Background Facts

The petitioner joined the respondent establishment as a daily rated/muster roll employee w.e.f. 13.06.1985. His services were terminated on 02.03.1987. However, the termination order was set aside by the learned Labour Court on 21.10.1995. It was directed by the Labour Court to reinstate him with full back wages and continuity of service. The respondent management filed a writ petition before Delhi Court against the award.

However, it was ultimately withdrawn on 06.08.1996 as the dispute was settled whereby the petitioner was reinstated w.e.f. 28.08.1996 with 50% back wages. Therefore, the petitioner raised the demand for regularization of his services on the post of Assistant Salesman from initial date of appointment. The dispute came to be referred for adjudication to the Tribunal. The Tribunal found that the petitioner was not entitled to regularization.

Aggrieved by the same, the petitioner filed the petition before the Delhi High Court.

It was argued by the petitioner that the Trial Court failed to appreciate that the petitioner was not working as a daily wages worker. It was contested that the Management witness had admitted that the petitioner's work was of regular nature. Further that it was similar to the work being performed by the witness himself. It was also argued that the witness had admitted that there were no sanctioned posts of Assistant Salesmen in other showrooms, but Assistant Salesmen were working there.

On the other hand, it was argued by the respondent that there was no vacant post of Assistant Salesman. It was further argued that there was no proof of receipt of salary of wages for 240 days. Further there was nothing to show that the petitioner was employed as an Assistant Salesman on regular basis. It was further submitted that the nature of work of the petitioner was substantially different from that of an Assistant Salesman.

Findings and observations of the Court

It was observed by the Court that the Tribunal rightly decided against the petitioner on finding that there were no regular vacancies of the post of Assistant Salesmen since the scope of the petitioner's work was altogether different from that of an Assistant Salesmen. It was further observed by the Court that a daily wager can only be absorbed if there is availability of duly sanctioned posts.

The case of Vibhuti Shankar Pandey v. The State of Madhya Pradesh & Ors. was relied upon wherein it was held that the principle of law as provided in Secretary, State of Karnataka v. Umadevi had not been followed as initial appointment must be done by the competent authority and there must be a sanctioned post on which the daily rated employee must be working.

It was noted that the Management Witness had maintained that there were no available sanctioned posts of Assistant Salesmen other than the regular Assistant Salesmen working with the management. The petitioner's claim could not be allowed as the respondent had also been able to establish that the work of an Assistant Salesman involved responsibility of the entire working including accounts. It was different from the work of the petitioner, who was only a helper.

It was further observed that the petitioner had been unable to show that he was appointed against a vacant post of Assistant Salesman. The petitioner had named certain juniors in his written submissions, who had already been regularized in service but no such ground was raised before the Tribunal. Further, the petitioner had already withdrawn his application because he was seeking to bring additional documents on record, therefore the Court did not consider it proper to examine the said aspect.

Further reliance was placed on the case of Shripal & Anr. v. Nagar Nigam, Ghaziabad wherein the Supreme Court granted relief because the workmen were performing the same tasks as regular Gardeners and there was a consistent need for permanent staff.

However, it was held by the court that the petitioner's scope of work was different from that of an Assistant Salesman. With the aforesaid observations, the decision of the Tribunal was upheld by the Court. Consequently, the petition filed by the petitioner was dismissed by the Court.

Case Name : Sushil Kumar v. Telangana State Handloom Weavers Housing Society Co-op. Ltd.

Case No. : W.P.(C) 11179/2005

Counsel for the Petitioner : Counsel (Appearance not given)

Counsel for the Respondent : Raavi Birbal, Adv