Gujarat High Court
Munnabhai Chothabhai Ajadiya vs State Of Gujarat & 6 on 27 January, 2017
Author: Sonia Gokani
Bench: Sonia Gokani
C/CA/12265/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR STAY) No. 12265 of 2015
In
SPECIAL CIVIL APPLICATION No. 10861 of 2015
With
CIVIL APPLICATION No. 12266 of 2015
In
SPECIAL CIVIL APPLICATION No. 10856 of 2015
With
CIVIL APPLICATION No. 12271 of 2015
In
SPECIAL CIVIL APPLICATION No. 10859 of 2015
With
CIVIL APPLICATION No. 12269 of 2015
In
SPECIAL CIVIL APPLICATION No. 10854 of 2015
With
CIVIL APPLICATION No. 264 of 2016
In
SPECIAL CIVIL APPLICATION No. 17072 of 2015
With
CIVIL APPLICATION No. 265 of 2016
In
SPECIAL CIVIL APPLICATION No. 16589 of 2015
With
CIVIL APPLICATION No. 267 of 2016
In
SPECIAL CIVIL APPLICATION No. 16587 of 2015
With
CIVIL APPLICATION No. 269 of 2016
In
SPECIAL CIVIL APPLICATION No. 13989 of 2015
With
CIVIL APPLICATION No. 268 of 2016
In
SPECIAL CIVIL APPLICATION No. 13991 of 2015
With
CIVIL APPLICATION No. 270 of 2016
Page 1 of 63
HC-NIC Page 1 of 63 Created On Sat Aug 12 07:37:43 IST 2017
C/CA/12265/2015 ORDER
In
SPECIAL CIVIL APPLICATION No. 13990 of 2015
With
CIVIL APPLICATION No. 1009 of 2016
In
SPECIAL CIVIL APPLICATION No. 17070 of 2015
With
CIVIL APPLICATION No. 266 of 2016
In
SPECIAL CIVIL APPLICATION No. 10855 of 2015
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MUNNABHAI CHOTHABHAI AJADIYA....Applicant(s)
Versus
STATE OF GUJARAT & 6....Respondent(s)
=============================================================
Appearance:
Mr BHUNESH C RUPERA, ADVOCATE for the Applicant(s) No. 1
Mr.RONAK RAVAL, AGP - for the Respondent(s) No. 1 -
(CA No.12265/15, CA No.265/16, CA No. 270/16)
Ms. ASMITA PATEL, AGP for the respondent No.1 -
(CA No. 12266/15, CA No.266/16, CA 269/16, CA No. 264/16 CA No.
12271/15, CA No. 12269/15) )
Mr.TARANJITSINGH WADHWA, AGP for the respondent No.1-
(CA No.267/16, CA 1009/16)
MR DG CHAUHAN, ADVOCATE for the Respondent(s) No. 2 - 7
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
27th January 2017
COMMON ORAL ORDER
1. All these applications since involve identical set of facts and law, they are decided by this common order.
1.1 The applicants herein are the petitioners of various petitions which have been preferred for regularization of their services where they have sought interim relief not to terminate their service Page 2 of 63 HC-NIC Page 2 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER contract/s during the pendency of the petition. It is further urged by applicants to direct the respondent authorities to renew their service contract and not to replace the applicants by another set of ad hoc employees.
2. The facts necessary for adjudication are drawn from Civil Application No. 12266 of 2015, which are as under :
3. It is the grievance of the petitioners that despite recommendations made by the respondent No.7, the service contract of the applicants came to be renewed only for a limited period. Out of seven employees whose contract came to be renewed for a period of three months, only five employees have approached this Court seeking regularization in service. Other two employees, whose contract period came to be renewed for 11 months are not before this Court.
3.1 One of the major issues was also the transfer order of 20 employees. Four employees who are transferred as per this list are those who have approached this Court. They have been transferred to remote place despite their need at the head Page 3 of 63 HC-NIC Page 3 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER quarter, by overlooking their need so also the requirement of theirs, at the head quarter. It is further the say of the applicants that as such those four employees were needed at the head quarter, and therefore, the Unit Manager vide letter dated 21.8.2015 requested the respondent No. 3 to reconsider/review the transfer order of theirs. Thereafter, the said four employees were informed that if they were desirous to go back to their original place, they were required to give application and their application will be considered. Therefore, all the four of them gave applications and they were transferred to their original place vide order dated 19th September 2015.
4. It is further say of the applicants that on 13th October, 2015, employees of Surendranagar and of other districts of WASMO, who have filed petition, had made a detailed representation through their representative to the respondent No. 3 ventilating the grievances. On 23rd October, 2015, meeting of the employees of WASMO was conducted at Gandhinagar and the said meeting was conducted by the senior officer of the Central Government. It is the say of the applicants that despite Page 4 of 63 HC-NIC Page 4 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER recommendations by the respondent No.7, to the shock and surprise of the applicants, the service contract of the applicants has not been renewed on 3.11.2015, the applicants were orally informed by the Administrator of the respondent authorities that his service contract is not likely to be renewed.
5. Details of all the four employees is given at page No.9 of the memo of the petition. The present applicant of Civil Application No. 12266 of 2015 has been serving for more than 12 years and his first date of appointment is 11th May, 2005. The applicant is therefore, before this Court seeking the reliefs mentioned as above.
6. Affidavit-in-reply is filed by the respondents No. 2 to 7 stating inter alia that the main petition itself is not maintainable as no fundamental right of the applicants are violated and therefore, this petition deserves to be dismissed. It is further contended that the applicants' contract expired on 30.10.2015 and same was not renewed as there is no work in WASMO for the post on which the applicants were serving. The nature of work was temporary and time bound. There is already sufficient existing staff for ongoing work, and therefore, their contract has not Page 5 of 63 HC-NIC Page 5 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER been renewed. The inter-district transfer, so far four employees are concerned, is only with a view to take work. There are no sanctioned posts, therefore there does not arise question of regularization of the applicants on temporary post, which they are holding.
7. Additional affidavit is filed by the Project Director of the Water and Sanitation Management Organization, Gandhinagar wherein, it is stated that the applicants were appointed on contractual basis for a fixed period and on fixed remuneration on the terms and conditions set out in the appointment orders as well as in the agreement entered into between the applicants and the respondent. The said terms and conditions were accepted by the applicants. Having accepted contractual appointment, the applicants are estopped from challenging the terms of the appointment, and the terms and conditions of orders and agreement. He has sought to rely upon the decision rendered in case of State Bank of India & Ors. Vs. S. N. Goyal, reported in [2008] 8 SCC 92.
7.1 The applicants were appointed on purely contractual basis and therefore, according to their Page 6 of 63 HC-NIC Page 6 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER terms and conditions, they have no right, interest to claim continuation/renewal of their contract. So far as regularization in service is concerned, they have sought to rely upon a decision rendered in case of Secretary, State of Karnataka & Ors. Vs. Umadevi and Ors., reported in (2006) 4 SCC 1. 7.2 According to the respondent-authority, there is no permanent post in the organization and the objectives, roles and responsibilities of WASMO are to act as a facilitator to village Water Supply Committees under the programme known as "Community-managed demand-driven decentralized system". The WASMO's objectives, roles and responsibilities are :(1) creation of awareness among village people for community participation on water resource management, water conservation, safe drinking water, hygiene etc. in the village. (2) Capacity building of Village Pani Samitis and village community to shoulder their responsibilities.(3) to provide technical and financial support to Village Pani Samitis in the State in planning and implementation of schemes (4) to support Village Pani Samities for purposeful execution of water supply work in villages etc. 7.3 It is also urged further that about 80% of Page 7 of 63 HC-NIC Page 7 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER community managed schemes are completed and only 20% schemes are yet to be implemented subject to demand that may be made by the villages community. In the month of April, 2015, the total strength of contractual employees in Head office and all districts were 707 contractual employees. There is no fixed manpower structure in districts as well as in head office of WASMO. On account of reduction of project work, the strength of contractual employees has been continuously reduced from April, 2015 and it is now reduced to 570 as on December, 2016 . The present status of employees of WASMO, district wise and branch wise, is shown in the statement. After September, 2014, no new contractual employees have been engaged in social mobilization branch, in technical (civil) branch, in which the present applicants were working. They all, since are appointed on contractual basis, no challenge could lie to their termination from service.
8. Rejoinder-affidavit is filed by the applicant stating therein that the respondent authorities are not giving benefits of wages and other allowances as per the WASMO (Service) Rules, 2002. It is Page 8 of 63 HC-NIC Page 8 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER further contended that when the authority is violating the prevailing rules, the aggrieved applicant can definitely file a writ petition calling in question the action of the authority under Article 226 of the Constitution. It is further contended that nowhere in the reply, the respondent-authorities have disputed the length of service put in by the respective applicants. The applicants are serving for a long time. Their contracts have expired in the month of October, 2015 and the same have not been renewed on the ground that there is no work. It is contended by the applicants that the stand taken by the respondent authorities with regard to contractual employment is a misleading statement. 8.1 In each District, one District Coordinator and one Unit Manager are appointed, who are entrusted with the overall responsibility of overseeing the functioning of the district. The applicant in this particular case was the senior most employee serving in the District. He was appointed in the year 2005 and has put in 10 years' of uninterrupted service with WASMO and after termination of his service, no one else was appointed on the said post. However, he was continued on the said post which is now with another officer in officiating capacity, Page 9 of 63 HC-NIC Page 9 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER who is too junior to handle the said appointment. It is further say that initially when the new projects were introduced, it was said that the life of these projects would not go beyond 6 to 7 years, however, those projects continue and there is enough work in WASMO for which the employees should have been given extension.
8.2 According to the applicant, an advertisement came to be published in the local newspaper for filling in vacancies by fresh recruitment in WASMO. Non renewal of contract is only a pretext to oust the applicant from the post he is holding and that has nothing to do with the non availability of work.
9. Both the sides have been heard at length. Submissions of both the sides do not require any reiteration. The decisions on which reliance has been placed in submissions, would require consideration at the outset.
10. The Apex Court rendered the decision in case of Anoop Jaiswal Vs. Government of India & Anr., reported in AIR 1984 SC 636 wherein the Court was considering the case of order of discharge of an employee. It is held that where the Page 10 of 63 HC-NIC Page 10 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER form of the order is merely a camouflage for an order of dismissal for misconduct, it is for the Court to go behind the form. The Apex Court also held that the form of the order is not decisive as to whether the order is by way of punishment and even an innocuously worded order terminating the service may in the fact and in given circumstances of the case establish that an enquiry into allegations of serious and grave character of misconduct involving stigma has been made in violation of the provision of Art. 311(2). Relevant finding and observations of the Court are as under :- "11. On behalf of the Union of India reliance has been placed on State of Punjab & Anr. v. Shri SukhRaj Bahadur, Union of India & Ors. v. R.S. Dhaba, State of Bihar & Ors. v. Shiva Bhikshiuk Mishra, R.S. Sial v. The State of U.P. & Ors., State of U.P. v. RamChandra Tridi and I.N. Saksena v. State of Madhya Pradesh. We have gone through these decisions. Except the case of Ram Chandra Trivedi (supra) all other cases referred to above were decided prior to the decisions in Shamsher Singh's case (supra) which is a judgment delivered by a Bench of seven Judges. As pointed out by us in all these cases including the case of Ran Chandra Trivedi (supra) the principle applied is the one enunciated by Parshotam Lal Dhinga's case (supra) which we have referred to earlier. Lt is urged relying upon the observation in Shri Sukh Raj Bahal's case (supra) that it is only when there is a full scale Departmental enquiry envisaged by Article 311(2) of the Constitution i.e. an enquiry officer is appointed, a charge Page 11 of 63 HC-NIC Page 11 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER sheet submitted, explanation called for and considered, any termination made thereafter will, attract the operation of Article 311(2). It is significant that in the very same decision it is stated that the circumstances preceding or attendant on the order of termination of service have to be examined in each case, the motive behind it being immaterial. As observed by Ray, C.J. in Shamsher Singh's case (supra) the form of the order is not decisive as to whether the order is by way of punishment and that even an innocuously worded order terminating the service may in the fact and circumstances of the case establish that an enquiry into allegations of serious and grave character of misconduct involving stigma has been made in infraction of the provision of Article. 311(2).
12. It is, therefore, now well settled that where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the Court before which the order is challenged to go behind the form and ascertain the true character of the order. If the Court holds that the order though in the form is merely a determination of employment is in reality a cloak for an order of punishment, the Court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred by law upon the employee.
13. In the instant case, the period of probation had not yet been over. The impugned order of discharge was passed in the middle of the probationary period. An explanation was called for from the appellant regarding the alleged act of indiscipline, namely, arriving late at the Gymansium acting as one of the ring leaders on the occasion and his explanation was obtained. Similar explanations were called for from other probationers and enquiries-were made behind the back of the appellant, only the case of the Page 12 of 63 HC-NIC Page 12 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER appellant was dealt with severely in the end. The cases of other probationers who were also considered to be ring leaders were not seriously taken note of. Even though the order of discharge may be non-committal,it cannot stand alone. Though the noting in the' file of the Government may be irrelevant, the cause for the order cannot be ignored. The recommendation of the Director which is the basis or foundation for the order should be read along with the order for the purpose of determining its true character.If. On reading the two together the Court reaches the conclusion that the alleged act of misconduct was the cause of the order and that but for that incident it would not have been passed then it is inevitable that the order of discharge should fall to the ground as the appellant has not been afforded a reasonable opportunity to defend himself as provided ill Article 311(2) of the Constitution.
11. In case of Dhirendra Chamoli & Anr. Vs. State of U.P., reported in (1986) 1 SCC 637, the casual workers on daily wages basis were performing their duties as performed by regular Class IV employees against sanctioned posts. They were held to be entitled to salary and conditions of service on par with the regular workers. The Apex court however also held that in absence of sanctioned posts for the present, they cannot be regularized.
12. This Court in Special Civil Application No. 16570 Page 13 of 63 HC-NIC Page 13 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER of 2015 and allied matters, permitted the petitioners to make representation to the concerned authority within one week and the authority was directed to consider the same on merits. Such representation has not been considered by the authority concerned.
13. In case of Sudarshan Rajpoot Vs. Uttar Pradesh State road Transport Corporation, reported in (2015) 2 SCC 317 wherein, the question was in relation to the employer-employee relationship and determination of nature of permanent and contractual employment. 13.1The Apex Court found that the workman was working on permanent basis and was not a contractual employee; as alleged by respondent- Corporation. The reference of the industrial dispute to the Labour Court in respect of the order of termination passed against the appellant workman was made by the State Government in exercise of its statutory power under the U.P.I.D. Act. The Court held that burden to justify the same lies on the respondent-Corporation, which had not been discharged by producing cogent evidence on record. 13.2 While deciding the legal aspect, the Court Page 14 of 63 HC-NIC Page 14 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER referred to the decision of Chief Conservator of Forests Vs. Jagannath Maruti Kondhare, reported in (1996) 2 SCC 293, wherein, the Apex Court has held that the permanency writs large on the face of both the types of work. It would tantamount to unfair practice if in such projects, persons are kept in jobs on casual basis for years, the conduct manifests itself and no further scrutiny would be required. The relevant observations read as under :
"16. The respondent-Corporation has neither produced documentary evidence nor showed before the Labour Court that the appellant-workman was appointed on contract basis. The fact that he deposited Rs.2000/- towards security amount with the respondent-Corporation indicates that he was working as the Driver on a permanent basis. In view of the Schedule V, entry No. 10 of the I.D. Act,1947 the respondent-Corporation is prohibited from engaging the appellant-workman as a badli, casual or temporary workman to work on permanent basis. The fact that he had been continuously working for more than 3 years and he had rendered more than 240 days of service as the driver in a calendar year until his termination order and yet he being engaged on a contractual basis in Page 15 of 63 HC-NIC Page 15 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER the respondent-Corporation is statutorily prohibited. The same amounts to an unfair labour practice as defined under Section 2(ra) read with Section 25T, which action of the Corporation is punishable under Section 25U of the I.D. Act. This legal position is settled by this Court in Chief Conservator of Forest case (supra) wherein it was held as under:-
"22..... In our opinion, it would be permissible on facts of a particular case to draw the inference mentioned in the second part of the item, if badlis, casuals or temporaries are continued as such for years. We further state that the present was such a case in as much as from the materials on record we are satisfied that the 25 workmen who went to Industrial Court of Pune (and 15 to Industrial Court, Ahmednagar) had been kept as casuals for long years with the primary object of depriving them the status of permanent employees in as much as giving of this status would have required the employer to pay the workmen at a rate higher than the one fixed under the Minimum Wages Act. We can think of no other possible object as, it may be remembered that the Pachgaon Rarwati Scheme was intended to cater to the recreational and educational aspirations also of the populace, which are not ephemeral objects, but par excellence permanent. We would say the same about environment- pollution-care work of Ahmednagar, whose need is on increase because of increase in pollution. Permanency is thus writ large on the face of both the types of work. If, even in such projects, persons are kept in jobs on casual basis for years the object manifests itself; no scrutiny is required. We, therefore, answer the second question also against the appellants."Page 16 of 63
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17. In the absence of the documentary evidence to justify the plea taken by the Respondent- Corporation that the appellant-workman was a contract employee in the order of termination it remained as a plea and not a proven fact of assertion. Therefore, the appellant-workman is considered to be permanent workman. Further, the appellant-workman has clearly stated in his affidavit before the High Court that at the time of termination his juniors were working on permanent basis. Therefore, the same is another added fact to accept the contention of the appellant-workman by the Labour Court that he was appointed as a permanent workman in the respondent-Corporation as a driver.
26. In view of the aforesaid statement of law laid down by this Court after adverting to the powers of the Industrial Tribunal and the Labour Court as interpreted by this Court in the earlier decisions referred to supra, the said principle is aptly applicable to the fact situation of the case on hand, for the reason that the Labour Court recorded a finding of fact in favour of the workman that the termination of services of the appellant herein is not legal and valid and further reaffirmed the said finding and also clearly held that the plea taken in the order of termination that he was appointed on contract basis as a driver is not proved by producing cogent evidence. Further, we hold that Page 17 of 63 HC-NIC Page 17 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER even if the plea of the employer is accepted, extracting work though of permanent nature continuously for more than three years, the alleged employment on contract basis is wholly impermissible. Therefore, we have held that it amounts to an unfair labour practice as defined under 2(ra) of the I.D. Act, 1947 read with Sections 25T which is prohibited under Section 25U, Chapter VC of the I.D. Act, 1947. We have to hold that the judgment of the High Court in reversing the award is not legal and the same is set aside by us."
14. The Punjab & Haryana High Court in case of Bhikku Ram S/o Sh. Lalji Vs. The Presiding Officer, Industrial Tribunal-cum-Labour Court dated 28.11.1994 was considering the termination of labourers under Section 2(OO)(bb) of the Industrial Disputes Act. It held that the contractual employment is resorted to as a mechanism to frustrate the claim of the employee to become regular or permanent against a job which continues or nature of the duties is such that the colour of contractual employment if is given to take it out from Section 2 [oo] of the I.D Act, then such agreement cannot be regarded as fair or bona fide.
15. The Delhi High Court decided the case of The Page 18 of 63 HC-NIC Page 18 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER Officer Incharge Defence Standardization Cell Vs. Mukesh Kumar on 21.5.2013 in W.P.(C) 3453/2007, wherein, the Court was examining the Award passed by the Central Government Industrial Tribunal cum Labour Court-II ("CGIT" hereinafter) where the reference was answered in favour of the respondent workman by directing his reinstatement with 25% back wages.
15.1 Referring to the decision of Apex Court rendered in case of Secretary, State of Karnataka & Ors. Vs. Umadevi & Ors. reported in (2006) 4 SCC 1 and other decisions, it is held that if the workmen continued to work for a period of 3 long years which itself is the evident of the fact that the nature of work for which the workmen was employed was of a permanent nature. Even otherwise, the Apex Court held that the job of conservancy services, for which the workman was employed is of perennial in nature. The Apex Court has held thus:-
"16. This action of the petitioner in giving fresh appointments continued for a period of 3 long years which in itself is evident of the fact that the nature of work for which the respondent was employed was of a perennial nature. Even otherwise, it cannot be disputed that the job of conservancy services, for Page 19 of 63 HC-NIC Page 19 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER which the respondent was employed, is of perennial in nature. In Bhikku Ram, S/o Sh. Lalji v. Presiding Officer Industrial Tribunal cum Labour Court, (1996) III LLJ 1126 P&H, the Court observed as follows -
"21. Therefore, while interpreting and applying various parts of Section 2(oo), the competent Court/ Tribunal shall have to keep in mind the provisions of Section 2(ra) read with Section 25T and U and various paragraphs of the Fifth Schedule and if it is found that the action of the employer to engage a workman on casual basis or as a daily-wages or even on temporary basis for long periods of time with intermittent breaks and subsequent termination of service of such workman on the pretext of non-
renewal of contract of employment or termination of contract of employment on the basis of a stipulation contained therein is an act of unfair labour practice, such an action of the employer will have to be nullified and the Court will be fully justified in rejecting the plea of the employer that termination of service of the workman does not amount to retrenchment but is covered by Clause (bb). In the context of various paragraphs of the Fifth Schedule, Clause (bb) which is an exception to the principal section will have to be given a narrow interpretation. This clause has the effect of taking away a right which was vesting in the workman prior to its insertion. Therefore, the same cannot be allowed to be used as a tool of exploitation by the employer who, as already observed above, enjoys a position of dominance as against the workman. The employer is always in a position to dictate the terms of service vis-à-vis the workman or to be workman. The employer can unilaterally impose oppressive and Page 20 of 63 HC-NIC Page 20 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER unreasonable conditions of service and the workman will be left with little choice but to accept all such conditions. The employee cannot possibly protest against the incorporation of arbitrary, unreasonable and even unconscious able conditions of service in the contract of employment. Any such protest by the employee or a to be employee will cost him job or a chance to enter employment. In respect of a work of permanent or continuing nature, the employer can always give an employment of fixed term or incorporate a condition in the contract of employment/appointment letter that the employment will come to an end automatically after a particular period or on the happening of a particular event. In such a situation, if the Court finds that the conditions are arbitrary and unreasonable and the employer has forced these conditions upon a workman with the sole object of avoiding his obligation under the Industrial Disputes Act, a bald plea of the employer that the termination of service is covered by Clause (bb) will be liable to be rejected.
24. Therefore, in every case of termination of service of a workman, where the workman claims that he has worked for a period of 240 days in a period of twelve months and termination of his service is void for want of compliance with the requirement of Section 25F and where the employer pleads that termination of service has been brought about in accordance with the terms of contract of employment or termination is as a result of non-extension of terms of employment, the Court will have to carefully scrutinise all the facts and apply the relevant provisions of law. It will be the duty of the Court to determine the nature of Page 21 of 63 HC-NIC Page 21 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER employment with reference to the nature of duties performed by the workman and the type of job for which he was employed.
Once the employee establishes that he was employed for a work of permanent/continuous nature and that employer has arbitrarily terminated his service in order to defeat his rights under the Industrial Disputes Act or other labour legislations, a presumption can appropriately be drawn by the Court that the employer's action amounts to unfair labour practice. In such a case, burden will lie on the employer to prove that the workman was engaged to do a particular job and even though the employee may have worked for 240 days such employment should be treated as covered by the amended clause because the service was terminated on the completion of the work. A stipulation in the contract that the employment would be for a specified period or till the completion of a particular job may legitimately bring the termination of service within the ambit of Clause (bb), However, if the employer resorts to methodology of giving fixed term appointment with a view to take it out of the Section 2(oo) and terminate the service despite the continuity of the work and job requirement, the Court may be justified to draw an inference that the employers' action lacks bona fide or that he has unfairly resorted to his right to terminate the service of the employee." (emphasis supplied).
17. From the facts of the case, as well as a perusal of the appointment letters, it is evident that the petitioner adopted the modus operandi to appoint the respondent for fixed terms successively and Page 22 of 63 HC-NIC Page 22 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER continuously only to evade the rights that the respondent would get vested with, if he were to be regularly appointed. This Court dealt with a similar issue of successive dixed term appointments in Sunder Singh v. P.O. Industrial Tribunal - I & Anr., 2013 LLR 420, wherein it was held as follows:
"9. From the facts of the case, it is evident that the respondent adopted the modus operandi to appoint the petitioner for fixed terms successively and continuously only to evade the rights that the petitioner would get vested with, if he were to be regularly appointed. Admittedly, there were regular vacant posts of beldar lying vacant. Yet the respondent did not make regular appointments. The nature of work was also perennial. The conduct of the respondent in making successive fixed term appointment has to be judged in the light of section 2(ra) read with Item 10 of the 5th Schedule to the Act. There is absolutely no explanation furnished by the respondents for making fixed term appointment and for continuing the same successively and continuously."
(emphasis supplied)
18. Pertinently, in the present case too, the petitioner has offered no explanation for issuing successive appointment letters for periods of one month, even though the work was of a perennial nature. Pertinently, it was not a case where contractual / causal appointment was made as a stop gap arrangement till the filling of the vacant Page 23 of 63 HC-NIC Page 23 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER post through a regular process of appointment. In the evidence of the petitioner before the CGIT, it is stated that the respondent was employed on contract basis for conservancy in the unit and that he was neither casual labour nor a permanent employee. It is further stated that the respondent was employed as a daily wager on the basis of the aforesaid contract. In my view, this action of the petitioner in continuing to engage the respondent on a daily wage basis and to relegate him to a contractual appointment clearly amounts to an unfair labour practice as Section 2 (ra) read with clause 10 of the Vth schedule.
19. In Haryana State Electronics Development Corporation Ltd. v. Mamni, reported in 2006 9 SCC 43, the respondent therein was appointed initially for a period of 89 days in the post of Junior Technician on an ad hoc basis in terms of an offer of appointment made to her. The post was purely temporary and her services were liable to be terminated without assigning any reason or notice. It was categorically stated that the respondent shall have no claim for regular appointment having worked with the appellant-Corporation on ad hoc basis. Her services were extended from time to time. In each of the offer of appointment, Page 24 of 63 HC-NIC Page 24 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER indisputably, similar terms and conditions were laid down. Before the Labour Court, the appellant therein had raised a plea that the appointment of the respondent was ad hoc in nature and furthermore on a contract basis as envisaged under Section2(oo)(bb) of the Industrial Disputes Act, and therefore her services were liable to be terminated in terms thereof. The Supreme Court held as follows-
"7. The respondent was appointed from time to time. Her services used to be terminated on the expiry of 89 days on regular basis. However, it is noticed that she used to be appointed after a gap of one or two days upon completion of each term. Such an action on the part of the Appellant cannot be said to be bona fide. The High Court rejected the contention raised on behalf of the appellant herein stating:It is not possible for us to accept the aforesaid plea raised at the hands of the management on account of the fact that the factual position, which has not been disputed, reveals that the respondent workman was repeatedly engaged on 89 days basis. It is, therefore, clear that the intention of the management was not to engage the respondent workman for a specified period, as alleged, but was to defeat the rights available to him under Section 25F of the Act. The aforesaid practice at the hands of the petitioner management to employ the workman repeatedly after a notional break, clearly falls within the ambit and scope of unfair labour practice A finding of fact was arrived at that her services were terminated on regular basis but she was reappointed after Page 25 of 63 HC-NIC Page 25 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER a gap of one or two days. In that view of the matter, the Labour Court or the High Court cannot be said to have committed any illegality.
8. In this case the services of the respondent had been terminated on a regular basis and she had been re-appointed after a gap of one or two days. Such a course of action was adopted by the Appellant with a view to defeat the object of the Act. Section 2(oo)(bb) of the Industrial Disputes Act, 1947, therefore, is not attracted in the instant case." (emphasis supplied)
20. In my opinion, the afore-cited decision of the Supreme Court squarely covers this case. It is pertinent to note that in the aforesaid decision, the workman had been reappointed only on four occasions, whereas, in the present case, the repeated monthly engagements are over a period of three years. In my view, there can be no escaping from the conclusion that the action of the petitioner in issuing successive appointments was with a view to defeat the rights of the respondent workman. In fact, the petitioner is clearly guilty of violating Section 25T of the Act which lays down that "No employer or workman or a trade union, whether registered under the Trade Unions Act, 1926 (16 of 1926), or not, shall commit any unfair labor practice."
16. Likewise in case of Sunder Singh Vs. Page 26 of 63 HC-NIC Page 26 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER P.O.Industrial Tribunal- I & Anr., the High Court of Delhi in W.P (C) No. 5454 of 1998, referring to the decision in case of Bhikku Ram S/o Sh.Lalji Vs. The presiding officer, Industrial Tribunal- cum-Labour Court (Supra) held in favour of the workman.
17. The Apex Court rendered in case of Tamil Nadu Terminated Full Time Temporary LIC Employees Association Vs. Life Insurance Corporation of India & Ors., reported in (2015) 9 SCC 62 was considering the award passed by the Labour Court and held that it is a clear case of unfair labour practice, as defined under Section 2 [ra] of the I.D. Act to employ the workman as temporary, badli and part-time against the permanent posts by making them do perennial nature of work and continuing them as such for number of years.
17.1 The relevant paragraphs of the above case are extracted hereunder :-
"138. The court then proceeded to consider specifically the situation that would obtain in the 3rd period in relation to an award and held :
"Quite apart from this, however, it appears to us that even if an award has ceased to be in operation Page 27 of 63 HC-NIC Page 27 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER or in force and has ceased to be binding on the parties under the provisions of Section 19(6) it will continue to have its effect as a contract between the parties that has been made by industrial adjudication in place of the old contract. So long as the award remains in operation under Section 19(3), Section 23(c) stands in the way of any strike by the workmen and lock-out by the employer in respect of any matter covered by the award. Again, so long as the award is binding on a party,breach of any of its terms will make the party liable to penalty under Section 29 of the Act, to imprisonment which may extend to six months or with fine or with both. After the period of its operation and also the period for which the award is binding have elapsed Section 23 and Section 29 can have no operation. We can however see nothing in the scheme of the Industrial Disputes Act to justify a conclusion that merely because these special provisions as regards prohibition of strikes and lock-outs and of penalties for breach of award cease to be effective the new contract as embodied in the award should also cease to be effective. On the contrary, the very purpose for which industrial adjudication has been given the peculiar authority and right of making new contracts between employers and workmen makes it reasonable to think that even though the period of operation of the award and the period for which it remains binding on the parties - in respect of both of which special provisions have been made under Sections 23 and 29 respectively - may expire, the new contract would continue to govern the relations between the parties till it is displaced by another contract. The objection that no such benefit as claimed could accrue to the respondent after March 31, 1959 must therefore be rejected."
139. It is the underlined portion of this paragraph which impelled the High Court to come to the conclusion that even a notice under Section 19(6) of the ID Act would not terminate a settlement (which, according to the High Court, stands on the same footing as an award and, in fact is Page 28 of 63 HC-NIC Page 28 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER indistinguishable there from for the purpose of Section 19) but would have the effect of merely paving the way for fresh negotiations resulting ultimately in a new settlement - a conclusion which has been seriously challenged on behalf of the Corporation with the submission that Chacko case has no application whatsoever to the present controversy inasmuch as the special law comprised of Sections 11 and 49 of the LIC Act fully covers the situation in the 3rd period following the expiry of the 1974 settlements. The submission is well based. In Chacko case this Court was dealing with the provisions of the ID Act alone when it made the observations last extracted and was not concerned with a situation which would cover the 3rd period in relation to an award (or for that matter a settlement) in accordance with a specific mandate from Parliament. The only available course for filling the void created by the Sastry Award was a continuation of its terms till they were replaced by something else legally enforceable which, in the circumstances before the court, could only be another contract (in the shape of an award [pic]or a settlement), there being no legal provision requiring the void to be filled otherwise. In the present case the law intervenes to indicate how the void which obtains in the 3rd period shall be filled and, if it has been so filled, there is no question of its being filled in the manner indicated in Chacko case wherein, as already pointed out, no such law was available. The observations in that case must thus be taken to mean that the expired award would continue to govern the parties till it is displaced by another contract or by a relationship otherwise substituted for it in accordance with law."
In view of the statement of law laid down by this Court in the above referred case, the reliance placed upon para 43 and 47 of D. J. Bahadur case and other cases relied upon by the learned senior counsel for the Corporation are misplaced and the same do not support the case of the Corporation.
49. In view of the law laid by this Court in the case Page 29 of 63 HC-NIC Page 29 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER referred to supra, both the Award of Justice Tulpule reiterated by way of clarification Award by Justice Jamdar are still operative as the same are not terminated by either of the parties as provided under Section 19(6) of the Act. The compromise between the parties in SLP No. 14906 of 1988 and the Scheme formed in E. Prabhavathy & Ors. and G. Sudhakar & Ors. (supra) do not amount to substitution of the Awards passed by Justice R. D. Tulpule and by Justice S. M. Jamdar. Hence, in view of the aforesaid reasons, the submissions made by Mr. Naphade, learned amicus curiae, in justification of the Award passed by the CGIT is based on the terms and conditions laid down in the Awards passed by the NIT (by Justice Tulpule and Justice Jamdar) in favour of the workmen for absorption as they have been rendering their service to the Corporation in the perennial nature of work for a number of years and hence, the High Court was not justified in interfering with the said Award passed by the CGIT. The said contention urged by the learned amicus curiae is accepted by us, as the impugned judgment and order of the High Court is contrary to the Awards referred to supra, the provisions of the Industrial Disputes Act and the law laid down by this Court in the aforesaid cases.
50. The Awards passed by the NIT is binding upon the Corporation till it is substituted by another Award or replaced by another settlement in relation to the service conditions of the workmen of the Corporation in accordance with law as provided under Section 12 read with Section 18(3) of the Act or another Award that is required to be passed by the Jurisdictional CGIT in relation to the above subject matter after the Awards which are in operation are terminated by either of the parties as provided under Section 19(6) of the Act. Until then, the said Award passed by the NIT will still be operative in law. Therefore, the same has been rightly applied to the fact situation on hand in the Award passed by the CGIT and it could not have been set aside by the Page 30 of 63 HC-NIC Page 30 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER High Court. Thus, we are of the opinion that the learned single Judge erroneously set aside the Award passed by the CGIT and the said judgment of the learned single judge has been further erroneously affirmed by the Division Bench of the High Court. The said judgments of the High Court are clearly contrary to law and legal principles laid down by this Court in cases referred to supra. Hence, the same are liable to be set aside by allowing these appeals and restoring the Award of the CGIT.
51.. The learned amicus curiae rightly placed reliance upon entry Item No.10 of Schedule V of the Act in employing the concerned workmen as temporary, badli and part-time employees against permanent posts doing perennial nature of work and continuing them as such for number of years. This is a clear case of unfair labour practice as defined under Section 2(ra) of the Act which is statutorily prohibited under Section 25T of the Act and the said action of the Corporation amounts to penalty under Section 25U of the Act. For this reason also, the findings and reasons recorded in the Award of the CGIT in answering the points of dispute referred to it by Central Government in favour of the concerned workmen is legal and valid. The High Court has erred in not noticing the aforesaid important, relevant,factual and legal aspect of the case of the concerned workmen and has erroneously set aside the Award of the CGIT passed in favour of the concerned workmen in exercise of its judicial power. The High Court has erred in not following the legal principles laid down by this Court in the case of Harjinder Singh v. Punjab State Warehousing Corporation[9], wherein it is held thus:-
"21. Before concluding, we consider it necessary to observe that while exercising jurisdiction under Articles 226 and/or 227 of the Constitution in matters like the present one, the High Courts are duty bound to keep in mind that the Page 31 of 63 HC-NIC Page 31 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to (e), 43 and 43A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to sub-serve the common good and also ensure that the workers get their dues. More than 41 years ago, Gajendragadkar, J, opined that "the concept of social and economic justice is a living concept of revolutionary import; it gives sustenance to the rule of law and meaning and significance to the ideal of welfare State"
- State of Mysore v. Workers of Gold Mines AIR 1958 SC 923."
The said principle has been reiterated by this Court recently in the case of Jasmer Singh v. State Of Haryana & Anr. (C.A. No. 346 of 2015).
53. For the aforesaid reasons also, the case of the concerned workmen/appellants must succeed and the impugned judgment and order must be set aside. Accordingly, it is set aside."
18. Reliance is placed by the applicants on decision of this Court rendered in case of Special Civil Application No. 13621 of 2014 wherein the question was with regard to contractual Page 32 of 63 HC-NIC Page 32 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER appointment made on Mahatma Gandhi National Rural Employment Guarantee Scheme (for short "the MANREG SCHEME") the persons who were initially appointed to the post of Technical Assistant on contractual basis for a fixed term of 11 months. Such appointment came to be renewed from time to time after a technical break. The petitioners thus have put in total service of nearly 2 to 6 years. There was fresh advertisement issued in different post and they were required to undergo the recruitment drive as per public advertisement afresh. It was contended before this Court by the petitioner that their appointment had been made following the rules and regulations and ratio laid down for the public employment. Therefore, their appointment could not be termed either as ad hoc or temporary and they cannot be replaced by another set of ad hoc employees. Moreover, it is their say that this artificial break is also unwarranted and required interference.
18.1This Court after detailed consideration of submission and in the given set of facts and circumstances, allowed the petitions and permitted all the petitioners who had qualified in the earlier examination to be continued without permitting Page 33 of 63 HC-NIC Page 33 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER fresh appointment. It was directed that in the future, if any such policy is made at District, Taluka or Gram Panchayat level to create permanent sanctioned set up, the petitioners shall be entitled to be considered along with their services from the date of their initial appointment. While so doing the reliance was placed on the decision of the Apex Court rendered in case of Mohd. Abdul Kadir & Anr. Vs. Director General of Police, Assam & Ors., reported in (2009) 6 SCC 611 where the Appellants were ex-servicemen and they were employed under the Prevention of Infiltration of Foreigners Additional Scheme, 1987. The scheme which was otherwise meant for strengthening of Assam Government machinery for detection and deportation of foreigners. The scheme was temporary but it was continued although for nearly two decades after extending it from time to time. The Apex Court rejected the claim of regularization by holding that any temporary or ad-hoc engagement or appointment if in connection with a particular project or a specific scheme is there, the services of those persons under such project would come to an end, on completion/closure/cessation or scheme. The Court went on holding that merely Page 34 of 63 HC-NIC Page 34 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER because the scheme was in operation for some decades and the employee concerned had continued for one or two decades, also would not entitle them to seek permanency or seek regularization. Even if any posts are sanctioned with reference to the scheme, such sanction is of ad hoc or temporary posts conterminous with the scheme and not of permanent posts. Thus, while denying the permanency to those also who were engaged in connection with such project or scheme. Profitably the relevant observations reads as under:-
"14. The fact that the Scheme had been in operation for some decades or that the employee concerned has continued on ad hoc basis for one or two decades would not entitle the employee to seek permanency or regularization. Even if any posts are sanctioned with reference to the Scheme, such sanction is of ad hoc or temporary posts co-terminus with the scheme and not of permanent posts.
15. On completion of the project or discontinuance of the scheme, those who were engaged with reference to or in connection with such Project or Scheme cannot claim any right to continue in 8 service, nor seek regularization in some other project or service. (See Bhagwan Dass v. State of Haryana - 1987 (4) SCC 634, Delhi Development Horticulture Employees Union v. Delhi Administration - 1992 (4) SCC 99, Hindustan Steel Works Construction Ltd., vs. Employees Union - 1995 (3) SCC 474, UP Land Development Corporation vs. Amar Singh - 2003 (5) SCC 388, Madhyamik Shiksha Parishad UP v. Anil Kumar Mishra - 2005 (5) SCC 122, Secretary, State of Karnataka v. Umadevi - 2006 (4) SCC 31, Indian Page 35 of 63 HC-NIC Page 35 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER Council of Medical Research vs. K. Rajyalakshmi - 2007 (2) SCC 332, and Lal Mohammed vs. Indian Railway Construction Co. Ltd. - 2007 (2) SCC 513). In view of this settled position, the appellants will not be entitled to regularization.
16. We may next consider the challenge to the procedure of annual termination and reappointment introduced by the circular dated 17.3.1995. The PIF Scheme and PIF Additional Scheme were introduced by Government of India. The scheme does not contemplate or require such periodical termination and re-appointment. Only ex-servicemen are eligible to be selected under the scheme and that too after undergoing regular selection process under the Scheme. They joined the scheme being under the impression that they will be continued as long as the PIF Additional Scheme was 9 continued. The artificial annual breaks and reappointments were introduced by the state agency entrusted with the operation of the Scheme. This Court has always frowned upon artificial breaks in service.
17. When the ad-hoc appointment is under a scheme and is in accordance with the selection process prescribed by the scheme, there is no reason why those appointed under the scheme should not be continued as long as the scheme continues. Ad- hoc appointments under schemes are normally co- terminus with the scheme (subject of course to earlier termination either on medical or disciplinary grounds, or for unsatisfactory service or on attainment of normal age of retirement). Irrespective of the length of their ad hoc service or the scheme, they will not be entitled to regularization nor to the security of tenure and service benefits available to the regular employees. In this background, particularly in view of the continuing Scheme, the ex- serviceman employed after undergoing selection process, need not be subjected to the agony, anxiety, humiliation and vicissitudes of annual termination and re-engagement, merely because their appointment is termed as ad hoc appointments.Page 36 of 63
HC-NIC Page 36 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER
18. We are therefore of the view that the learned Single Judge was justified in observing that the process of termination and re-appointment every year should be avoided and the 10 appellants should be continued as long as the Scheme continues, but purely on ad hoc and temporary basis, co- terminus with the scheme. The circular dated 17.3.1995 directing artificial breaks by annual terminations followed by fresh appointment, being contrary to the PIF Additional Scheme and contrary to the principles of service jurisprudence, is liable to be is quashed.
22. We are conscious of the fact that the issue is a matter of policy having financial and other implications. But where an issue involving public interest has not engaged the attention of those concerned with policy, or where the failure to take prompt decision on a pending issue is likely to be detrimental to public interest, courts will be failing in their duty if they do not draw attention of the concerned authorities to the issue involved in appropriate cases. While courts cannot be and should not be makers of policy, they can certainly be catalysts, when there is a need for a policy or a change in policy."
19. This Court in case of Pradeep Navinbhai Patel Vs. State of Gujarat, reported in 2014 (2) GLH 501 wherein the Apex Court has held that the continuation of contractual appointment for a long span would establish a genuine requirement of filling up such posts on regular basis. The frequent or continuous adhocism is not desirable in any service. And, yet creation of permanent establishment if is not possible as these appointments are meant for implementing the Page 37 of 63 HC-NIC Page 37 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER scheme, they need to be made co-terminous with the scheme itself. Once the appointment is made on following the rules or guidelines or through regular process of selection, frequent changes and new selection adopting adhocism is surely not a welcome step.
20. All these decisions are relied upon by the applicants -original petitioners. The law as discussed above though does not permit regularization in absence of any sanctioned posts when initial appointment is on contractual basis, it surely does not endorse continuation of employees on contractual or ad hoc basis even when the nature of work has permanency. Such tendency of continuing employee on ad hoc/contractual basis beyond a period of particular number of years (ranging from 3 to 10 & more in different decisions) even when the work is permanent is disapproved by the Apex Court, terming the same as exploitative by the party having dominant position. Every case needs to be examined of course on the basis of given set of facts and circumstances.
21. Some of the decisions opponents-original Page 38 of 63 HC-NIC Page 38 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER Respondents have depended upon deserve discussion at this juncture.
22. In case of Mukhiya Karyapalak Adhikari, U.P. Khadi Tatha Gramodyog Board Karmit Anubhag, Lucknow & Anr. Vs. Santosh Kumari, reported in 2011 (12) SCC 654, the Apex Court disapproved grant of interim relief by the Division Bench while admitting Appeal which was listed before the Division Bench nearly six years of passing of the order of the learned Single Judge dismissed the petition holding that the engagement of the petitioner would not have any legal rights for appointment. It was also made specific in that order that the respondent should be allowed to continue to work.
The Apex Court expressed its dismay in the following manner :-
"We fail to understand as to how the Division Bench while admitting an appeal could pass such an order so as to allow the appeal itself even at that interim stage. The respondent was not working when the suit was filed and his writ petition was dismissed. Despite the said fact not only the Division bench stayed the operation of the order after six years of filing the appeal."Page 39 of 63
HC-NIC Page 39 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER
23. The Apex Court in case of State Bank of India & Ors. Vs. S. N.Goyal, reported in [2008] 8 SCC 92 has held and observed as under :-
"17. Where the relationship of master and servant is purely contractual, it is well settled that a contract of personal service is not specifically enforceable, having regard to the bar contained in section 14 of the Specific Relief Act, 1963. Even if the termination of the contract of employment (by dismissal or otherwise) is found to be illegal or in breach, the remedy of the employee is only to seek damages and not specific performance. Courts will neither declare such termination to be a nullity nor declare that the contract of employment subsists nor grant the consequential relief of reinstatement. The three well recognized exceptions to this rule are:
(i) where a civil servant is removed from service in contravention of the provisions of Article 311 of the Constitution of India (or any law made under Article 309);
(ii) where a workman having the protection of Industrial Disputes Act, 1947 is wrongly terminated from service; and
(iii) where an employee of a statutory body is terminated from service in breach or violation of any mandatory provision of a statute or statutory Page 40 of 63 HC-NIC Page 40 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER rules.
There is thus a clear distinction between public employment governed by statutory rules and private employment governed purely by contract. The test for deciding the nature of relief # damages or reinstatement with consequential reliefs # is whether the employment is governed purely by contract or by a statute or statutory rules. Even where the employer is a statutory body, where the relationship is purely governed by contract with no element of statutory governance, the contract of personal service will not be specifically enforceable. Conversely, where the employer is a non-statutory body, but the employment is governed by a statute or statutory rules, a declaration that the termination is null and void and that the employee should be reinstated can be granted by courts. (Vide : Dr. S. Dutt vs. University of Delhi # AIR 1958 SC 1050; Executive Committee of UP State Warehousing Corporation Ltd. Vs. Chandra Kiran Tyagi # 1970 (2) SCR 250; Sirsi Municipality vs. Cecelia Kom Francies Tellis # 1973 (3) SCR 348; Executive Committee of Vaish Degree College vs. Lakshmi Narain # 1976 (2) SCR 1006; Smt. J. Tiwari vs. Smt. Jawala Devi Vidya Mandir # AIR 1981 SC 122; and Dipak Kumar Biswas vs. Director of Public Instruction # AIR 1987 SC 1422)."
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24. In case of State of Maharashtra & Ors. Vs. Anita & Anr., reported in (2016) 8 SCC 293 the Apex Court was considering the question with regard to appointment to 471 posts of Legal Advisors, Law Officers and and Law Instructors on contractual basis pursuant to Government Resolutions Nos. 21.8.2006 and 15.9.2006. The Court noticed that the intention of the Government to fill up the said posts on contractual basis manifests from CL(3) of Resolution dated 21.8.2006 and Clauses A, B & C of Resolution dated 15.9.2006. Moreover, respondents at the time of appointment entered into agreement in accordance with Appendix 'B' attached to Government Resolution dated 15.9.2006 in terms of which appointment was purely contractual in nature, creating no right nor interest nor benefit of permanent service in respondents' favour. The Apex Court held that when Government had taken policy decision to fill up posts on contractual basis, the Tribunal and the High Court ought not to have interfered with it to hold that appointments were permanent in nature.
Findings and observations of the Apex Court are profitably reproduced hereinafter :-
Page 42 of 63HC-NIC Page 42 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER "12. In the Government Resolution dated 21.08.2006 while creating 471 posts in various cadres including Legal Advisors, Law Officers and Law Instructors in clause (3) of the said Resolution, it was made clear that the posts created ought to be filled up on contractual basis. Clause (3) reads as under:-
"The said posts instead of being filled in the regular manner should be kept vacant and should be filled on the contract basis as per the terms and conditions prescribed by the government or having prepared the Recruitment Rules should be filled as per the provisions therein."
13. Subsequently, the said Resolution was modified by Government Resolution dated 15.09.2006. In the said Resolution, the column specifying "Pay Scale" was substituted with column "Combined Permissible Monthly Pay + Telephone & Travel Expenses". However, there was no change in the decision of the government on filling up the posts on contractual basis. Government Resolution dated 15.09.2006 stipulates the terms and conditions of the contractual appointments. Clauses 'A', 'B', 'C' and 'D' read as under:-
"A) The appointment of the said posts would be completely on contractual basis.
These officers/ employees would not be counted as government employees.
B) The said appointments should be
made on contract basis firstly for 11
months. After 11 months the term of the agreement could be increased from time to time if necessary. Whereas, the appointing authority would take the precaution while extending the terms in this manner that, at one time this term should not be more than 11 months. The appointment in this way could be made Page 43 of 63 HC-NIC Page 43 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER maximum three times. Thereafter, if the competent authority is of the opinion that the reappointment of such candidate is necessary then such candidate would have to again face the selection process.
C) The concerned appointing authority at the time of the appointment would execute an agreement with the concerned candidate in the prescribed format. The prescribed format of the agreement is given in Appendix 'B'. It would be the responsibility of the concerned office to preserve all the documents of the agreement.
D) Except for the combined pay and
permissible telephone and travel
expenses (more than the above mentioned limit) any other allowances would not be admissible for the officers/employees being appointed on contract basis."
14. The intention of the State Government to fill up the posts of Legal Advisors, Law Officers and Law Instructors on contractual basis is manifest from the above clauses in Government Resolutions dated 21.08.2006 and 15.09.2006. While creating 471 posts vide Resolution dated 21.08.2006, the Government made it clear that the posts should be filled up on contractual basis as per terms and conditions prescribed by the Government. As per clause 'B' of the Government Resolution dated 15.09.2006, the initial contractual period of appointment is eleven months and there is a provision for extension of contract for further eleven months. Clause 'B' makes it clear that the appointment could be made maximum three times and extension of contract beyond the third term is not allowed. If the competent authority is of the opinion that the reappointment of such candidates is necessary then such candidates would again have to face the selection process.
15. It is relevant to note that the respondents Page 44 of 63 HC-NIC Page 44 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER at the time of appointment have accepted an agreement in accordance with Appendix 'B' attached to Government Resolution dated 15.09.2006. The terms of the agreement specifically lay down that the appointment is purely contractual and that the respondents will not be entitled to claim any rights, interest and benefits whatsoever of the permanent service in the government. We may usefully refer to the relevant clauses in the format of the agreement which read as under:-
"1. The First Party hereby agrees to appoint Shri/Smt._________ (Party No. II) as a ________ on contract basis for a period of 11 months commencing from ________ to_________ (mention date) on consolidated remuneration of Rs._______ (Rupees _____________ only) per month, and said remuneration will be payable at the end of each calendar month according to British Calendar. It is agreed that IInd party shall not be entitled for separate T.A. and D.A. during the contract period....
2. ..........
3. .........
4. ...........
5. Assignment of 11 months contract is renewable for a further two terms of 11 months (i.e. total 3 terms), subject to the satisfaction of Competent Authority, and on its recommendations.
6. The Party No. II will not be entitled to claim any rights, interest, benefits whatsoever of the permanent service in the Government."
16. The above terms of the agreement further reiterate the stand of the State that the appointments were purely contractual and that the respondents shall not be entitled to claim any Page 45 of 63 HC-NIC Page 45 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER right or interest of permanent service in the government. The appointments of respondents were made initially for eleven months but were renewed twice and after serving the maximum contractual period, the services of the respondents came to an end and the Government initiated a fresh process of selection. Conditions of respondents' engagement is governed by the terms of agreement. After having accepted contractual appointment, the respondents are estopped from challenging the terms of their appointment. Furthermore, respondents are not precluded from applying for the said posts afresh subject to the satisfaction of other eligibility criteria.
17. The High Court did not keep in view the various clauses in the Government Resolutions dated 21.08.2006 and 15.09.2006 and also the terms of the agreement entered into by the respondents with the government. Creation of posts was only for administrative purposes for sanction of the amount towards expenditure incurred but merely because the posts were created, they cannot be held to be permanent in nature. When the government has taken a policy decision to fill up 471 posts of Legal Advisors, Law Officers and Law Instructors on contractual basis, the tribunal and the High Court ought not to have interfered with the policy decision to hold that the appointments are permanent in nature."
25. In case of Secretary, State of Karnataka & Ors. Vs. Umadevi & Ors., reported in (2006) 4 SCC 1, the Apex Court was considering the question of absorption, regularization or permanent continuance of temporary, contractual, casual, daily wage or ad hoc employees appointed and continued for a long in public employment de Page 46 of 63 HC-NIC Page 46 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER hors the constitutional scheme or public employment.
25.1 The Apex Court held that when a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement if is not based on proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment on temporary, casual or contractual basis. 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. 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.The Apex Court also observed as under :-
"38. 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 Page 47 of 63 HC-NIC Page 47 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER 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.
xx xx xx
43. Normally, what is sought for by such temporary employees when they approach the court, is the issue of a writ of mandamus directing the employer, the State or its instrumentalities, to absorb them in permanent service or to allow them to continue. In this context, the question arises whether a mandamus could be issued in favour of such persons. At this juncture, it will be proper to refer to the decision of the Constitution Bench of this Court in Dr. Rai Shivendra Bahadur Vs. The Governing Body of the Nalanda College [(1962) Supp. 2 SCR 144]. That case arose out of a refusal to promote the writ petitioner therein as the Principal of a college. This Court held that in order that a mandamus may issue to compel the authorities to do something, it must be shown that the statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it. This classical position continues and a mandamus could not be issued in favour of the employees directing the government to make them permanent since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent.Page 48 of 63
HC-NIC Page 48 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER
44. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. NARAYANAPPA (supra), R.N. NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and referred to in paragraph 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 courts or of tribunals. The question of regularization 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 regularize 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 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 process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.
45. It is also clarified that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what we have held herein, will stand denuded of their status as precedents."
25.2 Of course, the Apex Court being alive to the reality of continuing employees for 10 years and Page 49 of 63 HC-NIC Page 49 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER more as referred to in paragraph 44 permitted one time measure to absorb them by making a policy. At this stage, paragraph 53 profitably deserves reproduction:-
"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. NARAYANAPPA (supra), R.N. NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and referred to in paragraph 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 courts or of tribunals. The question of regularization 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 regularize 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 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 process must be set Page 50 of 63 HC-NIC Page 50 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."
26. So far as the decision of the Apex Court rendered in case of Gridco Limited and Another Vs. Sadananda Doloi and others reported in (2011) 15 SCC 16 wherein the Apex Court has held that the appellant-Corporation terminated the services of respondent No.1 by giving 3 months' notice and salary as stipulated in the contract. Allowing the appeal of the appellant Corporation, the Supreme Court held that the power to make a contractual employment is implicit in the power to make a regular permanent appointment unless the statute under which the authority exercises its powers and discharges its functions or the Rules and Regulations governing recruitment under the authority specifically forbid the making of such an appointment. Respondent No.1 was re-designated in the Executive Grade of E-10. It is quite clear from the regulations that an appointment to the post in Page 51 of 63 HC-NIC Page 51 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER category E-10 could be made only on a contractual basis and not on a regular basis. The Apex Court did not find any unreasonableness, unfairness, perversity or irrationality in the action taken by the Corporation. The Regulations according to the Court governing the service conditions of the employees of the Corporation, made it clear that officers in the category above E-9 had to be appointed only on contractual basis. It was also evident that the renewal of the contract of employment depended upon the perception of the management as to the usefulness of respondent No.1 and the need for an incumbent in the position held by him. In such circumstances, the Apex Court rejected the plea of mala fide put forth by employee . It also reiterated the judicial review in such matters and refer the decision rendered in case of Shrilekha Vidyarthi Vs. State of U.P. reported in (1991) 1 SCC 212 wherein it is held that the question of reviewability of administrative action in the realm of contract was in that backdrop examined by this Court. The Court also examined whether the personality of the State Government undergoes a change after the initial appointment of the Government Counsel so as to render its action immune from judicial scrutiny. The Page 52 of 63 HC-NIC Page 52 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER Court also held that referring to the various other judgments that for employee to enter into the contract, there was no compulsion. He was as free under the law as any other person to accept or reject the offer which was made to him. Having accepted, he still had all the rights and remedies available to other persons similarly situated to enforce any rights under his contract which have been denied to him, assuming there are any. And, to pursue in the ordinary courts of the land such remedies for a breach as are open to him to exactly the same extent as other persons similarly situated. The Court has also held that of course the State can enter into contracts of temporary employment and impose special terms in each case. They are not inconsistent with the constitution and those who chose to accept those terms and enter into the contract are bound by them, even as the State is bound. The Apex Court also held that where the Court had refused to enforce an unfair and unreasonable contract or an unfair and unreasonable clause in a contract entered into between parties who did not have equal bargaining power The Apex Court has observed as under :-
"38. A conspectus of the pronouncements of this Page 53 of 63 HC-NIC Page 53 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER Court and the development of law over the past few decades thus show that there has been a notable shift from the stated legal position settled in earlier decision, that termination of a contractual employment in accordance with the terms of the contract was permissible and the employee could claim no protection against such termination even when one of the contracting parties happened to be the State. Remedy for a breach of a contractual condition was also byway of civil action for damages/compensation. With the development of law relating to judicial review of administrative actions, a writ Court can now examine the validity of a termination order passed by public authority. It is no longer open to the authority passing the order to argue that its action being in the realm of contract is not open to judicial review.
39. A writ Court is entitled to judicially review the action and determine whether there was any illegality, perversity, unreasonableness, unfairness or irrationality that would vitiate the action, no matter the action is in the realm of Court. Having said that we must add that judicial review cannot extent to the Court acting as an appellate authority sitting in judgment over the decision. The Court cannot sit in the armchair of the Administrator to decide whether a more reasonable decision or course of action could have been taken in the circumstances. So long as the action taken by the authority is not shown to be vitiated by the infirmities referred to above and so long as the action is not demonstrably in outrageous defiance of logic, the writ Court would do well to respect the decision under challenge.
40. Applying the above principles to the case at hand, we have no hesitation in saying that there is no material to show that there is any unreasonableness, unfairness, perversity or irrationality in the action taken by the Corporation. The Regulations governing the service conditions of the employees of the Page 54 of 63 HC-NIC Page 54 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER Corporation, make it clear that officers in the category above E-9 had to be appointed only on contractual basis.
41. It is also evident that the renewal of the contract of employment depended upon the perception of the management as to the usefulness of the respondent and the need for an incumbent in the position held by him. Both these aspects rested entirely in the discretion of the Corporation. The respondent was in the service of another employer before he chose to accept a contractual employment offered to him by the Corporation which was limited in tenure and terminable by three month's notice on either side. In that view, therefore, there was no element of any unfair treatment or unequal bargaining power between the appellant and the respondent to call for an over-sympathetic or protective approach towards the letter."
27 Judicial review of the action to determine whether the action deserves interference or not is permissible, if the action is unfair, unreasonable or irrational and it defies the logic completely. However, as can be noticed from the decisions above that the actions were taken in accordance with Rules and Regulations, following the contractual agreement signed by the parties. They were not the cases where continuation of work under the project and scheme for years continued the services of the employees. It was also not the case where entire set up of employees was temporary or contractual although the object of Page 55 of 63 HC-NIC Page 55 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER setting up the organization has by & large element of permanency, as is the case prima facie in the matters on hand.
28. In the instant case relevant would be to refer to WASMO (Service) Rules, 2002 as provided in Chapter 2 Classification of Employees, Creation of posts, Recruitment, Appointment, Promotion, Termination of Service and Retirement. 28.1 Rule 2.1 provides that no one in the WASMO will be a permanent employee as it is the stated goal of the organization to not have any permanent liability. All employees of WASMO shall be classified into any one of the following categories i.e., on deputation, on contract, probationer, temporary, casual and, part-timers.
28.2 Rule 2.2 provides bar on "Creation of Posts"
which says that the Government of Gujarat,while establishing and starting WASMO vide Government Resolution No. VWS/2096/ 2390/ Kh-3 dated March 23, 2001 has sanctioned "Core Team" of the WASMO. It is independent and autonomous society. It has full powers to create, abolish and fill posts according to its need and CEO will exercise the powers to create and fill the posts in WASMO to Page 56 of 63 HC-NIC Page 56 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER undertake, plan and implement any programme/ projects taken up or planned to be taken up by the WASMO. The post created thus will be for the implementation of the specific project/programme and shall be available for such project/programme. The designations of various posts, their pay scales, modes of recruitment, qualifications, experience and age limits, etc. required for such posts shall be as specified by the Organization.
28.3 It is thus not disputed that WASMO (Service) Rules do not provide for any permanent post or employees. They are either on deputation or on contract or on probation or temporary or casual or on part time. This Court notices that the object of establishing WASMO is to empower the rural community through Pani Samitis (Village Water and Sanitation Committee) having a minimum of one- third women members to plan, approve, implement, operate and maintain their water supply systems, manage water resources and ensure safe and reliable drinking water supply throughout the year. It works as a facilitator and provides financial and technical support to Pani Samiti/Gram Panchayats and networks with local NGOs, other State Government Institutions, Government of India, Page 57 of 63 HC-NIC Page 57 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER donors and UN organizations to fulfill the Gujarat Government's pursuit of strengthening local self- governance through decentralization and empowerment of the rural community, especially women. It promotes community based rainwater harvesting and integrates traditional knowledge, wisdom and local innovations in water resource management, water supply and environmental sanitation. It encourages adoption of best hygiene practices and habitat improvement by informing and educating communities about issues like greening and cleaning of villages, health, hygiene, safe water, wastewater disposal and the use of toilets and soakpits.
29. Considering prima facie the laudable objectives and also bearing in mind the fact that this project has been initiated in the year 2002 and continued all along, having the nature of permanent work, request of interim relief deserves consideration. The Court cannot be oblivious of the fact that in the year 2012, the total number of contractual employees was 481 and over the years, the strength has increased. Unless there is a demand of manpower due to continuity of work, it is quite unlikely that the organization would enhance Page 58 of 63 HC-NIC Page 58 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER its strength.
30. The Periodical Status of Manpower in WASMO (at Annexure R/1) is clear indication of work having been continued necessitating requisite strength of employees. For ready reference, it is reproduced hereinbelow :-
Sr.No. Year Month & Total
Year No.of
contract
ual staff
1 2012 Dec.2012 481
2 2013 April 2013 474
Aug.2013 442
Dec.2013 438
3 2014 April 2014 462
Aug.2014 517
Dec.2014 660
4 2015 Apr.2015 707
Aug.2015 679
Dec.2015 632
5 2016 Jan.2016 629
Feb.2016 623
March 618
2016
Dec.2016 570
31. The stand of the respondent organization is unpalatable that it has adopted this mode of reduction of the staff, which is in service for more than 10 years, as the need of the man power is over and that the project has lost its life. It prima facie reveals neither true nor correct facts. Main petition is at large for consideration as to whether for non-Page 59 of 63
HC-NIC Page 59 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER creating permanent liability, can an organization be permitted ad hocism for number of years. All the issues raised by both the sides will need determination at the time of final hearing, however, this Court is of the opinion that discontinuation of contractual appointment of some of the petitioners during pendency of these petitions, mainly on the ground of their having approached the Court and having continued others, who have not approached this Court on the ground that they were in different departments, is an act of discrimination and unsustainable when the larger issue is under consideration and as the work of WASMO has continued, the order of not continuing some of the contractual employees further, despite having continued them for more than 10 years, pending the main petition, deserves interference. As all the applicants are working for more than 10 years, apt would be to refer here, the anguish expressed by the Apex Court in different context of workmen who were engaged under the pretext of sham and bogus contract to avoid the financial and other legal liabilities, in a decision rendered in case of Gujarat Electricity Board, Thermal Power Station, Ukai, Gujarat v. Hind Mazdoor Sabha & Ors., Page 60 of 63 HC-NIC Page 60 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER reported in 1995 [1] GLH 1083, wherein, as a parting note, the Apex Court has observed thus - "27. While parting with these matters, we cannot help expressing our dismay over the fact that even the undertakings in the public sector have been indulging in unfair labour practice by engaging contract labour when workmen can be employed directly even according to the tests laid down by Section 10 [2] of the Act. The only ostentsible purpose in engaging the contract labour instead of the direct employees is the monetary advantage by reducing the expenditure. Apart from the fact that it is an unfair labour practice, it is also an economically short-sighted and unsound policy, both from the point of view of the undertaking concerned and the country as a whole. The economic growth is not to be measured only in terms of production and profits. It has to be gauged primarily in terms of employment and earnings of the people. Man has to be the focal point of development. The attitude adopted by the undertakings is inconsistent with the need to reduce unemployment and the Government policy declared from time to time, to give jobs to the unemployed. This is apart from the mandate of the directive principles contained in Articles 38, 39, 41, 42, 43 and 47 of our Constitution. We, therefore, recommend that -
[a] all undertakings which are employing the contract labour system in any process, operation or work which satisfies the factors mentioned in clauses [a] to [d] of Section 10 [2] of the Act, should on their own, discontinue the contract labour and absorb as many of the labour as is feasible as their direct employees;
Page 61 of 63 HC-NIC Page 61 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER [b] both the Central and the State Governments should appoint a Committee to investigate the
establishments in which the contract labour is engaged and where on the basis of the criteria laid down in clauses [a] to [d] of Section 10 [2] of the Act, the contract labour system can be abolished and direct employment can be given to the contract labour.
The appropriate Government on its own should take initiative to abolish the labour contracts in the establishments concerned by following the procedure laid down under the Act.
[c] the Central Government should
amend the Act by incorporating a
suitable provision to refer to the
industrial adjudicator the question of the direct employment of the workers of the ex-contractor in the principal establishment, when the appropriate Government abolishes the contract labour."
32. As discussed hereinbefore, this Court had directed in case of Pradeep Navinbhai Patel Vs. State of Gujarat not to replace ad hoc employees by a new set of ad hoc employees. Any such attempt does not deserve to be sustained.
33. In wake of forgoing discussion, these Civil Applications are allowed.
33.1Opponents-original respondents are directed Page 62 of 63 HC-NIC Page 62 of 63 Created On Sat Aug 12 07:37:43 IST 2017 C/CA/12265/2015 ORDER not to terminate the services of the applicants till the outcome of the main petitions. Those whose service has been discontinued, their service shall be renewed and continued, and shall be treated as having continued in the work restoring them to their original posts.
34. The petitioners shall be at liberty to reiterate their request for backwages and other consequential benefits at the time of final hearing.
35. None of the observations made hereinabove shall in any manner breach the rights of either side in the final hearing of the main matter.
{Ms. Sonia Gokani, J.} Bina/Prakash Page 63 of 63 HC-NIC Page 63 of 63 Created On Sat Aug 12 07:37:43 IST 2017