Central Administrative Tribunal - Ernakulam
Rehfan. V.S vs H.L.L. Lifecare Ltd on 16 February, 2017
Author: P. Gopinath
Bench: P. Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A No. 180/00130/2015
Thursday, this the 16th day of February, 2017.
CORAM:
HON'BLE Mr. JUSTICE N.K. BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE Mrs. P. GOPINATH, ADMINISTRATIVE MEMBER
1. Rehfan. V.S, Working as production Assistant in
HLL Lifecare Ltd.
S/o. T.M. Sahad, Vattakkudi House,
Mudikkal (P.O), Nedumthode,
Perumbavoor, Ernakulam - 683 547.
2. Biju V.S. Working as production Assistant in
HLL Lifecare Ltd.
S/o. N. Vasudevan, Tharangam,
Konchira (P.O), Vembayam,
Thiruvananthapuram - 695 615.
3. Shibu T.,Working as production Assistant in
HLL Lifecare Ltd.
S/o. Thomson. M, Plavila Veedu,
Pappanam, Ambal, Athinkala (P.O),
Kattakkada, Thiruvananthapuram - 695 572.
4. Johny D.M., Working as Production Assistant
in HLL Lifecare Ltd.
S/o. J. Dennison, Joy Nilayam,
Paranayam, Vazhimukku,
Kanjiramkulam (P.O),
Thiruvananthapuram - 695 524.
5. Dinesan K.S, Working as Production Assistant
in HLL Lifecare Ltd.
S/o. Suku K.N., Kuriyappally House,
Mattupuram, Manam (P.O),
North Paroor - 683 520.
6. Dennis Joseph, Working as Production Assistant
in HLL Lifecare Ltd.
S/o. A.J. Joseph, Nadeeparambil House,
Thanneermukkam (P.O), Cherthala, Alappuzha - 688 527.
7. Justin Raj. P, Working as Production Assistant
in HLL Lifecare Ltd.
S/o. Pathrose P.,
Churakkavila House, Kakkavila (P.O),
Uchakkada (via), Thiruvananthapuram - 695 506.
8. Saji R., Working as Production Assistant
in HLL Lifecare Ltd.
S/o. Raju. C, Saji Bhavan,
Aramthanam, Vamanapuram (P.O),
Thiruvananthapuram - 695 606,
9. Bijumon M., Working as Production Assistant
in HLL Lifecare Ltd.
S/o. Maniappan, Laksmi Nivas,
Kannangattu Veliyil,
Vattayal Ward, Alappuzha - 688 002.
10. Shanmugha Sundaram,
Working as Production Assistant
in HLL Lifecare Ltd.
S/o. P. Shanmugham Pillai,
Laksmi Mandiram, Varu Vilakam,
K.S. Road, Kovalam (P.O),
Thiruvananthapuram - 695 527. - Applicants
[By Advocate Mr. V.K. Sathyanathan]
Versus
1. H.L.L. Lifecare Ltd.
Represented by its Chairman & Managing Director,
Thiruvnananthapuram - 695 012.
2. The Director,
Directorate of Employment,
Thiruvananthapuram - 695 014. - Respondents
[By Advocates: Mr. V. Krsihna Menon for R-1
Mr. M. Rajeev, (GP) for R-2]
The application having been heard on 24.01.2017, the Tribunal
on 16.02.2017 delivered the following:
ORDER
Per: Mrs. P. Gopinath, Administrative Member The HLL Lifecare Ltd. is a public sector undertaking. The direct recruitment to the factory is to be done through Employment Exchange only, whether it is for temporary or permanent posts. Applicants were sponsored by their respective employment exchanges, and applicants after a due selection procedure comprising written examination and interview were appointed as Production Assistants. Along with applicants many other candidates were also appointed as Production Assistant in the HLL Lifecare Ltd from open market. Production Assistant is a worker, who is deployed in all sections of the factory. Since the date of such appointment, applicants are continuing without any break. When the applicants were selected and appointed, they were intimated that they will be regularised after one or two years of continuous employment. While working in the factory, after two years, all such persons were given experience certificate. The applicants tried to add this experience to the experience details available in the respective employment exchanges but that was not allowed by the employment exchange authorities on a technical reason that, the said experience can be added only on termination of the present employment or when applicants are unemployed.
2. While so the HLL Lifecare Ltd. is making appointments as Worker trainee with a stipend of Rs. 8,500/- per month and after the training of one year the trainees will be appointed to regular posts. The job of the worker trainee/worker and the production assistant is same. In the month of January, 2015 fifteen candidates were appointed as worker trainee and another 30 appointments will be made by end of February 2015. It is reliably learned that the HLL Lifecare Ltd., requisitioned the Directorate of Employment to sponsor candidates for appointment as worker trainees from amongst those who had I.T.I or equivalent qualification and experience in work related to the production of male contraceptive condoms. In Kerala such experience can be obtained from HLL Lifecare Ltd. only.
3. Learned counsel for the respondent informs the Bench on 13.03.2015 that, applicant Nos. 8 and 9 have already been disengaged from the post of Production Assistant on 13.02.2015 on expiry of their contract period as indicated in Annexure R-1(b), and similar orders of disengagement have been issued to other applicants. He further submitted that selection to the post of Worker Trainees have been completed on the basis of the list of candidates forwarded by the Employment Exchange.
4. Applicants argue that candidates selected from open market for being engaged as Production Assistants had the opportunity to register with the employment exchange as unemployed, whereas the applicants who were recruited from amongst the candidates sponsored by the employment exchange as Production Assistants could not be treated as unemployed as long as they were engaged by the respondent. Hence, they were not in a position to compete with the Production Assistants selected from the open market for being considered for the regular posts of Worker Trainees.
5. All applicants are having SSLC with ITI/TTC certificate (Fitter/Carpenter/Electrician) qualification. Applicants being the appointees sponsored by the employment exchanges and appointed after a due selection procedure and working for about 3 years continuously are eligible to be regularised in the vacancy of Production Assistant. Registration of their experience certificate has been rejected by the employment exchanges, on the premise that the experience certificate of employment obtained through the employment exchange, can be registered only after the termination of that employment. The non- registration of experience certificate is not due to the applicants. But the fact remains that the applicants are working in the HLL Lifecare Ltd. and have sufficient experience in the field. If that be so the applicants are eligible to be appointed as worker trainees also.
6. Relief sought by the applicants is to issue directions directing the 1st respondent to regularise the applicants as Production Assistant or to appoint as worker/worker trainee with effect from 01.01.2015.
7. The second respondent in the reply statement submits that their office received the requisition of 200 vacancies, from Hindustan Latex Limited termed as 'Temporary Likely to continue beyond one year'. The above underlined parlance connected with the Central Government or Quasi Central Government vacancies, is normally treated by the Employment Exchanges as Permanent or Regular in nature. The second respondent should not have applied their interpretation to the requisition made by HLL by reading temporary as permanent or regular vacancies. Such a suo moto interpretation gave a wrong connotation to the temporary engagement. Such interpretation is not for the EE to make, and they are required to intimate the requisition received to job seekers in the manner received. We adversely view such an interpretation by 2nd respondent as illegal and going beyond their jurisdiction. This may be done only to expand the figures of employed persons in the state. But this does immeasurable harm in the form of false hope to aspiring candidates registered with Employment Exchange. We direct the Secretary of the respective State Government Department overseeing work of EE to undo and stop such suo moto interpretation which conveys a wrong message. Such abrogation of power to interpret status of vacancies be avoided in future by EE.
8. First respondent argues that the application is not maintainable because applicants have no right in law to claim regularisation of their appointment on fixed term contract basis. The application is also bad for non-joinder of necessary and proper parties. The first respondent is a Government of India enterprise incorporated under the Companies Act 1956 with Registered and Corporate Office at HLL Bhavan, Poojappura in Thiruvananthapuram District. The first respondent is engaged in the business of manufacture and sale of condoms, copper T, blood bags, surgical gloves and other health care products. It has got factory locations among others at Peroorkada in Thiruvananthapuram. The factory at Peroorkada has 567 permanent employees on its roll. However to meet the exigencies of work and time schedule, additional hands are engaged on contract for fixed term basis through Employment Exchange. The first respondent had sent a requisition under covering letter dated 09.06.2011 to the Employment Exchange requesting to forward list of ITI passed candidates for engaging them as Production Assistant on contract for fixed term vide Annexure R-1(a). In the covering letter it was specifically mentioned that list of available candidates should be furnished on or before 25.06.2011. As no list pursuant to Annexure R-1(a) was received in time, a notification was published in the newspaper inviting application from eligible candidates for engagement as Production Assistant on contract basis. Here again we note that due to failure of EE to respond in time. Respondent had to take an alternative course of action to keep up time-lines of production. The employment exchange subsequently furnished a list of available candidates.
9. Respondent argues that there is no permanent position with nomenclature Production Assistant in the first respondent company. The Production Assistants are engaged on fixed term contract basis to assist the regular workers in various Departments in their work. As the number of candidates sponsored by the Employment Exchange and the applications received pursuant to advertisement in the newspaper were large, a scrutiny process was conducted. After scrutiny, 577 candidates which includes candidates both from Employment Exchange and open advertisement were invited for a written test. 372 attended the written test. After the written test, 295 candidates out of 372 were called for interview. After interview, a list of 242 candidates was prepared. All the 242 candidates were offered engagement as Production Assistant on contract basis in a phased manner, for a period of one year. Terms and conditions of engagement issued to the first applicant is produced and marked as Annexure R-1(b). Condition No.1 in the terms and conditions specifically states that engagement is on contract basis and that it will not confer any claim as a matter of right or otherwise for consideration for regular employment in the company. The first applicant accepted Annexure R-1(b) offer of engagement and the terms and conditions attached to it while accepting the offer of Production Assistant. Order similar to Annexure R-1(b) was issued to remaining 241 candidates which includes applicants 2 to 10 and all of them had accepted the offer and the terms and conditions.
10. First respondent had identified the vacancies that has arisen as well as vacancies likely to arise upto end of 2015 in the regular posts as per the recruitment policy in vogue. Based on the Government of India guidelines, regular appointments of workers can be made only through employment exchange. In view of this, another requisition dated 22.09.2014 marked as Annexure R-1(c), was sent to the employment exchange for sponsoring eligible candidates for regular appointment after initial training of one year as worker trainee. The Employment Exchange sponsored names of 79 candidates. After scrutiny 59 candidates were called for written test and interview. After interview a list containing names of 45 candidates was prepared. It is submitted that 15 candidates were appointed as worker trainees as per letter of appointment dated 23.12.2014. All the 15 candidates accepted the letter of appointment and 14 joined duty on 01.01.2015, and one requested extension and joined on 05.01.2015. It is submitted that the remaining 30 candidates included in the select list will be given appointment as per vacancy requirement in the coming months.
11. It is submitted that the selection and appointment made to the worker category against regular vacancies is as per provision of recruitment rules and is proper, legal and valid. The selection and appointment to the worker category does not infringe the rights of the applicants as applicants were engaged as Production Assistant on fixed term contract basis. Respondent contests the applicants contentions that the job of worker trainee and Production Assistant are the same, that persons appointed are those included in the select list and were working as Production Assistant along with the applicants, that they were persons not sponsored by the employment exchange, and the applicants were sidelined, and states that all such arguments are without merit. All candidates selected as Worker Trainee for regular employment have been sponsored by employment exchange against the requisition for regular worker trainee appointment against regular vacancies, unlike applicants who were engaged on contract to meet the exigencies of work.
12. It is submitted that the statements based on Annexure A-2 series experience certificate were issued to the applicants as per their specific request marked as Annexure R-1(e). Applicants 2 to 10 had also submitted letters identical to Annexure R-1(e) pursuant to which experience certificates were issued to them also. The statement that applicants were intimated at the time of their selection and appointment that they will be regularised after one or two years of continuous employment is self serving and without merit, argue the respondent. Respondent argues that no intimation as alleged by the applicants were given to them at the time of their engagement as Production Assistants nor was there any commitment to be made permanent. Such a plea cannot be entertained in view of para 47 of the judgment in Uma Devi's case. A perusal of Annexure R-1(a) would show that the requirement was clearly indicated as fixed term contract and not against regular vacancies. Against column 4(b) 'temporary' and not 4(a) 'regular' was filled indicating that the requirement was temporary. In view of all these facts, the statement that the appointment of applicants was done through employment exchange after completing all the formalities for a permanent appointment and that the appointment can be made permanent without any further formalities are without merit. Applicants were not selected for regular employment. The selection and offer was for a fixed term on contract basis and as such it will not confer any right for regularisation of service.
13. The applicants argue that the present selection is done to circumvent regularisation of persons who have been sponsored by employment exchange and appointed as Production Assistant. Respondent argues that present selection is to fill up vacancies occurring against the regular posts. The applicants were engaged as Production Assistant on contract basis for a fixed term. There is no post or position called Production Assistant in the first respondent company.
14. We note that the applicants were engaged on contract for a fixed term of one year as per Annexure R-1(b)/2 Clause 1 of the terms and conditions of engagement. Clause 1 also stated that the engagement on contract may be reduced or extended on the sole discretion of the company. It is also stated that the engagement on contract will not confer any claim for regular employment in the Company. Clause 2 of the engagement condition also stipulates that the engagee is liable to be terminated without assigning any reason or giving any notice. As per Clause 3 the applicants are not engaged towards any post, drawing a pay scale, but are engaged on a consolidated payment of Rs. 5500/- per month. The applicant was also as per terms of engagement not entitled to any other allowances/benefits, available to the category of regular employees of the company. Hence the above terms and conditions of contract engagement was clearly made known to all applicants as per sample engagement letter produced as Annexure R-1(b) by respondent in respect of first applicant. There was no condition that they will be considered for permanent employment. Since the Employment Exchange (EE) did not produce a list of persons for contract engagement within stipulated time, the respondent had issued a newspaper notification inviting applications. Hence some persons were sponsored by EE and some persons applied directly to the company in response to the newspaper notification. We find nothing wrong in this sequence of events which arose due to the non-observance of time limit specified to the EE. The applicants being clearly made aware of the circumstances and terms of engagement, have no right to seek permanent engagement as converting contract engagement into permanent jobs would have been in violation of Apex Court judgment in State of Karnataka & others v. Uma Devi (3) (2006) 4 SCC 1.
15. However when an opportunity for filling up permanent vacancies arose, the respondent could have given the applicants a chance to apply for the post, be engaged as per provisions of recruitment rules and the experience gained by applicants in the contract engagement be utilised to the benefit of the very same company. This being not so, the applicants cannot as a matter of right expect to be regularised in continuance of the contract engagement as the Apex Court in Secretary State of Karnataka and Others v. Uma Devi and others had held as follows:-
'45. While directing that appointments, temporary or casual, be regularized or made permanent, courts are swayed by the fact that the concerned person 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 eyes open. It may be true that he is not in a position to bargain - not at arms 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 succor 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'.
xxxxxxxxxx '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 concerned cases, 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. . . . . . . . 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. . . . . . . '
16. There could be occasions when the State or its instrumentalities as the first respondent in this case, will have to employ persons temporarily on contract basis to meet the exigencies of work and to discharge the production targets assigned. There is nothing which prohibits such engaging of persons on contract to meet the needs of the situation.
17. Respondents in the reply statement submits that there is no post or position of Production Assistant in the first respondent company. Hence the applicants prayer for regularisation as Production Assistants cannot also be sustained due to non-existence of such a post on regular basis. In view of Uma Devi's judgment, as they were clearly engaged on contract basis which does not devolve on them any right to be regularised. O.A fails accordingly. But we leave it to the respondent to decide whether in the next round of engagement of worker trainee, the applicants can be considered for appointment by relaxing age requirement if necessary, subject to their fulfilling all other conditions of appointment.
18. The Original Application is disposed of accordingly. No order as to costs.
(Dated, this the 16th February, 2017.)
(Mrs. P. GOPINATH) (N.K. BALAKRISHNAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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