Allahabad High Court
U.P.S.R.T.C. And Another vs Roadways Karamchari Sanyukt Parishad ... on 28 May, 2013
Author: Tarun Agarwala
Bench: Tarun Agarwala
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 1 Case :- WRIT - C No. - 68446 of 2011 Petitioner :- U.P.S.R.T.C. And Another Respondent :- Roadways Karamchari Sanyukt Parishad And Others Counsel for Petitioner :- Amit Manohar Counsel for Respondent :- Bushram Maryam,S.C. Hon'ble Tarun Agarwala,J.
Heard Sri Amit Manohar, the learned counsel for the petitioners and Ms. Bushra Maryam, the learned counsel for the respondents.
By means of this petition, the petitioners have challenged the validity and legality of the award passed by the labour court directing the petitioner to regularize the services of the workman with effect from the date of the reference order i.e. 15th March, 2001.
The facts leading to the filing of the writ petition is, that the workman was working as a part time Sweeper since 1988, and inspite of vacancies existing in the department, fresh appointments were not being made nor part time workers were being regularized. Consequently, the workman raised an industrial dispute in the year 2001, which was referred for adjudication. The terms of the reference order was "whether the employers were justified in regularizing the services of the workman in their organization? If not, to what relief was the workman entitled to?"
Before the labour court, the workman contended that he was appointed as a part time Sweeper in the Unnao Depot at sub-station Purva in the year 1988. Subsequently, on account of the closure of the said sub-station, the services of the workman was transferred in 1993 to Unnao Raodways Workshop and, in 1998, he was again transferred to the Unnao Depot. It was alleged that he was working as a part time Sweeper, but on account of another sweeper dying in harness, the workman was being made to do double shifts, and consequently, he was doing full time duty in the respondents' organization. It was also alleged that there were four vacancies existing and the same had not been filled up for reasons best known nor were the petitioners regularizing the services of the workman, and accordingly, adopting an unfair labour practice.
The employers also filed a written statement contending that the workman was employed on a temporary basis as a part time sweeper and that he was not a workman as defined under the U.P. Industrial Disputes Act. The petitioners contended that the services of the workman was not liable to be regularized.
The labour court, after considering the entire evidence on record found that the workman was working continuously without any break in service since 1988. The labour court also found that there are vacancies existing in the employers' organization, which has not been filled up nor any steps were taken by the employers to regularize the services of the workman. The labour court also found that the work, which was being performed by the workman was of a perennial nature and that his work was also found to be satisfactory by the employers. The labour court also found that the workman was being paid from the funds of the organization.
On these findings, the labour court held that the workman was liable to be regularized w.e.f. 15th March, 2001, i.e., from the date of issuance of the reference order. The petitioners, being aggrieved by the said award, has filed the present writ petition.
Before this Court, the learned counsel for the petitioners submitted that in the absence of any Rules for regularization, the labour court had no power or jurisdiction to regularize the employees. It was contended that under the Regulations, part-time employees are not the workman, and consequently, the services of the part time employees could not be regularized.
In support of his submission, the learned counsel has placed reliance upon the various judgments, which will be considered hereinafter. The learned counsel also submitted that assuming without admitting that the labour court could regularize the services of the workman, the order of regularization, if any, can only be made prospectively i.e. from the date of the award and that no order of regularization could be made with retrospective effect.
On the other hand, the learned counsel for the workman submitted that the labour court or the tribunal has wide powers to mould the reliefs and create new rights and obligations interse between the employers and the workman and that, the labour court has take consecutive measures in curbing unfair labour practice. The learned counsel submitted that in the facts of the given case, when regular vacancies were existing and the workman was doing the work as a regular workman, which work was also perennial in nature, there was no justification for the employers to continue with the engagement of part time sweeper when the same work could be done by the regular workers against sanctioned posts.
Having heard the learned counsel for the parties, the Courts finds that there is a tendency to mix service jurisprudence with labour jurisprudence. The Service and labour jurisprudence are different and distinct and operate in different areas, which should not be intermixed. The law propounded by the Supreme Court and the other High Courts on service jurisprudence is totally different and distinct from labour jurisprudence.
The Constitution Bench of the Supreme Court in the Secretary, State of Karnataka Vs. Smt. Uma Devi 2006 (4) SCC 1 was a case primarily holding that the High Court under Article 226 of the Constitution and the Supreme Court under Article 32 does not have the power to issue directions for regularization of service of an employee either in the Government Organization or in the Private Sector. This view of the Court was itself suggested by the Supreme Court in Maharashtra State Road Transport Corporation and another Vs. Casteribe Rajya P. Karmchari Sanghatana 2009 (123) FLR 136, wherein the Supreme Court held that the Uma Devi's case does not denude the labour court of their statutory power to order permanency to the workers, who have been victim of unfair labour practice on the part of the employer.
For facility, the Supreme Court held:
"The provisions of MRTU & PULP Act and the powers of Industrial and Labour Courts provided therein were not at all under consideration in the case of Umadevi. As a matter of fact, the issue like the present one pertaining to unfair labour practice was not at all referred, considered or decided in Umadevi. Unfair labour practice on the part of the employer in engaging employees as badlies, casuals or temporaries and to continue them as such for years with the object of depriving them of the status and privileges of permanent employees as provided in item 6 of Schedule IV and the power of Industrial and Labour Courts under Section 30 of the Act did not fall for adjudication or consideration before the Constitution Bench. It is true that the case of Dharwad District PWD Literate Daily Wage Employees Assn. arising out of industrial adjudication has been considered in Umadevi and that decision has been held to be not laying down the correct law but a careful and complete reading of decision in Umadevi leaves no manner of doubt that what this Court was concerned in Umadevi was the exercise of power by the High Courts under Article 226 and this Court under Article 32 of the Constitution of India in the matters of public employment where the employees have been engaged as contractual, temporary or casual workers not based on proper selection as recognized by the rules or procedure and yet orders of their regularization and conferring them status of permanency have been passed. Umadevi is an authoritative pronouncement for the proposition that Supreme Court (Article 32) and High Courts (Article 226) should not issue directions of absorption, regularization or permanent continuance of temporary, contractual, casual, daily wage or ad-hoc employees unless the recruitment itself was made regularly in terms of constitutional scheme. Umadevi does not denude the Industrial and Labour Courts of their statutory power under Section 30 read with Section 32 of MRTU & PULP Act to order permanency of the workers who have been victim of unfair labour practice on the part of the employer under item 6 of Schedule IV where the posts on which they have been working exists. Umadevi cannot be held to have overridden the powers of Industrial and Labour Courts in passing appropriate order under Section 30 of MRTU & PULP Act, once unfair labour practice on the part of the employer under item 6 of Schedule IV is established."
In 2006 108 FLR 826, The Workmen, Bhurkunda Colliery of M/s. Central Coalfields Ltd. Vs. The Management, Bhurkunda Colliery, the Supreme Court held that in the matter of regularization, the main concern of the Court is to see that the Rule of law is respected and to ensure that the executive acts fairly and give a fair deal to its employees consistent with the requirement of Articles 14 and 16 of the Constitution of India. The Supreme Court held that the State Government being a model employer should not exploit its employees nor take advantage of helplessness and misery of either the unemployed person or the person concerned. The Supreme Court further held that where temporary or ad hoc appointments are continued for long, the Court should presume that there is a regular need for his services on a regular post, and accordingly, consider regularization.
As far back as in 1950, the Supreme Court in The Bharat Bank Ltd., Delhi Vs. The Employees of the Bharat Bank Ltd. Delhi and the Bharat Bank Employee's Union Delhi, AIR 1950 SC 188 held that the Labour Court or the Tribunal can confer rights and privileges on either parties and can create new rights and obligations between the workman and its employer for keeping industrial peace.
The Supreme Court held :
"In settling the disputes between the employers and the workmen, the function of the Tribunal is not confined to administration of justice in accordance with law. It can confer rights and privileges on either party which it considers reasonable and proper, though they may not be within the terms of any existing agreement. It has not merely to interpret or give effect to the contractual rights and obligations of the parties. It can create new rights and obligations between them which it considers essential for keeping industrial peace. An industrial dispute as has been said on many occasions is nothing but a trial of strength between the employers on the one hand and the workmen's organization on the other and the Industrial Tribunal has got to arrive at some equitable arrangement for averting strikes and lock-outs which impede production of goods and the industrial development of the country. The Tribunal is not bound by the rigid rules of law. The process it employs is rather an extended form of the process of collective bargaining and is more akin to administrative than to judicial function."
On the other hand, the learned counsel for the petitioners has placed reliance upon a decision of the Supreme Court in the State of Rajasthan and others Vs. Daya Lal and Others 2011 (2) SCC 429 wherein, the Supreme Court in paragraph 12 framed certain well settled principles relating to regularization holding that the High Courts, in exercising its power under Article 226 of the Constitution should not issue directions for regularization of a public servant.
Similar view was given by the learned Single Judge of this Court in Kanchi Lal Vs. Uttar Pradesh State Road Transport Corporation 2001 (1) UPLBEC 221 and Ram Prasad Vs. U.P. State Transport Corporation 2005 (1) UPLBEC 839.
In Ramakrishna Kamat and others Vs. State of Karnataka and others, AIR 2003 SC 1530, the Supreme Court held that the regularization of an employee engaged on temporary basis not against any sanctioned or regular post could not be regularized especially in the absence of Rules governing the service conditions.
These decisions are not applicable in the instant case, inasmuch as, these decision relates to power of the High Courts under Article 226 of the Constitution of India.
In the case of Maharashtra State Road Transport Corporation (Supra), the Supreme Court held that the labour court is not denuded with its powers to order permanency of the workers, who had been a victim of unfair labour practice. The labour court could create new rights and obligations between the employers and its workers.
In the light of the aforesaid, this Court finds that when permanent vacancies were existing, the petitioner, being an instrumentality of the State, was under a legal obligation to fill up the post instead of getting the work done through part time employees. The work done by the workman was that of a full time workman. The practice adopted was a clear case of unfair labour practice and considering the facts that has been brought out in the instant case, the labour court was justified in holding that since the workman was working continuously for years and in the light of permanent post being available, rightly directed regularization of the service of the workman.
The labour court, however, committed an error in directing regularization with retrospective effect i.e. with effect from the date of the reference order.
In the Registrar General of India and another Vs. V. Thippa Setty and Others 1998 (8) SCC 690 and in the case of Union of India (UOI) and others Vs. Sheela Rani, 2007 (112) FLR 708, the Supreme Court held that regularization of the services of an employee should be done prospectively and should not be done retrospectively.
In the light of the said judgement, the Court is of the opinion that regularization in the instant case should be done from the date of the award and not from the date of reference order.
In the light of the aforesaid, the writ petition is partly allowed, whereby the award of the labour court is modified to the extent that the regularization of the services of the workman would be effective from the date of the award and not with retrospective effect.
In the facts and circumstances of the case, the parties shall bear their own costs.
Order Date :- 28.5.2013 Sanjeev (Tarun Agarwala,J.)