NEW DELHI: The management is not under an obligation to retain the services of a daily wage worker even if he has worked for the period of 240 days that makes him eligible for regularisation, the Delhi High Court has ruled.
Setting aside the order of the Industrial Tribunal to regularise and reinstate a worker who willfully abstained from duties, Justice Shiv Narayan Dhingra said, "Regularisation of temporary/casual or daily wagers cannot be directed if the initial entry itself is not against any sanctioned vacancy as the question of regularising the incumbent on such a non-existing vacancy would never survive for consideration."
Dhingra allowed the Delhi Government's appeal against the labour court's order of May 2003 for regularisation and reinstatement with back wages of Shyam Babu, a daily wage labourer who was working for the department.
The flood control and drainage department of the Delhi government had filed the appeal against the Tribunal's order.
Babu had moved the Tribunal, alleging he was terminated from service in August 1984 after he raised the issue of his regularisation. He had worked as a daily wager since 1982.
According to Babu, he had issued the notice for regularisation through the union in March 1984 and his services were terminated in August the same year.
Under the Industrial Disputes Act, a person who works for a period of 240 days becomes eligible for regularisation.
However, the government contended that Babu, after issuing the notice, willfully abstained during June and July of 1984 but his services were never terminated.
However, the High Court was not convinced with Babu's claim of being terminated from service in August 1984. It pointed out that Babu was allowed to work for three months with the department and the management did not stop him from working despite his having raised the issue of regularisation.
Rejecting his claim that he was marked absent by the management for the months of June and July in 1984, Justice Dhingra noted that the employer was a government department and as such, the officials were not going to gain anything personally or financially by marking Babu absent.
Moreover, the court pointed out that Babu had never raised the issue of being prevented from working with the Labour Inspector.
The reason given by the labour court that not giving notice to the workman to call him back for work amounted to termination is illogical, Dhingra said.
"Law does not cast an obligation on an employer that he should serve a notice on an unwilling employee and request him to come and continue with the organisation.
Law casts certain obligations on the employer only when the employer terminates the services of the workman," the court observed, while setting aside the labour court's order for regularisation and reinstatement of the worker.
