ACCORDING TO THE FOLLOWING jUDGMENT OF THE SUPREME COURT UNLESS CONTRACT LABOURERS WHO HAVE BEEN CASUAL LABOURS ARE REGUALRISED IN TRHEIR EMPLOYEMNT AND MADE PERMANENT IT AMPOUNTS TO UNFAIRLABOOUR PRACTICE. LET US SEE THE THE RELEVANT SUPREME COURT JUDGMENT:.if you appreciate this answer please click the thank you button on this forum.
High Court that the respondent corporation had
committed unfair trade practice against the
workmen depriving them of status and privileges
of permanent workmen; whether the workmen were
entitled for relief of absorption?
15.
Before deciding the issues, it is necessary to notice the
relevant decisions of this Court regarding regularization of
service/absorption in the Government Service or its undertakings
in the light of Articles 14 and 16 of the Constitution of India.
16.
In
Uma Devi (3)
Constitution Bench of this Court while
observing that casual/temporary employees do not have any right
to regular or permanent employment held as follows
:
“
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 16
of 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
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9
9
employees who by the very nature of their appointment,
do not acquire any right. 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. 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.”
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 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.
Page
10
10
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.”
However, in respect of irregular appointments of duly
qualified persons working for more than 10 years, this Court
observed:
“
53.
One aspect needs to be clarified. There may be
cases where irregular appointments (not illegal
appointments) as explained in S.V. Narayanappa11, R.N.
Nanjundappa12 and B.N. Nagarajan8 and referred to in
para 15 above, of duly qualified persons in duly
sanctioned vacant posts might have been made and the
employees have continued to work for ten years or more
but without the intervention of orders of the courts or
of tribunals. The question of regularisation of the
services of such employees may have to be considered on
merits in the light of the principles settled by this
Court in the cases above-referred to and in the light of
this judgment. In that context, the Union of India, the
State Governments and their instrumentalities should
take steps to regularise as a one-time measure, the
services of such irregularly appointed, who have worked
for ten years or more in duly sanctioned posts but not
under cover of orders of the courts or of tribunals and
should further ensure that regular recruitments are
undertaken to fill those vacant sanctioned posts that
require to be filled up, in cases where temporary
employees or daily wagers are being now employed. The
Page
12
12
(3)
,
in case of unfair labour practice was considered by this
Court in
Maharashtra State Road Transport and another v.
Casteribe Rajya Parivahan Karmchari Sanghatana (2009) 8 SCC 556.
In the said case, this Court held that Umadevi’s case has not
over ridden powers of Industrial and Labour Courts in
passing appropriate order, once unfair labour practice on the
part of employer is established. This Court observed and held
as follows:
“
34.
It is true that
Dharwad Distt. PWD Literate
Daily Wages Employees’ Assn.v. State of Karnataka,
(1990) 2 SCC 396
arising out of industrial
adjudication has been considered in
State of
Karnataka v .Umadevi (3), (2006)4 SCC 1
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.
35.
Umadevi (3)
is an authoritative pronouncement
for the proposition that the Supreme Court (Article
32) and the High 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.
36.
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.”
Page
13
13
“
47.
It was strenuously urged by the learned
Senior Counsel for the Corporation that the
Industrial Court having found that the 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.”
19.
Almost similar issue relating to unfair trade practice
by employer and the effect of decision of Umadevi (3) in the
grant of relief was considered by this Court in
Ajaypal Singh
v. Haryana Warehousing Corporation
in Civil Appeal No.6327
of
2014 decided on 9
th
July, 2014. In the said case, this Court
observed and held as follows:
“
20.
The provisions of Industrial Disputes Act and
the powers of the Industrial and Labour Courts
provided therein were not at all under consideration
in Umadevi’s case. The issue pertaining to unfair
labour practice was neither the subject matter for
decision nor was it decided in Umadevi’s case.
21.
We have noticed that Industrial Disputes Act
is made for settlement of industrial disputes and
for certain other purposes as mentioned therein. It
prohibits unfair labour practice on the part of the
employer in engaging employees as casual or
temporary employees for a long period without giving
them the status and privileges of permanent
employees.
22.
Section 25F of the Industrial Disputes Act,
1947 stipulates conditions precedent to retrenchment
of workmen. A workman employed in any industry who
has been in continuous service for not less than one
year under an employer is entitled to benefit under
said provision if the employer retrenches workman.
Such a workman cannot be retrenched until he/she is
given one month's notice in writing indicating the
reasons for retrenchment and the period of notice
Page
14
14
has expired, or the workman has been paid in lieu of
such notice, wages for the period of the notice
apart from compensation which shall be equivalent to
fifteen days' average pay for every completed year
of continuous service or any part thereof in excess
of six months. It also mandates the employer to
serve a notice in the prescribed manner on the
appropriate Government or such authority as may be
specified by the appropriate Government by
notification in the Official Gazette.
If any part of the provisions of Section 25F
is violated and the employer thereby, resorts to
unfair trade practice with the object to deprive the
workman with the privilege as provided under the
Act, the employer cannot justify such an action by
taking a plea that the initial appointment of the
employee was in violation of Articles 14 and 16 of
the Constitution of India.
23.
Section 25H of the Industrial Disputes Act
relates to re-employment of retrenched workmen.
Retrenched workmen shall be given preference over
other persons if the employee proposes to employ any
person.
24.
We have held that provisions of Section 25H
are in conformity with the Articles 14 and 16 of the
Constitution of India, though the aforesaid
provisions (Articles 14 and 16) are not attracted in
the matter of re-employment of retrenched workmen in
a private industrial establishment and undertakings.
Without giving any specific reason to that effect at
the time of retrenchment, it is not open to the
employer of a public industrial establishment and
undertaking to take a plea that initial appointment
of such workman was made in violation of Articles 14
and 16 of the Constitution of India or the workman
was a backdoor appointee.
25.
It is always open to the employer to issue an
order of “retrenchment” on the ground that the
initial appointment of the workman was not in
conformity with Articles 14 and 16 of the
Constitution of India or in accordance with rules.
Even for retrenchment on such ground, unfair labour
practice cannot be resorted and thereby workman
cannot be retrenched on such ground without notice,
pay and other benefits in terms of Section 25F of
the Industrial Disputes Act, 1947, if continued for
more than 240 days in a calendar year.
26.
However, in other cases, when no such plea is
taken by the employer in the order of retrenchment
that the workman was appointed in violation of
Articles 14 and 16 of the Constitution of India or
in violation of any statutory rule or his
appointment was a backdoor appointment, while
Page
15
15
granting relief, the employer cannot take a plea
that initial appointment was in violation of
Articles 14 and 16 of the Constitution of India, in
absence of a reference made by the appropriate
Government for determination of question whether the
initial appointment of the workman was in violation
of Articles 14 and 16 of the Constitution of India
or statutory rules. Only if such reference is made,
a workman is required to lead evidence to prove that
he was appointed by following procedure prescribed
under the Rules and his initial appointment was
legal.”
20.
In the present case, it is admitted that the workmen had
been working as contract labours under the contractor in the
rice mill of the Corporation. The contract system was
terminated and the rice mill was closed in the year 1990-1991.
The effect was termination of services of the workmen. In that
view of the matter, they were entitled for re-employment when
the employer proposed to take into his employment any person,
in view of Section 25H, which reads as follows:
“
Section 25H. Re-employment of retrenched workmen.-
Where any workmen are retrenched, and the employer
proposes to take into his employ any persons, he
shall, in such manner as may be prescribed, give an
opportunity to the retrenched workmen who are
citizens of India to offer themselves for re-
employment and such retrenched workman who offer
themselves for re-employment shall have preference
over other persons.”
Under Section 25H the retrenched workman who offer
themselves for employment shall have preference over other
persons. It was for the said reason the workmen were employed
by the Corporation in June, 1991.
21.
This Court in
Ajaypal Singh
held that the provisions of
Section 25H are in conformity with Articles 14 and 16 of the
Constitution of India, though, the aforesaid provisions
Page
16
16
(Articles 14 and 16) are not attracted in the matter of re-
employment of retrenched workmen in private industrial
establishment and undertakings. In that view of the matter it
can be safely held that the workmen who were retrenched, were
rightly taken in the services of Corporation. Admittedly, no
plea was taken by the Corporation either before the State
Government or before the Tribunal that the initial appointment
of workmen were illegal or they were appointed through back
door means.
22.
In this background, we are of the view that it was not
open to the Division Bench of the High Court, particularly in
absence of any such plea taken by the Corporation before the
Tribunal to come to a finding of fact that initial appointments
of workmen were in violation of Articles 14 and 16 of the
Constitution of India, nor it was open to the High Court to
deny the benefit to which the workmen were entitled under item
10 of Part I of the Fifth Schedule of the Act, the Tribunal
having given specific finding of unfair trade practice on the
part of the Management of the Corporation.
23.
Having accepted that there was unfair trade practice, it
was not open to the Division Bench of the High Court to
interfere with the impugned award.
24.
For the reasons aforesaid, we aside the impugned judgment
dated 25
th
February, 2009 passed by the Division Bench of the
High Court at Calcutta in F.M.A. No.2345 of 2005 (C.A.N.8685 of
2007 and C.A.N.4726 of 2008). Award dated 9
th
June, 1999 passed
by the Tribunal in Reference No.21 of 1996 as affirmed by the
Page
17
17
learned Single Judge by order dated 18
th
February, 2005 in W.P.
No.21368 (W) of 1999 is upheld. The respondent-Corporation is
directed to implement the Award from its due date as ordered by
the Tribunal. The appeal is allowed with aforesaid observations
and directions. No costs.
...........................J.
[SUDHANSU JYOTI MUKHOPADHAYA]
..........................J.
[PRAFULLA C. PANT]
NEW DELHI;
DECEMBER 09, 2014.
