Punjab-Haryana High Court
Board Of Governors, National Institute … vs Mess Kalyan Employees Union And Anr on 6 September, 2024
Neutral Citation No:=2024:PHHC:116689
CWP-15912-2022 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
201 CWP-15912-2022
Judgment Reserved on 31.08.2024
Judgement Pronounced on 06.09.2024
BOARD OF GOVERNORS, NATIONAL INSTITUTE OF
TECHNOLOGY, KURUKSHETRA AND ORS ....PETITIONERS
Vs.
MESS KALYAN EMPLOYEES UNION AND ANR ...RESPONDENTS
CORAM: HON'BLE MR. JUSTICE JAGMOHAN BANSAL
Present: Mr. Amarjit Singh Virk, Advocate
for the petitioners.
Mr. Dinesh Kumar, Advocate
for respondent No. 1.
****
JAGMOHAN BANSAL, J (ORAL)
1. The petitioners through instant petition under Articles 226/227 of
the Constitution of India are seeking setting aside of Award dated 12.01.2022
(Annexure P-6) whereby Labour Court has answered the reference in favour of
the workmen.
2. The petitioner is a Central Institute constituted in terms of National
Institute Technology Act, 2007. The petitioner was initially an Engineering
College which has now been declared as Central University. It is imparting
education in the Engineering stream. It has various hostels for the stay of
students. Every hostel is having an independent Co-operative mess. The
respondent No. 1 is Union of workmen who are working in the hostel messes.
The members of the Union, time to time, on temporary basis, have been
appointed by Mess Committees. The hostel messes are managed by the
1 of 36
::: Downloaded on – 21-09-2024 13:45:13 :::
Neutral Citation No:=2024:PHHC:116689
CWP-15912-2022 -2-
Committee of Students. Every year Committee changes, however, mess
employees continue to work.
3. The Union made a representation to Labour Authorities and matter
came up before Labour Court by way of reference. The following question was
referred to the Labour Court:-
“Whether the action of the management of National Institute of
Technology(NIT), Kurukshetra in not accepting the demands of the
Union Mess Kalyan Employees Union(Mess Kalyan Karamchari
Sangh), National Institute of Technology, Kurukshetra is legal and
justified? If not, what relief the workmen is entitled to and from
which date?”
4. The Union preferred claim petition wherein it raised a demand for
regularization of services of its members on regular pay scale at par with
State/Central Government employees.
5. The Members of the Union are working on various posts known as
Supervisor, Head Cook, Assistant Cook, Cook, Counterman, Lady Attendant,
Waiter, Common Room Attendant, Chapati Man, Kitchen Man, Sweeper, Pantry
Man etc. They are working in different hostels of the petitioners for last 12 to 35
years. They were appointed by Hostel Committee with the approval of Chief
Warden, however, without any appointment letter of the University.
6. The Labour Court considering the evidence led by workmen as well
as University came to a conclusion that there is Master-Servant relation between
University and Members of Union. They have been working for quite a long
time with the Management. Thus, for all intent and purposes, the workers are
employees of University-Management. The Management by not regularizing
them is adopting unfair trade practice.
7. The Labour Court with the aforesaid observations ordered to
regularize 250 workers and pay them regular pay scale from the date of
2 of 36
::: Downloaded on – 21-09-2024 13:45:14 :::
Neutral Citation No:=2024:PHHC:116689
CWP-15912-2022 -3-
completion of 10 years service from their joining with all consequential benefits.
The operative portion of the Award is reproduced as below:-
“24. In our opinion, the ratio of above noted judgment is clearly
applicable to the case of claimants-union. It is undisputed position
that as on the date of filing of the claim petition, they have
completed more than 10 to 30 years of services as Supervisor, Head
Cook, Assistant Cook, Cook, Counterman, Lady Attendant, Waiter,
Common Room Attendant, Chapati Man, Kitchen Man, Sweeper,
Pantry Man etc. Therefore, there could be no justification to deny
them the benefit of the policy of regularization on the ground that
they were paid out of the student’s fund.
25. In view of the above factual and legal preposition and
evidence on record and in view of my aforesaid finding,
claimants/workmen numbering 250 as mentioned in the list
attached with the claim petition deserve regularization. Hence,
management of NIT-Kurukshetra is directed to regularize the
workmen/claimants to the grade of lowest-rank-employees of the
NIT-Kurukshetra in the regular pay scale from the date of
completion of 10 years from their joining, with all consequential
benefits. The award is passed accordingly.”
8. Mr. Amarjit Singh Virk, Advocate submits that mess workers were
never appointed against regular post. Their appointment was temporary. Though,
the appointment was made by Mess Committee under the signature of
Warden/Chief Warden, yet, no appointment letter was issued by the University.
The appointment was purely temporary. Every year, new set of students join
hostels and accordingly, new Managing Committees are constituted. The said
Committees collect funds from the students and pay salary to the mess workers.
For the purpose of continuity and maintaining discipline, a worker once
appointed is permitted to continue till he leaves or is removed on account of his
bad act and conduct. The University had never paid CPF for the mess workers.
Contribution towards CPF or EPF, if any, was made by Managing Committees
3 of 36
::: Downloaded on – 21-09-2024 13:45:14 :::
Neutral Citation No:=2024:PHHC:116689
CWP-15912-2022 -4-
of the hostels. The University has no concern with the workmen. The University
has provided space for the mess and for the purpose of discipline, continuity and
harmony, Warden/Chief Warden and other officials of the University had
supervised activities of the mess staff.
9. Per contra, Mr. Dinesh Kumar, Advocate submits that workers were
appointed by Warden/Chief Warden and at the time of appointment, a letter was
issued under the signature of Warden. The University Management from time to
time terminated services of mess workers, thus, there was deep and pervasive
control of University Management over the mess workers. They had worked for
more than 3 decades without any interruption. They deserve regularization as
well as regular pay scale as are payable to the permanent employees of the
University. As per judgment of Hon’ble Supreme Court in ‘Oil and Natural Gas
Corporation Limited Vs. Petroleum Coal Labour Union and others (2015) 6
SCC 494’, the Labour Court has power to regularize workers. In view of
judgment of Supreme Court in ‘State of Punjab Vs. Jagjit Singh and others,
(2016) 4 SCT 641, the workers are entitled to minimum of regular pay scale,
whereas management is paying a meager amount of salary.
10. The conceded position emerging from record, arguments of both
sides and judicial precedents is:-
(i) Petitioner is a National Institute of Technology and governed
by NIT Act, 2007.
(ii) It is fully funded by Government of India. It is not engaged in
any business or minting profit whereas imparting education
in the stream of Engineering.
(iii) It has no independent source of income whereas getting funds
from Central Government.
4 of 36
::: Downloaded on – 21-09-2024 13:45:14 :::
Neutral Citation No:=2024:PHHC:116689
CWP-15912-2022 -5-
(iv) All the appointments in the institute are made in accordance
with statutory Rules as well as Rules applicable to public
employment.
(v) No appointment can be made in the institute contrary to
statutory and constitutional provisions.
(vi) The respondent-Mess workers were never appointed by
Institute-University.
(vii) They were never paid out of funds of the University or
consolidated fund of Government of India.
(viii) They were paid from the funds contributed by students who
are member of co-operative mess.
(ix) There is no permanent post against which respondents were
appointed.
(x) No prescribed procedure meant for appointment of regular
employees was followed at the time of their appointment.
(xi) The University officials never prepared Annual Confidential
Reports of mess workers.
(xii) A fund for the welfare of mess workers was created wherein
contribution was made by workers and students.
(xiii) The workers are entitled to leave, free food, uniform,
accommodation etc.
11. The impugned Award is primarily based upon judgment of Supreme
Court in Maharashtra State Road Transport Corporation Ltd. Vs. Casteribe
Rajya Parivahan Karamchari Sanghalana, (2009) 8 SCC 556.
In the said case, workers of Road Transport Corporation alleged
that Corporation has indulged in unfair labour practice in terms of items 5, 6, 9
and 10 of Schedule 4 to Maharashtra Recognition of Trade Unions and
Prevention of Unfair Labour Practices, 1971 (for short ‘MRTU and PULP
Act’). The workers were working every day for at least 8 hours, however, they
were paid a paltry amount. The post of sweepers/cleaners were available, yet,
these employees had been kept on casual and temporary basis for years
5 of 36
::: Downloaded on – 21-09-2024 13:45:14 :::
Neutral Citation No:=2024:PHHC:116689
CWP-15912-2022 -6-
altogether denying them the benefit of permanency. The matter travelled from
Industrial Tribunal to High Court and reached to Supreme Court. The Supreme
Court noticed power of Industrial and Labour Court under Section 30 of MRTU
and PULP Act and held that Constitution Bench in State of Karnataka v.
Umadevi (2006) 4 SCC 1 had not considered provision of MRTU and PULP Act
and powers of Industrial and Labour Courts provided therein. The issue of unfair
labour practice was not at all referred or considered or decided in Umadevi
(Supra). Unfair labour practice, on the part of employer in engaging employees
as badlis, casuals or temporaries and continue them as such for years with the
object of depriving them status and privileges of permanent employees and
power of Industrial and Labour Courts under Section 30 of MRTU and PULP
Act did not fall for adjudication or consideration of Constitution Bench. The
Supreme Court in Umadevi (Supra) did not denude the Industrial and Labour
Courts’ statutory powers under Section 30 read with Section 32 of MRTU and
PULP Act. The relevant extracts of said judgment are reproduced as below:-
“26. The question that arises for consideration is: have the
provisions of the MRTU and PULP Act been denuded of the
statutory status by the Constitution Bench decision in Umadevi (3)?
In our judgment, it is not. The purpose and object of the MRTU and
PULP Act, inter alia, is to define and provide for prevention of
certain unfair labour practices as listed in Schedules II, III and IV.
The MRTU and PULP Act empowers the Industrial and Labour
Courts to decide that the person named in the complaint has
engaged in or is engaged in unfair labour practice and if the unfair
labour practice is proved, to declare that an unfair labour practice
has been engaged in or is being engaged in by that person and
direct such person to cease and desist from such unfair labour
practice and take such affirmative action (including payment of
reasonable compensation to the employee or employees affected by
the unfair labour practice, or reinstatement of the employee or
employees with or without back wages, or the payment of
6 of 36
::: Downloaded on – 21-09-2024 13:45:14 :::
Neutral Citation No:=2024:PHHC:116689
CWP-15912-2022 -7-
reasonable compensation), as may in the opinion of the court be
necessary to effectuate the policy of the Act. The power given to the
Industrial and Labour Courts under Section 30 is very wide and the
affirmative action mentioned therein is inclusive and not exhaustive.
Employing badlis, casuals or temporaries and to continue them as
such for years, with the object of depriving them of the status and
privileges of permanent employees is an unfair labour practice on
the part of the employer under Item 6 of Schedule IV. Once such
unfair labour practice on the part of the employer is established in
the complaint, the Industrial and Labour Courts are empowered to
issue preventive as well as positive direction to an erring employer.
The provisions of the MRTU and PULP Act and the powers of the
Industrial and Labour Courts provided therein were not at all under
consideration in Umadevi (3). As a matter of fact, the issue like the
present one pertaining to unfair labour practice was not at all
referred to, considered or decided in Umadevi (3). Unfair labour
practice on the part of the employer in engaging employees as
badlis, casuals or temporaries and to continue them as such for
years with the object of depriving them of the status and privileges
of permanent employees as provided in Item 6 of Schedule IV and
the power of the Industrial and Labour Courts under Section 30 of
the Act did not fall for adjudication or consideration before the
Constitution Bench. It is true that Dharwad Distt. PWD Literate
Daily Wages Employees’ Assn. arising out of industrial adjudication
has been considered in Umadevi (3) and that decision has been held
to be not laying down the correct law but a careful and complete
reading of the decision in Umadevi (3) leaves no manner of doubt
that what this Court was concerned in Umadevi (3) was the exercise
of power by the High Courts under Article 226 and this Court under
Article 32 of the Constitution of India in the matters of public
employment where the employees have been engaged as
contractual, temporary or casual workers not based on proper
selection as recognised by the rules or procedure and yet orders of
their regularisation and conferring them status of permanency have
been passed. Umadevi (3) is an authoritative pronouncement for the
proposition that the Supreme Court (Article 32) and the High
7 of 36
::: Downloaded on – 21-09-2024 13:45:14 :::
Neutral Citation No:=2024:PHHC:116689
CWP-15912-2022 -8-
Courts (Article 226) should not issue directions of absorption,
regularisation or permanent continuance of temporary, contractual,
casual, daily wage or ad hoc employees unless the recruitment itself
was made regularly in terms of the constitutional scheme. Umadevi
(3) does not denude the Industrial and Labour Courts of their
statutory power under Section 30 read with Section 32 of the MRTU
and PULP Act to order permanency of the workers who have been
victims of unfair labour practice on the part of the employer under
Item 6 of Schedule IV where the posts on which they have been
working exist. Umadevi (3) cannot be held to have overridden the
powers of the Industrial and Labour Courts in passing appropriate
order under Section 30 of the MRTU and PULP Act, once unfair
labour practice on the part of the employer under Item 6 of
Schedule IV is established.”
34. The question now remains to be seen is whether the
recruitment of these workers is in conformity with Standing Order
503 and, if not, what is its effect. No doubt, Standing Order 503
prescribes the procedure for recruitment of Class IV employees of
the Corporation which is to the effect that such posts shall be filled
up after receiving the recommendations from the Service Selection
Board and this exercise does not seem to have been done but
Standing Orders cannot be elevated to the (sic status of) statutory
rules. These are not statutory in nature. We find merit in the
submission of Mr Shekhar Naphade, learned Senior Counsel for the
employees that Standing Orders are contractual in nature and do
not have a statutory force and breach of Standing Orders by the
Corporation is itself an unfair labour practice. The employees
concerned having been exploited by the Corporation for years
together by engaging them on piece-rate basis, it is too late in the
day for them to urge that procedure laid down in Standing Order
503 having not been followed, these employees could not be given
status and privileges of permanency. The argument of the
Corporation, if accepted, would tantamount to putting premium on
their unlawful act of engaging in unfair labour practice. It was
strenuously urged by the learned Senior Counsel for the
Corporation that the Industrial Court having found that the
8 of 36
::: Downloaded on – 21-09-2024 13:45:14 :::
Neutral Citation No:=2024:PHHC:116689
CWP-15912-2022 -9-
Corporation indulged in unfair labour practice in employing the
complainants as casuals on piece-rate basis, the only direction that
could have been given to the Corporation was to cease and desist
from indulging in such unfair labour practice and no direction of
according permanency to these employees could have been given.
We are afraid, the argument ignores and overlooks the specific
power given to the Industrial/Labour Court under Section 30(1)(b)
to take affirmative action against the erring employer which as
noticed above is of wide amplitude and comprehends within its fold
a direction to the employer to accord permanency to the employees
affected by such unfair labour practice.”
12. In the case in hand, Industrial Tribunal has held that engaging
workmen as badlis, casuals or temporaries and continue them as such for years,
with the object of depriving them of status and privileges of permanent
workmen amounts to unfair trade practice as contemplated by entry 10 of 5th
schedule of ID Act. The said entry is reproduced as below:-
“10. To employ workmen as “badlis”, casuals or temporaries and
to continue them as such for years, with the object of depriving
them of the status and privileges of permanent workmen.”
The Labour Court has held that item 6 of Schedule 4 of MRTU and
PULP Act is pari materia with entry 10 of 5th schedule to ID Act, thus, both
would suffer common interpretation. The expression “unfair labour practice” has
been defined under Section 2(ra) of ID Act. Section 25-T and 25-U of ID Act
provide for prohibition and penalty for committing offence of unfair labour
practice. The Labour Court is not barred to exercise its power of declaring and
issuing directions where a prima-facie case is made out of violation of entry 10
of 5th schedule of ID Act. The University-Management has engaged workmen as
temporary or casual and continued them for years with the object of depriving
9 of 36
::: Downloaded on – 21-09-2024 13:45:14 :::
Neutral Citation No:=2024:PHHC:116689
CWP-15912-2022 -10-
them benefit of regular workmen, thus, its act constitutes ‘unfair labour practice’
under Section 2(ra) read with item 10 of 5th Schedule to ID Act.
13. Before adverting with findings of Labour Court with respect to its
power to declare impugned practice as unfair labour practice and order
regularization, it would be appropriate to look at Section 2 (ra), 25-T, 25-U and
34 of ID Act which are reproduced as below:-
“2(ra). “unfair labour practice” means any of the practices
specified in the Fifth Schedule;
25T. Prohibition of unfair labour practice.–No employer or
workman or a trade union, whether registered under the Trader
Unions Act, 1926 (16 of 1926), or not, shall commit any unfair
labour practice.
25U. Penalty for committing unfair labour practices.–Any person
who commits any unfair labour practice shall be punishable with
imprisonment for a term which may extend to six months or with
fine which may extend to one thousand rupees or with both.
34. Cognizance of offences.–(1) No Court shall take cognizance of
any offence punishable under this Act or of the abetment of any
such offence, save on complaint made by or under the authority of
the appropriate Government.
(2) No Court inferior to that of a Metropolitan Magistrate or a
Judicial Magistrate of the first class, shall try any offence
punishable under this Act.”
14. From the perusal of afore-cited sections and entry 10 of 5th
schedule, it is evident that to employ workmen as badlis, casual or temporary
and continue for years with the object of depriving them of status and privileges
of permanent workmen amounts to unfair labour practice. Section 25-T prohibits
unfair labour practices and 25-U prescribes punishment in the form of
imprisonment. Section 34 provides for cognizance of offence. From the conjoint
reading of these sections, it is evident that if an employer or workman or a trade
10 of 36
::: Downloaded on – 21-09-2024 13:45:14 :::
Neutral Citation No:=2024:PHHC:116689
CWP-15912-2022 -11-
union commits any unfair labour practice, it amounts to an offence punishable
with imprisonment for a term which may extend to 6 months. Court can take
cognizance of the offence on the complaint made by or under the Authority of
Appropriate Government.
15. In the case in hand, the reference was made to Labour Court by
Central Government under Clause-(d) of sub-section (1) and sub-section (2-A)
of Section 10 of ID Act. The relevant extracts of Section 10 of ID Act are
reproduced as below:-
“10. Reference of disputes to Boards, Courts or Tribunals.–(1)
Where the appropriate Government is of opinion that any industrial
dispute exists or is apprehended, it may at any time, by order in
writing,–
(a) refer the dispute to a Board for promoting a settlement thereof;
or
(b) refer any matter appearing to be connected with or relevant to
the dispute to a Court for inquiry; or
(c) refer the dispute or any matter appearing to be connected with,
or relevant to, the dispute, if it relates to any matter specified in the
Second Schedule, to a Labour Court for adjudication; or
(d) refer the dispute or any matter appearing to be connected with,
or relevant to, the dispute, whether it relates to any matter specified
in the Second Schedule or the Third Schedule, to a Tribunal for
adjudication:
Provided that where the dispute relates to any matter specified in
the Third Schedule and is not likely to affect more than one hundred
workmen, the appropriate Government may, if it so thinks fit, make
the reference to a Labour Court under clause (c):
Provided further that where the dispute relates to a public utility
service and a notice under section 22 has been given, the
appropriate Government shall, unless it considers that the notice
has been frivolously or vexatiously given or that it would be
inexpedient so to do, make a reference under this sub-section11 of 36
::: Downloaded on – 21-09-2024 13:45:14 :::
Neutral Citation No:=2024:PHHC:116689
CWP-15912-2022 -12-notwithstanding that any other proceedings under this Act in
respect of the dispute may have commenced:
Provided also that where the dispute in relation to which the
Central Government is the appropriate Government, it shall be
competent for that Government to refer the dispute to a Labour
Court or an Industrial Tribunal, as the case may be, constituted by
the State Government.
(1A) xxx xxx xxx
(2) xxx xxx xxx
(2A) An order referring an industrial dispute to a Labour Court,
Tribunal or National Tribunal under this section shall specify the
period within which such Labour Court, Tribunal or National
Tribunal shall submit its award on such dispute to the appropriate
Government:
Provided that where such industrial dispute is connected with an
individual workman, no such period shall exceed three months:
Provided further that where the parties to an industrial dispute
apply in the prescribed manner, whether jointly or separately, to the
Labour Court, Tribunal or National Tribunal for extension of such
period or for any other reason, and the presiding officer of such
Labour Court, Tribunal or National Tribunal considers it necessary
or expedient to extend such period, he may for reasons to be
recorded in writing, extend such period by such further period as he
may think fit: Provided also that in computing any period specified
in this sub-section, the period, if any, for which the proceedings
before the Labour Court, Tribunal or National Tribunal had been
stayed by any injunction or order of a Civil Court shall be
excluded:
Provided also that no proceedings before a Labour Court, Tribunal
or National Tribunal shall lapse merely on the ground that any
period specified under this sub-section had expired without such
proceedings being completed.”
12 of 36
::: Downloaded on – 21-09-2024 13:45:14 :::
Neutral Citation No:=2024:PHHC:116689
CWP-15912-2022 -13-
16. The reference to Labour Court was made by Central Government in
terms of Section 10 (1)(d) of ID Act. As per aforesaid Clause, matter specified in
the second schedule or third schedule are referred to a Tribunal for adjudication.
For the ready reference, second schedule and third schedule of ID Act are
reproduced as below:-
“THE SECOND SCHEDULE
(See section 7)
MATTERS WITHIN THE JURISDICTION OF LABOUR COURTS
1. The propriety or legality of an order passed by an employer
under the standing orders;
2. application and interpretation of standing orders;
3. Discharge or dismissal of workmen including reinstatement of, or
grant of relief to, workmen wrongfully dismissed;
4. Withdrawal of any customary concession or privilege;
5. Illegality or otherwise of a strike or lock-out; and
6. All matters other than those specified in the Third Schedule.”
“THE THIRD SCHEDULE
(See section 7A)
MATTERS WITHIN THE JURISDICTION OF INDUSTRIAL
TRIBUNALS
1. Wages, including the period and mode of payment;
2. Compensatory and other allowances;
3. Hours of work and rest intervals;
4. Leave with wages and holidays;
5. Bonus, profit sharing, provident fund and gratuity;
6. Shift working otherwise than in accordance with standing
orders;
7. Classification by grades;
8. Rules of discipline;
9. Rationalisation;
10. Retrenchment of workmen and closure of establishment; and
11. Any other matter that may be prescribed.”
17. The mode and manner of redressal of issues referred in second and
third schedule are entirely different from issues under 5th schedule. The items
listed in second and third schedule directly relate to wages of employees,
changes of terms and conditions of employment, rules of discipline,
retrenchment, discharge or dismissal of workmen etc. The 5th schedule
prescribes different items which are termed as unfair labour practices. The
13 of 36
::: Downloaded on – 21-09-2024 13:45:14 :::
Neutral Citation No:=2024:PHHC:116689
CWP-15912-2022 -14-
Labour Court/Tribunal is empowered to adjudicate issues relating to second and
third schedule whereas issues relating to unfair trade practice are adjudicated by
a Court which cannot be inferior to a Court of Metropolitan Magistrate or
Judicial Magistrate 1st Class.
18. The Labour Court, in the case in hand, has exercised power which
is vested in a Court under Section 30 of MRTU and PULP Act. Section 30 of
MRTU and PULP Act sets out powers of Industrial and Labour Courts. Under
the said Section, Industrial and Labour Court has power to declare any practice
as ‘unfair labour practice’ and pass affirmative orders. Section 30 of MRTU and
PULP Act is reproduced as below:-
“30. Powers of Industrial and Labour Courts.-
(1) Where a court decides that any person named in the complaint
has engaged in, or is engaging in, any unfair labour practice, it
may in its order –
(a) declare that an unfair labour practice has been
engaged in or is being engaged in by that person, and specify
any other person who has engaged in, or is engaging in the
unfair labour practice;
(b) direct all such persons to cease and desist from
such unfair labour practice, and take such affirmative action
(including payment of reasonable compensation to the
employee or employees affected by the unfair labour practice,
or reinstatement of the employee or employees with or
without back wages, or the payment of reasonable
compensation), as may in the opinion of the Court be
necessary to effectuate the policy of the Act;
(c) where a recognised union has engaged in or is
engaging in, any unfair labour practice, direct that its
recognition shall be cancelled or that all or any of its rights
under sub-section (1) of Section 20 or its right under Section
23 shall be suspended.
14 of 36
::: Downloaded on – 21-09-2024 13:45:14 :::
Neutral Citation No:=2024:PHHC:116689
CWP-15912-2022 -15-
(2) In any proceeding before it under this Act, the Court may
pass such interim order (including any temporary relief or
restraining order) as it deems just and proper (including directions
to the person to withdraw temporarily the practice complained of,
which is an issue in such proceeding), pending final decision:
Provided that, the Court may, on an application in that behalf,
review any interim order passed by it.
(3) For the purpose of holding an enquiry or proceeding
under this Act, the Court shall have the same powers as are vested
in Courts in respect of –
(a) proof of facts by affidavit;
(b) summoning and enforcing the attendance of any
person, and examining him on oath;
(c) compelling the production of documents; and
(d) issuing commissions for the examination of
witnesses.
(4) The Court shall also have powers to call upon any of the
parties to proceedings before it to furnish in writing, and in such
forms as it may think proper, any information, which is considered
relevant for the purpose of any proceedings before it, and the party
so called upon shall thereupon furnish the information to the best of
its knowledge and belief, and if so required by the Court to do so,
verify the same in such manner as may be prescribed.”
19. The Central Government Industrial Tribunal-cum-Labour Court
constituted under ID Act has no power as vested by Section 30 of MRTU and
PULP Act in the Industrial and Labour Court. The Supreme Court in Casteribe
Rajya Parivahan Karmchari Sangathana (supra) has primarily relied upon
Section 30 and 32 of MRTU and PULP Act and distinguished judgment of
Constitution Bench in Umadevi (supra). The Labour Court constituted under ID
Act while answering reference made under Section 10 of ID Act could not
exercise powers vested by Section 30 of MRTU and PULP Act on Industrial and
15 of 36
::: Downloaded on – 21-09-2024 13:45:14 :::
Neutral Citation No:=2024:PHHC:116689
CWP-15912-2022 -16-
Labour Courts, thus, Labour Court has wrongly invoked power to declare any
practice as unfair labour practice and pass consequential orders.
20. The Labour Court has declared that continuation of any worker as
casual or temporary, in terms of entry 10 of 5th schedule of ID Act is unfair
labour practice. Entry 6 of 4th schedule of MRTU and PULP Act adverts with
unfair labour practice. The Labour Court has held that item 6 of 4th schedule of
MRTU and PULP Act is pari materia with entry 10 of 5th schedule of ID Act,
thus, common interpretation should be made. Indubitably, language of item 6 of
4th schedule of MRTU and PULP Act is pari materia with entry 10 of 5th
schedule of ID Act, however, scheme of ID Act is entirely different from MRTU
and PULP Act. There is no power vested in Labour Court to advert with unfair
labour practice under ID Act as vested in Labour Court constituted under MRTU
and PULP Act. The Labour Court has transgressed its power while holding that
absence of specific provision like Section 30 of MRTU and PULP Act would not
denude Tribunal to remove unfair discrimination in the light of Casteribe
(Supra) judgment. The Labour Court is bound to pass order within metes and
bounds of ID Act. The Labour Court cannot travel beyond the banks of river of
ID Act. Evey Court as well quasi-judicial authorities to do complete justice,
carries ancillary powers while exercising substantive powers bestowed on it.
However, a Court or quasi-judicial authority constituted under a particular Act
cannot travel beyond the Act. The power which is not bestowed upon the Court
or authority cannot be exercised by it.
21. The petitioner-University has been created by Government of India,
thus, it is an instrumentality of Government of India. It is fully funded by
Central Government and it has no source of income except paltry amount of fee
collected from students. The University cannot create posts. The posts are
created by Central Government. There is admittedly no sanctioned post against
16 of 36
::: Downloaded on – 21-09-2024 13:45:14 :::
Neutral Citation No:=2024:PHHC:116689
CWP-15912-2022 -17-
which either mess workers were appointed or could be adjusted. It is case of
neither side that despite availability of permanent post, the mess workers were
appointed on temporary or casual basis. The University cannot create posts and
Central Government has not created any post for mess workers. The Labour
Court has ordered to regularize the mess workers. In the absence of permanent
post, there was no question of making mess workers permanent or regular
employees.
In Mahatma Phule Agricultural University Vs. Nasik Zilla Sheth
Kamga (2001) 7 SCC 346, Supreme Court while dealing with item 6 of 4th
Schedule of MRTU and PULP Act has held that inaction on the part of State
Government to create post would not mean that an unfair labour practice has
been committed by the Universities. The reasoning given by High Court to
conclude that the case was squarely covered by item 6 of schedule 4 of MRTU
and PULP Act cannot be sustained. The employees cannot be given status of
permanency. The relevant extracts of the judgment are reproduced as below:-
“13. To be seen that, in the impugned judgment, the High Court
notes that, as per the law laid down by this Court, status of
permanency could not be granted. In spite of this the High Court
indirectly does what it could not do directly. The High Court,
without granting the status of permanency, grants wages and other
benefits applicable to permanent employees on the specious
reasoning that inaction on the part of the Government in not
creating posts amounted to unfair labour practice under Item 6 of
Schedule IV of the MRTU & PULP Act. In so doing the High Court
erroneously ignores the fact that approximately 2000 workmen had
not even made a claim for permanency before it. Their claim for
permanency had been rejected by the award dated 20-2-1985.
These workmen were only seeking quantification of amounts as per
this award. The challenge, before the High Court, was only to the
quantification of the amounts. Yet by this sweeping order the High
17 of 36
::: Downloaded on – 21-09-2024 13:45:14 :::
Neutral Citation No:=2024:PHHC:116689
CWP-15912-2022 -18-
Court grants, even to these workmen, the wages and benefits
payable to other permanent workmen.
14. Further, Item 6 of Schedule IV of the MRTU & PULP Act reads
as follows:
“6. To employ employees as ‘badlis’, casuals or temporaries and to
continue them as such for years, with the object of depriving them
of the status and privileges of permanent employees.”
The complaint was against the Universities. The High Court notes
that as there were no posts the employees could not be made
permanent. Once it comes to the conclusion that for lack of posts
the employees could not be made permanent, how could it then go
on to hold that they were continued as “badlis”, casuals or
temporaries with the object of depriving them of the status and
privileges of permanent employees? To be noted that the complaint
was not against the State Government. The complaint was against
the Universities. The inaction on the part of the State Government
to create posts would not mean that an unfair labour practice had
been committed by the Universities. The reasoning given by the
High Court to conclude that the case was squarely covered by Item
6 of Schedule IV of the MRTU & PULP Act cannot be sustained at
all and the impugned judgment has to be and is set aside. It is
however clarified that the High Court was right in concluding that,
as per the law laid down by this Court, status of permanency could
not be granted. Thus all orders wherein permanency has been
granted (except award dated 1-4-1985 in IT No. 27 of 1984) also
stand set aside.”
22. A three Judge Bench of Court in Official Liquidator v. Dayanand
and Others, (2008) 10 SCC 1 has adverted with this issue. The court has held
that courts cannot ask State to create posts to absorb employees. The findings of
the court read as:
“59. The creation and abolition of posts, formation and
structuring/restructuring of cadres, prescribing the source18 of 36
::: Downloaded on – 21-09-2024 13:45:14 :::
Neutral Citation No:=2024:PHHC:116689
CWP-15912-2022 -19-and mode of recruitment and qualifications and criteria of
selection, etc. are matters which fall within the exclusive
domain of the employer. Although the decision of the
employer to create or abolish posts or cadres or to prescribe
the source or mode of recruitment and laying down the
qualification, etc. is not immune from judicial review, the
Court will always be extremely cautious and circumspect in
tinkering with the exercise of discretion by the employer. The
Court cannot sit in appeal over the judgment of the employer
and ordain that a particular post or number of posts be
created or filled by a particular mode of recruitment. The
power of judicial review can be exercised in such matters
only if it is shown that the action of the employer is contrary
to any constitutional or statutory provisions or is patently
arbitrary or vitiated by mala fides.
60. In State of Haryana v. Navneet Verma [(2008) 2 SCC 65
: (2008) 1 SCC (L&S) 373], a Division Bench of two Judges
referred to M. Ramanatha Pillai v. State of Kerala [(1973) 2
SCC 650 : 1973 SCC (L&S) 560], Kedar Nath Bahl v. State
of Punjab [(1974) 3 SCC 21], State of Haryana v. Des Raj
Sangar [(1976) 2 SCC 844 : 1976 SCC (L&S) 336], N.C.
Singhal (Dr.) v. Union of India [(1980) 3 SCC 29 : 1980
SCC (L&S) 269] and Avas Vikas Sanghathan v. Engineers
Assn. [(2006) 4 SCC 132 : 2006 SCC (L&S) 613] and culled
out the following principles: (Navneet Verma case [(2008) 2
SCC 65 : (2008) 1 SCC (L&S) 373], SCC p. 70, para 14)
“(a) the power to create or abolish a post rests with the
Government;
(b) whether a particular post is necessary is a matter
depending upon the exigencies of the situation and
administrative necessity;
(c) creation and abolition of posts is a matter of government
policy and every sovereign Government has this power in the
interest and necessity of internal administration;
(d) creation, continuance and abolition of posts are all
decided by the Government in the interest of administration19 of 36
::: Downloaded on – 21-09-2024 13:45:14 :::
Neutral Citation No:=2024:PHHC:116689
CWP-15912-2022 -20-and general public; (e) the court would be the least
competent in the face of scanty material to decide whether
the Government acted honestly in creating a post or refusing
to create a post or its decision suffers from mala fides, legal
or factual;
(f) as long as the decision to abolish the post is taken in good
faith in the absence of material, interference by the court is
not warranted. ”
61. In State of Karnataka v. Umadevi [(2006) 4 SCC 1 :
2006 SCC (L&S) 753] the Constitution Bench adverted its
attention to financial implications of creation of extra posts
and held that the courts should not pass orders which impose
unwarranted burden on the State and its instrumentalities by
directing creation of particular number of posts for
absorption of employees appointed on ad hoc or temporary
basis or as daily wagers.
62. In Aravali Golf Club v. Chander Hass [(2008) 1 SCC
683 : (2008) 1 SCC (L&S) 289] also, a two-Judge Bench
considered the issue relating to creation of posts and held:
(SCC p. 688, para 15)
“15. The court cannot direct the creation of posts. Creation
and sanction of posts is a prerogative of the executive or
legislative authorities and the court cannot arrogate to itself
this purely executive or legislative function, and direct
creation of posts in any organisation. This Court has time
and again pointed out that the creation of a post is an
executive or legislative function and it involves economic
factors. Hence the courts cannot take upon themselves the
power of creation of a post. Therefore, the directions given by
the High Court and the first appellate court to create the
posts of tractor driver and regularise the services of the
respondents against the said posts cannot be sustained and
are hereby set aside. ”
20 of 36
::: Downloaded on – 21-09-2024 13:45:14 :::
Neutral Citation No:=2024:PHHC:116689
CWP-15912-2022 -21-
23. From the above cited judgments, it can be concluded that Courts
cannot ask the State to create/abolish posts or formulate/structure/re-structure a
cadre. It is within domain of the executive which as per its financial resources,
workload, need of manpower, availability of resources etc. decides.
24. In the present case, concededly there is no regular/permanent post
against which mess workers were appointed. It is not a case where sanctioned
posts were available but management made appointments on
casual/contractual/temporary basis. It is a case where there are no
permanent/sanctioned posts. By impugned order, Labour Court has ordered to
regularize mess workers which can be implemented after creation of posts. Even
Constitutional Courts cannot ask the State to create posts, therefore, there is no
question of creation of posts on the directions of Labour Court, thus, order of
Labour Court directing regularization/permanency of mess workers is patently
bad in the eye of law and beyond the jurisdiction.
25. Different High Courts as well as Supreme Court prior to 2006 in
many cases directed to States/Union of India to regularize part time/work
charged/ad-hoc/contractual/daily wage employees. The foundation of all the
judgments was length of service. In 2006, Constitution Bench in Umadevi
(Supra) adverted with the question of regularization of temporary/part
time/adhoc/daily wage employees. The Apex Court deprecated practice of
employing temporary/part time or contractual employees though it held that in
exigency, State can make appointment on contract basis. The Court held that
regularization of contractual or part time employees would amount to
legalization of back door entrants. The regularization of part time employees is
violative of Articles 14, 16 & 309 of Constitution of India. The employees who
are working on daily wage cannot claim discrimination on the ground that they
have been paid lesser than regularly recruited employees. The High Court
21 of 36
::: Downloaded on – 21-09-2024 13:45:14 :::
Neutral Citation No:=2024:PHHC:116689
CWP-15912-2022 -22-should not ordinarily issue directions for absorption, regularization or
continuance unless the recruitment itself was made regularly and in terms of the
constitutional scheme. High Court is not justified in issuing interim orders in
such cases. There is no fundamental or vested right in those who have been
employed on daily wages or temporary or contract basis to claim that they have
a right to be absorbed in service. The relevant extracts of the judgment read as:
“43. Thus, it is clear that adherence to the rule of equality in public
employment is a basic feature of our Constitution and since the rule
of law is the core of our Constitution, a court would certainly be
disabled from passing an order upholding a violation of Article 14
or in ordering the overlooking of the need to comply with the
requirements of Article 14 read with Article 16of the Constitution.
Therefore, consistent with the scheme for public employment, this
Court while laying down the law, has necessarily to hold that unless
the appointment is in terms of the relevant rules and after a proper
competition among qualified persons, the same would not confer
any right on the appointee. If it is a contractual appointment, the
appointment comes to an end at the end of the contract, if it were an
engagement or appointment on daily wages or casual basis, the
same would come to an end when it is discontinued. Similarly, a
temporary employee could not claim to be made permanent on the
expiry of his term of appointment. It has also to be clarified that
merely because a temporary employee or a casual wage worker is
continued for a time beyond the term of his appointment, he would
not be entitled to be absorbed in regular service or made
permanent, merely on the strength of such continuance, if the
original appointment was not made by following a due process of
selection as envisaged by the relevant rules. It is not open to the
court to prevent regular recruitment at the instance of temporary
employees whose period of employment has come to an end or of ad
hoc employees who by the very nature of their appointment, do not
acquire any right. The High Courts acting under Article 226of the
Constitution, should not ordinarily issue directions for absorption,22 of 36
::: Downloaded on – 21-09-2024 13:45:14 :::
Neutral Citation No:=2024:PHHC:116689
CWP-15912-2022 -23-regularisation, or permanent continuance unless the recruitment
itself was made regularly and in terms of the constitutional scheme.
Merely because an employee had continued under cover of an order
of the court, which we have described as “litigious employment” in
the earlier part of the judgment, he would not be entitled to any
right to be absorbed or made permanent in the service. In fact, in
such cases, the High Court may not be justified in issuing interim
directions, since, after all, if ultimately the employee approaching it
is found entitled to relief, it may be possible for it to mould the relief
in such a manner that ultimately no prejudice will be caused to him,
whereas an interim direction to continue his employment would
hold up the regular procedure for selection or impose on the State
the burden of paying an employee who is really not required. The
courts must be careful in ensuring that they do not interfere unduly
with the economic arrangement of its affairs by the State or its
instrumentalities or lend themselves the instruments to facilitate the
bypassing of the constitutional and statutory mandates.
44. The concept of “equal pay for equal work” is different from the
concept of conferring permanency on those who have been
appointed on ad hoc basis, temporary basis, or based on no process
of selection as envisaged by the rules. This Court has in various
decisions applied the principle of equal pay for equal work and has
laid down the parameters for the application of that principle. The
decisions are rested on the concept of equality enshrined in our
Constitution in the light of the directive principles in that behalf.
But the acceptance of that principle cannot lead to a position where
the court could direct that appointments made without following the
due procedure established by law, be deemed permanent or issue
directions to treat them as permanent. Doing so, would be negation
of the principle of equality of opportunity. The power to make an
order as is necessary for doing complete justice in any cause or
matter pending before this Court, would not normally be used for
giving the go-by to the procedure established by law in the matter of
public employment. Take the situation arising in the cases before us
from the State of Karnataka. Therein, after Dharwad decision23 of 36
::: Downloaded on – 21-09-2024 13:45:14 :::
Neutral Citation No:=2024:PHHC:116689
CWP-15912-2022 -24-[(1990) 2 SCC 396 : 1990 SCC (L&S) 274 : (1990) 12 ATC 902 :
(1990) 1 SCR 544] the Government had issued repeated directions
and mandatory orders that no temporary or ad hoc employment or
engagement be given. Some of the authorities and departments had
ignored those directions or defied those directions and had
continued to give employment, specifically interdicted by the orders
issued by the executive. Some of the appointing officers have even
been punished for their defiance. It would not be just or proper to
pass an order in exercise of jurisdiction under Article 226 or 32 of
the Constitution or in exercise of power under Article 142 of the
Constitution permitting those persons engaged, to be absorbed or to
be made permanent, based on their appointments or engagements.
Complete justice would be justice according to law and though it
would be open to this Court to mould the relief, this Court would
not grant a relief which would amount to perpetuating an illegality.
45. While directing that appointments, temporary or casual, be
regularised or made permanent, the courts are swayed by the fact
that the person concerned has worked for some time and in some
cases for a considerable length of time. It is not as if the person
who accepts an engagement either temporary or casual in nature, is
not aware of the nature of his employment. He accepts the
employment with open eyes. It may be true that he is not in a
position to bargain-not at arm’s length-since he might have been
searching for some employment so as to eke out his livelihood and
accepts whatever he gets. But on that ground alone, it would not be
appropriate to jettison the constitutional scheme of appointment
and to take the view that a person who has temporarily or casually
got employed should be directed to be continued permanently. By
doing so, it will be creating another mode of public appointment
which is not permissible. If the court were to void a contractual
employment of this nature on the ground that the parties were not
having equal bargaining power, that too would not enable the court
to grant any relief to that employee. A total embargo on such casual
or temporary employment is not possible, given the exigencies of
administration and if imposed, would only mean that some people
24 of 36
::: Downloaded on – 21-09-2024 13:45:14 :::
Neutral Citation No:=2024:PHHC:116689
CWP-15912-2022 -25-
who at least get employment temporarily, contractually or casually,
would not be getting even that employment when securing of such
employment brings at least some succour to them. After all,
innumerable citizens of our vast country are in search of
employment and one is not compelled to accept a casual or
temporary employment if one is not inclined to go in for such an
employment. It is in that context that one has to proceed on the
basis that the employment was accepted fully knowing the nature of
it and the consequences flowing from it. In other words, even while
accepting the employment, the person concerned knows the nature
of his employment. It is not an appointment to a post in the real
sense of the term. The claim acquired by him in the post in which he
is temporarily employed or the interest in that post cannot be
considered to be of such a magnitude as to enable the giving up of
the procedure established, for making regular appointments to
available posts in the services of the State. The argument that since
one has been working for some time in the post, it will not be just to
discontinue him, even though he was aware of the nature of the
employment when he first took it up, is not one that would enable
the jettisoning of the procedure established by law for public
employment and would have to fail when tested on the touchstone of
constitutionality and equality of opportunity enshrined in Article 14
of the Constitution.
46. Learned Senior Counsel for some of the respondents argued
that on the basis of the doctrine of legitimate expectation, the
employees, especially of the Commercial Taxes Department, should
be directed to be regularised since the decisions in Dharwad
[(1990) 2 SCC 396 : 1990 SCC (L&S) 274 : (1990) 12 ATC 902 :
(1990) 1 SCR 544], Piara Singh [(1992) 4 SCC 118 : 1992 SCC
(L&S) 825 : (1992) 21 ATC 403 : (1992) 3 SCR 826], [Jacob M.
Puthuparambil v. Kerala Water Authority, (1991) 1 SCC 28 : 1991
SCC (L&S) 25 : (1991) 15 ATC 697] and [Gujarat Agricultural
University v. Rathod Labhu Bechar, (2001) 3 SCC 574 : 2001 SCC
(L&S) 613] and the like, have given rise to an expectation in them
that their services would also be regularised. The doctrine can be25 of 36
::: Downloaded on – 21-09-2024 13:45:14 :::
Neutral Citation No:=2024:PHHC:116689
CWP-15912-2022 -26-invoked if the decisions of the administrative authority affect the
person by depriving him of some benefit or advantage which either
(i) he had in the past been permitted by the decision-maker to enjoy
and which he can legitimately expect to be permitted to continue to
do until there have been communicated to him some rational
grounds for withdrawing it on which he has been given an
opportunity to comment; or (ii) he has received assurance from the
decision-maker that they will not be withdrawn without giving him
first an opportunity of advancing reasons for contending that they
should not be withdrawn. [See Lord Diplock in Council for Civil
Services Union v. Minister of Civil Service [1985 AC 374 : (1984)
3 All ER 935 : (1984) 3 WLR 1174 (HL)], National Buildings
Construction Corpn. v. S. Raghunathan [(1998) 7 SCC 66 : 1998
SCC (L&S) 1770] and Chanchal Goyal (Dr.) v. State of Rajasthan
[(2003) 3 SCC 485 : 2003 SCC (L&S) 322].] There is no case that
any assurance was given by the Government or the department
concerned while making the appointment on daily wages that the
status conferred on him will not be withdrawn until some rational
reason comes into existence for withdrawing it. The very
engagement was against the constitutional scheme. Though, the
Commissioner of the Commercial Taxes Department sought to get
the appointments made permanent, there is no case that at the time
of appointment any promise was held out. No such promise could
also have been held out in view of the circulars and directives
issued by the Government after Dharwad decision [(1990) 2 SCC
396 : 1990 SCC (L&S) 274 : (1990) 12 ATC 902 : (1990) 1 SCR
544]. Though, there is a case that the State had made
regularisations in the past of similarly situated employees, the fact
remains that such regularisations were done only pursuant to
judicial directions, either of the Administrative Tribunal or of the
High Court and in some cases by this Court. Moreover, the
invocation of the doctrine of legitimate expectation cannot enable
the employees to claim that they must be made permanent or they
must be regularised in the service though they had not been selected
in terms of the rules for appointment. The fact that in certain cases
the court had directed regularisation of the employees involved in26 of 36
::: Downloaded on – 21-09-2024 13:45:14 :::
Neutral Citation No:=2024:PHHC:116689
CWP-15912-2022 -27-those cases cannot be made use of to found a claim based on
legitimate expectation. The argument if accepted would also run
counter to the constitutional mandate. The argument in that behalf
has therefore to be rejected.
47. When a person enters a temporary employment or gets
engagement as a contractual or casual worker and the engagement
is not based on a proper selection as recognized by the relevant
rules or procedure, he is aware of the consequences of the
appointment being temporary, casual or contractual in nature. Such
a person cannot invoke the theory of legitimate expectation for
being confirmed in the post when an appointment to the post could
be made only by following a proper procedure for selection and in
cases concerned, in consultation with the Public Service
Commission. Therefore, the theory of legitimate expectation cannot
be successfully advanced by temporary, contractual or casual
employees. It cannot also be held that the State has held out any
promise while engaging these persons either to continue them
where they are or to make them permanent. The State cannot
constitutionally make such a promise. It is also obvious that the
theory cannot be invoked to seek a positive relief of being made
permanent in the post.
48. It was then contended that the rights of the employees thus
appointed, under Articles 14and 16 of the Constitution, are
violated. It is stated that the State has treated the employees
unfairly by employing them on less than minimum wages and
extracting work from them for a pretty long period in comparison
with those directly recruited who are getting more wages or salaries
for doing similar work. The employees before us were engaged on
daily wages in the department concerned on a wage that was made
known to them. There is no case that the wage agreed upon was not
being paid. Those who are working on daily wages formed a class
by themselves, they cannot claim that they are discriminated as
against those who have been regularly recruited on the basis of the
relevant rules. No right can be founded on an employment on daily
27 of 36
::: Downloaded on – 21-09-2024 13:45:14 :::
Neutral Citation No:=2024:PHHC:116689
CWP-15912-2022 -28-
wages to claim that such employee should be treated on a par with
regularly recruited candidate, and made permanent in employment,
even assuming that the principle could be invoked for claiming
equal wages for equal work. There is no fundamental right in those
who have been employed on daily wages or temporarily or on
contractual basis, to claim that they have a right to be absorbed in
service. As has been held by this Court, they cannot be said to be
holders of a post, since, a regular appointment could be made only
by making appointments consistent with the requirements of Articles
14 and 16 of the Constitution. The right to be treated equally with
the other employees employed on daily wages, cannot be extended
to a claim for equal treatment with those who were regularly
employed. That would be treating unequals as equals. It cannot also
be relied on to claim aright to be absorbed in service even though
they have never been selected in terms of the relevant recruitment
rules. The arguments based on Articles 14 and 16 of the
Constitution are therefore overruled.
49. It is contended that the State action in not regularising the
employees was not fair within the framework of the rule of law. The
rule of law compels the State to make appointments as envisaged by
the Constitution and in the manner we have indicated earlier. In
most of these cases, no doubt, the employees had worked for some
length of time but this has also been brought about by the pendency
of proceedings in tribunals and courts initiated at the instance of
the employees. Moreover, accepting an argument of this nature
would mean that the State would be permitted to perpetuate an
illegality in the matter of public employment and that would be a
negation of the constitutional scheme adopted by us, the people of
India. It is therefore not possible to accept the argument that there
must be a direction to make permanent all the persons employed on
daily wages. When the court is approached for relief by way of a
writ, the court has necessarily to ask itself whether the person
before it had any legal right to be enforced. Considered in the light
of the very clear constitutional scheme, it cannot be said that the
employees have been able to establish a legal right to be made
28 of 36
::: Downloaded on – 21-09-2024 13:45:14 :::
Neutral Citation No:=2024:PHHC:116689
CWP-15912-2022 -29-
permanent even though they have never been appointed in terms of
the relevant rules or in adherence of Articles 14 and 16 of the
Constitution. ”
26. From the reading of different paragraphs of judgment of the
Constitution Bench in Uma Devi (supra), it can be gleaned that plea of
regularization was rejected because they were not recruited in accordance with
prescribed procedure as contemplated by Article 14 and 16 of the Constitution.
The Court formed an opinion that executive has made appointment of these
employees without following procedure prescribed for regular appointment. On
account of contractual/daily/ad hoc appointment, meritorious candidates do not
participate and mediocre come forward. The executive in violation of procedure
ensures backdoor entry of favourite and less meritorious candidates. The
regularization of these backdoor entrants would encourage executive and
jettison of rule of law as well as mandate of Articles 14 and 16 of the
Constitution. At the cost of repetition, relevant extracts from the operative part
of the judgment are reproduced as below:
i) Therefore, consistent with the scheme for public
employment, this Court while laying down the law, has necessarily
to hold that unless the appointment is in terms of the relevant rules
and after a proper competition among qualified persons, the same
would not confer any right on the appointee.
ii) The High Courts acting under Article 226 of the Constitution,
should not ordinarily issue directions for absorption, regularisation,
or permanent continuance unless the recruitment itself was made
regularly and in terms of the constitutional scheme.
iii) But the acceptance of that principle cannot lead to a position
where the court could direct that appointments made without
following the due procedure established by law, be deemed
permanent or issue directions to treat them as permanent. Doing so,
29 of 36
::: Downloaded on – 21-09-2024 13:45:14 :::
Neutral Citation No:=2024:PHHC:116689
CWP-15912-2022 -30-
would be negation of the principle of equality of opportunity. The
power to make an order as is necessary for doing complete justice
in any cause or matter pending before this Court, would not
normally be used for giving the go-by to the procedure established
by law in the matter of public employment.
iv) It is not as if the person who accepts an engagement either
temporary or casual in nature, is not aware of the nature of his
employment. He accepts the employment with open eyes. It may be
true that he is not in a position to bargain-not at arm’s length-since
he might have been searching for some employment so as to eke out
his livelihood and accepts whatever he gets. But on that ground
alone, it would not be appropriate to jettison the constitutional
scheme of appointment and to take the view that a person who has
temporarily or casually got employed should be directed to be
continued permanently. By doing so, it will be creating another
mode of public appointment which is not permissible.
v) A total embargo on such casual or temporary employment is not
possible, given the exigencies of administration and if imposed,
would only mean that some people who at least get employment
temporarily, contractually or casually, would not be getting even
that employment when securing of such employment brings at least
some succour to them.
vi) The argument that since one has been working for some time in
the post, it will not be just to discontinue him, even though he was
aware of the nature of the employment when he first took it up, is
not one that would enable the jettisoning of the procedure
established by law for public employment and would have to fail
when tested on the touchstone of constitutionality and equality of
opportunity enshrined in Article 14 of the Constitution.
vii) When a person enters a temporary employment or gets
engagement as a contractual or casual worker and the engagement
is not based on a proper selection as recognised by the relevant
rules or procedure, he is aware of the consequences of the
appointment being temporary, casual or contractual in nature.
viii) As has been held by this Court, they cannot be said to be
holders of a post, since, a regular appointment could be made only
30 of 36
::: Downloaded on – 21-09-2024 13:45:14 :::
Neutral Citation No:=2024:PHHC:116689
CWP-15912-2022 -31-
by making appointments consistent with the requirements of
Articles 14 and 16 of the Constitution.
ix) It is contended that the State action in not regularising the
employees was not fair within the framework of the rule of law. The
rule of law compels the State to make appointments as envisaged by
the Constitution and in the manner we have indicated earlier. ”
27. A common thread running through observations and findings of the
Apex Court, made in different paragraphs, is that State had made appointment
without following procedure prescribed for regular recruitment which amounts
to violation of Article 14 and 16 of the Constitution of India.
28. A two Judge Bench of Supreme Court in Union of India and
others v. Vartak Labour Union, (2011) 4 SCC 200 rejected claim of
regularization of contractual employees who had worked for more than 30 years
with Border Roads Organization. The relevant extracts of the judgment are
reproduced as below:-
“17. We are of the opinion that the respondent Union’s claim for
regularisation of its members merely because they have been
working for the BRO for a considerable period of time cannot be
granted in light of several decisions of this Court, wherein it has
been consistently held that casual employment terminates when the
same is discontinued, and merely because a temporary or casual
worker has been engaged beyond the period of his employment, he
would not be entitled to be absorbed in regular service or made
permanent, if the original appointment was not in terms of the
process envisaged by the relevant rules. [See State of Karnataka v.
Umadevi (3) [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] ; Official
Liquidator v. Dayanand [(2008) 10 SCC 1 : (2009) 1 SCC (L&S)
943] ; State of Karnataka v. Ganapathi Chaya Nayak [(2010) 3
SCC 115 : (2010) 1 SCC (L&S) 804] ; Union of India v. Kartick
Chandra Mondal [(2010) 2 SCC 422 : (2010) 1 SCC (L&S) 385] ;
Satya Prakash v. State of Bihar [(2010) 4 SCC 179 : (2010) 2 SCC
31 of 36
::: Downloaded on – 21-09-2024 13:45:14 :::
Neutral Citation No:=2024:PHHC:116689
CWP-15912-2022 -32-
(L&S) 353] and Rameshwar Dayal v. Indian Railway Construction
Co. Ltd. [(2010) 11 SCC 733]”
29. A two Judge Bench of Supreme Court in Union of India and others
v. All India Trade Union Congress and others, (2019) 5 SCC 773, following
Vartak Labour Union (supra), has held that no contractual employee can claim
regularization. High Courts cannot direct authorities to frame policy and
regularize the contractual employees.
30. A Division Bench of this Court vide judgment dated 31.05.2018 in
Yogesh Tyagi and another v. State of Haryana and others, CWP No.17206 of
2014, set aside policy of regularization made by the State. The Court has set
aside policy on the ground that regularization of contractual employees who
have been appointed without following prescribed procedure amounts to back
door entry and it amounts to violation of Articles 14, 16 & 309 of Constitution
of India.
31. A two Judge Bench of Apex Court in Union of India v. Ilmo Devi,
(2021) 20 SCC 290 considered question of regularization of part time employees
of Union of India. The Court while setting aside judgment of this Court has held
that High Court in exercise of its writ jurisdiction cannot ask State to regularize
part time employees. The Court has further held that part time employees cannot
claim pay parity with regular employees. The Court has noticed judgment of this
Court in Para 3.4 and returned findings in Para 16-19 which are reproduced as
below:
“3.4. By the impugned common judgment and order [Union of
India v. Ilmo Devi, 2015 SCCOnLine P&H 5144], the High Court
has disposed of the aforesaid writ petitions with thefollowing
directions : (Ilmo Devi case [Union of India v. Ilmo Devi, 2015
SCC OnLine P&H5144], SCC OnLine P&H paras 22-23)
32 of 36
::: Downloaded on – 21-09-2024 13:45:14 :::
Neutral Citation No:=2024:PHHC:116689
CWP-15912-2022 -33-
“22. We, thus, direct the petitioner authorities to revisit the whole
issue in its right perspectiveand complete the exercise to
reformulate their policy and take a decision to sanction the postsin
phased manner within a specified time schedule. Let such a
decision be taken within a period of six months from the date of
receiving a certified copy of this order.
23. Till the exercise as directed above, is undertaken, the
respondents shall continue in service with their current status but
those of them who have completed 20 years as part-time daily
wagers, shall be granted “minimum” basic pay of Group “D”
post(s) w.e.f. 1-42015 and/or the date of completion of 20 years
contractual service, whichever is later. ”
xxxx xxxx xxxx xxxx
16. Thus, as per the law laid down by this Court in the aforesaid
decisions part-time employees are not entitled to seek
regularisation as they are not working against any sanctioned post
and there cannot be any permanent continuance of part-time
temporary employees as held. Part time temporary employees in a
Government run institution cannot claim parity in salary with
regular employees of the Government on the principle of equal pay
for equal work.
17. Applying the law laid down by this Court in the aforesaid
decisions, the directions issued by the High Court in the impugned
judgment and order [Union of India v. Ilmo Devi, 2015
SCCOnLine P&H 5144], more particularly, directions in paras 22
and 23 are unsustainable and beyond the power of the judicial
review of the High Court in exercise of the power under Article 226
of the Constitution. Even otherwise, it is required to be noted that in
the present case, the Union of India/Department subsequently came
out with a regularisation policy dated30-6-2014, which is
absolutely in consonance with the law laid down by this Court in
Umadevi [State of Karnataka v. Umadevi, (2006) 4 SCC 1 : 2006
SCC (L&S) 753], which does not apply to the part-time workers
who do not work on the sanctioned post. As per the settled
preposition of law, the regularisation can be only as per the
regularisation policy declared by the State/Government and nobody33 of 36
::: Downloaded on – 21-09-2024 13:45:14 :::
Neutral Citation No:=2024:PHHC:116689
CWP-15912-2022 -34-can claim the regularisation as a matter of right dehors the
regularisation policy. Therefore, in absence of any sanctioned post
and considering the fact that the respondents were serving as a
contingent paid part-time Safai-Karamcharies, even otherwise, they
were not entitled for the benefit of regularisation under the
regularization policy dated 30-6-2014.
18. Though, we are of the opinion that even the direction contained
in para 23 for granting minimum basic pay of Group D’ posts from
a particular date to those, who have completed 20years of part-time
daily wage service also is unsustainable as the part-time wagers,
who are working for four to five hours a day and cannot claim the
parity with other Group ‘D ‘ posts. However, in view of the order
passed by this Court dated 22-7-2016 [Union of India v. Ilmo Devi,
2016 SCC OnLine SC 1933] while issuing notice in the present
appeals, we are not quashing and setting aside the directions
contained in para 23 in the impugned judgment and order [Union
of India v. Ilmo Devi, 2015 SCC OnLine P&H 5144] so far as the
respondents’ employees are concerned.
19. In view of the above and for the reasons stated above, both the
appeals succeed. The impugned judgment and order [Union of
India v. Ilmo Devi, 2015 SCC OnLine P&H 5144]passed by the
High Court and, more particularly, the directions contained in
paras 22 and 23in the impugned judgment and order [Union of
India v. Ilmo Devi, 2015 SCC OnLine P&H5144] are hereby
quashed and set aside. However, it is observed that quashing and
settingaside the directions issued in terms of para 23 in the
impugned judgment and order [Union of India v. Ilmo Devi, 2015
SCC OnLine P&H 5144] shall not affect the case of the
respondents and they shall be entitled to the reliefs as per para 23
of the impugned judgment and order[Union of India v. Ilmo Devi,
2015 SCC OnLine P&H 5144] passed by the High Court. “
32. From the above cited judgments, it is crystal clear that employees
who have not been appointed after following procedure prescribed for regular
appointment cannot be regularized. It amounts to backdoor entry. It violates
34 of 36
::: Downloaded on – 21-09-2024 13:45:14 :::
Neutral Citation No:=2024:PHHC:116689
CWP-15912-2022 -35-
Articles 14 and 16 of the Constitution of India. No part time or casual worker
can claim regularization on the ground of long period of service. He cannot
claim violation of Article 21 of the Constitution of India.
33. The petitioner is a Government instrumentality and falls within the
definition of ‘State’ as contemplated by Article 12 of the Constriction of India. It
can make appointments as per statutory and Constitutional provisions. The mess
workers were not appointed after following procedure meant for appointment of
regular employees. There was no advertisement, no interview and no written
test. The appointment was made, though, under the signature of Warden/Chief
Warden, however, by Mess/Food Committee which comprised of students. A
Constitutional Bench as well as afore-cited Benches of Supreme Court have
repeatedly held that employees appointed without following prescribed
procedure or appointed in the absence of permanent post cannot claim
regularization. They cannot be regularized by High Court or Supreme Court.
Their regularization would amount to legalization of backdoor entry and
violation of Articles 14 and 16 of the Constitution of India. The Labour Court
ignoring the mandate of Constitution Bench in Umadevi (Supra) and afore-cited
other judgments of Supreme Court has passed the impugned order. The Labour
Cout has heavily relied upon judgment of Supreme Court in Casteribe (Supra),
the foundation of which was Section 30 and 32 of PULP Act.
34. The Labour Court has held that mess workers are employees of
petitioner-University. There is Employer/Employee relationship between
University and mess workers. The Court has relied upon the fact that
appointment was made with the consent of Warden and Chief Warden and
officials of the University had supervisory control over mess workers. The
workers on few occasions were terminated by Warden.
35 of 36
::: Downloaded on – 21-09-2024 13:45:14 :::
Neutral Citation No:=2024:PHHC:116689
CWP-15912-2022 -36-
The Tribunal has ignored the fact the petitioner-University is
engaged in imparting education. It is a Government University and its motive is
not making profit whereas its motive is to produce high quality of engineers who
may become asset of the country and serve the nation. The University is bound
to provide hostels to its students. Food is served in the hostels. The mess is
managed by a Committee of students. Discipline is paramount in every
educational institution especially when young students are involved. For the
purpose of harmony and discipline, a Warden is appointed who controls day to
day activities of the hostel including its mess. The appointment of mess staff
was made by Committee and salary was paid by said Committee. The
Committee can remove any employee, however, removal is approved by
Warden. The workers are not paid out of funds of the University. The mess
workers indubitably fall within the definition of ‘workmen’ as provided under
Section 2(s) of ID Act and they can claim rights contemplated by ID Act,
however, on account of continuity of service do not become employee of the
University. The University is neither paying salary nor contributing in
ESI/Provident Fund, thus, findings of the Tribunal that there is Master-Servant
relation between University and mess workers is misconceived.
35. In the wake of above discussion and findings, this Court is of the
considered opinion that present petition deserves to be allowed and accordingly
allowed. The impugned order is hereby set-aside.
06.09.2024 [JAGMOHAN BANSAL]
manoj JUDGE
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
36 of 36
::: Downloaded on - 21-09-2024 13:45:14 :::