Andhra HC (Pre-Telangana)
Transmission Corporation Of Andhra ... vs R. Venkataramana And Others on 23 April, 1999
Equivalent citations: 1999(3)ALD337, 1999(3)ALT489
Author: A.S. Bhate
Bench: A.S. Bhate
ORDER M.S. LIBERHAN, CJ.
1. These appeals will be disposed of by this common order as question of law and facts raised in these appeals on pam matcria facts are common.
2. Skeletal facts to dispose of the appeals are taken from Writ Appeal No.449 of 1999. The appellant has entered into an agreement with his recognised labour unions agreeing to consider for appointment against 50% vacancies amongst casual labourers under the Court's order, village electricity workers and labourer supplied by the contractors, other than those employed in 33 abolished categories, on 5-3-1996 resulting in issuing guidelines on 18-5-1997 for filling of 50% existing vacancies as per the guidelines issued in B.P.M.S. No.36 dated 18-5-1997, which provided that the contract labourer other than those engaged in 33 abolished categories would be considered for selection and appointment against 50% of the existing vacancies. Consequently the petitioners were found to be eligible for consideration, in conformity with agreement or under Court's orders, and thereafter interveicwcd on 18-10-1997. The appellant vide clarification dated 31-12-1997 restricted the consideration of the contract labourers only of those who were employed through licensed contractor under Contract Labour (Regulation & Abolition) Act, 1970 (hereinafter referred to as 'the Act'). The respondents impugned the said clarification dated 31-12-1997, inter alia contending that the restrictions arc discriminatory, arbilraiy and violative of Article 14 of the Constitution of India.
3. The learned single Judge considered the question whether the contract labourers working under the unlicensed contractors would be eligible for consideration for appointment by recruitment to the post of LDC in the respondent-Board. It is found that the relevant rule for selection would be the rule as on the date of selection and not the subsequent notification issued after the selection process is over. The impugned clarification dated 31-12-1997 is prospective in nature and would not be applicable to the petitioners who are interviewed and selected on 18-10-1997. Agreement dated 5-3-1996 or subsequent negotiations or agreements between the recognised unions and the management, and subsequent Government Orders or policy decisions taken, in consultation with union or without them, it was provided for the consideration of 50% contract labourers. It was not specified or implied that contract labourers would only be ones who were employed through licensed contractors and they alone would be entitled to be considered. The agreement being a statutory' agreement, thus the Board would be liable to consider the contract labour against 50% vacancies supplied by a licensed or unlicensed contractor according to seniority. Consequently mandamus was issued for consideration of the petitioners.
4, The learned Advocate General contended that the agreement dated 5-3-1996 is not a statutory agreement entered into under the Industrial Disputes Act; consequently it is not enforceable under law, and further submitted that it was categorically mentioned in the agreement, subsequent agreements and policy decisions that the guidelines containing BPMS No.36 dated 18-5-1997 for filling up of 50% of the existing vacancies on that day in the initial recruitment cadre would be followed. Subsequently it was only by way of a clarification, provided the specified class of the contract labourers, i.e., one who were supplied by the licenced contractors would alone be eligible for consideration. Clarification was alleged to have been issued on 28-9-1997 followed by 30-9-1997. Finally on 31-12-1997 the impugned classification of specified category have a right for consideration was issued. The Act specifically provided the penal consequences for its violation. Thus, he impugned the finding of the learned single Judge that consideration of contract labourers cannot be restricted to labourers of only licensed contractors. Contract labourer would include the labourers employed by the unlicensed contractors too and urged that only licensed labourers alone have a right for consideration.
5. The Contract Labour (Regulation and Abolition) Act, 1970 was enacted in order to meet various malpractices and evolved in employment by deployment of contract labour. Thus, exploitation of the unorganised, illiterate labour in the country of poverty where majority of the people are yearning to keep their body and soul together and ensure two-time meals for survival. It provided regulatory measures providing to regulate employment of the contract labour and the Act provided for penalty for violation of the regulatory measures provided by the Act. The Act is a social welfare legislation with laudable object of protecting the interest of the worker by ensuring his security against exploitation by the employer. Daily existence is a hard grind. One cannot be insensitive to the ground realities prevalent all around us of insensitivity of the employers, even of one's expected to be ideal employers like the appellant, whose only objective is not only to provide the electricity but to meet the social, constitutional obligations of providing employment. Each one of the living-being wants to be employed and earn for living. Constitution provides for an opportunity for the same.
6. There is no gain-saying that the appellant, rather if I may hasten to add, it is an admitted fact that the respondent were employed through the Contractor for more than five long years. The work was of perennial nature, yet for the reasons best known to the appellant, which is not far to see, were employed through contractors, while in faGt they were performing the duties and jobs required by the appellant and paid by the appellant. The appellant never objected to their being deployed with the appellant through the licensed or unlicensed contractors. No objections were raised even while giving hopes or expectations to the workers for consideration, against the reserved vacancies for them. Agreement may not be, strictly speaking, an enforceable agreement under the Industrial Disputes Act, yet, the employees working with the appellant known as contract labourers cannot be denied the just expectation of theirs in view of recognised judicial, legislative act of good employer, in the administrative world of employment that employees who have worked without any stigma would be considered for regular employment against 50% posts available for casual workers as the remaining 50% were provided to be filled by direct recruitment.
7. Fairness, lack of arbitrariness, just and equitable conduct of a Siate is the creed of Article 14 of the Constitution. Justice would not be only a Draconian justice, if it reflects the poor view of the fair mindedness and presents hypocracy oblivious of attitude of ideal employer, though desired to provide paradigm to others. Rule of law as envisaged by the Constitution is not only a written law but is the one which is recognised precedently. Protection of the individual from cradle to grave is the incumbent duty of the welfare State.
8. One has to discover the intention of the parties as expressed by the instrument as a whole in its context in consonance with the Directive Principles of the Constitution. One must take note of the historical fact, conventional language., understood by the persons who are to follow the same. The meaning attached to the word should be natural and probable in the context of the subject matter, its effect and consequences of the persons.
9. Tested on the touch-stone of the observations made above, we find no error in the finding of the fact arrived at by the learned single Judge that the agreement provided for the consideration of the contract labourers as being casual labourers against 50% posts against which two categories referred to above are to be considered. It is only a zone of consideration which has been increased. The object of it is providing a right to be considered for employment who has served the appellant for a considerable long period of five years in a just hope of getting a regular appointment. Contract labourer would be a contract labourer and would enjoy such a status irrespective of the fact who employed him and whether he was a licensed contractor or unlicensed. The appellant cannot be permitted to lake the benefit of his own lapses that for half a decade they took the respondents having been employed through a contractor. It was not expected of an illiterate labourer to find out whether the contractor had a licence or not, specially when it was a question of his life and to provide a meal to himself to survive, while the employer-appellant never cared to find out or weeded out the unlicensed contractors. The matter is not res Integra. Both the Counsel for the parties relied on the decision in the case of Secretary, Haryana Slate Electricity Board v. Suresh & Ors., 1999 (2) J.T. SC 435, which has categorically laid down that a worker employed irrespective of the contractor being licensed or not licensed would be contract labourer with the employer i.e., the appellant.
10. The conspectus of the observations from the judgment relied by the parties emerges, Court has equated the security clause in the Constitution so as to mean that the people of the country ought to be secured of socio-economic justice by way of the fusion of fundamental rights and Directive Principles of State Policy. The primary impact of the socialism as a matter of fact is to offer and provide security of life so that the citizens of the country may have two square meals a day. The feudal exploitation and dvacoman concept of law ought not to outweigh the basic structure of the Constitution or its socialistic status. Life, in conditions of poverty aplenty, is livelihood, and livelihood is work with wages. Raw societal realities, not fine spun legal niceties, not competitive market economy but complex protective principles, shape the law when the weaker, working class sector needs succour for livelihood through labour. The presence of intermediate contractors with whom alone the workers have immediate or direct relationship ex-contractors of no consequences when, on lifting the veil or looking at the conspectus of factors governing employment, we discern the naked truth, though draped in different perfect paper arrangement, that the real employer is the management and not the immediate contractor. The Court must be astute to avoid the mischief and achieve the purpose of the law and not be misled by the "maya" of legal appearances. The law Court invariably has to rise upto the occasion to do justice between the parties in a manner as it deems fit. After taking various factors into consideration, it was observed that the beneficiaries of the abolition of the erstwhile contract labour system i.e., the workmen on the one hand and the employer on the other who is no longer their principal employer but necessarily becomes a direct employer for these erstwhile contract labourers. Thus, it was observed as under:
"16. Needless to note at this juncture that the Contract Labour Regulation Act being a beneficial piece of legislation as engrafted in the statute book, ought to receive the widest possible interpretation in regard to the words used and unless words are taken to their maximum amplitude, it would be a violent injustice to the framers of the law. As a matter of fact law is well settled by this Court and we need not dilate much by reason, therefor to the effect that the law Courts exist for the society and in the event of there being a question posed in the matter of interpretation of a beneficial piece of legislation, question of interpreting the same with a narrow pedantic approach would not be justified. On the contrary, the widest possible meaning and amplitude ought to be offered to the expressions used as otherwise the entire legislation would loose its efficacy and contract labour would be left on the mercy of the intermediary."
11. The Honourable Supreme Court came to the conclusion that denying the beneficiary right only for consideration of an employee for employment, once he has served for half a decade merely on the ground that he was employed through unlicensed contractor, would be perpetuating injustice. It observed in the facts and circumstances of the precedents cited that once the Board was a principal employer and the contractor was not a licensed contractor under the Act, the inevitable conclusion that had to be reached waste the effect that the so called contract system was a mere camouflage, smoke and a screen and disguised in almost a transparent veil which could easily be pierced and the real contractual relationship between the Board, on the one hand, and the employees, on the other, could be clearly visualised. Thus, in our considered view, neither the policy envisaged that the contract labourer of a licensed contractor would only have a right for consideration under the policy nor the agreement with the edifice of the argument before the learned single Judge as well as before us put by the learned Advocate General. From the object of the agreement and the policy providing the relief of consideration only against 50% vacancies to the casual labourers working for half a decade with the appellant runs counter to the clarification dated 31-12-1997 restricting the consideration' to the employees deployed through the licensed contractor. It has not been pointed out to us what is an integral distinction for such an artificial classification of the casual labourers working with the appellant. In our considered view, classification cannot be up-held on the ground of reasonableness, fairness, equitable well-being in consonance with Article 14 of the Constitution of India. Thus, we affirm the finding of the learned single Judge that the respondents have a right for consideration both under the agreement as well as on policy decision taken by the appellant.
12. In view of the observation made above, we are of the view that the clarification made vide Clarification dated 31-12-1997 is arbitrary and cannot be sustained especially when the appellants themselves are responsible for bringing out the factual situation of their own, apart from being in conformity with the law laid down by the Supreme Court that the employee of an unlicensed contractor deployed for a principal employer or appellant is in fact a direct employee of the appellant.
13. Nothing substantial has been pointed out to take a view that on 18-10-1997 when the respondents were interviewed there was no such category of employees deployed through the licensed and unlicensed contractor, who was carved out as said by the Board. The respondents were considered for appointment in accordance with the policy and the agreement as existed on 18-10-1997. By a reading of the clarification in its totality it categorically emerges that it is not retrospective but it is prospective. The clarification in fact was not even issued by Board but by its officer. No change in agreement has been brought about, by clarification by any Board's Officer cannot change the term of BPMS or promise held out by Board. Though we have held that the clarification suffered from the vice of Article 14 of the Constitution, even if it is assumed to be intra vires it is prospective in nature. It is axiomatic that the policy, rules and crystallised in eyes of a person on the date of selection would be applicable to the candidates seeking employment and not any change in them subsequently. Thus, we firmly find the order of the learned single Judge that the respondents have a right for consideration on the date of interview irrespective of the fact whether they were deployed through the licensed or an unlicensed contractor.
14. We are unable to comprehend that merely providing for employees from a larger zone for consideration of regularisation, the appellants would or, have suffered. On the other hand, denying the right for consideration, if we may lay emphasis not of employment but only of consideration, there will be nothing else but perpetuation of injustice which is never the object of the Rule of Law. Thus, for the reasons recorded above we find no force in the appeals. The same are dismissed with no order as to costs.