Delhi District Court
(1) Deep Chandra vs . State Of U.P. And Another (2001) 10 on 29 May, 2007
IN THE COURT OF SHRI S.S. HANDA : POLC : V :
KARKARDOOMA COURT : DELHI.
ID No. 233/01
BETWEEN
The Management of M/s. Bharat Alluminium Co. Ltd. (A Govt. of
India Enterprises), Core-6 Scop Complex, Third Floor, Lodhi Road,
New Delhi-3.
AND
The workman Sh. Hira Singh S/o Sh. Harek Singh, B-21, Greater
Kailash Enclave Part-2, New Delhi-48.
DATE OF REFERENCE : 05.10.01
DATE OF AWARD : 29.05.07
AWARD
The Secretary (Labour) Govt. of N.C.T. of Delhi has
referred the Industrial Dispute for adjudication to this Court vide Order
No. F.24(1873)/2001-Lab./22122-26 dated 05.10.01 in the following
terms of reference:
"Whether the services of Sh. Hira Singh S/o Sh. Harek Singh
have been terminated illegally and/or unjustifiably by the
management, and if so, to what sum of money as monetary
relief alongwith consequential benefits in terms of existing
laws/Govt. Notifications and to what other relief is he
entitled and what directions are necessary in this respect?"
2. Precisely, the case of the workman is that he was working
with the management as a 'peon' in its administration department since
18.01.1999 and was regular and in continuous employment of the
management till 30.11.1999. According to him he had unblemished
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service record and has worked for more than 240 days continuously
with the management. He claimed that though he was entitled to
regularised but the management terminated his services illegally and
arbitrarily w.e.f. 01.12.1999 in breach of legal provisions. That he
served the demand notice dated 25.1.2000 upon the management but
the same was not responded. It is claimed that since the services of
workman were terminated illegally and/or unjustifiably by the
management, he is entitled to be reinstated with continuity in service
and full back wages.
3. The management was served of the claim sent through
Regd. AD post and UPC for 11.12.2002 but as none appeared the
management vide order of the even date was proceeded exparte.
4. The workman filed his affidavit Ex.WW1/A to prove his
averments of the claim. He also relied upon documents Ex.WW1/1,
Ex.WW1/A1 & Ex.WW1/B to Ex.WW1/J. That the award was passed
in his favour for reinstatement with full back wages on 06.08.2003.
The award was received by the appropriate government on 14.10.2003
and was published on 22.01.2004, which became enforceable w.e.f.
21.02.2004. That the management filed an application under Order 9
Rule 13 to set aside the Ex-parte award dated 06.08.2003. The said
application was dismissed vide order dated 20.01.2005 as not
maintainable, since the application was filed on 30.04.2004 i.e. after
more than 30 days of publication of award and the court became
functus officio. The management thereafter filed the Writ Petition
(Civil) No. 3908/2005 before the Hon'ble High Court of Delhi. The
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same was dismissed in limine by the single bench vide its order dated
07.03.2005. Thereafter the management filed the LPA against the
order of Single Bench vide LPA NO. 1011/2005 which was allowed by
the Hon'ble High Court vide its order dated 01.02.2006 on the ground
that "there was nothing mentioned in the Award whether there was any
violation of Section 25-F of the I.D. Act 1947" and remanded the
matter back to the Labour Court "for finding whether Sec. 25 F was
violated or not after hearing the parties concerned."
5. I have heard Mr. R.L. Dhingra, AR for workman and Mr.
A.K. Verma AR for management. AR for the workman has relied
upon :
(1) Deep Chandra vs. State of U.P. And Another (2001) 10
Supreme Court Cases 606.
(2) Statesman Ltd. & Anr. vs. Eighth Industrial Tribunal,
West Bengal & Ors. 2005 LLR 198 Calcutta High Court.
(3) Sports Authority of India vs. Sports Authority of India
Kamgar Union & Ors. 2005 LLR 541 Delhi High court.
(4) Prathma Bank vs. Presiding Officer, Central Government
Industrial Tribunal-cum-Labour Court, Pandu Nagar,
Kanpur 2002 II LLJ Allahabad.
(5) Narasimhamurthi (M.C.) and others vs. Director of
Collegiate Education and others II LLJ High Court, Mysore.
(6) Union of India and others etc. vs. N. Hargopal and others
etc. AIR 1987 Supreme Court 1227.
(7) Salil Kumar Mukherjee vs. Hindustan Steel Ltd. 1978 (2)
SLR 765 Cal.
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(8) Dr. S.L. Aggarwal vs. The General Manager, Hindustan
Steel Ltd. AIR 1970 SC 1150.
(9) Vikramaditya Pandey vs. Industrial Tribunal, Lucknow
and another 2001 I LLJ SC.
(10) The Employment Exchanges (Compulsory Notification
of Vacancies) Act, 1959.
AR for the management has relied upon :
(1) Secretary, State of Karnataka and others vs. Umadevi
and others JT 2006 (4) SC 420.
(2) State of Himachal Pradesh vs. Suresh Kumar Verma &
Anr. JT 1996 (2) SC 455.
(3) Himanshu Kumar Vidyarthi & Ors. vs. State of Bihar &
Ors. JT 1997 (4) SC 560
(4) Pawan Kumar & others vs. Lt. Governor of Delhi &
others CWP No. 3341 of 1999.
(5) Ajay Kumar & others vs. Govt. of NCT of Delhi &
others 85 (2000) Delhi Law Times 330.
(6) M/s R.K. Fabrication vs. Harish Kumar Sharma and
others W.P.(C) No. 1808/2002
(7) M/s Municipal Corporation of Delhi vs. Shri Krishna Pal
W.P.(C) 13555/2005.
(8) Nand Lal vs. Housing and Urban Development
Corporation Ltd. and Anr. W.P.(C) NO. 15187/2006.
6. On my due consideration of material on record;
submissions made by AR for parties and relevant legal provisions and
referred case law; my finding on the controversy
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"As to whether Sec. 25-F I.D. Act was violated" is as follows :
At the outset Mr. A.K. Verma, AR for the management
with all fairness conceded that in view of the specific direction of the
Hon'ble High Court "after hearing the parties" he does not press the
case to be reopened. That he has limited scope of hearing i.e. raising
the legal objection; of course referring to the pleadings and evidence of
the workman on record. Thus in this backdrop AR for both the parties
proceeded to make their submissions.
7. The questions for consideration arose; as to whether by
implication of Sec. 25-B I.D. Act the claimant fell within the definition
of workman as enshrined U/s 2(s) I.D. Act. And whether services of
the workman were terminated by the management violative of Section
25-F I.D. Act.
8. Mr. R.L. Dhingra, AR for the workman submitted that
averments of the workman supported by his deposition and documents
Ex.WW1/1, 1/A-1 and B to J have gone unrebutted. And therefore
have to be believed. He thereby submitted that workman having
worked with the management w.e.f. 18.01.99 to 21.11.99, "actually
worked" for more than 240 days when his services were terminated
w.e.f. 1.12.99. He in this perspective submitted that since the
workman was not given any benefit as mandated under Section 25-F
I.D. Act; as such his termination was violative of Section 25-F I.D. Act
and consequently illegal. Mr. A.K. Verma AR for the management
referring to the contents of claim of the workman and analytically
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examining the documents tendered by the workman in his deposition
contended that as laid in Essen Deinki Vs. Rajiv Kumar 2003 Supreme
Court Cases (L&S) 13 the workman had failed to prove that he had
actually worked for more than 240 days continuously in the preceding
year of the alleged date of termination i.e. 1.12.99. According to him
there was no document worth the name on record to prove that
workman was appointed to any post with the management. And that
he actually worked with the management w.e.f. 18.01.99 uptill
30.11.99. On this aspect referring to the material on record he
submitted that bare deposition of workman tendered by way of
affidavit does not prove that he had worked during this period of
18.01.99 to 30.11.99. Reliance placed upon : R.M. Yellati vs. The
Executive Engineer (2006) 1 SCC 106 that bare self-serving affidavit
is not sufficient to prove the tenure of service. The Hon'ble apex court
held that "burden is discharged only upon the workman stepping into
witness box. This burden is discharged by the workman adducing
cogent evidence, both oral and documentary." He thereby contended
that the workman failed to establish that he actually worked for 240
days uptill 30.11.99 as claimed by him. His second and most
important aspect of argument was that the workman was never ever
appointed by the management as per rules and regulations. And that
his appointment was "dehors the rules and void ab initio".
9. While going through the record I find that there was no
document to substantiate the claim of the workman that he joined the
management w.e.f. 18.01.99. To answer this it would be pertinent to
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analyse the documents filed by the workman on record in seriatim of
date. As recorded above workman had relied upon the documents
Ex.WW1/1, 1/-A, 1/B to 1/J.
10. The first document is Ex.WW1/C dated 6.5.99. This
document specifies "Shri Hira Singh who has been engaged as Peon
on daily wages @ Rs.90.30 per day has worked all the days during the
month of April, 99 i.e. 30 days from 1st April to 30th April, 99.
Accordingly his wages for the month of April, 1999 may kindly be
released".
11. The second document Ex.WW1/D in seriatim of date is
dated 7.7.99. Being relevant its contents being relevant are
reproduced as below:
"Shri Hira Singh who has been engaged as Peon on daily
wages @ Rs.90.30 per day has worked all the days during
the month of June, 99 i.e. 30 days. His wages may kindly be
released accordingly. This issues with the approval of
competent authority".
12. The third document after this was dated 11.8.99
Ex.WW1/E. The contents of this documents being relevant are
reproduced as below :
"Shri Hira Singh who has been engaged as Peon on daily
wages @ Rs.90.30 per day has worked all the days during
the month of July 99 i.e. 31 days. His wages may kindly be
released accordingly. This issues with the approval of
Competent Authority".
13. The fourth document in seriatim is dated 31.8.99
Ex.WW1/B. The contents of this document being relevant are
reproduced as below :
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"Shri Hira Singh is engaged as Peon on ad-hoc basis in the
Wage Scale of Rs.2110-40-2830/ (Wage Category-I) on a
basic wage of Rs.2110/- per month plus allowances
admissible under the Rules of the Company from time to
time w.e.f. 1.8.99 for a period of 3 months. This
engagement will authomatically cease on 31.10.99. The
appointment is terminable during the above period at any
time at the discretion of the Appointing Authority without
assigning any reason".
14. The fifth document in seriatim is dated 1.9.99 Ex.WW1/1.
The contents of this document also being relevant are reproduced as
below :
"In continuation of our order of even number dated 31.8.99,
Shri Hira Singh, Peon (ad-hoc) is allotted employee no.
20471".
15. Sixth, seventh, eighth and ninth documents are Ex.WW1/F,
G, H and I. These documents pertained to payment of wages to the
workman for the month of August 1999 to November 1999. In
Ex.WW1/F; against the name of workman his designation is
mentioned as Peon with employee no. 20471. Whereas in Ex.WW1/G,
H, I the workman was paid wages with the designation of Peon (ad-
hoc) for the months of September to November 1999. Ex.WW1/J is
document which the workman wrote under his own signatures. The
document in Hindi is to the effect that 'he was serving with the
management in the administrative department as a peon w.e.f. 18.01.99
to 31.10.99 on daily wages basis. And he worked w.e.f. 1.8.99 to
30.11.99 at head office. That thereafter w.e.f. 1.12.99 his services
stood disengaged with the assurance that he will be recalled as and
when necessity arises. Now over a month has lapsed and that he be re-
appointed at his previous post'. Evidently there is no document on
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record to prove as was mandated in Essen Deinki Vs. Rajiv Kumar
2003 Supreme Court Cases (L&S) 13 that the workman had worked
with the management for the period 18.01.99 to 30.11.99. Secondly it
is an admitted fact by the workman himself as per Ex.WW1/J that he
had worked with the management w.e.f. 18.01.99 to 30.11.99 on daily
wage basis. Thirdly that he had also worked in the same capacity
(from 1.8.99 to 30.11.99). At this stage Mr. A.K. Verma, AR for the
management has raised the contention that without prejudice to his
submissions that the workman had not proved he had actually worked
for 240 days; assuming that the averments made by the workman are
taken as factually correct; still the workman does not qualify to be a
workman by implication of Section 25-B I.D. Act.
16. Section 25-B I.D. Act being relevant is reproduced as
below :
Section 25-B:
(1) a workman shall be said to be in continuous service for a
period if he is, for that period, in uninterrupted service,
including service which may be interrupted on account of
sickness or authorised leave or an accident or a strike which
is not illegal, or a lock-out or a cessation of work which is
not due to any fault on the party of the workman;
(2) Where a workman is not in continuous service within
the meaning of clause (10 for a period of one year or six
months, he shall be deemed to be in continuous service
under an employer -
(a) for a period of one year, if the workman, during a
period of twelve calender months preceding the date
with reference to which calculation is to be made, has
actually worked under the employer for not less than -
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(i) one hundred and ninety days in the case of
a workman employed below ground in a mine; and
(ii) two hundred and forty days, in any other case;
(b) for a period of six months, if the workman, during a
period of six calendar months preceding the date with
reference to which calculation is to be made, has
actually worked under the employer for not less than -
(i) ninety-five days, in the case of workman
employed below ground in a mine; and
(ii) one hundred and twenty days, in any other case.
17. As enshrined in Section 25-B I.D. Act and as held in
Surendernagar Distt. Panchayat and Anr. v. Gangaben Laljibhai and
Ors. 2006 (6) Scale page 408; at this vital stage of arguments I endorse
the submission made by Mr. R.L. Dhingra, AR for workman that there
was no scope for any reservation. The court has to proceed with the
conclusive finding that what the workman has set up in his case with
regard to period of his working either stands proved or is not proved.
Of course; with his own admission and as specified in the documents
his status has to be determined vis-a-vis the case law cited by AR for
the management particularly Secretary, State of Karnataka and others
vs. Umadevi (Supra). In the light of catena of case law cited; the
settled position of law is that for qualifying to claim the violation of
Section 25-F I.D. Act the workman has to clear the impediment of
Section 25-B I.D. Act. Since the deposition of the workman coupled
with the documents; despite of opportunity given; has gone
unimpeached; it is taken proved that workman had actually worked for
more than 240 days i.e. w.e.f. 18.01.99 to 30.11.99.
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18. This is an undisputed position that workman in this premise
is entitled to plead that his services were terminated illegally and
unjustifiably violative of Section 25-F I.D. Act. Mr. A.K. Verma
referring to the ratio of Himanshu Kumar Vidyarthi & Ors. Vs. State of
Bihar & Ors. (Supra), State of Himachal Pradesh Vs. Suresh Kumar
Verma & anr. (Supra), Pawan Kumar & others vs. Lt. Governor of
Delhi & others (Supra) and Ajay Kumar & others vs. Govt. of NCT of
Delhi & others (Supra) contended that a daily wager has no right to
any post; and the appointment made dehors the rules and regulations
was void ab initio. He raised this plea that by application of Secretary,
State of Karnataka and others vs. Umadevi (Supra) as applied by
Hon'ble Delhi High Court as well in a number of cases including M/s
Municipal Corporation of Delhi vs. Shri Krishna Pal (Supra) dated
11.10.06 the application of section 25-B I.D. Act in alike cases stands
excluded.
19. In Himanshu Kumar Vidharthi & Others Vs. State of Bihar
(1998 II LLJ 15); 1997 (4) SCC 391 decided on 26th March 1997; the
Hon'ble Apex Court held -
Industrial Dispute Act 1947 Sec 25-F when appointments are
regulated by statutory rules, the concept of 'Industry' to that
extent stands excluded - Disengagement from service of
temporary employees on daily wages cannot be construed as
retrenchment.
Every department of Govt. can not be treated to be industry.
When the appointments are regulated by the statutory
rules concept of industry to that extent stands excluded.
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The employees were not appointed in accordance with the
rules but were engaged on the basis of need of the work.
The Apex Court held that since the employees were only
daily wage employees and they have no right to the posts, so
their disengagement was not arbitrary.
20. Mr. R.L. Dhingra AR for the workman submitted that in the
instant case the workman was engaged on 18/1/99 and his services
were terminated illegally and arbitrarily on 1/12/99. The workman has
completed 317 days of continuous service under the employer.
21. And once the workman is able to establish that he has
worked for more than 240 days continuously during the preceding 12
months and his service has been terminated without complying the
mandatory provision of Sec 25-F of ID Act 1947; the disengagement is
bound to be held illegal and void. In this respect he referred : 2005
LLR 324 (MP HC), MP & G.T. Lad Vs. Chemicals Fibres of India
Ltd. 1979 (38) 95 (S.C.).
22. AR for the workman Mr. R.L. Dhingra elaborately
submitted that the statutory rules are applicable to employees of the
state. Their employment is governed by Central Civil Services
(Classification, Control and Appeals) Rules 1965, who are government
servant, who hold civil post under the state, and are paid out of the
consolidated fund of union or State Govt. And having the protection of
Art 310/311 of the Constitution of India. The employees in the above
case were employees of the state. They filed
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the petition for regularisation of services. Whereas the case of the
workman in hand is not of regularisation but of termination of services
illegally.
Certainly there was some doubt with regards to status of daily workers
for the grant of a relief under the provisions including the
regularisation under the provisions of Industrial Law. Therefore same
was not followed by the Hon'ble Supreme Court in Rattan Singh v/s
UOI and Another subsequently 1997 (11) SC 396. This view was
expressed with regard to the claim for regularisation in the Govt
policies. (refer para 6 Sports Authority of India vs. Sports Authority of
India Kamgar Union & others 2005 LLR 541 Delhi HC).
23. Mr. R.L. Dhingra further elaborated that the case law
referred by the AR for the management were not applicable to the facts
of the case. He further submitted that the case of workman pertained
to an unskilled worker who has worked for more than 240 days and as
per UP Avas Avam Vikas Parishad vs. Kanak and others 2003 LLR 52
(SC) - 2003 (I) LLJ 497 (SC) and K. Chandarama vs. Labour Court I
Hyderabad and ors. 1997 LLR 811 (AP HC) it was mandated that
provisions of Section 25-F I.D. Act ought to have been followed.
24. When a workman has been in continuous service for a
period of 240 days, he cannot be retrenched without following the
requirement provided under provision of Section 25-F of the Industrial
Dispute Act i.e. By serving a proper notice under the said provision
and/or payment of retrenchment of retrenchment compensation as
prescribed there-under. The non-compliance of the requirement of
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section 25-F of ID Act it would warrant reinstate with full back wages
as the only consequences. [2001 Vol X SCC 206 Deep Chandra vs.
state of UP and another], also refer 2005 LLR 198 (Cal HC).
25. The section 25-F of the ID Act being mandatory in nature,
the provisions thereof are required to be complied with even when the
workmen were employed as badli workers, or Ticca mazdoors as daily
wagers [SBI vs. Shri S. Sundra Money 1976 (32) FLR 197 SC; L
Robert D'Douza vs. Executive Engineer, Southern Railway and
another, 1982 (44) FLR 250 SC; Samishta Dubey vs. City Board
Etawah and another, 1999 (81) FLR 746 SC; and Mool Chand Khairati
Ram Hospital K. Union vs. Labour Commissioner and others, 2000
(87) FLR 853 SC.
26. In the case of U.P. State Sugra Corporation Ltd. vs. Om
Parkash Upadhyaya 2002 I LLJ 241 SC the Apex Court opined that
once the Labour Court comes to the conclusion that workman has
completed more than 240 days of continuous service in the preceding
year and the Labour court having come to the conclusion that the
termination is without complying the provision of Sec. 25-F of I.D.
Act 1947, this makes the termination per se illegal, then the workman
would be entitled for back wages and reinstatement from the date of
termination itself.
27. That the case of Himanshu Kumar Vidyarthi & Ors vs.
State of Bihar & Ors 1998 II LLJ 15 SC does not help the
management as the same relates to the regularization in the Govt
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policies. The State of HP vs. Suresh Kumar Verma & Anr. (1966) 7
SCC 562 also relates to regularization of employee whose initial
appointment itself was in infraction of the rules or if it is in violation of
the constitution; the illegality of which could not be cured.
28. On my due analysis of the case law referred I find that
Himanshu Kumar Vidyarthi and Ors. vs. State of Bihar & Ors. (Supra)
was relevant in the instant case as well. The grievance of the petitioner
was that his services were termination in violation of Section 25-F I.D.
Act and whereas he has worked for more than 240 days. The Hon'ble
apex court laid that since 'workmen who were only daily wage
employees the concept of industry to that extent stands excluded and
the concept of retrenchment therefore cannot be stretched to such an
extent so as to cover these employees.' As to how and when the
workman got appointed is not proved on record. The workman
admittedly had no appointment letter. It is settled law that
regularization cannot be the mode of appointment (AIR 2005 SC 2179
RBI Bangalore vs. S. Mani & Ors.).
29. In State of Himachal Pradesh vs. Suresh Kumar Verma &
Anr. (Supra) the Hon'ble Apex Court laid Rules for recruitment - State
is bound to follow the rules of recruitment - Appointment on daily
wage basis is not an appointment to a post according to the Rules.
30. According to rules it elaborated "The appointment on daily
wages cannot be a conduit pipe for regular appointments which would
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be a back door entry, detrimental to the efficiency of service and
would breed seeds of nepotism and corruption. It is equally settled law
that even for Class IV employees recruitment according to rules is a
precondition".
31. In Pawan Kumar & others vs. Lt. Governor of Delhi &
others (Supra) of our own High Court relying upon Himanshu Kumar
Vidharthi & Ors. vs. State of Bihar & Ors. held that "appointment on
daily wage basis of the respondents does not confirm them with any
right for protecting or regularization of their services."
32. In Ajay Kumar & Others vs. Govt. of N.C.T. Of Delhi and others (Supra) His Lordship Mr. Justice A.K. Sikri relying upon relevant case law held :
"that a daily wager cannot be replaced by other daily wager. Such tendency of back door entry has been deprecated by the Courts repeatedly (Delhi Develop Horticulture Employees' Union v. Delhi Admn. 1992 4 SCC (99). It is also well established that such daily wage employees have no right to the posts and, therefore, termination cannot be held to be arbitrary (Himanshu Kumar Vidyarthi and Others v. State of Bihar and Others, 1997 (2) SLJ 24 (SC). Merely because these persons have worked for some period on daily wage basis in the manner explained above, no right accrues to them to continue or even get the extension after the extension of these petitioners expired on different dates in June, 1999. The petitioners have no right to continue after / 17 / the date (Director, Institute of Management Development, UP v. Smt. Pushpa Srivastva, JT 1992 (4) SC 489). The respondent being a statutory body is bound to adhere to the rules for making appointments without under going selection process in accordance with those rules, the petitioners cannot claim any regularisation. (J & K Public Service Commission and Others v. Dr. Narender Mohan and Others, 1994). Those who enter through back door can be shown exit through back door. (Emphasis supplied).
33. The five judges bench of the Hon'ble Supreme Court of India in Secretary, State of Karnataka and others Vs. Umadevi and others (Supra) referring the case law for and opposite till date settled on 10.04.2006 that a daily wager has no right to post. He may serve for any number of years. If his appointment is not as per rules and regulations, he won't be regularised. It was held this principle was per se equally applicable to the Govt. instrumentalities inclusive of Public Sector Undertakings, Corporations and Companies. (Emphasis supplied).
34. A doubt had arisen as to whether the management a company registered under the Companies Act was 'State instrumentality'. On this aspect AR for the workman referred to characteristics of the management and contended that management was a company registered under the Companies Act and was not a state instrumentality. However this proposition stands demolished from "J. Mathew's approach in Sukhdev Singh case, whether a body / 18 / is an instrumentality or agency of the government was reiterated with approval in R.D. Shetty v. International Airport Authority. His Lordship Mr. Justice P.N. Bhagwati speaking for the Court, pointed out that the corporations acting as instrumentality or agency of government would obviously be subject to the same limitations in the field of constitutional or administrative law as the government itself, though in the eye of the law they would be distinct and independent legal entities. If the government acting through its officers is subject to certain constitutional and public law limitations, it must follow a fortiori, that government acting through the instrumentality or agency of corporations should equally be subject to the same limitations. Without being exhaustive, His Lordship discussed in detail various factors relevant for determining whether a body is an instrumentality or agency of the State. These factors, as they were finally summarised by him in Ajay Hasia v. Khalid Mujib are :
(1)If the entire share capital of the corporation is held by the government, it would go a long way towards indicating that the corporation is an instrumentality or authority of the government.
(2)Where the financial assistance of the State is so much so to meet almost entire expenditure of the corporation it would afford some indication of the corporation being impregnated with government character. (3)Whether the corporation enjoys monopoly status which is State conferred or State protected.
(4)Existence of deep and pervasive State control may afford / 19 / an indication that the corporation is a State agency or instrumentality.
(5)If the functions of the corporation are of public importance and closely related to government functions, it would be a relevant factor in classifying a corporation as an instrumentality or agency of government. (6)If a department of government is transferred to corporation, it would be a strong factor supporting the inference of the corporation being an instrumentality or agency of government.
If on a consideration of these relevant factors it is found that the corporation is an instrumentality or agency of government, it would be an authority and, therefore, State within the meaning of Article 12. However, these tests are not conclusive or clinching, and it must be realised that it would not be stretched so far as to bring in very autonomous body which has some nexus with the government within the sweep of the expression. Following this approach, it was held that the International Airport Authority constituted under the International Airport Authority Act, 1971 was an authority and, therefore, 'State' within the meaning of Article 12.
35. This line of approach to the meaning of other authorities has been finally confirmed in the following two decisions of the Supreme Court. In Som Prakash Rekhi v. Union of India, applying the criteria laid down in the International Airport Authority case, the Supreme Court reached the conclusion that there is enough material to hold that the Bharat Petroleum Corporation registered as a company / 20 / under the Companies Act, is State within the enlarged meaning of Article 12. Consequent upon takeover of Burmah Shell (Acquisition of Undertaking in India) Act, 1976, the right, title and interest of the company stood transferred and vested in the Government of India. Thereafter, the Central Government action under Section 7 of that Act took necessary steps for vesting the undertaking in the Bharat Petroleum Corporation Ltd. which became the statutory successor of the petitioner's employer. His Lordship Mr. Justice Krishna Iyer, speaking for himself and Chinnappa Reddy, J., Pathak, J. concurring, observed that the various provisions of the Act of 1976 have transformed the corporation into an instrumentality of the Central Government with a strong statutory flavour super-added are clear indicia of power to make it an 'authority'. Although registered as a company under the Companies Act, the Bharat Petroleum Corporation is clearly a creature of the statute, a limb of government, an agency of the State and is recognized and clothed with rights and duties by the statute. (Emphasis supplied).
36. In Ajay Hasia vs. Khalid Mujib, the question arose whether the Regional Engineering College, Srinagar, established, administered and managed by a society registered under the J&K Registration of Societies Act, was a State within the meaning of Article 12. His Lordship Mr. Justice P.N. Bhagwati, speaking for the unanimous five- judge bench, reiterated that the tests for determining as to when a corporation falls within the definition of State in Article 12 is whether it is an instrumentality or agency of government. The enquiry must be not how the juristic person is born but why it has been brought into / 21 / existence. It is, therefore, immaterial whether the corporation is created by a statute or under a statute. The concept of instrumentality or agency of the government is not limited to a corporation created by a statute but is equally applicable to a company or society considering the relevant factors as explained in the International Airport Authority case. Applying this criterion, it was held that the society registered under the J&K Registration of Societies Act was an instrumentality or agency of the State and Central Government, for the reason that these governments had full control of working of the society and the society was merely their projection.
37. Conclusively, the state instrumentality has been held to be part of the state. In the instant case management held 100% shareholding. Its functions were controlled by the Directors appointed by the Government. Thus entire establishment was limb of the Govt. of India and therefore a Govt. Instrumentality. Thus Secretary, State of Karnataka and others vs. Umadevi and others (Supra) squarely covered the present case. As a latest case it prevailed upon the case law referred by AR for the workman to the extent covered by it. It laid:
"Public employment is a sovereign socialist secular democratic republic, has to be as set down by the Constitution and the laws made thereunder. Our constitutional scheme envisages employment by the Government and its instrumentalities on the basis of a procedure established in that behalf. Equality of opportunity is that hallmark, and the Constitution has provided also for / 22 / affirmative action to ensure that unequals are not treated equals. Thus any public employment has to be in terms of the constitutional scheme.
A Sovereign Government, considering the economic situation in the country and the work to be got done, is not precluded from making temporary appointments or engaging workers on daily wages. Going by a law newly enacted. The National Rural Employment Guarantee Act, 2005, the object is to give employment to at least one member of a family for hundred days in an year, on paying wages as fixed under that Act. But, a regular process of recruitment or appointment has to be resorted to, when regular vacancies in posts, at a particular point of time, are to be filled up and the filling up of those vacancies cannot be done in a haphazard manner or based on patronage or other considerations. Regular appointment must be the rule.
But, sometimes the process is not adhered to and the Constitutional scheme of public employment is by-passed. The Union, the States, their departments and instrumentalities have resorted to irregular appointments, especially in the lower rungs of the service, without reference to the duty to ensure a proper appointment procedure through the Public Service Commission or otherwise as per the rules adopted and to permit these irregular appointees or those appointed on contract or on daily wages, to continue year after year, thus, keeping out those who are qualified to apply for the post concerned and / 23 / depriving them of an opportunity to compete for the post. It has also led to persons who get employed, without the following of a regular procedure or even through the backdoor or on daily wages, approaching courts, seeking directions to make them permanent in their posts and to prevent regular recruitment to the concerned posts. Court have not always kept the legal aspects in mind and have occasionally even stayed the regular process of employment being set in motion and in some cases, even directed that these illegal, irregular or improper entrants be absorbed into service. A class of employment which can only be called 'litigious employment', has risen like a phoenix seriously impairing the constitutional scheme. Such orders are passed apparently in exercise of the wide powers under Article 226 of the Constitution of India. Whether the wide powers under Article 226 of the Constitution is intended to be used for a purpose certain to defeat the concept of social justice and equal opportunity for all, subject to affirmative action in the matter of public employment as recognized by our Constitution, has to be seriously pondered over. It is time, that Courts desist from issuing orders preventing regular selection or recruitment at the instance of such persons and from issuing directions for continuance of those who have not secured regular appointments as per procedure established." (Emphasis supplied).
/ 24 /
38. In the instant case as well the workman obviously not appointed as per rules; has sought regularisation of his service. Reference is made to para 5 & 9 of the statement of claim.
39. In the light of the same I am of the opinion that claimant though had worked; of course; for more than 240 days for the management; yet was not entitled to protection given to the workman U/s 25-F I.D. Act. Accordingly in disengaging his services as affirmed by the workman in Ex.WW1/A there was no violation of Section 25-F I.D. Act. As a result thereof the reference is answered to the effect that the services of the workman were not terminated illegally and/or unjustifiably by the management and the workman is not entitled to any relief.
39. ORDER :
In the light of my findings as above; the workman is not entitled to any relief. Award is passed accordingly.
Copy of this award be sent to the appropriate government for its publication.
File be consigned to record room.
Dated: 29.05.07 ( S.S. HANDA )
PRESIDING OFFICER :
LABOUR COURT - V :
DELHI.