Central Administrative Tribunal - Patna
Manoj Kumar vs Sail on 12 March, 2024
1 OA No. 128/2017
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH, PATNA
CIRCUIT BENCH AT RANCHI
O.A. No. 051/00128/2017
Reserved on: 15.02.2024
Pronouncement on: 12.03.2024
CORAM
HON'BLE MR. SUNIL KUMAR SINHA, MEMBER [A]
HON'BLE MR. AJAY PRATAP SINGH, MEMBER [J]
1. Manoj Kumar Son of Late Dwarika Prasad Mahto.
2. Kamta Pandey Son of Late Sharma Pandey.
3. Dwarika Prajapati Son of Late Khushlal Mahto.
4. Nandlal Singh Yadav Son of Sri Sukai Yadav.
5. Satyendra Kumar Singh Son of Late Bidya Singh.
Patna 6. Parvati Devi D/o Late Lipa Karmali.
Bench
7. Birsa Munda Son of Late Kandu Munda.
All are posted as Casual Workers in SAIL
Refractory Unit, IFICO Plant, Marar, P.O
& P.S- Marar Dist- Hazaribagh
(Jharkhand).
.......... Applicants.
-Versus-
1. Steel Authority of India Ltd. through its Chairman cum-Managing
Director, having its registered office at Ispat Bhawan, Lodhi Road, New
Delhi - 110003.
2. The Management SAIL Refractories Unit, IFICO Refractories Plant
Marar, P.O& P.S- Hazaribagh.- 829117.
........Respondents.
For Applicants:- Smt. M.M. Pal Senior Advocate with
Smt. Pushpanjali Kumari Advocate
For Respondents:-Shri Shresth Gautam, Advocate with
Shri Rajarshi Singh, Advocate
ORDER
AS PER:- AJAY PRATAP SINGH, MEMBER [JUDICIAL]
1. The applicantshave filed present original application under Section 19 of the Administrative Tribunals, Act 1985 seeking direction to respondents to regularize services of the applicants on completion of more than ten years of their continuous services. So also to extend all service benefits to the applicants at par with regular employees of the Management. So also to direct respondents 2 OA No. 128/2017 to regularize services as Management has already regularized 78 such employees similarly placed and not to discriminate applicants.
PRAYER
2. The applicantshave claimed following main reliefs (as extracted from the OA):-
(i) The Respondents be directed to regularize the services of the petitioners on completion of ten years of their continuous services and to extend all the service benefits to these petitioners at par with the regular employees of the Management.
(ii) The Respondents be directed to regularize the service of the petitioners at par with the 78 such employees who have already been regularized after the Award dated 30.08.2011 passed in Ref. Case no. 02 of 2005.
(iii) The Respondents be directed not to discriminate the petitioners and to extend the benefits of regularization on completion of ten years of continuous services at per with the same and similarly situated persons.
(iv) The Respondents be directed not to give effect to the letter dated 26th Aug 2015 and to reconsider the case of these petitioners consider the direction dated 30.08.2011 passed in Ref. Case no. 02 of 2005.
(v) The Respondents be directed to treat the age of superannuation of these Patna petitioners as 60 years at per with the employees of SAIL.
Bench FACTS IN BRIEF
3. Briefly stated, the facts, as adumbrated by the applicants in the OA. that the seven applicants were appointed against vacant sanctioned post on 04.08.1998, 01.07.1997, 10.12.1997, 14.04.1997, 14.04.1997, 05.03.2004 and 03.07.2000 respectively by office orders on approval of C.M.D. issued by Junior Manager (P&A) of Bharat Refractories Limited (for brevity hereinafter referred as "BRL"). It is pertinent to mention that applicant no. 6 is legal heir of workman Late Shri Lipa Karmali appointed on 05.03.2004 on compassionate grounds. The applicant no. 7 is son of Late Shri Kandu Munda (workman) appointed on 02.07.2000 on compassionate grounds in the erstwhile BRL, a public Sector Unit under the Ministry of Steel, Govt. of India.
4. The further case of the applicants that on
(i) 15.09.1995:- The Tripartite settlement arriving among M/s Bharat Refractories Ltd. and its subsidiary India Firebricks Insulation Company Ltd. (in short IFICO) and their workmen, providing that whenever casual employees are engaged on regular work they would be paid actual wages payable to the regular employees w.e.f. January, 1985. The management has accordingly paid the wages, bonus, Dearness Allowance since 1985, but services of casual workmen not been regularized.
(ii) 03.12.1992:- The Settlement arrived with Management to regularize services of casual workers within six months in first batch 56 by May, 1992 rest within six months. But the Management has not implemented the settlement.
(iii) 02.05.2003:- The Management has not implemented earlier Tripartite settlements and the statements mentioned above. The Charter of demand dated 3 OA No. 128/2017 02.05.2003 was submitted to the Management for regularization and grant of other service benefits at par with regular employee but not fulfilled by the Management.
(iv) 07.07.2005:- The Management has not taken any action on the fifteen points charter of demand dated 02.05.2003 for regularization. Thereafter the Industrial Dispute was raised. The Govt. of Jhankhand referred the Industrial Dispute vide notification dated 07.07.2005 for adjudication reads:-
"Whether not to fulfil the proper demands of 15 points demand letter dated 02.05.2003 of Janta Mazdoor Sangh by the Management of M/s Bharat Refractories Ltd. IFICO Refractories Plant, Marar Hazaribagh is justified? Whether not to regularize 119 casual workmen of enclosed list is justified? If not, what relief the related workmen are entitled to and since when?"
(v) 28.07.2009:- The BRL including IFICO Refractories Plant, Marar, Distt. Patna Bench Ramgarh, Jharkhand under the Ministry of Steel Govt. of India has been amalgamated with SAIL. The Order dated 28.07.2009 was published in the Gazette of India, merger is effective from 01.04.2007.
(vi) 23.07.2010:- The order was issued to grant casual mazdoor apart from wages also entitled to Rs. 3959 and 4270 per month as additional amount w.e.f. April 2010.
(vii) 30.08.2011:- The Reference Case No. 02 of 2005 titled the Management of M/s Bharat Refractories Ltd and their workmen was heard by learned Industrial Tribunal, Ranchi. The Learned Industrial Tribunal considered the documentary evidence as well as oral evidence and finally the Award dated 30.08.2011 was passed. The reference was "whether non-fulfillment of the proper demands of the fifteen points demand letter dt. 02.05.2003 of Janta Mazdoor Sangh by the Management of M/s BRL, IFCO Refractories Plant, Marar, Hazaribagh is justified? Whether not to regularize 119 casual workmen of enclosed list is justified? If not, what relief the related workmen are entitle to and since when?‖ The applicants‟ names were in fifteen points charter of demand dated 02.05.2003, working as casual workers since more than 20 years without any break under management of BRL at its refractories Plant, Marar, Hazaribagh. The 124 workmen including applicants were named in list- Annexure-II who had been denied their regularization. Whereas 11 casual workers named in list- Annexure-III employed at H.Q. of BRL, Bokaro had been regularized as permanent workers in year 2003. Inspite of performing similar nature of duties applicants including others among 124 workmen not been paid benefits at par with regular employees of the Management. So also as per Tripartite Settlement 4 OA No. 128/2017 dt. 15.09.1985 casual workers were to be paid actual wages payable to the regular employees w.e.f. Jan, 1985, whereas concerned workmen paid wages, bonus, D.A. since 1985 but not been regularized in services. So also respondents not implemented settlement dated 03.02.1992 to regularize casual workers.
The Management did not honour terms of abovementioned settlements as to demand of concerned workmen for their regularization and for grant of other service benefits at par with regular employees. Thereafter fifteen points charter of demand Annexure-II was submitted to the Management of IFCO on 02.05.2003. The IFCO Refractories Plant unit of BRL, situated at Marar in District of Ramgarh. The respondents submitted before the learned Industrial Tribunal that Indian firebricks and Insulation Company Ltd. (IFCO) was a unit of BRL, had merged with SAIL and IFICO has become a unit of SAIL and is Patna Bench known as SAIL Refractory Unit.
The Learned Industrial Tribunal in para 6 of the award has given finding based on legal evidence adduced in the reference case that concerned workmen were continuously employed by the management at its Refractories Plant at Marar and based on documents returned the findings that deductions of Provident Fund used to be made by the management from the wages of individual. The ld. Tribunal in para 7 also found that eleven casual workers who were junior to concerned workmen were regularized by management. Even One Shri Pradeep Mahto, contractual labour, junior to the concerned workmen regularized services in year 2003 and posted in company H.Q. The Learned Industrial Tribunal further held in para 6 that evidence also indicate that in the year 1981 as many as seventy casual workers were regularized by the management, followed by thirty six contract labours who were regularized in 1982. The witnesses also suggested that by pick and choose method, the Management has regularized few casual labours. Whereas non- regularization denied to these workmen and not given increments, LTC, HRA, Promotional benefits etc. at par with the regular employees.
The Learned Industrial Tribunal framed issue ―whether on admitted facts concerned workmen deserves to be regularized in service?‖The Learned Tribunal analyzed the material evidence and came to its conclusion that notice dated 02.05.2003 by which union has raised 15 points demand for regularization of such casual workers who had completed more than 240 days‟ work in a calendar, who have been working for more than 20-27 years as casual employees but not been regularized. Whereas based on settlement dt.
5 OA No. 128/201703.02.1992 as many as eleven casual workmen were regularized in discriminatory manner without considering applicants. The Learned Tribunal in para 15 & 16 of the Award held that agreement clause 14.4 in Tripartite Agreement dt. 15.09.1985 stipulated that whenever casual employees are engaged on regular work they will be paid actual wages payable to the regular employees w.e.f. 01.01.1985. So also para no. 15.1 standardization committee for working conditions at par with regular employee and paid wages at par with regular employee. The document dt. 03.02.1992 taken into consideration by the Learned Tribunal in para 17 of the award, in the presence of Dy. Labour Commissioner, Hazaribagh related to demand of their regularization. The Dy. Labour Commissioner issued direction to the management to ensure regularization by end of August 1992 but never carried out by the management.
The Management regularized only eleven casual workmen in year 2003 Patna Bench and some of them thereafter. But applicants discriminated and denied regularization, regular pay-scale at rate given to the regular employees. The Workers‟ Union by way of notice dt. 02.03.2005 raised demand for regularization of 119 workmen. The workmen continuously working for decades and now SAIL is the present employer. The Learned Tribunal has recognized right of applicants for regularization and applicants also completed more than twenty years and cannot be stigmatized, discriminated by respondents forever for notcompleting ten years on 02.03.2005.
(viii) July, 2012:- The Management of SAIL- employer started process of regularization pursuant to the Award dated 30.08.2011. As many as 78 workmen have been regularized and orders of appointment issued on 11.07.2012 and have been placed in regular S-1 grade Attendant-cum- Technician Trainee in pay scale of Rs. 8630-3%-12080. The respondents have discriminated applicants inspite of completed decades in continuous service without any break.
(ix) 28.01.2015:- The applicants are within the list of 119 workmen approached through the Workmen, Union in reference Case No. 2/2005. The Award pronounced and in compliance only 78 workmen regularized as mentioned above. Whereas applicants stigmatizedthat they have not completed ten years. The applicants have completed more than two decades of continuous working still in working IFICO Plant.
5. The further case of the applicants that the Award is to regularize services of 119 workmen completion of ten years continuous services of those, who 6 OA No. 128/2017 were on roll as on 02.05.2003. Thus applicants are also entitled for regularization completed more than ten years continuous service.
6. Per contra, respondents have contested the claim of seven applicants by filing written statement that applicants were engaged as casual workers on ad- hoc/daily rated by the Management of the IFICO Refractories Plant, a unit of erstwhile BRL now under the management of SAIL. The Award dt. 30.08..2011 is to consider cases for regularization of these casual workers who rendered more than ten years continuous service as on 02.05.2003. In compliance of mandate of the award, 78 casual workmen have been regularized. The Award was conditional and only such workmen who had completed a minimum of ten years of casual employment as on 02.05.2003 had been regularized and pursuant to the award in total 78 workmen regularized out of serving 87 casual workers.
Patna Bench 7. The respondents have further submitted that in light of one time measure as envisaged in Uma Devi Case and M.L. Kesari case and same has been implemented. The applicants have not completed ten years‟ service as on 02.05.2003 as such could not be considered as per terms of the Award. The six applicants (except applicant no. 6) in present OA were in list of 119 casual workmen in reference case no. 02 of 2005.
8. The rejoinder has been filed by the applicants specifically denying the contentions of respondents made in the written statement. The applicants have stated that they are continuously working for more than twenty years without any break and performing same nature of duties at par with regular employee and denial of benefits of at par with regular employees is unfair labour practice and exploitation, violation of Art. 14, 16, 39(d) of the Constitution of India.
The applicants further stated in their rejoinder that there are more than five hundreds sanctioned posts vacant upon retirement of 800 regular employees between 2000 to 2022. The seventy eight workmen, similar to applicants regularized in pursuant to Award dt. 30.08.2011 in reference case no. 2/2005. So also out of 78 only 20 regular employees are on roll rest of them retired. The list of retired employee also annexed as Annexure A-6. The applicants have been working continuously same is the sufficient proof that work is of permanent nature and there is requirement of services of the applicants and posts are lying vacant.
9. The applicants have further made averment in the rejoinder that Awardwas for regularization of 119 workmen named in list including applicants and by misconstruction of the award dt. 30.08.2011, the applicants cannot be 7 OA No. 128/2017 discriminated. The applicants were on roll as on 02.05.2003 under erstwhile BRL and completed more than ten years‟ service and deserve regularization as similarly in case of 78 workmen already regularized on post of Attendant-cum- Technician Trainee, S-1 Grade.
10. The applicants also clarified that out of seven applicants, applicant no. 6 is legal heir of Late Lipa Karmali ex-workmen.
11. Mr. Lipa Karmali ex-workmen left for heavenly abode during pendency of the reference case. Thereafter applicant no. 6 was appointed as Mr. Lipa Karmali, the deceased workman completed ten years of continuous service in year 2014. The applicants completed ten years before date of award and entitled for benefits of regularization at par with the regular employees, equal pay for equal work in regular S-1 Grade including benefits of age of retirement at sixty years.
Patna Bench SUBMISSIONS ON BEHALF OF THE APPLICANTS
12. Smt. M.M. Pal Learned Senior Advocate with Smt. Pushpanjali Kumari Advocate vociferously canvassed that applicants have completed more than twenty years of continuous services as casual workmen and all applicants completed more than ten years continuous service against sanctioned posts. The similarly placed 78 workmen have been regularized on the posts of Attendant- cum-Technician (Trainee) placed in S-1 grade in pay scale of Rs. 8670-3%- 12080 in SAIL Refractory Unit IFICO Plant P.O. Marar District Ramgarh. The Learned Senior Advocate appearing for the applicants further contended that there are more than five hundreds posts vacant due to retirement of about eight hundreds regular employees between 2000 to 2022. So also out of similarly placed 78 employee regularized pursuant to Award dated 30.08.2011. The fifty eight regular employees out of seventy eight workmen regularized have retired or left for heavenly abode (list enclosed as Annexure-A/6).
13. Smt. M.M. Pal Learned Senior Advocate also submitted that respondents allowed applicants to continue as there is requirement of services of applicants, fulfills requisite qualifications, services also satisfactory, out of 119 workmen approached before learned Industrial Tribunal in reference case services of 78 workmen already regularized and applicants are among 119 workmen in reference case no. 02/2005 but discriminated and not been paid regular scale of pay at par with regular employees due to not being regularized. The applicants are also legally entitled for consideration for regularization and to get appointed against sanctioned posts.
8 OA No. 128/201714. Smt. M.M. Pal Learned Senior Advocate also contended that Award dated 30.08.2011 has to be read in entirety. The para 1, 28 and 29 of the award has already recognized legal rights of all the applicants entitled for regularization and for all other benefits who have completed ten years of continuous service at par with regular employees.
15. Smt. M.M. Pal Learned Senior Advocate much emphasized that the Award has recognized legal rights for regularization and same not been declined for regularization. All the applicants already completed more than ten years continuous services and are still working, hence they cannot be discriminated by the respondents.
16. Smt. M.M. Pal Learned Senior Advocate to buttress the argument, relied upon judgments summarized as under:-
(a) Raman Kumar & Ors. Versus Union of India& Ors., 2023 SCC Patna Bench Online SC 1018, Relevant Para 8,10 & 13 reads as under:-
8. Indisputably, the appellants herein have completed service of more than ten years. Even this Court in the case of Ravi Verma and Others v.
Union of India and Others (Civil Appeal No(s).2795-2796 of 2018) decided on 13.03.2018 found that the act of regularizing the services of some employees and not regularizing the services of discriminatory and violative of Article Constitution of India.
10. We are not inclined to accept the submission on behalf of the respondents. When the Chief Commissioner of Income Tax has himself found that 65 persons were entitled to be regularized, the act of regularizing the services of only 35 employees and not regularizing the services of other employees, including the appellants, is patently discriminatory and violative of Article Constitution of India.
13. The services of the appellants are directed to be regularized from the date on which the services of other 35 employees were regularized and the backwages and other consequential benefits etc., to which the appellants would be entitled to, shall be paid to them within a period of six months from today.‖
(b) State of Karnataka and others Versus M.L. Kesari and others, reported in (2010) 9 SCC 247. Relevant Para 7, 9 & 10 reads as under:-
7. It is evident from the above that there is an exception to the general principles against "regularisation" enunciated in Umadevi (3), if the following conditions are fulfilled:
i. The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the C interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years.
ii. The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular.
9. The term "one-time measure" has to be understood in its proper perspective. This would normally mean that after the decision in 9 OA No. 128/2017 Umadevi (3), each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily-wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularise their services.
10. At the end of six months from the date of decision in Umadevi (3) cases of several daily-wage/ad hoc/casual employees were still pending h before courts. Consequently, several departments and instrumentalities did any daily-wage/casual/ad hoc employees serving the Zila Panchayat and if so whether such employees (including the respondents) fulfil the requirements mentioned in para 53 of Umadevi (3)¹. If they fulfil them, their services have to be regularised. If such an exercise has already been undertaken by ignoring or omitting the cases of Respondents 1 to 3 because of the pendency of these cases, then their cases shall have to be considered in continuation of the said one-time exercise within three months, It is needless to say that if the respondents do not fulfil the requirements of para 53 of Umadevi (3)¹, their services need not be regularised. If the employees who have completed ten b years' service do not possess the educational qualifications prescribed for the post, at the time of their appointment, they may be considered for regularisation in Patna suitable lower posts.
Bench (c) The Union of India & Ors. Versus Central Administrative Tribunal, Patna & Ors., 2005 (4) PLJR 241 Relevant Para 15, 17 & 18.
"15. The Hon'ble Apex Court as well as this Court on several occasions have deprecated employment of temporary or casual workers for the post/works of permanent nature as would be apparent from the decisions in the cases of Bhagwati Prasad, [1990 (1) L.L.N. 7] (vide supra), Jacob M. Puthuparambil, [1990 (2) L.L.N. 1032] (vide supra) and State of Haryana, [1992 (2) L.L.N. 1037] (vide supra), and for that the scheme of 1993 was provided, but disregarding the same the authorities concerned appointed the said respondent Nos. 2 to 4 on the post/works of permanent nature as would be apparent from their continuous and uninterrupted service for 8-10 years. Hence in the aforesaid circumstances even if the scheme of 1993 was not applicable in the instant case, it was the duty of the authorities concerned to take positive steps in the case of said respondents in accordance with the guiding principles laid down by the Hon'ble Apex Court in the case of State of Haryana (vide supra).
17. Furthermore, from the scheme of 1993, it appears that no bar has been provided therein with regard to temporary status or regularisation of casual labourers, who were to be engaged after 1993. Furthermore, the petitioners themselves have been extending such benefits to casual labourers of various departments from time to time, even after coming into force of the scheme of 1993. In any view of the matter such types of scheme are formulated for the welfare of such employees and not for exploiting them as ―begaars‖ and throwing them out after taking work during the prime period of their life for 8-10 years. Such acts are clearly violative of the directive principles of State policy enshrined in Art. 39 of the Constitution of India and also the endeavour the State has to make under Art. 43 thereof. Hence in the aforesaid circumstances, respondent Nos. 2 to 4 are definitely entitled to similar treatment if not by the authorities then at least by the Courts.
18. In the aforesaid facts and circumstances, the decision of the Tribunal cannot be faulted with, which is based on its opinion that respondent Nos. 2 to 4 were also entitled for extension of benefits of the aforesaid scheme, which had been extended from time to time by the petitioners themselves in several departments and no discrimination can be allowed to be cast to the persons employed after 1993 only on the ground that the scheme of 1993 had been held to be a one time scheme and not ongoing scheme, frustrating the entire purpose and efforts of the Welfare State, for which various schemes have been formulated from time to time.10 OA No. 128/2017
Hence the Tribunal has rightly directed the petitioners to confer temporary status to the applicants and thereafter to consider their cases for regularisation against available vacant posts while passing a reasonable and speaking order within a period of four months, but in any case the said applicants (respondent Nos. 2 to 4) were held not entitled for any back wages after attaining temporary status.‖ SUBMISSIONS ON BEHALF OF THE RESPONDENTS
17. Shri Shreshth Gautam Learned counsel for respondents with Shri Rajarshi Singh Advocate appearing for respondents argued that the award passed in Reference Case No. 02/2005 by Learned Industrial Tribunal in sub- para (iii) para 29 of conclusion, directed SAIL to regularize all of such workmen named in the list of 119 persons, who had completed more than ten years of continuous service under erstwhile BRL as on 02.05.2003. The applicants in the present OA did not complete continuous service of ten years as on 02.05.2003, hence not entitled for regularization accordance with the award Patna Bench dated 30.08.2011 as same has attained finality.
18. Shri Shreshth Gautam, Learned counsel for respondents further contended that only 78 workmen out of 87 workmen in service fulfilled pre- condition set out in the award for consideration for regularization i.e. served for a minimum period of ten years as on 02.05.2003. The SAIL has taken steps accordance with terms of the award and complied with. The applicants did not fulfill pre-condition as laid down in sub-para (iii) of Para 29 of the award as on 02.05.2003 hence could not be regularized.
19. Shri Shreshth Gautam, Learned counsel laid much emphasis on one time measure as stipulated in the Constitution Bench Judgment in case of Uma Devi (Supra) and explained in case of M.L. Kesari (Supra) that no further demand can be raised for seeking regularization of employment of casual workers.
20. Shri Shreshth Gautam, Learned counsel for respondents further submitted that applicants seeking regularization in light of the conditional award and they are not workmen who have completed ten years under BRL as on 02.05.2003 and never appointed against sanctioned vacant posts and not entitled for equal pay for equal work at par with regular employees regular grade S-1.
21. Shri Shreshth Gautam, Learned counsel with Shri Rajarshi Singh Advocate relied upon judgments summarized as under:-11 OA No. 128/2017
(a) Hon'ble Supreme Court in State of Karnataka Vs. M.L. Kesari (2010) 9 SCC 247 has clarified that decision in Uma Devi case is to be understood as a "One time measure". Relevant Para 8 reads as:-
"8.Umadevi (3) [(2006) 4 SCC 1] casts a duty upon the Government or instrumentality concerned, to take steps to regularise the services of those irregularly appointed employees who had served for more than ten years without the benefit or protection of any interim orders of courts or tribunals, as a one- time measure. Umadevi (3) [(2006) 4 SCC 1] directed that such one-time measure must be set in motion within six months from the date of its decision (rendered on 10-4-2006).‖
(b) Hon'ble Supreme Court in its decision in State of Karnataka Versus Uma Devi (2006) 4 SCC 1 relevant para 53 reads:-
"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [(1967) 1 SCR 128 : AIR 1967 SC 1071] , R.N. Nanjundappa [(1972) 1 SCC 409 : (1972) 2 SCR 799] and B.N. Nagarajan [(1979) 4 SCC 507 : 1980 SCC (L&S) 4 : (1979) 3 SCR 937] and referred to in para 15 above, of duly qualified persons in duly sanctioned Patna vacant posts might have been made and the employees have continued to work for ten Bench years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.‖
(c) TheHon'ble Supreme Court in State of U.P. Versus Ram Adhar (2008) 12 SCC 136 Relevant Para 5 reads as:-
―5. It may be mentioned that there is no principle of law that a person appointed in a temporary capacity has a right to continue till a regular selection. Rather, the legal position is just the reverse, that is, that a temporary employee has no right to the post vide State of U.P. v. Kaushal Kishore Shukla [(1991) 1 SCC 691 : 1991 SCC (L&S) 587 : (1991) 16 ATC 498] . Hence, he has no right to continue even for a day as of right, far from having a right to continue till a regular appointment.‖
22. We have bestowed our anxious considerations on the rival contentions of the Learned Counsels appearing for the parties and perused the material on record and precedents relied upon.
THE ISSUE
23. From the above submissions of the Learned counsels appearing for the parties and material placed on record the issue arises before us for consideration:-
―Whether applicants can be denied regularization in terms of the award dated 30.08.2011 in reference case No. 02/2005 only on the basis of cut-off date.
When right to regularization of the applicants in the award has not been 12 OA No. 128/2017 declined and completed more than 20 years of continuous services and similarly placed employees already regularized?‖ ANALYSIS
24. The applicants were duly engaged against R-1 and R02 grades in the erstwhile BRL, a public sector unit under the Ministry of Steel, Government of India. The Chairman-cum-Managing Director approved the offer of appointment and appointment orders Annexure A-3 series were issued, with clear stipulation that applicants are appointed in production Department of the BRL and entitled for privileges and benefits admissible to Mazdoors in R-1 and R-2 grade with pay payable on monthly basis along with adhoc basis amount Rs. 3959 and Rs. 4270 per month. The present applicants in the OA are seven in numbers continuously working and still working for more than 20 years (In Patna case of applicant no. 6 & 7, are legal heir of deceased workmen appointed on Bench compassionate grounds and also completed more than 20 years).
25. Theworkers-union arrived at Tripartite Settlement on 15.09.1995 that whenever casual workmen are engaged on regular work, would be paid actual wages payable to the regular employees w.e.f. January 1985. The appointments were against vacant sanctioned posts of initial S-1 grade in the company. The settlement dt. 15.09.1995, tripartite settlement, thereafter other settlement executed i.e. on 03.12.1992, 02.05.2003, amongst BRL, its subsidiary IFICO and workmen-Union but the Management did not implement terms of the settlements to regularized services of applicants and other 119 similarly, placed casual workmen working since long.
26. The expression „settlement'is defined in Section 2(p) of the Industrial Disputes Act, 1947 (hereinafter for brevity referred as Act, 1947). For ready reference Section 2(p) of Act, 1947 reads as:-
"4 [(p) "settlement" means a settlement arrived at in the course of conciliation proceeding and includes a written agreement between the employer and workmen arrived at otherwise than in the course of conciliation proceeding where such agreement has been signed by the parties thereto in such manner as may be prescribed and a copy thereof has been sent to [an officer authorised in this behalf by] the appropriate Government and the conciliation officer;]"
On bare perusal of above definition of "settlement" it is clear that a distinction is made in the Act, 1947 between a settlement arrived at in the course of conciliation proceeding and a settlement arrived at by agreement between the employer and workmen otherwise than in conciliation proceeding both as regards the procedure to be followed in the two cases and as regards the persons on whom they are binding.
13 OA No. 128/201727. In this case on hand as stated hereinabove and evident from para 4, various settlements were arrived between workmen and employer to regularize services of workmen and grant other privileges and benefits particularly equal pay for equal work at part with regular employee in S-1 grade but commitment made by the Management employer not fulfilled, whereas terms of such conciliation proceedings and terms of a settlement arrived at by agreement between the BRL now SAIL as employer and workmen are binding. The Section 10, 12, 18, 19 and 29 of Act, 1947 are relevant in this case involving peculiar facts and circumstances. For ready reference, Section 10, 12, 18, 19 and 29 of Act, 1947 are reproduced as under;-
"10. Reference of disputes to Boards, Courts or Tribunals.--(1) [Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time], by order in writing,--
Patna (a) refer the dispute to a Board for promoting a settlement thereof;
Bench or
(b) refer any matter appearing to be connected with or relevant to
the dispute to a Court for inquiry; or
[(c) refer the dispute or any matter appearing to be connected with,
or relevant to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication; or
(d) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a Tribunal for adjudication:
Provided that where the dispute relates to any matter specified in the Third Schedule and is not likely to affect more than one hundred workmen, the appropriate Government may, if it so thinks fit, make the reference to a Labour Court under clause (c):] [Provided further that] where the dispute relates to a public utility service and a notice under section 22 has been given, the appropriate Government shall, unless it considers that the notice has been frivolously or vexatiously given or that it would be inexpedient so to do, make a reference under this sub-section notwithstanding that any other proceedings under this Act in respect of the dispute may have commenced:
[Provided also that where the dispute in relation to which the Central Government is the appropriate Government, it shall be competent for that Government to refer the dispute to a Labour Court or an Industrial Tribunal, as the case may be, constituted by the State Government.]
12. Duties of conciliation officers.--(1) Where any industrial dispute exists or is apprehended, the conciliation officer may, or where the dispute relates to a public utility service and a notice under section 22 has been given, shall hold conciliation proceedings in the prescribed manner.
(2) The conciliation officer shall, for the purpose of bringing about a settlement of the dispute, without delay, investigate the dispute and all matters affecting the merits and the right settlement thereof and may do all such things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute. (3) If a settlement of the dispute or of any of the matters in dispute is arrived at in the course of the conciliation proceedings the conciliation officer shall send a report thereof to the appropriate Government 2 [or an officer authorised in this behalf by the appropriate Government] 14 OA No. 128/2017 together with a memorandum of the settlement signed by the parties to the dispute.
(4) If no such settlement is arrived at, the conciliation officer shall, as soon as practicable after the close of the investigation, send to the appropriate Government a full report setting forth the steps taken by him for ascertaining the facts and circumstances relating to the dispute and for bringing about a settlement thereof, together with a full statement of such facts and circumstances, and the reasons on account of which, in his opinion, a settlement could not be arrived at.
(5) If, on a consideration of the report referred to in sub-section (4), the appropriate Government is satisfied that there is a case for reference to a Board, 3 [Labour Court, Tribunal or National Tribunal], it may make such reference. Where the appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons therefor.
(6) A report under this section shall be submitted within fourteen days of the commencement of the conciliation proceedings or within such shorter period as may be fixed by the appropriate Government:
[Provided that, [subject to the approval of the conciliation officer,] the time for the submission of the report may be extended by such period as may be agreed upon in writing by all the parties to the dispute.] Patna Bench 18. Persons on whom settlements and awards are binding.--2 [(1) A settlement arrived at by agreement between the employer and workman otherwise than in the course of conciliation proceeding shall be binding on the parties to the agreement.
(2) [Subject to the provisions of sub-section (3), an arbitration award] which has become enforceable shall be binding on the parties to the agreement who referred the dispute to arbitration.] [(3)] A settlement arrived at in the course of conciliation proceedings under this Act 3 [or an arbitration award in a case where a notification has been issued under sub-section (3A) of section 10A] or 4 [an award 5 [of a Labour Court, Tribunal or National Tribunal] which has become enforceable] shall be binding on--
(a) all parties to the industrial dispute;
(b) all other parties summoned to appear in the proceedings as
parties to the dispute, unless the Board, 6 [arbitrator,] 7 [Labour Court, Tribunal or National Tribunal], as the case may be, records the opinion that they were so summoned without proper cause;
(c) where a party referred to in clause (a) or clause (b) is an employer, his heirs, successors or assigns in respect of the establishment to which the dispute relates;
(d) where a party referred to in clause (a) or clause (b) is composed of workmen, all persons who were employed in the establishment or part of the establishment, as the case may be, to which the dispute relates on the date of the dispute and all persons who subsequently become employed in that establishment or part.
19. Period of operation of settlements and awards.--(1) A settlement shall come into operation on such date as is agreed upon by the parties to the dispute, and if no date is agreed upon, on the date on which the memorandum of the settlement is signed by the parties to the dispute. (2) Such settlement shall be binding for such period as is agreed upon by the parties, and if no such period is agreed upon, for a period of six months 9 [from the date on which the memorandum of settlement is signed by the parties to the dispute], and shall continue to be binding on the parties after the expiry of the period aforesaid, until the expiry of two months from the date on which a notice in writing of an intention to terminate the settlement is given by one of the parties to the other party or parties to the settlement.
(6) Notwithstanding the expiry of the period of operation under sub- section (3), the award shall continue to be binding on the parties until a period of two months has elapsed from the date on which notice is given 15 OA No. 128/2017 by any party bound by the award to the other party or parties intimating its intention to terminate the award.
[(7) No notice given under sub-section (2) or sub-section (6) shall have effect, unless it is given by a party representing the majority of persons bound by the settlement or award, as the case may be.]]
29. Penalty for breach of settlement or award.--Any person who commits a breach of any term of any settlement or award, which is binding on him under this Act, shall be punishable with imprisonment for a term which may extend to six months, or with fine, or with both 2 [and where the breach is a continuing one, with a further fine which may extend to two hundred rupees for every day during which the breach continues after the conviction for the first] and the Court trying the offence, if it fines the offender, may direct that the whole or any part of the fine realised from him shall be paid, by way of compensation, to any person who, in its opinion, has been injured by such breach.]"
[Emphasis supplied]
28. Now coming to the facts of the case on hand as gathered from the reference case No. 02/2005 in case of present applicants included within list of 119 casual workmen enclosed list seeking regularization and consequential Patna Bench benefits. The cause of action arose pursuant to 15 points charter of demand dt.
02.05.2003.When despite several settlements representations, as per Act 1947demand of concerned 119 workmen for their regularization and grant of ther service benefits at par with other regular employees was not fulfilled by the Management, in spite of various settlements, tripartite settlement, agreements between workmen Union and Management, so also before conciliation officer appointed under beneficial legislation i.e. Act, 1947.
29. The Hon'ble Supreme Court in case of General Manager, Security Paper Mill, Hoshngabad Versus R.S. Sharma and Others, reported in (1986) 2 SCC 151. Their Lordships were dealing with issue related to binding nature of settlement arrived under provisions of Act, 1947 unless it is terminated or brought to (Annexure-A/3) end in some manner known to the law. The Section 19(2) of Act, 1947 provides that a settlement shall be binding on the persons on whom as agreed upon by the parties and will continue to be binding until the expiry of two months from date of notice in writing of intention to terminate the settlement is given by one of the parties to the other party bound by the settlement in view of provisions contained in Sub-section 7 of Section 19 of Act, 1947. Their Lordships observations in para 5,6& 7 relevant to the point in issue and for ready reference reproduced as under:-
"5. The expression „settlement‟ is defined in Section 2(p) of the Industrial Disputes Act, 1947. It means a settlement arrived at in the course of conciliation proceeding and also includes a written agreement between employer and workmen arrived at otherwise than in conciliation proceeding where such agreement has been signed by the parties thereto in such manner as may be prescribed and a copy thereof has been sent to an officer authorised in this behalf by the appropriate Government and the Conciliation Officer. A distinction is made in the Industrial Disputes Act, 1947 between a settlement arrived 16 OA No. 128/2017 at in the course of conciliation proceeding and a settlement arrived at by agreement between the employer and workmen otherwise than in conciliation proceeding both as regards the procedure to be followed in the two cases and as regards the persons on whom they are binding. Section 12 of the Industrial Disputes Act, 1947 lays down the duties of Conciliation Officer. Under sub-section (1) of Section 12 where any industrial dispute exists or is apprehended, the Conciliation Officer is required to hold conciliation proceedings in the prescribed manner. By sub-section (2) thereof he is charged with the duty of promptly investigating the dispute and all matters affecting the merits and the right settlement thereof for the purpose of bringing about the settlement of the dispute and he is required to do all necessary things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute. If a settlement of the dispute or of any of the matters in dispute is arrived at in the course of the conciliation proceeding the Conciliation Officer shall send a report thereof to the appropriate Government or an officer authorised in that behalf by the appropriate Government together with a Memorandum of Settlement signed by the parties. Even though a Conciliation Officer is not competent to adjudicate upon the disputes between the management and its workmen he is expected to assist them to arrive at a fair and just settlement. He has to play the role of an adviser and friend of both the Patna parties and should see that neither party takes undue advantage of the Bench situation. Any settlement arrived at should be a just and fair one. It is on account of this special feature of the settlement sub-section (3) of Section 18 of the Industrial Disputes Act, 1947 provides that a settlement arrived at in the course of conciliation proceeding under that Act shall be binding on (i) all parties to the industrial dispute, (ii) where a party referred to in clause (i) is an employer, his heirs, successors, or assigns in respect of the establishment to which the dispute relates and (iii) where a party referred to in clause (i) is comprised of workmen, all persons who were employed in the establishment or part of the establishment as the case may be to which the dispute relates on the date of the dispute and all persons who subsequently become employed in that establishment or part. Law thus attaches importance and sanctity to a settlement arrived at in the course of a conciliation proceeding since it carries a presumption that it is just and fair and makes it binding on all the parties as well as the other workmen in the establishment or the part of it to which it relates as stated above. But in the case of a settlement not arrived at in the course of the conciliation proceeding it has to be in writing and signed by the parties in the prescribed manner and a copy thereof should be sent to the officer authorised by the appropriate Government in this behalf and to the Conciliation Officer. Such a settlement arrived at by agreement between the employer and workmen otherwise than in the course of conciliation proceedings is binding only on the parties to the agreement as provided in Section 18(1) of the Industrial Disputes Act, 1947. Such a settlement is not binding on the other workmen who are not parties to the settlement.
6. It is seen from the material placed before us that there were three Unions and there was no evidence to show that the respondents were the members of the SPM Employees Union which had entered into the agreement dated April 11, 1979. Since it is not shown that SPM Employees Union which had entered into the agreement could represent the respondents herein and that the respondents were parties to it, the agreement was not binding on them.
7. The settlement arrived at in the course of conciliation proceeding on June 29, 1973 which was binding on the appellant and the respondents herein would remain in operation until it is terminated or brought to an end in some manner known to law. Section 19(2) of the Industrial Disputes Act, 1947 provides that a settlement shall be binding on the persons on whom it is binding for such period as is agreed upon by the parties and if no such period is agreed upon for a period of six months from the date on which the memorandum of settlement is signed by the parties to the dispute and shall continue to be binding on the parties 17 OA No. 128/2017 after the expiry of the period aforesaid until the expiry of two months from the date on which a notice in writing of an intention to terminate the settlement is given by one of the parties to the other party or parties to the settlement. No notice given under Section 19(2) shall have effect unless it is given by a party representing the majority of persons bound by the settlement in view of the provisions contained in sub-section (7) of Section 19 of the Industrial Disputes Act, 1947. No such plea of termination under Section 19(2) is taken in this case by the management. The agreement entered into on April 11, 1979 between the management and the SPM Employees Union which is not binding on the respondents cannot have the effect of depriving them of their right under the settlement dated June 29, 1973 as long as it is in operation. The first contention, therefore, fails."
[Emphasis supplied]
30. In view, whereof, we hold that respondents have illegally deprived applicants benefits of binding settlements under Industrial Law and applicants also entitled for regularization and benefits at par with regular employees. The respondents indulged in unhealthy and unfair labour practice.
31. The applicants as stated hereinabove were among 119 workmen Patna Bench submitted the fifteen points charter of demand to the Management of IFICO on 02.05.2003. The Industrial Dispute was raised by the workmen (including applicants among 119 casual workmen) under Act, 1947 to fulfill proper demand of fifteen points charter of demand dated 02.05.2003 through JantaMazdoor Singh to regularize 119 casual workmen in enclosed list and grant consequential relief. The appropriate government was of the opinion that industrial dispute existed and reference was made under Sub-sub-section (d) of Sub-Section (1) of Section 10 of Act, 1947 vide notification dated 07.07.2005 for adjudication by learned Industrial Tribunal, Ranchi. The terms of the reference case no. 02 of 2005 for ready reference reads as under:-
"Whether not to fulfill the proper demands of 15 points demand letter dated 02.05.2003 of Janta MazdoorSangh by the Management of M/s Bharat Refractories Ltd. IFICO Refrectories Plant, Marar, Hazaribagh is justified? Whether not to regularize 119 Casual Workmen of enclosed list is justified? If not, what relief the related workmen are entitled to and since when?"
32. In the present case, we are in seisin with the issue-―Whether applicants can be denied regularization in terms of the award dated 30.08.2011 in reference case No. 02/2005 only on the basis of cut-off date. When right to regularization of the applicants in the award has not been declined and they have completed more than 20 years of continuous services and still working whereas similarly placed employees already regularized?‖ The Hon'ble Supreme Court observations relevant in the case for ready reference reads as:-
(i) Hon'ble Supreme Court in Satyendra NathBajpai Versus Inspector General of Registration U.P. and Anr., 1995 Supp (3) SCC 715. The appellant in this case was appointed on daily-wage basis in year 1985 and not 18 OA No. 128/2017 been regularized. The appellant being placed at serial No. 1, whereas the services of employee placed at serial No. 5 and 14 in said list have been regularized but the appellant has not been regularized. In the counter affidavit it was not denied. The High Court granted interim order directing that appellant be paid regular scale of salary which other clerks were getting. Hon'ble Supreme Court directed to consider appellant for appointment accordance with as per rules on the basis of junior has been appointed on regular basis.
(ii) The Hon'ble Supreme Court in case of UP State Mineral Development Corporation Ltd. &Anr. Versus Vijay Kumar Upadhyay and Anr., reported in (1997) 9 SCC 334. Their Lordships, seisin with issue of regularization, whereby, High Court by its judgment allowed the writ petition and directed for regularization of services of employees appointed on ad-hoc basis. The relevant Para 3,4& 5 reads as:-
Patna Bench ―3. Admittedly, the respondents came to be appointed on ad hoc basis pursuant to writ petition filed earlier by many others. The High Court by its judgment dated 4-2- 1991 in Writ Petition No. 29537 of 1990 had allowed the writ petition and set aside the order of retrenchment and directed regularisation of their services. Some of the respondents, admittedly, are senior to those who had the benefit of the order of regularisation as confirmed by this Court as on 10-5-1991. Consequently, following the earlier judgment, the High Court in the impugned order allowed the writ petitions with similar directions. Thus, these appeals by special leave have been filed.
4. In view of the fact that the earlier orders of this Court have become final, the respondents are entitled to regularisation of their services. The learned counsel for the appellants has brought to our notice that since subsequently there was a development after the orders passed by this Court, namely, some of the establishments have been handed to the private sector and some of them are in the process of being wound up, the orders passed earlier by the High Court as confirmed by this Court and the present order would cause hardship to the appellant-Corporation. We do not think that we can go into that aspect of the matter particularly, when the order in favour of some of the employees has attained finality. Similarly, the respondents are entitled to the same benefit.
5. However, if there is any difficulty in working out, it will be open to the Corporation to convene a tripartite meeting consisting of Workers' Union, one of the officers of the Labour Department and an officer of the appellant-Corporation to thrash out the problems and arrive at an amicable settlement to diffuse and sort out the above difficulty.‖ [Emphasis supplied]
(iii) The Hon'ble Supreme Court in case of Arun Kumar Pant and others versus State of Bihar and others, reported in (1998) 9 SCC 71.
Though their Lordships have declared that relief granted in this case should not be treated as a precedent, yet the observations made in para 2 of the judgment are of general application and therefore binding under Article 141 of the Constitution. The Hon‟ble Supreme Court has, however, looked with sympathy when the question of regularization came for consideration in cases of temporary or ad hoc appointments, even made improperly if incumbents allowed to continue for a long time because of the human problem involved in such continued service. The appellants had requisite qualification their performance has also not been reported unsatisfactory. They have been 19 OA No. 128/2017 appointed against sanctioned posts. They were not guilty of any fraud or sharp practice. The appellants therefore deserve sympathetic considerations in getting appointment against sanctioned posts on humane considerations.‖
(iv) The Hon'ble Supreme Court in case of Karnataka Vs. Umadevi (2006)4 SCC 1 in para 18 held that only something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularized and it alone can be regularized. Their Lordships further observed in para 53 and 15 to 17 "There may be cases where irregular appointments of duly qualified persons in duly vacant posts might have been made and the employees have continued to work for ten years or more without the intervention of orders of the 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 the Patna Bench Supreme Court in the cases affirmed in this judgment and in the light of this judgment. In the 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 the courts or of tribunals. The process must be set in motion within six months from the date of this judgment. Regularization, if any already made, but not sub-judice, need not be reopened based on this judgment. Their Lordships further directed in para 53 of the above celebrated Constitution Bench judgment that "in cases where temporary employees or daily-wagers are now being employed. The process must be set in motion within six months from date of the judgment."
Their Lordships in para 15 and 16 also observed that - "It is necessary to keep in mind the distinction between regularization and conferment of permanence in service jurisprudence. The words ―regular‖ or ―regularization‖ do not connote permanence and cannot be construed so as to convey (Annexure-A/3) idea of the nature of tenure of appointments. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments.
Only something that is irregular for want of compliance with one of the elements in the process of selection, which does not go to the root of the process, can be regularized and it alone can be regularized and granting permanence of employment is totally different concept and cannot be equated with regularization.
20 OA No. 128/2017(v) The Hon'ble Supreme Court in case of State of Karnataka and others Versus M.L. Kesari and others, reported in (2010) 9 SCC 247. Their Lordships held reads as:-
8.Umadevi (3) [(2006) 4 SCC 1] casts a duty upon the Government or instrumentality concerned, to take steps to regularise the services of those irregularly appointed employees who had served for more than ten years without the benefit or protection of any interim orders of courts or tribunals, as a one-time measure. Umadevi (3) [(2006) 4 SCC 1] directed that such one-time measure must be set in motion within six months from the date of its decision (rendered on 10-4-2006).
9. The term "one-time measure" has to be understood in its proper perspective. This would normally mean that after the decision in Umadevi (3) [(2006) 4 SCC 1] , each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily-wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularise their services.
10. At the end of six months from the date of decision in Umadevi Patna (3) [(2006) 4 SCC 1] , cases of several daily-wage/ad hoc/casual Bench employees were still pending before courts. Consequently, several departments and instrumentalities did not commence the one-time regularisation process. On the other hand, some government departments or instrumentalities undertook the one-time exercise excluding several employees from consideration either on the ground that their cases were pending in courts or due to sheer oversight. In such circumstances, the employees who were entitled to be considered in terms of para 53 of the decision in Umadevi (3) [(2006) 4 SCC 1] , will not lose their right to be considered for regularisation, merely because the one-time exercise was completed without considering their cases, or because the six-month period mentioned in para 53 of Umadevi (3) [(2006) 4 SCC 1] has expired. The one-time exercise should consider all daily-wage/ad hoc/casual employees who had put in 10 years of continuous service as on 10-4-2006 without availing the protection of any interim orders of courts or tribunals. If any employer had held the one-time exercise in terms of para 53 of Umadevi (3) [(2006) 4 SCC 1] , but did not consider the cases of some employees who were entitled to the benefit of para 53 of Umadevi (3) [(2006) 4 SCC 1] , the employer concerned should consider their cases also, as a continuation of the one-time exercise. The one-time exercise will be concluded only when all the employees who are entitled to be considered in terms of para 53 of Umadevi (3) [(2006) 4 SCC 1] , are so considered.
[Emphasis supplied]
(vi) The Hon'ble Supreme Court in case of Raman Kumar and others versus Union of India and others, reported in (2023) SCC Online 1018. Their Lordships observed as under:-
8. Indisputably, the appellants herein have completed service of more than ten years. Even this Court in the case of Ravi Verma v. Union of India (Civil Appeal No(s).2795-2796 of 2018) decided on 13.03.2018 found that the act of regularizing the services of some employees and not regularizing the services of the others is discriminatory and violative of Article 14 of the Constitution of India.
10. We are not inclined to accept the submission on behalf of the respondents. When the Chief Commissioner of Income Tax has himself found that 65 persons were entitled to be regularized, the act of regularizing the services of only 35 employees and not regularizing the services of other employees, including the appellants, is patently discriminatory and violative of Article 14 of the Constitution of India.21 OA No. 128/2017
13. The services of the appellants are directed to be regularized from the date on which the services of other 35 employees were regularized and the backwages and other consequential benefits etc., to which the appellants would be entitled to, shall be paid to them within a period of six months from today.
[Emphasis supplied]
33. We think, before dealing with the rival contentions advanced at the Bar, it is apposite to quote relevant portion of the award dt. 30.08.2011 so that facts of the case can be understood in proper setting,the award passed by Learned Industrial Tribunal, Ranchi in Reference Case No. 02/2005 Management of M/s Bharat Refractories Ltd., IFICO Refractories Plant, Marar, Hazaribagh and their workmen represented by the General Secretary JantaMazdoorSangh, IFICO Branch, Marar, Ramgarh, which reads as under;-
AWARD:
1. This Award in respect of the dispute referred to by the Patna Government of Jharkhand under Clause (d) of Sub-section (1) of Bench Section 10 of the Industrial Disputes Act, 1947 vide Government Notification dated 07.07.2005. The terms of the reference is as follows:
"Whether not to fulfill the proper demands of 15 points demand letter dated 02.05.2003 of Janta Mazdoor Sangh by the Management of M/s Bharat Refractories Ltd. IFICO Refrectories Plant, Marar, Hazaribagh is justified? Whether not to regularize 119 Casual Workmen of enclosed list is justified? If not, what relief the related workmen are entitled to and since when?"
2. The dispute in the present proceeding relates to the 15 points charter of demands submitted by the workmen to the Management on 02.05.2003. The specific case of the workmen is that they are working as casual workers since 20 to 30 years without any break, under the management of M/s Bharat Refractories Ltd. at its Refractories Plant, Marar, Hazaribagh, As many as 124 workmen named in the list (Annexure II) have been denied their regularization. During this period, 11 casual workers whose names have been given in the list (Annexure III), employed at the Head Quarters of Bharat Refractories Ltd., Bokaro, have been regularized as permanent workers in the year 2003. On account of non- regularization of the concerned workmen, they have been debarred from the various service benefits/ privileges like LTC/ LITC, Leave Salary, House Rent Allowances, Medical Facility, yearly increment promotional benefits, Dress, safety shoe, etc. Thus, the concerned workmen are not being paid equal wage/ salary at par with the regular employees of the Management though they have been performing same nature of duty as performed by the regular employees.
The further case of the workmen is that in pursuance to the agreed terms of the Tripartite settlement arrived at Bokaro Steel City n 15.09.1985 between M/s Bharat Refractories Ltd. and its subsidiary India Firebricks and Insulation Company Ltd. and their workmen, whenever casual employees are engaged on regular work they would be paid actual wages payable to the regular employees w.e.f. January, 1985. Accordingly, the concerned workmen were being paid the wages, bonus, D.A. since 1985. Yet the concerned workmen have not been regularized in service.
Further case of the workmen is that under the terms of settlement dated 03.02.1992 (Exhibit-W 1) the Management had to regularize the services of the casual workers within six months. In the first batch 56 such casual workers were to be regularized by May. 1992 and the rest within six months thereafter, but the aforesaid Agreement was not implemented inspite of the settlement. By another settlement dated 20.10.1997 (Exhibit W/ 1/ 1) the Management had agreed to pay 22 OA No. 128/2017 gratuity amount and by way of Implementation of the said term, gratuity was paid to the concerned workmen although at the relevant time a reference was made by the Management to the BIFR.
When despite several representations, the demand of the concerned workmen for their regularization and for grant of other service benefits at par with the regular employees was not met by the Management, the 15 points charter of demand (Annexure-II) was submitted to the management of IFICO on 02.05.2003.
Disputing the claim of the workman, the case of the Management on the other hand, as originally pleaded, is as follows:
(i) The IFICO Refractories Plant is a unit of Bharat Refractories which is a Government of India Undertaking (Ministry of Steel), situated at Marar in the District of Ramgarh, Jharkhand. The company has its own separate Standing Orders and there is no provision in the Standing Orders for regularization of the workers who have been engaged as daily rated casual workers even though they may have completed 240 days continuous service in a year. There is no provision in the company's Standing Orders for opening service card/ book for the Irregular/ Badli workers, whereas for the permanent workers such a provision does exist.
(ii) The concerned workmen were engaged on Ad-hoc/ Casual daily Patna rated basis by the management against unsanctioned posts from Bench time to time as per requirement of work and no Appointment letter has been issued for their engagement on casual nature of jobs and as such, these workmen are not entitled for any benefits at par with the permanent employees.
(iii) The company was also referred to BIFR and the BIFR has passed an order that the company should wound up under Section 20(1) of the Sick Industrial Companies (Special Provision) Act, 1985. Against the aforesaid order dated 24.05.2002 passed by BIFR, the management has preferred an appeal before AAIFR, New Delhi, which was also pending at the time when the instant Reference Case was initiated.
(iv) The letter dated 02.05.2003 purportedly containing 15 points charter of demands cannot be treated as a demand in view of the fact that the Union of Janta Mazdoor Sangh had never raised any demand with the management for regularization of 119 casual workers earlier nor has any list of the 119 casual workers been annexed to the letter dated 02.05.2003.
(v) The terms of reference is also vague and not specific and the same cannot be held as valid in the eyes of law. The dispute as raised in the present proceeding is not an Industrial Dispute within the meaning of Section 2K of the Industrial Disputes Act, 1947, because of the fact that the State Government, before referring the dispute, had failed to consider that no demand was raised with the management for the regularization of 119 casual workers. Furthermore, the letter dated 02.05.2003, on the basis of which this reference of the dispute was made, did not contain any statement of demand. Rather, it was a notice of strike.
(vi) Although 15 points have been mentioned in the letter dated 02.05.2003, but most of them have already been fulfilled by the Management prior to the date when the present reference was made.The management had never entered into any settlement with the Union as per the provisions of the 1.D. Act, for regularization/ absorption of the casual employees and therefore, the claim of the Union for regularization of the 119 casual workers is neither maintainable nor justified and there is no violation of any provisions of I.D. Act. The purported settlement dated 03.02.1992, on the basis of which the workmen have raised their claim, is in fact not a settlement in terms of the provisions of Section 2(p) of the 1.D. Act. The concerned workmen, being casual workers, did not acquire any right of regularization merely on the ground that they have worked for more than 240 days in a year. These casual workers have been engaged against unsanctioned post since there are no vacancies 23 OA No. 128/2017 in the company and furthermore, there is total ban by the Government of India against fresh recruitment.
4. During the pendency of the present proceeding the management had filed a supplementary written statement raising a further plea that the Bharat Refractories Ltd, of which the India Firebricks and Insulation Company Ltd. (IFICO) was a unit, had merged with the Steel Authority of India Limited (SAIL) and consequent upon such merger, the IFICO has become a unit of SAIL and is known as SAIL Refractory Unit. The aforesaid merger of Bharat Refractories Ltd. with SAIL has been officially published in the gazette notification dated 19.08.2010. Under such circumstances, it is the Central Government which is the appropriate Government for making reference of industrial disputes in respect of Central Government undertakings and in the present case in respect of erstwhile Bharat Refractories Ltd., which is now a part of the Steel Authority of India Limited.
5. Evidences have been adduced and arguments submitted in support of their respective cases by the parties.
6. In support of their case the workmen have adduced evidences both oral as well as documentary. The documents adduced include copies of PF statements sheet (Exhibit W-6 to W-6/84), 64 copies of sonata cards (Exhibit W-7 to W-7/63), 34 copies payment slips (Exhibit Patna W-B to W-5/33), three copies of duty chart (Exhibit W-9 to W-9/12). Bench The abovementioned documents, on perusal, relate to the concerned workmen and do confirm that these workmen were continuously employed by the management at its Refrectories Plant at Marar. The documents also confirm that the deduction towards Provident Fund used to be made by the management from the wages of the individual workmen.
7. As many as seven witnesses have been examined on behalf of the concerned workmen, who have commonly affirmed that the concerned workmen have been working under the management since more than 20 to 30 years without any break and they have been getting their salary at par with the Regular employees since 1985. These witnesses have also affirmed that the concerned workmen have been performing regular and permanent nature of work without any break since their respective dates of appointment. The demand for their regularization was not fulfilled by the management. Hence the concerned workmen had to resort to strike. Ultimately, a settlement was arrived at and an agreement was entered into between the representative of the workmen and the management on 03.02.1992, under which the management had agreed to regularize the casual workers in two phases, the first comprising of 56 casual workers to be regularized by May, 1992 and the rest within six months thereafter. It has also been asserted by the witnesses in their respective statements that as many as 11 casual workers, who were junior to the concerned workmen, were regularized by the management ignoring the rights and claims of the concerned workmen. By way of example, reference has been invited to one Shri Pradeep Mahto, who worked as contractor's labour and was though junior to the concerned workmen, but was regularized in service in the year 2003 and posted at the Company's Head Quarters.
The other relevant features appearing in the deposition of the witnesses is that though the reference was made to the BIFR but the order passed by BIFR was set aside by the AAIFR with a direction for revival of the Company. Furthermore, in the year 2003, when the case of the Management was referred to the BIFR, gratuity amount was released to the concerned workmen. This according to the workmen, indicates that the Company's financial position was sound at the relevant time and the Company had made profits during this period.
The evidences also indicate that in the year 1981 as many as 70 casual workers was regularized by the Management, followed by 36 contract labourers who were regularized in 1982.
The witnesses have also suggested that though from time to time quite a few casual workers have been regularized by the Management, but such regularizations have been made in a most 24 OA No. 128/2017 arbitrary and discriminatory manner at the sweet-will of the Management, favouring those who were close and own persons of the Management.
The witnesses have further claimed that the concerned workmen have been directly working for the Management which is the Principal employer and it is the Management which has been paying them their wages for the past 20 to 30 years. On their non- regularization these workmen have been denied their increments in salary, LTC/ LLTC, HRA, promotional benefits and other retiral benefits at par with the regular employees.
8. Learned counsel for the Management submits that pursuant to the merger of Bharat Refractories Ltd. alongwith its IFICO Refrectories Plant, Marar, with the SAIL, the Management has now come under the fold of SAIL and it is the Central Government which is the Appropriate Authority for referring the industrial dispute pertaining to the Central Government Undertaking. Learned counsel adds that under such circumstances, any Award if passed by this Tribunal in favour of the concerned workmen, may not be applicable or binding upon the aforementioned Central Government Undertaking.
Explaining the stand of the Management that the very reference of the present dispute by the State Government for adjudication is erroneous, learned counsel submits that the letter dated 02.05.2003 Patna containing the purported 15 points charter of demands, cannot be Bench treated as a demand. In fact the Union of the Janta Mazdoor Sangh had never raised any demand with the Management for regularization of 119 casual workers nor was any list containing such number of casual workers annexed to the letter dated 02.05.2003 submitted before the Management. Learned counsel explains that under the provisions of Section 2K of Industrial Disputes Act, 1947, the State Government, before referring the dispute for adjudication, should have considered as to whether any demand in fact was raised by or on behalf of the workmen with Management for the regularization of 119 casual workers. Learned counsel explains further that the letter dated 02.05.2003 is the notice of strike and, in any case, most of the points raised in the letter have already been fulfilled by the Management much prior to the date when the Reference was made.
9. On the basis of rival submissions the issues which call for determination are:-
i. Whether this Tribunal has jurisdiction to adjudicate upon the dispute referred to it?
ii. Whether on the admitted facts the concerned workmen deserve to be regularized in service under the Management of Bharat Refractories Ltd., which is now known as SAIL Refractories Unit and if so, since when?
10. Issue No. 1:-
**************************************************** **************************************************** **************************************************** The dispute in the present case relates to differences between the Management and the concerned Workmen concerning the terms of employment and conditions of labour. Such dispute does certainly come within the purview of the definition of the term "Industrial Dispute" as defined under Section 2K of the Industrial Dispute Act, 1947. These facts do establish that at the time of making Reference, an Industrial Dispute did exist between Management and the Workmen.
In the light of my inferences on above point, I find no error in the reference of the dispute made by the State Government to this Tribunal and this Tribunal therefore does not suffer from lack of Jurisdiction to adjudicate upon the dispute referred to it.13. Issue No. 2
From the pleadings, evidence and facts placed by the parties, it appears that the dispute as raised, is essentially in respect of the claim of the concerned workmen for their regularization in service. This claim has been raised on two grounds. Firstly, that these concerned workmen have been working continuously for more than 20-30 years, 25 OA No. 128/2017 doing permanent nature of job for the benefit of the Management of M/s Bharat Refractories Ltd. at its IFICO Refrectories Plant, Marar, Hazaribagh.
The second ground is that a Tripartite Settlement was arrived at between the Bharat Refractories Ltd. and its subsidiary India Firebricks and Insulation Company Ltd. and their workmen on 15.09.1989 and as per the terms agreed, the Management has been paying wages to the concerned casual workmen at par with the regular employees w.e.f. 01.01.1985. The Management had also agreed that it would gradually phase out the casual workers after Identifying such areas of work which are perennial in nature. Furthermore, as per the settlement agreed before the Deputy Labour Commissioner, Hazaribagh and the terms of such settlement dated 03.02.1992, the Management had agreed to regularize the casual workers within six months from the date of settlement and according to the terms of settlement, the first batch comprising 56 casual workers were to be regularized by May, 1992 and the rest, within six months thereafter.
Despite such assurances, the Management has failed to regularize the services of the concerned casual workers.
The other grounds which have also been equally emphasized, are that following the purported settlement dated 03.02.1992, as many as 11 casual workmen were regularized in service though such Patna regularization was made in a most arbitrary and discriminatory Bench manner.
14. The claim of the concerned workmen that they have been working for more than 20-30 years continuously without any break in service, has not specifically been denied by the Management either in their Written Statements or by the Management's witnesses. It is also admitted that though employed as casual workers, the concerned workmen have been getting the same pay-scale, gratuity and other service benefits at par with the regular employees.
15. However, the points of diversion as appearing from the case of the Management and reiterated by the Management's witnesses, is that M/s Bharat Refractories Ltd. has its own Work Standing Orders and ere is no provision therein for regularization of casual and badli workers / The concerned workmen were employed on temporary basis against un- sanctioned posts and even if the concerned workmen may have worked for 240 days in a calendar year for the past several years, this in itself does not give them any right to demand of their regularization in service.
The above plea of the Management appears to be more technical than factual. Undisputedly, a Tripartite Agreement between the Management and the Company's Workmen represented through their Union was entered into on 15.09.1985. The deliberation at the meeting appear to have included the issues relating to the engagement of contract labours on jobs of permanent and perennial nature and also engagement of casual employees on regular work.
Clause 14.4 of the Agreement records as follows:-
"The management agrees in principle not to engage contract labour on jobs of permanent and perennial nature. Pending review of this system by the Standardisation Committee the existing contract workers will not be disturbed.
Wherever casual employees are engaged on regular work they will be paid actual wages payable to the regular employees with effect from 1st January, 1985."
Clause 15.1 of the Agreement deals with constitution of Standardisation Committee and its powers in the following manner:-
"Standardisation Committee:-
15.1 There will be a Standardisation Committee of equal representatives of the management an the workers to go in the following aspects of Standardisation of working conditions for the workers and employees covered by this agreement.
a) designation and grades;
(b) canteen facilities and practices;
(c) promotion and seniority rules and their implementation;
(d) identification of jobs of permanent and perennial nature in the units and steps to be taken in the matter."
26 OA No. 128/2017Clause 15.2 records that the Committee will go into these issues within a period of six months and unanimous recommendations of the Committee will be implemented by the management.
16. Part of the terms of the Agreement was duly implemented by the Management in respect to the casual workers in as much as the casual workers began to be paid the actual wages at par with the regular employees of the Company, commencing from 01.01.1985.
17. It further appears from the documents on record that on 03.02.1992 a sitting was held attended by the representatives of the casual workers through their Union and representative of the Management of India Firebricks and Insulation Company Ltd. in presence of the Deputy Labour Commissioner, Hazaribagh, to discuss the issues relating to the demand of casual workmen for their regularization. A copy of the Minutes of the Meeting available on record, duly signed by the representatives of the management and the union of the workers as also by the Deputy Labour Commissioner, Hazaribagh, informs that the management's representative had indicated that a proposal has already been forwarded to the Headquarters of the Company for regularization of 56 casual workmen and a similar proposal with the recommendation for regularization of the remaining casual workmen, was similarly forwarded in the month of April, 1992. Apparently, on the basis of such assurances given on Patna behalf of the management, the Deputy Labour Commissioner had Bench issued a direction to the management to ensure the regularization of as many as 56 casual workers by the end of May, 1992 and of the remaining by August, 1992. This direction was never carried out by the management.
18. The contention raised on behalf of the management in the present proceeding that the purported settlement dated 03.02.1992 cannot be deemed to be a settlement in terms of Section 2K of the Industrial Disputes Act, may be technically correct but a significant aspect of the terms of the purported settlement dated 03.02.1992 is the fact that the Management's representative had assured of initiating steps for the regularization of the services of the casual workmen. If according to the plea taken by the management that there was no provision in the Company's Work Standing Orders for the regularization of casual and badli workers, it is for the management to explain as to how and under what circumstances was it admitted by the representatives of the management at the aforesaid meeting before the Deputy Labour Commissioner that steps for the regularization of the services of the casual workers was in the process of being initiated.
It is also significant to note that admittedly the services of as many as 11 casual workmen was regularized by the management in the year 2003 and of some more casual workers in the following years. This, despite management's claim that the Company's Work Standing Orders did not provide for regularization of the services of casual and badli workers. The management's plea that there is no provision for the regularization of the services of casual and badli workers in the Company's Work Standing Orders, taken as a ground for non- regularization of the casual workers, appears to be incorrect and hence untenable.
19. From the evidence adduced on behalf of the workmen and in absence of any specific denial on the part of the management, there cannot be any dispute to the fact that these concerned workmen have been continuously engaged in regular nature of work and such practice has been continuing for sever decades. Though the management had admitted to these casual workers actual wages as payable to regular employees w.e.f. 01.01.1985 but it has failed to implement the essential part of the Tripartite Agreement whereby it was obliged to constitute the Standardisation Committee and to identify the jobs of permanent and perennial nature in the various units and the steps to be taken in the matter of absorbing the casual workers in such unidentified jobs. The management has not offered any reasonable explanation as to why inspite of the specific clause as contained in the Tripartite Agreement vide Clause 15.2, the management did not constitute such Committee within a period of six months from the date 27 OA No. 128/2017 of the Agreement and why the period of the Agreement was allowed to lapse without constitution of a Standardisation Committee.
The management has also failed to explain as to how and under what process were the services of several casual workmen regularized both during the period the Tripartite Agreement continued to remain in force and thereafter and why the remaining casual workmen, whose services continued to be taken regularly without any break, were not given benefit of such regularization.
20. Counsel for the management has argued that the company namely, M/s Bharat Refractories Ltd. had become sick industrial unit and had sought to wind-up and since the demand for regularization would have involved financial implication and burden on the Company, the demand could not be acceded. This plea cannot be accepted in view of the fact that the management had already considered to pay to these casual employees, the same rate of wages as paid to the regular employees and also to pay gratuity at the same rate as applicable to the regular employees. Under such circumstances, the management would not have suffered any great financial constraint upon regularization of the casual workmen.
21. The above facts lead to the obvious inference that the work taken by the Management from the concerned workmen for decades together continuously, was of permanent and perennial nature and Patna these workmen had therefore, earned a rightful claim for raising their Bench demand for their regularization in order to obtain the same benefits as enjoyed by the regular employees under the Management.
22. The fact that instead of creating post for their absorption, the Management has been continuously engaging these workmen on daily rate basis is wrong and without any justification.
23. In similar context, in the case of Gujarat Agricultural University Vrs. Rathood Labhu Bechar & Others, 2001 (2) Jhr CR 230 (SC), the Supreme Court has observed as follows:-
"It is also well settled, if work is taken by the employer continuously from daily wage workers for a long number of years without considering their regularistion for its financial gain as against employees' legitimate claim, has been held by this Court repeatedly as an unfair labour practice, In fact, taking work, from daily wage worker or ad hoc appointee is always viewed to be only for a short period or as a stop gap arrangement, but we find new culture is growing to continue with it for a long time, either for financial gain or for controlling its workers more effectively with Sword of Damocles hanging over their heads or to continue with favoured one in the cases of ad hoc employee stalling competent and legitimate claimants. Thus we have no hesitation to denounce this practice. If the work is of such a nature which has to be taken continuously and in any case when this pattern becomes apparent, when they continue to work for year after year, only option to the employer is to regularize them. Financial viability no doubt is one of the consideratsions but then such enterprise or institution should not spread its arms longer than its means. The consequent corollary is, where work is taken not for a short period or limited for a season or where work is not of part time nature if pattern shows work is to be taken continuously year after year, there is no jurisdiction to keep such persons hanging as daily-rater workers in such situation a legal obligation is cast on an employer if there be vacant post to fill it up with such workers in accordance with Rules if any and where necessary by relaxing the qualifications, where long experience could be equitable with such qualifications. If no post exists then duty is cast to assess the quantum of such work and create such equivalent post for their absorption."
24. The same view has been expressed by the Supreme Court in the case of Mineral Exploration Corpn. Employees' Union Vrs. Mineral Exploration Corpn. Ltd. and Another, 2006 (6) SCC 310.
In the case of State of Karnataka Vrs. Umadevi, 2006(3) SLJ 1 (SC), while dealing with the issue relating to regularization of casual workers, the Supreme Court had given an exception that those who have worked for more than 10 years of service, their regularization could be considered as a one time measure.
28 OA No. 128/201725. In the present case though the Management had conceded to pay to the concerned casual workmen their pay-scale at the same rate as given to the regular employees, but denial of such other benefits as enjoyed by the regularly employed workmen, while continuing to employ concerned workmen as casual labourers, amounts to exploitation of labour and unfair labour practice.
26. The question which now remains to be decided is what should be the Cut-off date from which regularization of the concerned workmen should be considered.
27. Although the demand was raised much earlier but it was formally raised by way of Notice dated 02.03.2005. It would be appropriate therefore, to fix the cut-off date as 02.05.2003 for implementation of the demand of regularization. The total number of workmen on whose behalf the demand was raised on 02.05.2003 was 119.
28. Though the erstwhile Bharat Refractories Ltd. including IFICO Refrectories Plant, Marar has been amalgamated with SAIL but such amalgamation became operative from the date of notification dated 28.07.2009. The fact that the Management has been continuously taken work from the concerned workmen for decades together, impliedly demonstrates that they are to be regularized and are entitled for all benefits at par with the regular employees. It was therefore, the Patna responsibility of the Management of the erstwhile Bharat Refractories Bench Ltd. to consider the demand of the concerned workmen and to take appropriate steps for their regularization. It is informed that the concerned workmen, since after amalgamation have become employees of the transferee Company ie. SAIL and therefore, it would be for the Management of the SAIL which is the present employer of the concerned workmen, which has taken over Bharat Refractories Ltd. together with all its assets and liabilities, to consider the cases of the individual workman who had completed more than 10 years of continuous service, for their regularization. The benefits of regularization after such consideration, should be given to all such employees who were in employment under the erstwhile Bharat Refractories Ltd. on 02.05.2003.
29. In the result, this Award declares as follows:-
i. The non-fulfillment by the Bharat Refractories Ltd., IFICO Refrectories Plant, Marar, of all or any of the 15 points demand raised on behalf of the concerned workmen by the Janta Mazdoor Sangh vide notice/ letter dated 02.05.2003, is not justified.
ii. The non-regularization of the 119 casual workmen named in the list enclosed with the terms of reference' is not justified. The concerned workmen are therefore, entitled for their regularization in service and all benefits at par with the regular employees under the Management since 02.05.2003. iii. The successor employer i.e. SAIL, under whom the concerned workmen are continued to be employed shall initiate and complete the process of regularization of all such workmen named in the list of 119 persons who had completed more than ten years of continued service under the erstwhile Bharat Refractories Ltd. as on 02.05.2003 and complete such process within six months from the date of such Award.
[Emphasis supplied]
34. The Present litigation arisen due to interpretation of the award dated
30.08.2011 by the respondents. The Award extracted hereinabove for ready reference, so that the facts of the case and core issue involved can be understood in proper setting.
35. The Learned Industrial Tribunal was seisin with reference for determination of the rights of applicants with specific case issue:-
29 OA No. 128/2017"whether not regularize 119 casual workmen (including applicants working continuously since 20 to 30 years without any break under the Management of BRL, at its Refractories Plant, Marar, Hazaribagh is justified and not to fulfill proper demands of 15 points dated 02.05.2003 to regularize these workmen is justified and what relief these workmen are entitled?
36. The Learned Industrial Tribunal considering the material prepositions of the workmen and the Management framed (in para 9 of the Award) issue no. 2 relevant to decision of present O.A. reads as:-
"Whether on the admitted facts the concerned workmen deserve to be regularized in service under the Management of Bharat Refractories Ltd. Which is now known as SAIL Refractories Unit and if so, since when?"
Patna Bench
37. The issue no. 2 (in para 9 of the Award dt. 30.08.2011) was to examine admitted facts and determine the rights of total 119 applicants-workmen. Whether claim for regularization is justified on not? As informed that the Award dt. 30.08.2011 in reference case No. 02/2005 has attained finality. The Learned Industrial Tribunal examined in para 13 to 28 of the Award based on the documentary evidence as well as oral evidence adduced by both the parties. The Learned Industrial Tribunal finally determined the issue in favour of applicants-issue in favour of applicants-workmen. But the respondents not implemented award in case of the applicants in the OA. The relevant para 21, 22 & 25 at cost of repetition for ready reference reads as:-
21. The above facts lead to the obvious inference that the work taken by the Management from the concerned workmen for decades together continuously, was of permanent and perennial nature and these workmen had therefore, earned a rightful claim for raising their demand for their regularization in order to obtain the same benefits as enjoyed by the regular employees under the Management.
22. The fact that instead of creating post for their absorption, the Management has been continuously engaging these workmen on daily rate basis is wrong and without any justification.
25. In the present case though the Management had conceded to pay to the concerned casual workmen their pay-scale at the same rate as given to the regular employees, but denial of such other benefits as enjoyed by the regularly employed workmen, while continuing to employ concerned workmen as casual labourers, amounts to exploitation of labour and unfair labour practice.
[Emphasis supplied]
38. The Learned Industrial Tribunal in para 27 of the award also considered that Management has taken work continuously for long time for decades impliedly demonstrates that they are to be regularized and entitled for all benefits at par with the regular employees and it‟s responsibility of the management to take steps for regularization. We are of the considered opinion 30 OA No. 128/2017 that in the para 28 of the award, the Learned Industrial Tribunal has finally determined rights of the parties-applicants, held applicants entitled for benefits of regularization to all such employees, who were in the employment under the erstwhile BRL as on 02.05.2003. The relevant para 28 of the award going to the root of the present matter, at the cost of repetition for ready reference reads as:-
28. Though the erstwhile Bharat Refractories Ltd. including IFICO Refractories Plant, Marar has been amalgamated with SAIL but such amalgamation became operative from the date of notification dated 28.07.2009. The fact that the Management has been continuously taken work from the concerned workmen for decades together, impliedly demonstrates that they are to be regularized and are entitled for all benefits at par with the regular employees. It was therefore, the responsibility of the Management of the erstwhile Bharat Refractories Ltd. to consider the demand of the concerned workmen and to take appropriate steps for their regularization. It is informed that the concerned workmen, since after amalgamation have become employees of the transferee Company ie. SAIL and therefore, it would be for the Patna Bench Management of the SAIL which is the present employer of the concerned workmen, which has taken over Bharat Refractories Ltd.
together with all its assets and liabilities, to consider the cases of the individual workman who had completed more than 10 years of continuous service, for their regularization. The benefits of regularization after such consideration, should be given to all such employees who were in employment under the erstwhile Bharat Refractories Ltd. on 02.05.2003.
[Emphasis supplied] The Learned Industrial Tribunal in para 29 of the award also reiterated that non-fulfillment of 15 points demand dt. 02.05.2003 for regularization raised by applicants-workmen is not justified and workmen deserve regularization of services. The Award further declared in para 29 that applicants are entitled for all benefits at par with regular employees since 02.05.2003. The Para 29 of the award, reads as:-
29. In the result, this Award declares as follows:-
i. The non-fulfillment by the Bharat Refractories Ltd., IFICO Refractories Plant, Marar, of all or any of the 15 points demand raised on behalf of the concerned workmen by the Janta Mazdoor Sangh vide notice/ letter dated 02.05.2003, is not justified.
ii. The non-regularization of the 119 casual workmen named in the list enclosed with the terms of reference' is not justified. The concerned workmen are therefore, entitled for their regularization in service and all benefits at par with the regular employees under the Management since 02.05.2003.
iii. The successor employer i.e. SAIL, under whom the concerned workmen are continued to be employed shall initiate and complete the process of regularization of all such workmen named in the list of 119 persons who had completed more than ten years of continued service under the erstwhile Bharat Refractories Ltd. as on 02.05.2003 and complete such process within six months from the date of such Award.
[Emphasis supplied]
39. It is clear as noon day that the Learned Industrial Tribunal in its award finally determined rights and claim for regularization and all applicants held 31 OA No. 128/2017 entitled for regularization and entitled for all benefits at par with regular employees of SAIL-management.
40. In view, whereof, we are of the considered opinion that Learned Industrial Tribunal in the award dt. 30.08.2011 has already recognized applicants' right for regularization and entitlement of all the privileges and rights at par with the regular employees of the SAIL-Management. The Learned Industrial Tribunal has not declined to the applicants, the right to regularization in its award. The award has attained finality and admittedly all the applicants have completed more than 20 years of continuous working without any break doing permanent nature of work required for making profits and respondents have already implemented the award dt. 30.08.2011 in cases of some of casual workmen but not implemented in cases of applicants.
41. We also hold that since the Learned Industrial Tribunal has recognized Patna Bench claims of applicants and at this stage applicants after continuous working for more than 20 years cannot be discriminated and stigmatized as they have not completed 10 years as on 02.05.2003.
42. The Hon'ble Supreme Court in case of Purnendu Mukhopadhyay Versus V.K. Kapoor, reported in (2008) 14 SCC 403 has held reads as:-
"The stand of the Government that it has granted benefit to one set of employees who are similarly situated to the appellants but it has been denied to others, is untenable. Such an action is wholly unjustified. Judgment of court should not be read as a statute. It has to be read in its entirety. So read the appellants had become entitled to grant of benefits contemplated thereby. There is no reason why the same should be denied to them. The State cannot treat employees similarly situated differently. It cannot implement the orders in relation to some employees and refuse to do so in relation to others."
[Emphasis supplied]
43. As evident from para 7 of the award, the similarly placed casual workmen, regularized as many as 11 casual workmen junior to concerned workmen in the reference case i.e. Mr. Pradeep Mahto already regularized in year 2003 posted in H.Q. So also 70 casual workmen followed by 36 labours regularized. We also find that the respondents have discriminated applicants by breach of terms of settlements and findings of the Award delivered under Industrial Law. Admittedly the employer has regularized 78 casual workmen based on findings in the award, denying regularization of services of applicants. The respondents have submitted supplementary affidavit dated 15.02.2024 stating that currently only ten casual workmen working for more than ten years including applicants in the SAIL-Refractory Unit. The respondents have committed breach of terms of the award which is binding on the Management under Section 29 of Act, 1947and discriminated applicants.
32 OA No. 128/2017CONCLUSION
44. We have already analyzed in detail the issue and in the light of aforesaid analysis. The applicants are held entitled for regularization of service. Accordingly, we decide the issue in favour of the applicants. We set-aside communication dated 28th January, 2015 (Annexure-A/2) issued by respondents.
45. The services of the applicants are directed to be regularized with all consequential benefits from the date of completing ten years along with arrears from the date of regularization of service. The respondents are further directed to complete the formalities in the manner directed above and same shall be completed within period of three months from the date of receipt of the certified copy of the order passed today failing which the interest shall be paid @ 6 percent per annum from the date of entitlement till final payment. Patna Bench 45. Resultantly this Original application is allowed with no order as to costs.
46. As a sequel, thereof, Miscellaneous Application(s), if any, pending shall stand disposed of.
Sd/- Sd/-
[Ajay Pratap Singh] [Sunil Kumar Sinha]
Member [J] Member [A]
du/-