State of U.P. vs Industrial Tribunal and Others

Sanjay Misra, J.—Time was granted to learned Counsel for the Respondent No. 2 to file counter-affidavit on 14.2.1996. No counter-affidavit has been filed till date.

List of old cases to be taken up at 2.00 p.m. has been revised. None appears on behalf of the Respondent No. 2 inspite of repeated calls. Learned standing counsel for the Petitioner is present.

Learned standing counsel appearing on behalf of the Petitioner has submitted that by the impugned award dated 16.12.1994. the Industrial Tribunal-IV, U.P. Agra has given its award by recording that Respondent No. 2, Satyavir Singh was a workman and has been working continuously and therefore, in the event of his retrenchment, he would be entitled to the benefit of Section 6N of the U.P. Industrial Disputes Act, 1947. Learned standing counsel states that the workman had claimed regularisation in service and although the Tribunal found that there was no post available for regularisation, it has erroneously issued a direction to the Petitioner to create a post and regularize the service of the workman. He submits that as a consequence of the aforesaid award the Deputy Labour Commissioner, Agra has directed the recovery of Rs. 66,749.65p. as benefit to which the workman would have been entitled. He states that there was no direction with respect to payment of money and the award was only confined to the reference as to whether the workman was entitled to be regularized. According to learned standing counsel even in the award regularization has not been done, but direction has been issued to create a permanent post and when it is created, appoint the workman as regular employee. As such according to him when there was no monetary benefit involved unless the post was created by the State, the workman could neither be regularized on such non existent post nor could be entitled to any sum of money.

The submission of learned standing counsel appears to have substance inasmuch as it is not a case that the workman was retrenched and would therefore, be entitled to the benefit. The reference was whether the workman should be regularized or not. The Tribunal has found that there was no post available for regularisation of the workman, therefore, the direction to the State to create the permanent post and when the post is created to give regularisation to the workman. In the absence of the post, the workman could not be regularized and as such for the purpose of execution of the award, no amount could be claimed by the workman, in case the post had not been created and the workman has not been appointed.

Creation of a post is within the domain of the employer. The power is inherent. In case the employer does not create a post no right can accrue to a person to claim appointment. For creation of a permanent post various factors such as finance, cadre strength, service rules and requirement have to be taken into account. In the present case a direction to create a permanent post for the workman was clearly not within the Jurisdiction of the Industrial Tribunal.

Consequently, the impugned award dated 16.12.1994 passed by the Presiding Officer (Annexure-6 to the writ petition) and order dated 5.1.1996 passed by the Deputy Labour Commissioner, Agra cannot be sustained and are accordingly set aside. The writ petition stands allowed.

No order is passed as to costs.