Kerala High Court
K.R.Sajeevan @ K.R.Sajeev vs State Of Kerala on 16 March, 1984
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU
MONDAY, THE 22ND DAY OF SEPTEMBER 2014/31ST BHADRA, 1936
WP(C).No. 23006 of 2014 (A)
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PETITIONERS:
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1. K.R.SAJEEVAN @ K.R.SAJEEV, AGED 53 YEARS,
S/O.RAGHAVAN, KATTATHARA HOUSE, PANANGADU P.O.,
KOCHI, WORKING AS SYRANG, KSINC
THEVARA.
2. K.V.ALEXANDER,
S/O.VAKKO, KANNANPARAMBIL HOUSE, KANDANADU,
KOTHADU P.O., ERNAKULAM, WORKING AS SYRANG
KSINC, THEVARA.
BY ADVS.SRI.A.X.VARGHESE
SRI.A.V.JOJO
RESPONDENTS:
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1. STATE OF KERALA,
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
COASTAL SHIPPING AND INLAND NAVIGATION DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM.
2. KERALA SHIPPING AND INLAND NAVIGATION CORPORATION LTD.,
REPRESENTED BY ITS MANAGING DIRECTOR, 61/1227,
UDAYA NAGAR ROAD, GANDHI NAGAR, KOCHI - 682 020.
R2 BY ADV. SRI.SANTHOSH MATHEW, SC
R BY SRI. V. VIJULAL, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
22-09-2014, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C).No. 23006 of 2014 (A)
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APPENDIX
PETITIONERS' EXHIBITS:
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EXHIBIT P1. TRUE COPY OF THE EXTRACT OF THE MINUTES OF DIRECTOR BOARD
MEETING DATED 16.03.1984.
EXHIBIT P2. TRUE COPY OF THE LETTER DATED 26.05.1997.
EXHIBIT P3. TRUE COPY OF THE REPRESENTATION DATED 05.05.1998 ALONG
WITH THE LIST OF PERSONS APPOINTED THROUGH EMPLOYMENT EXCHANGE.
EXHIBIT P4. TRUE COPY OF LETTER DATED 20.04.1998.
EXHIBIT P5. TRUE COPY OF THE JUDGMENT DATED 15.03.2001 IN
O.P.8022/2001.
EXHIBIT P6. TRUE COPY OF THE ORDER DATED 02.08.2001.
EXHIBIT P7. TRUE COPY OF THE RANK LIST PUBLISHED ON 10.05.2004.
EXHIBIT P8. TRUE COPY OF THE CALL LETTER 31.07.2014.
RESPONDENTS' EXHIBITS : NIL
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/True Copy/
P.A. to Judge.
rv
DAMA SESHADRI NAIDU, J.
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W.P. ) No. 23006 of 2014
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Dated this the 22nd day of September, 2014
JUDGMENT
The two petitioners, being daily wage employees, inducted into service in 1991 and 1981 respectively, initially sought regularisation of their services as Syrangs. Aggrieved by the inaction of the respondent authorities, they filed O.P. No. 8022 of 2001, which came to be disposed of by this Court through Ext.P5 dated 15.03.2001. Having waited for more than 13 years, yet again the petitioners have come before this Court by filing the present writ petition ventilating their grievance that now the 2nd respondent is going for regular recruitment without considering their cases.
2. In the above factual back drop, the learned counsel for the petitioners has contended that the first petitioner worked for 24 years and the 2nd petitioner, for 31 years. Despite their long service, the 2nd respondent did not regularise the petitioners' services only with a view to denying them the benefit of Section 25
(t) of the Industrial Disputes Act. The learned counsel has also W.P.(C.) No. 23006/2014 -2- stated that the action of the 2nd respondent flies in the face of the judicial directive as contained in paragraph 53 of the Uma Devi (3), a decision rendered by a Constitution Bench of the Hon'ble Supreme Court.
3. Confronted with the problem of laches, the learned counsel for the petitioner has submitted that though the petitioners' representation were rejected through Ext.P6 way back in 2001, pursuant to the direction of this Court in Ext.P5, the actual cause of action arose only recently when the 2nd respondent decided to go for regular recruitment. The learned counsel has further contended that despite the rejection of regularisation, the 2nd respondent continued the petitioners as casual labourers till now. Since there were no identifiable vacancies until now, the petitioners, contends the learned counsel, did not impugn the rejection order in Ext.P6. Accordingly, the learned counsel has urged this Court to issue a suitable direction to the 2nd respondent to regularise the services of the petitioners.
4. Per contra, the learned Standing Counsel for the 2nd respondent has strenuously opposed the claims and contentions of the petitioners. On his part, he has submitted that the writ petition W.P.(C.) No. 23006/2014 -3- has been hit by severe, incurable laches. According to him, the cause of action for the petitioners arose on the very day when their representation was rejected way back in 2001. There is no indefeasible right for the petitioners to insist on the regularization of their services. The learned Standing Counsel has also pointed out that initially they were engaged in operating the boat services conducted by the 2nd respondent to islands around Kochi, but those services were dispensed with on the completion of the Gosree Projects. Instead of rendering them jobless, only on humanitarian grounds, the 2nd respondent continued the petitioners on casual basis till recently. The learned Standing Counsel has also submitted that these posts come under the purview of the PSC and in fact the PSC has raised an objection to the proposal for regularising the casual employees of the 2nd respondent.
5. The learned Standing Counsel has also adverted to certain judicial proceedings, such as O.P. No. 20042 of 1998 filed by a third party before this Court questioning the continuation of provisional/casual employees in various Government Organisations and Public Sector Undertakings, including the 2nd respondent. It may not, however, be relevant to refer to those proceedings in W.P.(C.) No. 23006/2014 -4- detail, for the writ petition can be disposed of on other grounds.
6. The learned Standing Counsel for the respondents has further contended that the ratio laid down in Umadevi (3) does not come to the rescue of the petitioner; on the contrary, the action of the respondents is in consonance with it. The learned Standing Counsel, addressing the issue of the alleged continuation of the petitioners in service, has submitted that it is fallacious for the petitioners to contend that these petitioners have been continued and are still being continued in service. On instructions, the learned Standing Counsel has submitted that the petitioners have been engaged intermittently about 6 to 7 days in a month based on the service exigencies. Thus, summing up the submission, the learned Standing Counsel has urged this Court to dismiss the writ petition.
7. Heard the learned counsel for the petitioners and the learned Standing Counsel for the 2nd respondent Corporation, apart from perusing the record.
8. Addressing the issue of laches, this Court has carefully examined the pleadings in the affidavit filed in support of the writ petition, apart from considering the submissions made by the learned counsel for the petitioners at the Bar. Essentially, it is the W.P.(C.) No. 23006/2014 -5- contention of the learned counsel for the petitioners that the cause of action for the petitioners arose only when the 2nd respondent decided to go for regular recruitment. It is evident that, after notification of the vacancies by the 2nd respondent, the Public Service Commission initiated the recruitment process and conducted the written test and eventually published the rank list as well. Be that as it may, the petitioners sought regularisation of the services in due recognition of their past service as casual labourers, insisting that till the regularization of their services, the 2nd respondent cannot go for regular recruitment.
9. In the first place, it is not the petitioners' indefeasible right, constitutionally or statutorily, to insist that their services be regularized. Secondly, there is no promise held out at any point of time by the 2nd respondent to the writ petitioners that their services will be regularised as and when regular vacancies would arise or before it could go for regular recruitment. Had there been any such promise, it would have bound the authorities and in such an eventuality, it would have provided the necessary cause of action for the petitioners only at the time of the 2nd respondent deciding to go for regular recruitment. In the absence of any such promise W.P.(C.) No. 23006/2014 -6- or undertaking by the authority, the petitioners' defence against the issue of laches is rather specious. It is too well established to be caviled about that even the best of the rights, including the fundamental rights, are not available to be asserted by the indolent, as equity aids the vigilant but not the indolent. Accordingly, on the first count, this Court is constrained to hold against the petitioners that the writ petition has been barred by severe laches.
10. Adverting to the contentions of the learned counsel for the petitioners on the merits of the matter, it is profitable to extract Section 25(t) of the Industrial Disputes Act, which is as follows:
"25T. Prohibition of Unfair labour practice.- 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 labour practice."
11. The expression "unfair labour practice" used in Section 25(t) is defined in Section 2(ra) which, in turn, reads as follows:
"(ra) "unfair labour practice " means any of the practices specified in the Fifth Schedule;"
12. Since it essentially leads to Schedule V, it is further profitable to extract the relevant portion, which is as follows: W.P.(C.) No. 23006/2014 -7-
"UNFAIR LABOUR PRACTICES:
I. On the part of employers and trade unions of employers
1. To interfere with, restrain from, or coerce, workmen in the exercise of their right to organise, form, join or assist a trade union or to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, that is to say-
a) threatening workmen with discharge or dismissal, if they join a trade union;
b) threatening a lock-out or closure, if a trade union is orgnaised.
c) granting wage increase to workmen at crucial periods of trade union organisation, with a view to undermining the efforts of the trade union organisation.
2. To dominate, interfere with or contribute support, financial or otherwise, to any trade union, that is to say-
a) an employer taking an active interest in organising a trade union of his workmen; and
b) an employer showing partiality or granting favour to one of several trade unions attempting to organise his workmen or to its members, where such a trade union is not a recognised trade union.
3. To establish employer sponsored trade unions of workmen.
4. To encourage or discourage membership in any trade union by discriminating against any workman, that is to say-
a) discharge or punishing a workman, because he urged other workmen to join or organise a trade union.
b) discharging or dismissing a workman for taking part in any strike (not being a strike which is deemed to be an illegal strike under this Act.
c) changing seniority rating of workmen because of trade union activities.
d) refusing to promote workmen to higher posts on account of their trade union activities.
e) giving unmerited promotions to certain workmen with a view to creating discord amongst other workmen, or to undermine the strength of their trade union.
f) discharging office-bearers or active members of the trade union on account of their trade union activities.
5. To discharge or dismiss workmen-
W.P.(C.) No. 23006/2014 -8-
a) by way of victimisation;
b) not in good faith, but in the colourable exercise of the employer's rights;
c) by falsely implicating a workman in a criminal case on false evidence or on concocted evidence.
d) for patently false reasons
e) on untrue or trumped up allegations of absence without leave.
f) In utter disregard of the principles of natural justice in the conduct of domestic enquiry or with undue haste.
g) for misconduct of a minor or technical character, without having any regard to the nature of the particular misconduct or the past record or service of the workman, thereby leading to a disproportionate punishment.
6. To abolish the work of a regular nature being done by workmen, and to give such work to contractors as a measure of breaking a strike.
7. To transfer a workman mala fide from one place to another, under the guise of following management policy.
8. To insist upon individual workmen, who are on a legal strike to sign a good conduct bond, as a pre-condition to allowing them to resume work.
9. To show favouritism or partiality to one set of workers regardless of merit.
10. To employ workmen as "badlis", casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.
11.To discharge or discriminate against any workman for filing charges or testifying against an employer in any enquiry or proceeding relating to any industrial dispute.
12.To recruit workmen during a strike which is not an illegal strike.
13.Failure to implement award, settlement or agreement.
14.To indulge in acts of force or violence.
15.To refuse to bargain collectively, in good faith with the recognised trade unions.
16.Proposing or continuing a lock-out deemed to be illegal under this Act.
II. On the part of workmen and trade unions of workmen
1. To advise or actively support or instigate any strike deemed to be illegal under this Act.
2. To coerce workmen in the exercise of their right to self-organisation or to join a trade union or refrain from joining any trade union, that is to say-
W.P.(C.) No. 23006/2014 -9-
a) for a trade union or its members to picketing in such a manner that non-striking workmen are physically debarred from entering the work places.
b) to indulge in acts of force or violence or to hold out threats of intimidation in connection with a strike against non-striking workmen or against managerial staff.
3. For a recognised union to refuse a bargain collectively in good faith with the employer.
4. To indulge in coercive activities against certification of a bargaining representative.
5. To stage, encourage or instigate such forms of coercive actions as wilful "go slow", squatting on the work premises after working hours or "gherao" of any of the members of the managerial or other staff.
6. To stage demonstrations at the residences of the employers or the managerial staff members.
7. To incite or indulge in wilful damage to employer's property connected with the industry.
8. To indulge in acts of force or violence or to hold out threats of intimidation against any workman with a view to prevent him from attending work."
13. Clause 6 sub clause 10 refers one of the incidences of unfair labour practices and the same is as follows.
"10. To employ workmen as "badlis", casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen."
14. Had it been the case of the petitioners that they were continued as casual or temporary workmen for all these years with a specific, though illegal, objective of depriving them the benefit of conferring the status of the permanent workmen, there could have been a semblance of justification in the contention of the learned W.P.(C.) No. 23006/2014 -10- counsel for the petitioners. The very petitioners have submitted that the cause of action arose for them only recently since the vacancies arose in the near past. If it were so, it could not be said, rather it is a contradiction in terms, that the 2nd respondent continued them as casual labourer all these years with a view to defeating their rights. Thus, regrettably, even Section 25(t) of the Industrial Disputes Act could not come to the rescue of the petitioners.
15. Addressing the emphasis laid by the learned counsel for the petitioner on the ratio laid down in Umadevi (3), especially paragraph 53 therein, it is to be observed that the very Hon'ble Supreme Court, on more than one occasion, subsequent to Umadevi (3), has decried the repeated attempts before various judicial fora to use the ratio of Umadevi (3) as if it were Euclid's theorem, without adverting to the facts of the case on hand.
16. Be that as it may, all that the Constitution Bench has stated in the said paragraph, as could be seen, is that if there are any irregularities, but certainly not illegalities, in the appointments at any point of time and those workmen have been allowed to continue in service for a considerable period of time, the W.P.(C.) No. 23006/2014 -11- regularisation of those candidates shall be considered on the merits of each issue. I am afraid no proposition of law of universal application has been laid down by their Lordships in the said judgment that in every instance where a workman or an employee worked for considerable time, it shall be presumed to be an irregular appointment and that it should culminate in regularisation of the services. Conversely, the Constitution Bench in Umadevi (3) has by and large deprecated the abuse of recruitment process involving public employment and thereby depriving the opportunity of more meritorious candidates waiting outside the Governmental agencies.
17. Since it is very well established that any ratio has to be understood in the context of the facts that have given rise to the said judgment, it is imperative to examine the factual aspects attending the assertion of the petitioners to have their services regularised. In 2001, when the 1st respondent rejected the claim of the petitioners through Ext.P6, the reasons have been set out, which in the considered view of this Court, are cogent and at any rate, cannot be called perverse or mala fide. It is illustrative to extract Ext.P6 in its entirety and it reads as follows: W.P.(C.) No. 23006/2014 -12-
"The permanent employees like Drivers and the Technical workers in the boats will have to be absorbed in the services of Barges operation. Besides the eight petitioners in the O.P, there are several other employees who are working in the Company as casual labourers. If all the casual labourers are regularised there will be huge financial commitment to the company because the workers made permanent, will have no adequate work to perform and they will have to be paid as regular employees . It is also pointed out that the posts come under the purview of PSC and the PSC is objecting to the proposal for the regularisation of casual employees of the Company.
It is further informed that one Smt. Jyothi.S.S filed an O.P. No. 20042/98 on the High Court of Kerala praying to terminate the services of all the provisional/casual employees working in Govt. and also working under all the Public Sector undertakings. In CMP No. 229/2001 in W.A.105/2001 filed by the State Govt., the Hon. High Court has ordered on 21.07.2001 an interim stay of the termination of services of provisional employees covered by the judgment for a period of 3 months. The above W.A is pending before the Hon. High Court."
18. As could be seen, it is very evident that the petitioners were working on casual basis in operating the boat services to islands around Kochi in connection with Gosree Projects. It is not in dispute that those projects came to an end long back. Though the 2nd respondent made every endeavour to accommodate as many casual labourers as possible on regular basis, it found it not feasible to accommodate all of them, particularly the vacancies that arose subsequently or required to be filled up through direct recruitment by taking recourse to regular selection process through PSC, in terms of statutes.
W.P.(C.) No. 23006/2014 -13-
19. Accordingly, on the lines of well established principles of jurisdiction, this Court is of the opinion that even on the merits, there is no compelling reasons to consider the case of the petitioners for regularisation; on the other hand the 1st and 2nd respondent have assigned proper and cogent reasons in Ext.P6 for more than 13 years ago, why the services of the petitioners could not be regularised.
In the facts and circumstances, this writ petition fails and is accordingly dismissed. No order as to costs.
sd/- DAMA SESHADRI NAIDU, JUDGE.
rv W.P.(C.) No. 23006/2014 -14-