Though the Industrial Adjudicator can vary
the terms of the contract of the employment, it cannot do something which
D is violative of Article 14. If the case is one which is covered by the concept
of regularization, same cannot be viewed differently.

7. The plea of learned counsel for the respondent that at the time the
High Court decided the matter, decision in Uma Devi's case (supra) was not
E rendered is really of no consequence. There cannot be a case for regularization
without there being employee-employer relationship. As noted above the
concept of regularization is clearly linked with Article 14 of the Constitution.
However, if in a case the fact situation is covered by what is stated in para
45 of the Uma Devi's case (supra), the Industrial Adjudicator can modify the
relief, but that does not dilute the observations made by this Court in Uma
p Devi's case (supra) about the regularization.

8. On facts it is submitted by learned counsel for the appellants that
respondent No.2 himself admitted that he never worked as a Pump Operator,
but was engaged as daily labourer on daily wage basis. He also did not
possess requisite qualification. Looked at from any angle, the direction for
G regularization, as given, could not have been given in view of what has been
stated in Uma Devi's case (supra).
.J. -
The appeal is bound to succeed and is accordingly allowed but in the
circumstances without any orders as to costs.

H RP. Appeal allowed.