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Judgment
S.U. Khan, J.
List revised.
No one appears for the respondent Nos. 2 to 5, the workmen.
Heard learned Counsel for the petitioner.
This writ petition is directed against award dated 7.5.1990 given by Presiding Officer, Labour Court, U.P. Varanasi in adjudication case No. 211 of 1988. The matter which was referred to the Labour Court was as to whether petitioner employer should regularise its workmen/respondent Nos. 2 to 5 Ram Kailash Verma and others on the post of Fitter, Mechaniccumfitter and Junior Electrician. The case of the workmen was that they were appointed on 1.2.1979 and 22.2.1979 on the posts on which they were seeking regularisation however by order dated 24.2.1984 they were regularised on the post of helper which was accepted by them under protest. The employer petitioner contended that the workmen did not possess necessary qualification for the posts on which they were claiming regularisation. In the impugned award Labour Court held that even though all the four workmen were appointed on daily wager post, however, since their appointment they were discharging the duties of the posts on which they claimed regularisation. The petitioner employer also contended that no post of Junior Electrician, Fitter or Mechaniccumfitter was vacant. The Labour Court directed that the workmen should be regularised on the posts on which they claimed regularisation w.e.f. the date of reference i.e. 16.5.1988.
In the entire award there is no mention that workmen were ever paid the salary of the posts on which they were claiming regularisation. The only finding is that they were being addressed by the said designation and they were discharging the said duties. It has been stated in the writ petition that the appointing authority of fitter, mechaniccumfitter and junior electrician never appointed respondent Nos. 2 to 5 on the posts on which they were claiming regularisation.
Even if it is assumed that workmen were doing the job of fitter electrician etc. still merely on that basis they can not claim regularisation. Continuous working for more than 240 days confers a right upon workman to the effect that his services would not be terminated without payment of retrenchment compensation under Section 25F Industrial Dispute Act or 6N of U.P. Industrial Dispute Act. However, it does not confer any right of regularisation vide (2007) 3 UPLBEC 2103 (SC) : AIR 2007 SC 2733, Hindustan Aeronautics v. D.B. Singh. If the case of the workmen is correct then they should not have accepted the appointment on the lower posts instead they should have given up their right of being appointed/regularised on the lower posts of helper and should have insisted on continuance on the higher posts (on which they sought regularisation) without claiming regularisation. Workmen cannot be permitted to get double benefit i.e. regularisation on the lower posts as well as claim on the higher posts simultaneously. Supreme Court in (2005) 2 UPLBEC 2044 (SC) : AIR 2005 SC 1843, "Haryana State Coop. Land Development Bank v. Neelam" has held that principles estoppel and acquiescence are applicable to labour dispute also.
Moreover when there was no vacancy and the workmen did not possess minimum qualification, there was absolutely no question of regularisation on the higher posts.
Petitioner employer is a Cooperative Society.
Supreme Court in 2007 (113) FLR 50, "Ghaziabad Zila Sahakari Bank Ltd. v. Additional Labour Court, Commissioner", has held that U.P. Industrial Dispute Act or Industrial Dispute Act does not apply to Cooperative Societies in U.P. and any disputes in between Management and workmen of Cooperative Societies cannot be adjudicated by Labour Court.
Learned Counsel for the petitioner has also cited a decision of this Court dated 25.3.2003 delivered in Writ Petition No. 11856 of 1990, M/s. Feeder Balancing Dairy Ram Nagar, Varanasi v. Labour Court. The said writ petition was also filed by the petitioner of this writ petition against some other employees. In the said writ petition also similar type of award as is impugned in this writ petition was challenged and set aside.
Accordingly, writ petition is allowed. Impugned award is set aside.