Calcutta High Court
Union Of India (Uoi) And Anr. vs Central Government Industrial ... on 17 January, 2001
Equivalent citations: (2001)ILLJ1557CAL
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
JUDGMENT Bhaskar Bhattacharya, J.
1. This writ application is at the instance of an employer and is directed against an award dated November 15, 1999 passed by the Central Government Industrial Tribunal at Calcutta in Reference No. 6 of 1998.
The following disputes were referred to the Tribunal:
"Whether the action of the management of the Farakka Barrage Project in not regularising 540 Muster Roll workers and thus denying them equal pay for equal work and other facilities, which regular workmen are enjoying is justified?
If not, to what relief the workmen are entitled?"
2. The Tribunal, by the award impugned herein, answered the disputes in favour of the employees thereby directing the management to regularise the services of the concerned workmen with effect from the date of granting them the grade and scale of pay in 1987. The management was further directed to grant all benefits available to the regular workers working in the same post in the establishment from the date of regularisation of service. As out of 540 concerned workmen, some had retired and some had died, the award further ordained that all benefits arising out of such regularisation should be available to them or their successors, as the case might be.
3. The Union filed written statement before the Tribunal thereby taking the following defences:
a) Farakka Barrage employed a large number of workmen in different categories during the year 1976 including the concerned workmen and those workmen had been doing the perennial nature of job for the last 20 years continuously since their respective dates of appointment.
b) The Barrage authority in view of the aforesaid fact brought the concerned workmen under Casual Labourer (Grant of Temporary Status of Regularisation) Scheme of Government of India with effect from September 1, 1993 in the scale of pay 750-12-870-EB-14-940 which was revised as per recommendation of 5th Central Pay Commission and the same was in the scale of Rs. 2,500-3,200/- on such revision.
c) The management though granted the concerned workmen the aforesaid pay scale but denied them the other benefits as admissible in law and kept them in Muster Roll/Temporary Roll without regularising those appointments.
d) Those workmen were entitled like other : permanent workmen of their category to the benefits like medical, insurance, provident fund, gratuity, pension, compensatory allowance, overtime allowance, liveries etc. but the management had been depriving them of those benefits without assigning any reason whatsoever.
e) During last few years, a number of Muster Roll workmen died in harness and some retired, but the management neither gave the legal heirs any retirement benefit nor did it confer any other family benefit to those persons.
f) The action of the management in not regularising the concerned workmen amounted to discrimination and exploitation of human labour taking advantage of poverty and compelling circumstances.
4. The management also filed written statement before the Tribunal and its defences were as follows:
a) The Farakka Barrage Project functions for the overall benefit of the country out of the fund granted in plan scheme of Government of India like 8th Five Year Plan, 9th Five Year Plan as well as non-plan scheme of Central Government. Its main objective and function inter alia includes safeguarding of installed project of national importance like Farakka Barrage, Jangipur Barrage, providing infrastructure for the fulfilment of the main aim and ideal of the project by sharing of Ganges water between two neighbouring countries viz. India and Bangladesh. It projects the Calcutta Port by regulating required flow of water as well as provides corridor of rail and road link between North Eastern States of India with the rest of the country.
b) Farakka Barrage Project was not designed with the intention to earn any profit out of the project. In fact such project is augmenting the cause of nation by its various operations in different fields and such operations are being carried in exercise of the sovereign function of the State and as such the project is excluded from the term 'industry', as mentioned in the Industrial Disputes Act.
c) The Muster Roll employees who were more or less 1200 in numbers were regularised and/or absorbed into the exact number of vacant posts according to the vacancy created from time to time. Those regularisation of the Muster Roll employees were effected after exhausting the process of open selection among Mazdoors who could be eligible for regular isation in the said vacant posts in the regular cadre of Group 'D' or Group 'C' as the case may be. The regular absorption and/or regularisation in regular cadre of Group 'D' and/or Group 'C' were exclusively made only in the posts of Barrage that were existing and/or lying vacant in different fields.
d) There was no regularisation or absorption in the absence of any vacant post in the regular cadre of Group 'D' and Group 'C' and at that point of time no such post was vacant and/or created for regularisation of the applicants. Moreover, the initial engagement was not made by following any recruitment rules and process, but the applicants were engaged for the necessity of work and as such prayer for wholesome regularisation could not be considered.
e) The Government of India had framed scheme for grant of temporary status and regularisation of casual workers viz. Casual Labourers (Grant of Temporary Status and Regularisation) Scheme of Government of India 1993 and according to the said scheme Muster Roll candidates were granted temporary status by the management of Farakka Barrage Project and in the event of granting of temporary status, the workmen were getting all the benefits contained in the Scheme. The said scheme contained a provision by which the workmen could be regularised. However, such regularisation would not be undertaken unless new post or posts existed or such posts are created by the Central Government. The right of absorption beyond the scope of the scheme was disputed by the management.
5. Before the Tribunal the sole witness for the management in his evidence admitted that no recruitment rule was there for engagement of the Muster Roll workmen. It was further stated that according to the scheme, ratio of appointment was two out of three for regularisation. The said witness however conceded that most of the concerned workmen were doing perennial nature of job. The said witness further admitted in cross-examination that as the workmen were working in the project from 1977, he was not in a position to deny the fact that their services were indispensable from the project and that the project works will not be seriously hampered if their services were dispensed with at that point of time. Ultimately, the said witness stated that the authority tried to regularise the services of the concerned workmen but as no sanction of the Central Government could be obtained inspite of repeated communication to that effect, the authority could not regularise them.
6. As mentioned earlier, the Tribunal by the award impugned herein has directed regularisation of the services of the concerned workmen.
7. Mr. Bose and Mr. Bandopadhyay, the learned counsel appearing for the petitioner have made two separate submissions in support of this writ application.
8. The point raised by Mr. Bose, is that the Farakka Barrage Project is doing sovereign function of the State and as such the same cannot be said to be an 'industry' within the meaning of Industrial Disputes Act. Mr. Bose thus contends that reference before Tribunal was not maintainable.
9. The other branch of argument advanced by Mr. Bandopadhyay on behalf of the petitioner was that even assuming for the sake of argument but not conceding that the barrage was an 'industry', in that case the Tribunal erred in law in directing regularisation of the services of the concerned workmen in the absence of any finding that there were available vacant posts in the project. Mr. Bandopadhyay submits that the Tribunal could not direct creation of post or sanction of approval in a regular post. According to Mr. Bandopadhyay, concerned employees having accepted their status in accordance with the scheme framed in 1993, they cannot pray for better benefits than those conferred under the Scheme. Mr. Bandopadhyay thus submits that the Tribunal acted without jurisdiction in passing an order of regularisation not in conformity with the scheme.
10. Mr. Bhattacharyya, the learned counsel appearing on behalf of the workmen has on the other hand supported the award impugned and has contended that simply because one of the functions of the barrage is to distribute Ganges water by virtue of a subsequent agreement between India and Bangladesh, the project cannot be taken out of the definition of 'industry'. In support of such contention Mr. Bhattacharyya strongly places reliance upon the decision of the Apex Court in the case of Agricultural Produce Market Committee v. Shri Ashok Harikuni, .
11. As regards the other contention of the management, Mr. Bhattacharyya submits that the Tribunal below on the basis of materials on record having found in favour of the employees, this Court sitting in a writ jurisdiction should not re-appreciate the evidence on record. Mr. Bhattacharyya contends that those workmen having undisputedly been employed for the last more than 20 years, in the fact of the present case, the Tribunal rightly directed the management to absorb those employees thereby giving them benefit of all regular employees who are doing similar nature of job. Mr. Bhattacharyya thus prays for dismissal of the writ application.
12. As regards the first contention of the petitioner that the project should not be treated to be an industry within the definition mentioned in the Industrial Disputes Act, I find that the management in its written statement has admitted that apart from doing distribution of Ganges water, the object of the project is to maintain Jangipur Barrage, protection of Calcutta Port by regulating required flow of water, providing corridor of rail and road link between North Eastern States with the rest of the country etc.
13. It is now settled position of law that the sovereign functions are primarily inalienable functions which only State can exercise. Thus, various functions of the State may be ramification of sovereignty but they all cannot be construed as primarily inalienable functions. Broadly, taxation, eminent domain and police power cover its field. It may also cover its legislative functions, administration of law, maintenance of law and order, internal and external security and grant of pardon. So the dichotomy between sovereign and non-sovereign functions could be found by locating those of the functions of the State which could be undertaken by any private person or body. The one which could be so undertaken cannot be sovereign function. In a given case, even the subject on which the State has the monopoly may also be non-sovereign in nature. Mere dealing in subject of monopoly of the State would not make any such enterprise sovereign in nature. Absence of profit making would not also bring such enterprise outside the ambit of the industry.
14. Applying the aforesaid tests to the fact in our case, it is apparent that only distribution of Ganges water by virtue of an agreement between India and Bangladesh can be said to be the sovereign function; other functions of the barrage cannot by any stretch of imagination be described as sovereign functions.
15. As pointed out by the Apex Court in the case of Agricultural Produce Market Committee v. Shri Ashok Harikuni and Anr. (supra), even if some of the functions discharged by an establishment could be said to be performance of sovereign functions of the State Government, that fact by itself would not make the domain object to be sovereign in nature to take the establishment out of the definition of 'industry'. In the instant case when the barrage was constructed, the sovereign part mentioned above was not in existence. Thus, the major part constructed of the function of the barrage is non-sovereign. I thus find no substance in the contention of Mr. Bose that the reference would be treated to be illegal as the barrage was performing a sovereign function of the State.
16. Now the next question is whether the Tribunal was justified in directing regularisation of the concerned workmen and passing a direction for giving them equal benefits available to the regular workers in the same post.
17. Before I proceed to answer the aforesaid question, it will be profitable to refer to the following observations of the Apex Court in the case of State of Haryana v. Piara Singh, as regards the duty of a Court dealing with a case of regularisation of service and grant of equal pay for equal work at pp. 944, 945 of LLJ:
"21. 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 the 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. It also means that the State should not exploit its employees nor should it seek to take advantage of the helplessness and misery of either the unemployed persons or the employees, as the case may be. As is often said, the State must be model employer. It is for this reason, it is held that equal pay must be given for equal work, which is indeed one of the directive principles of the Constitution. It is for this very reason it is held that a person should not be kept in temporary or ad hoc status for long. Where a temporary or ad hoc appointment is continued for long the Court presumes that there is need and warrant for a regular post and accordingly directs regularisation. While all the situations in which the Court may act to ensure fairness cannot be detailed here, it is sufficient to indicate that the guiding principles are the ones stated above....."
"49. ..... If for any reason, an ad hoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularisation provided he is eligible and qualified according to the rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State."
18. In the case before us, the concerned employees have been working continuously for the last 22 years right from the year 1977 till the matter was heard before the learned Tribunal.
19. A few of them have since died and a further few have retired. The management has not come forward with any case before the Tribunal that any of them is ineligible or disqualified for the post concerned nor has it tried to establish that the appointment of any body would run counter to the reservation policy of the State. It is not even the case of management that the service record of any of the concerned employees is not satisfactory; on the other hand, the sole witness for the management admitted in cross examination that the services of the concerned employees were indispensable and the project work would be seriously hampered if their services were dispensed with even at the time of hearing before the Tribunal. The said witness further admitted that if the Muster Roll employees were made regular, the financial implication for such regularisation will be "little".
20. From the aforesaid materials it is clear that the fact that the concerned employees are working continuously for the last 22 years and that their services are indispensable, itself shows that there is 'need and warrant' for regular posts. Notwithstanding the fact that the financial implication for regularising those essential employees will be "little" as admitted by the management in evidence, if the authority decides not to regularise them and give them equal benefits payable to the regular employees doing similar work for alleged want of sanction from the Central Government, such inaction and refusal on the part of the employer cannot but be described as exploitation of its employees by taking advantage of their helplessness and misery.
21. The Tribunal as it appears from the award took into consideration all the aforesaid aspects of case and passed the award impugned. I thus find that the award is quite in tune with the principles laid down by the Supreme Court in the case of State of Haryana v. Piara Singh (supra) and as such I do not find any reason to interfere with the award. It is now settled law that even in a case if a different view is possible from the self same materials, that fact is no ground for interference in a writ jurisdiction if the view taken by the Tribunal is not an impossible one. This is not a case where the award is based on no evidence or inadmissible evidence; nor is it a case where the Tribunal improperly refused to admit any valid evidence.
22. The decisions relied upon by Mr. Bandopadhyay in this connection have, in my view, no application to the fact of the present case. 1 however propose to deal with those decisions separately in the following paragraphs.
23. In the case of State of Haryana v.
Piara Singh (supra) the Supreme Court was considering the decision of the High Court holding that the rule relating to length of service requisite for regularisation should be uniform in two neighbouring States of Punjab and Haryana. The Apex Court set aside such finding on the ground that merely because at one point of time Haryana was part of Punjab that does not mean that even after separation, the State of Haryana is required to enact and follow the same rule prevailing in Punjab. In the said case, the Supreme Court was also considering whether the direction given by High Court directing regularisation of ad hoc employees who had continued for more than one year was justified. The Supreme Court set aside the decision of the High Court as the same was given without reference to the existence of vacancy, the qualification of the employees, their record of service etc. I have relied upon the principles mentioned in the said judgment and have indicated that applying those to the fact of the present case, the award was rightly passed. We must not forget that this is not an award regularising service after the completion of one year's service as was the case in the case of State of Haryana v. Piara Singh (supra) but is one where the employees are working from 1977 and they are found to be indispensable.
24. In the case of Indian Airlines Limited v. Samaresh Bhowmick and Ors., the appellant after advertisement and selection prepared a list of selected persons for the post of helpers. The select list was valid upto July 15, 1994. The names of 74 writ petitioners, the respondents before the Supreme Court, were included in the list but they could not be appointed during the period of validity of the select list. The respondents approached the High Court by filing a writ application and the learned single Judge inter alia held that the writ petitioners had no indefeasible right of being appointed and they had only the right of being considered for appointment in the vacancies for which selection was made contingent upon the employer filling up those vacancies. However, the learned single Judge directed that the cases of the writ petitioners should be considered for appointment if any vacancies arose till July 30, 1991.
25. On an appeal being preferred, the Division Bench directed that in the present vacancies as well as future vacancies, the candidates who were selected and empanelled should be regularised first. In passing such an order, the Division Bench overlooked a proposed scheme for regularisation of casual employees working in Calcutta wherein the writ petitioners were also given casual employment,
26. The Supreme Court after considering the fact and recording the respective submissions of the parties held that the order of the Division Bench was not sustainable inasmuch as the High Court could not overlook the scheme. However, the Supreme Court was of the opinion that the writ petitioners having been selected in the test earlier should be given preference in the matter of consideration under the scheme. In my opinion, the fact of the said case is totally different from the present one. The Apex Court in the fact of that case passed such order for doing complete justice between the parties and has not laid down any principle inconsistent with the one declared in the case of State of Haryana v. Piara Singh (supra).
27. In the case of State of U.P. and Ors. v. Ajay Kumar, writ petitioners were appointed on daily wage basis as Class IV employees in the Medical College by the Medical Superintendent without following recruitment rules. The learned single Judge rejected the writ application holding that no statutory rule was produced justifying regularisation of such daily wage earners. The Division Bench reversed the decision and passed direction of regularisation. The Supreme Court set aside the decision holding that the daily wage appointments would obviously be in relation to contingent establishment in which there could not exist any post and it would continue so long the work existed. In the case before us, the sole witness for the management has admitted that the works done by the concerned employees are perennial in nature and they are indispensable. Moreover, they have also been given temporary status. Thus, the principle stated in the fact of the said case cannot have any application to the one in hand.
28. The case of Raj Naraian Prasad and Ors. v. State of U.P. and Ors., , is one where the State respondent pleaded financial constraint in the matter of implementation of a scheme of regularisation. Even in such a case the Apex-Court observed that the State should show concern for those who are working in different departments of the State so that at the end when they are relieved from service on their attaining age of superannuation they may have something to fall back upon. Ultimately, the Apex Court although dismissed the writ application, impressed upon the State to follow the spirit of the observation made in the case of State of Haryana v. Piara Singh (supra). In the instant case, the petitioner did not put forward a case of financial constraint; on the other hand, it was admitted that for regularisation of the concerned employees the financial implication would be "little". Thus, this decision is of no avail to the petitioners.
29. Union of India v. R.N. Hedge and Ors., , was a case preferred against the order of Central Administrative Tribunal directing regularisation not in consonance with the scheme framed earlier as per earlier direction. The Tribunal directed regularisation of the service by relaxation in the upper age limit. By relying upon this decision Mr. Bandopadhyay wanted to impress upon this Court that once there is a scheme, no direction for regularisation can be passed. I am not at all convinced by such submission. If a case falls within the guidelines given by the Apex Court in the case of State of Haryana v. Piara Singh (supra), the Court is entitled to pass an order of regularisation notwithstanding existence of any scheme framed by the management which is inconsistent with the principles laid down by the Apex Court in the said case of State of Haryana v. Piara Singh. Moreover, in this case, the management has failed to disclose the actual number of vacancies before the Tribunal, as a result, the Tribunal, as it appears from paragraph 12 of the award, drew adverse inference against the management for non-production of necessary materials.
30. The cases of Bombay Telephone Canteen Employees Association v. U. O. I. and Rajasthan State Road Transport Corporation v. Laxman Das Mali and Anr. 1998-I-LLJ-948 (Raj) have no application to the case before us and I fail to understand how can those two cases help Mr. Bandopadhya's clients.
31. Therefore, none of the decisions cited by Mr. Bandopadhyay lays down any law contrary to the one taken in the case of State of Haryana v. Piara Singh (supra). The decisions are therefore of no assistance to the petitioners.
32. Thus, I do not find any just reason to disturb the directions given by the Tribunal in the award impugned herein.
33. Both the points taken by the petitioners having failed, I find no merit in this writ application and the same is accordingly dismissed.
34. There will be however no order as to costs.