Andhra HC (Pre-Telangana)
Superintending Engineer, Hcc-I, Cpwd, ... vs Tekmalla Raja Sekhar And Ors. on 7 September, 2001
Equivalent citations: 2001(6)ALD64, 2001(6)ALT39
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, C.J.
1. These petitions are directed against a judgment dated 9-2-2000 passed by the Central Administrative Tribunal in Original Application Nos.83 and 1168 of 1998 and 109 of 1999. The respondents herein filed the afore-mentioned applications inter alia for the following relief:
....... This Hon'ble Tribunal may be pleased to call for the connected records including the Letter No.34/17/93-Exx, dated 18-8-1993 of the 1st respondent and direct the respondents to regularise the service of the applicants in any post of Welder, Peon, Driver, Carpenter or other equivalent Group-D post with all consequential benefits in the interest of justice and pass orders as it may deem fit and just.
They having been working in different capacities for a number of years, but, despite the same their services have not been regularised.
2. It was contended that as the job is of perennial nature, their services ought to have been regularised. Before the learned Tribunal a contention was raised on behalf of the petitioner herein that the respondents are the workmen of the contractor. The learned Tribunal came to the conclusion that Central Public Works Department not only executes a number of turn key projects but also in-charge of designing and constructing large number of buildings and maintenance thereof. The learned Tribunal took judicial notice of the fact that construction of Government buildings in the country is on the increase and as such opined that adequate number of persons at all levels viz., skilled and semiskilled are to be employed so that execution of new projects and the construction and maintenance of the buildings are adequately taken care of. The learned Tribunal further was of the view that as there had been a ban on recruitment since 1985, various modes were adopted to circumvent the same which inter alia included employment of contract labour. The learned Tribunal opined that such adoption of dubious method to get the work done when the work is of continuous and perennial nature would amount to unfair labour practice.
3. The contention raised on behalf of the petitioner herein to the effect that the Tribunal had no jurisdiction to consider the grievance of the respondents was negatived on the ground that they had adopted colourable means to avoid regularisation. Strong reliance in this connection has been placed on Rashtriya Chaturthshreni Railway Mazdoor Congress (INTUC) v. Union of India and others, 1998 SC (L&S) 1578. As regard the system of employing the drivers on contract basis it was held:
With regard to the system of extracting work from drivers through contract basis, we hold that the same is not maintainable in view of the fact that the vehicles belong to the Government and the fuel is also supplied by the Government to run the vehicles. Therefore, for proper upkeep and maintenance of the vehicles, it can be done only by a regular employee and not through contract labour.
4. The learned Tribunal directed:
The respondents are directed to consider absorption of the applicants in regular service in the respective trades like Welder/Carpenter/Driver, etc., with regular pay scales. If necessary, suitable number of posts may be created. This exercise shall be completed within four months from the date of receipt of a copy of this order by the respondents.
5. Mr. Ganga Rani, the learned Counsel appearing on behalf of the petitioner, inter alia submitted that the learned Tribunal acted illegally in passing the impugned order.
6. The question as to whether there had been a relationship of employer and employee by and between the petitioner and the respondents was a disputed question of fact. The applicant-respondents proceeded on the basis that they have been working for more than 240 days and on that ground alone their services should be regularised.
7. The learned Tribunal arrived at a finding to the effect that dubious method had been adopted for denying the just right to the applicant-respondents so as to get over the ban on recruitment made in the year 1985 is not based on any factual foundations. The said findings had been arrived at upon surmises and conjectures.
8. The learned Tribunal, in our opinion, misdirected itself in passing the impugned judgment insofar as it failed to take into consideration that after coming into force of the Contract Labour (Regulation and Abolition) Act, it is the appropriate Government alone which can direct abolition of contract labour. It is not correct to contend as has been found by the learned Tribunal that contract system had been a camouflage and a smoke and screen to avoid regularisation of workers and paying them appropriate wages or the same per se is unfair labour practice. Each case has to be considered on its own merits. If the contention of the applicant-respondents is that they were really workmen and not contract labour, such a contention could have been raised only upon taking recourse to the provisions of the Industrial Disputes Act and not by filing a petition under the Administrative Tribunal Act which would involve determination of disputed questions of fact.
9. It may be that in a given case where the facts are admitted, the High Court or the Tribunal may have jurisdiction to go into the question; but once the basic fact is disputed, the Court will have no other option but to direct the parties to avail alternative remedies under the Industrial Disputes Act. In K. Butchi Reddy v. Central Administrative Tribunal, , a Division Bench of this Court has the occasion to consider the question. This Court held that the decision of the Apex Court in Secretary, Haryana Electricity Board v. Suresh, , itself would clearly go to show that therein also an induslrial dispute had been raised and the industrial Court arrived at a finding of fact that the appointment of contract labour is merely a smoke and a screen and there existed a relationship of employer and employee between the workmen and the principal employer. This Court also held that such a finding of fact can be arrived at by the appropriate industrial Court in the event of an industrial dispute is raised in terms of the provisions of the Industrial Disputes Act.
10. This Court further noticed the decision of the Apex Court in Madhyamik Siksha Parishad v. Anil Kumar Mishra, , wherein it was held that merely because an employee has put in 240 days of continuous service in a year the same ipso facto would not lead to regularisation of his services.
11. The provisions of Section 25-F of the Industrial Disputes Act are meant to be applied for the purposes under the said Act and not for any other purposes.
12. We may notice that even in this jurisdiction a learned single Judge of this Court in Y. Prabhakar Rao v. ONGC, , upon noticing AIR India Statutory Corporation v. United Labour Union and others, and other decisions inter alia held:
..... Except abolition of the contract labour system which is the exclusive domain of the appropriate Government, other factual aspects have to be agitated and tried by adducing evidence. However, this Court in similarly situated circumstances in WPNo.13551 of 1997 and batch dated 24-9-1998 observed that the dispute raised in all the writ petitions as to the nature of the job, a particular petitioner was discharging, would be a matter, prima facie this Court cannot decide in a writ jurisdiction"....
13. Further, in K Butchi Reddy (supra) it was noticed:
The Calcutta High Court, however, has also taken the same view in the case of Canteen employee in a fact situation where a contractor had been engaged in Sri Raj Kumar Sardar v. Union of India, 1999 (1) Cal LJ 125, The Indian Iron & Steel Co., Ltd. v. United Contract Workers' Union, 100 CWN 171, Dhananjay Jana and others v. Union of India, 1998(3) SLR 472 and Kishan Jawanjal and others v. Steel Authority of India Limited, 1999(4) SLR 532.
There cannot be any doubt whatsoever that the Contract Labour (Regulation and Abolition) Act, 1970 is a beneficial statute but a statute although may be construed in favour of the beneficiary but only to the extent such benefit is intended to be conferred and not beyond the same (see Regional Director Employees' State Insurance Corporation, Trichur v. Ramanuja Match Industries, .
14. In Secretary, A.P. Social Welfare Residential Educational Institutions Society v. P. Venkata Kumari, 2001 (1) ALT 366, a Division Bench of this Court has clearly held that regularisation is not a mode of appointment and in absence of any statutory rules the part-time employees, ad hoc employees and NMRs did not derive any legal right whatsoever to continue in service and no such direction can be issued inasmuch as for the purpose of obtaining a writ of or in the nature of mandamus the petitioner must establish existence of a legal right in himself and a corresponding legal duty in the respondents.
15. It was further held in no uncertain terms that the Court cannot direct creation of more posts.
16. Recently in State of West Bengal v. Krishna Kumar Majumdar, 2001 (2) CHN 31, it was held:
.... An appointment on regular post must be made in terms of the Recruitment Rules having regard to the principles adumbrated under Articles 14 and 16 of the Constitution of India. In the instant case, as indicated hereinbefore, neither any appointment has been made nor any averment has been made by the writ petitioner that such appointment has been made in accordance with the Recruitment Rules or in consonance with the principle laid down under Articles 14 and 16 of the Constitution of India. Such appointment, therefore, cannot be encouraged. Furthermore, a finding of fact has been arrived at by the competent authority that the writ petitioners were appointed on contractual basis and that too for a period of 2 years at one point of time.
17. Even in Stale of Haryana v. Piara Singh, , the Apex Court has clearly held that when an employee is appointed on ad hoc basis the same itself is a pointer to the effect that no regular post is available. The said principle should be applied also in relation to NMR. It has been held in the said case thus:
Ordinarily speaking, the creation and abolition of a post is the prerogative of the Executive. It is the Executive again that lays down the conditions of service subject, of course, to a law made by the appropriate Legislature. This power to prescribe tile conditions of service can be exercised either by making rules under the proviso to Article 309 of the Constitution or (in the absence of such rules) by issuing rules/instructions in exercise of its executive power. The Court comes into the picture only to ensure observance of fundamental rights, statutory provisions, rules and other instructions, if any, governing the conditions of service. The main concern of the Court in such matters is to ensure the rule of law and to see that the executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16.
18. We may notice that it has clearly been held that even the definition of worker under the Factories Act can only be read for the said purposes only. It is for the appropriate Government to decide whether employment of contract labour should be prohibited or only regulated. The Court or the Tribunal has no say therein. [See Sujan Banerjee v. Union of India, 2001 (3) SLR 168 (Cal), Ranjit Kumar Chanda v. State of West Bengal, 2001(3) SLR 181 (Cal)]. In Union of India v. Shri Rajinder Singh, 2001 (3) SLR 245 (Cal.), it has been held:
An employee must be appointed upon compliance of the provisions of the Recruitment Rules. When a particular status is conferred upon an employee, the same cannot be changed unless there exists any statutory provision therefor.
A regular appointment can only be made in terms of the Recruitment Rules and subject to the candidate's possessing the requisite qualification and also subject to existence of any sanctioned post.
An employee is borne in the cadre only when he is appointed upon fulfilling the requirement therefor in a sanctioned post.
19. Referring to W.E. Essential Commodities Supply Corporation v. Md Sarif, 2000 (1) CHN 240 = 2000 (2) SLR 229 (Cal), Director of Public Instructions, W.B. v. Dr. Krishna Prasad Ghosh and another, 2000 (2) CLT 141 and Swapan Kumar Banerjee v. Union of India, 2000 LIC 255 = 1999(5) SLR 807 (Cal), it has been held in Union of India v. Registrar, 2001 (3) SLR 148 (Cal):
The question as to whether the petitioners had fulfilled the essential conditions for regularisation or not, is essentially a question of fact. In law, nobody is entitled to claim regularisation unless there exists any statutory provision in this regard. Only because a person has worked for more than 240 days, the same by itself would not be a ground for direction to regularise the service of the concerned employee.
20. It is now a well settled principle of law that a decision rendered by a Court must be applied having regard to the factual matrix involved therein.
21. In Dias on Jurisprudence, Fifth Edition at page 143, it is stated-Pronouncements of law, which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative. Rationale and dicta tend to shade into each oilier. The former have law-quality and are binding on lower Courts; dicta, too, have law quality but are not binding at all. Vis-a-vis a higher Court even the ratio decidendi of a lower Court decision has only persuasive force like that of a dictum. It has been pointed out that some dicta are so authoritative that the distinction between ratio and dictum is reduced to vanishing point. Dicta, which have no force, are propositions stated by way of illustration or on hypothetical facts. Greater difficulties attend rulings of law which are subsequently relegated to the status of dicta by interpretation. The distinction in such cases between ratio and dictum is but a device employed by subsequent Courts for the adoption or rejection of doctrine expressed in previous cases according to the inclination of the Judges. An example would be the treatment of Lord Atkin 's neighbour proposition in subsequent cases.
22. In Salmond on Jurisprudence 12th Edition, page 29, it is stated-One of the essential features of the doctrine of precedent in the common law is that rules of law are developed in the very process of application. This means that they are created by Judges and not by teachers and other academic lawyers. However, learned they may be. It also means that they are created by Judges only when acting as Judges i.e., when deciding cases and not for example when giving lectures or other addresses; statements made by Judges in their extra-judicial capacity, like other extra-judicial opinions, are without binding authority, for the fundamental notion is that the law should result from being applied to live issues raised between actual parties and argued on both sides.
In the course of his judgment, however, a Judge may let fall various observations not precisely relevant to the issue before him. He may for instance illustrate his general reasoning by reference to hypothetical situation and the law which he considers to apply to them. Here of course, since the issue is not one that arises between the parties, full argument by Counsel will be lacking, so that it would be unwise to accord the observation equal weight with that given to his actual decision. Or again, having decided the case on one point, the Judge may feel it unnecessary to pronounce on the other points raised by the parties, but he may nevertheless want to indicate how he would have decided these points if necessary. Here again we are not given the Judge's final decision on a live issue, so that once more it would be unwise to endow it with as much authority as the actual decision. These observations by the way, obiter dicta are without binding authority, but are nonetheless important; not only do they help to rationalise the law but they serve to suggest solutions to problems not yet decided by Courts. Indeed dicta of the House of Lords or of Judges who were masters of their fields, like Lord Blackburn, may often in practice enjoy greater prestige than the rationale of lesser Judges.
23. In CIT v. Sun Engineering Works (P) Limited, Dr. A.S. Anand, J., (as the learned Judge then was) stated the law in the following terms:
... It is neither desirable nor permissible to pick out a word or a sentence from the judgment of this Court, divorced from the context of the question under consideration and treat it to be the complete 'law' declared by this Court. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before this Court....."
24. In Jaya Sen v. Sujit Kr. Sarkar, it was held-
"It is now well known that a decision is an authority for what it decides and not what can logically be deduced therefrom. It is also well known that even a light distinction in fact or an additional fact may make a lot of difference in decision making process (See Quinn v. Lealham [(1990-1993) AER (Rep.)]], Krishna Kumar v. Union of India, , Commissioner of Income Tax v. Sun Engineering Co. Ltd, , Regional Manager v. Pawan Kumar Debey, and Municipal Corporation of Delhi v. Gurnam Kaur, (1988) I SCC 101."
25. It is also a settled law that a decision is not an authority on a point which was not argued [See Mittal Engineering Works (P) Ltd v. Collector of Central Excise, .
26. For the aforesaid reasons, the order of the Tribunal cannot be sustained. It is set aside accordingly. The writ petitions are accordingly allowed. There shall be no order as to costs.