Sahar vs Mumbai Mazdoor Sangh
2013 Latest Caselaw 389 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  ORDINARY ORIGINAL CIVIL JURISDICTION




                                                                            
                        WRIT PETIITON NO.247 OF 2009




                                                    
    National Aviation Co. of India Ltd., ]
    (I.A.) a Company incorporated under ]
    The Companies Act, 1956 having its ]
    office at New Engineering Complex ]




                                                   
    Sahar, Vile Parle (E), Mumbai-99     ]                   .. Petitioner
                 vs.
    1.      Mumbai Mazdoor Sangh         ]
    32/33, Ibrahim Mansion,              ]
    Dr.Ambedkar Road, Parel,             ]




                                            
    Mumbai-400 012                       ]
    2.      The Presiding Officer
                            ig           ]
    Central Government Industrial        ]
    Tribunal No.1, at Mumbai             ]
    Shram Raksha Bhawan, Shiv            ]
                          
    Shrushti Road, Sion Road,            ]
    Mumbai-400 022.                      ]                   .. Respondents

                                          *****
    Ms. Lancy D'souza, Mr. V.M. Parkar & Ms. Pranjali Deulkar for the
           


    Petitioner.
    Mr. V.P. Vaidya i/b. Anjali Helekar for Respondent No.1.
        



                                          *****

                            CORAM :      M.S.SONAK, J.

Judgment reserved on : 13th December 2013 Judgment pronounced on: 20th December 2013

JUDGMENT. :-

1] Rule was issued in this petition on 10.6.2009, after overruling the

preliminary objection that this petition be dismissed on the ground of

laches.

    2]    The Petitioner is an amalgam of Indian Airlines Ltd. and Air India






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Limited. The scheme of Amalgamation as approved by the Ministry of

Corporate Affairs, Union of India vide its order dated 22.8.2007

contemplates that proceedings filed by or against Indian Airlines Limited

shall be prosecuted or defended by the Petitioner. There is no serious

dispute that the Petitioner answers the definition of 'State' within meaning

assigned to this term under Article 12 of the Constitution of India.

3] Respondent No.1 is a Trade Union registered under the Trade

Unions Act, 1926 comprising inter alia employees of erstwhile Indian

Airlines Ltd.

4] Respondent No.1 purporting to espouse the cause of the almost

1269 casual workers raised an industrial dispute demanding

'regularisation'. The dispute was admitted to conciliation and upon failure

of conciliation, a failure report came to be submitted to the appropriate

Government. The appropriate Government by communication dated

17.7.1999, declined to make reference. Respondent No.1 thereupon

preferred Writ Petition No.1116 of 1999 which was allowed vide judgment

and order dated 22.9.2003. The appropriate Government was directed to

make reference. Accordingly, the appropriate Government by its order

dated 28.11.2003 made reference under Section 10 of the Industrial

Disputes Act to the Central Government Industrial Tribunal No.1 at

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Mumbai (Respondent No.2). The terms of reference were as under:

"Whether the demand of the Mumbai Mazdoor Sangh to the

management of Indian Airlines Limited, Mumbai to regularise 1269 temporary workers (as per list) is legal and

justified ? If yes, what relief are the said workers entitled to and from what date ?"

5] The Central Government Industrial Tribunal No.1 has been pleased

to make award dated 23.1.2007. The operative portion of which reads as

follows:

"18. Considering the entire record and keeping in mind the discussion made above, I conclude that the demand of the

Union for regularization and permanent absorption with the Company is not justified. However, the Company has to include the names of all the workmen under reference after

verifying facts other than 998 workers whose names have already been included in the pool. The Company should endeavour to comply with the scheme expeditiously and provide employment to workmen under reference till regular recruitment."

6] The principal contention of the Petitioner is that the award to the

extent it directs the Petitioner to include the names of the workmen under

reference after verifying facts (other than 998 workers whose names have

already been included) in the pool and to endeavour to comply with the

scheme expeditiously and to provide employment to the workmen under

reference till regular recruitment is ultravires the powers of the Industrial

Tribunal, inasmuch as the directions travel beyond the terms of reference.

Further it is contended that the directions run counter to the ruling of the

Supreme Court in the case of Secretary, State of Karanataka & ors. vs.

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Umadevi & ors1.

7] Based upon the contention of the Petitioner that the impugned

direction overlapped with the arrangement directed by this Court in Writ

Petition No.1303 of 1996, this Court had directed that this petition be

heard alongwith Writ Petition No.1303 of 1996. This petition was

accordingly adjourned to enable the parties to find out the position in Writ

Petition No.1303 of 1996. Learned Counsel appearing for Respondent

No.1 has furnished the copy of order dated 24.2.2010 in Writ Petition

No.1303 of 1996, which records that the subject matter in the petition is

already settled by decision of this Court in Writ Petition No.346 of 2006, in

view of such statement, the Division Bench of this Court by order dated

24.2.2010 disposed of the Writ Petition No.1303 of 1996 as having

become infructuous. Learned counsel for Respondent No.1 also placed on

record order dated 26.8.2004 in Writ Petition No.346 of 1996, which

records that the said Writ Petition is dismissed in default and the rule

issued therein has been discharged.

8] Learned counsel appearing for Respondent No.1 defended

aforesaid directions by contending that the same applies to hardly 271

workmen, out of which about 233 workers have not been included in the

pool even though they have been engaged as casual workmen even prior 1 AIR 2006 Supreme Court 1806

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to 1.1.1993. Learned counsel submitted that in terms of the scheme

formulated by interim orders in Writ Petition No.346 of 1996 and 1303 of

1996, a pool has been constituted, from which employment is offered

pending regular recruitment in accordance with law. The scheme

postulates that all casual employees who fulfill the eligibility criteria (except

age limit) and have been engaged in last three years, i.e. from 1.1.1993

shall be placed in such pool and casual employment will be given to them

on rotation basis. Further casual employees who are in the pool shall be

considered as permanent employees on a fair basis, under the

Recruitment and Promotion Rules and as far as possible preference will

be given to the employees in the pool. Learned counsel appearing for

Respondent No.1 contends that there was no justification to restrict such

benefit only to employees who have been engaged in the last three years,

i.e., from 1.1.1993 and not extend such benefit to casual employees in

employment even prior to 1.1.1993. The Industrial Tribunal vide the

impugned directions has merely redressed this grievance and it cannot be

said that the impugned directions travel beyond the terms of reference.

9] Learned counsel for Respondent No.1 submitted that it is always

open to an Industrial Tribunal to mould relief and where the entire relief

claimed for by the workmen cannot be granted, the Tribunal obviously has

jurisdiction to grant lesser relief than what may have been claimed for in

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the first instance.

10] In considering the rival contentions, at the outset, reference is

required to be made to the decision of the Supreme Court in the case of

Secretary, State of Karnataka v. Umadevi (supra), where in the context of

directions for regularisation of services of casual employees, it has been

observed that as follows:

"34. ............................................................................... ...............................................................................................

..............................................................................................

Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our

Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the

Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law,

has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the

appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of

appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose

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period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. High Courts acting under Article 226

of the Constitution of India, should not ordinarily issue directions for absorption, regularization, or permanent

continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because, an employee had continued under cover of an order of Court, which we have described as 'litigious

employment' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is

found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be

caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an

employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory

mandates.

35. ........................................................................................ ............................................................................................ ............................................................................................

36. While directing that appointments, temporary or casual, be regularized or made permanent, courts are swayed by the fact that the concerned person has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an

engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with eyes open. It may be true that he is not in a position to bargain -- not at arms length -- since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed

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should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a

contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too

would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some

people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succor to them. After all, innumerable citizens of our vast country are in search of employment and one is not

compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in

that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even

while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered

to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to

available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it

up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution of India."

11] Although the impugned directions are not quite clear in their scope

and import, based thereupon the casual employees insist that they be

provided with employment till regular recruitment. The claim is on basis of

some scheme in terms of interim orders made in Writ Petition No.1303 of

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1996 and Writ Petition No.346 of 1996 As of now, the two writ petitions

stand dismissed. The contention that the scheme nevertheless continues

and so also the grievance of the casual employees who have been left

out, cannot be entertained by this Court at this stage when examining the

legality and validity of the impugned directions. There is no material

available on record, sufficient to entertain any such plea. In any case, such

a plea would sound in the realm of an independent industrial dispute,

which obviously cannot be entertained at this stage by this Court both on

account of jurisdictional restrictions, as also involvement of the disputed

questions of fact. Besides, interim orders in Writ Petition No.346 of 1996

and 1303 of 1996 were made almost a decade prior to the decision of the

Supreme Court in the case of Secretary, State of Karanataka vs. Umadevi

(supra). In my judgment, therefore, sustenance of the impugned directions

on the basis of parity with the beneficiaries of the interim orders in the said

Writ Petition would not be an appropriate exercise in terms of the law as it

now stands.

12] That apart, I find much substance in the submission made by the

learned counsel appearing for the Petitioner that the impugned directions

travel beyond the terms of reference made by the appropriate Government

to the Industrial Tribunal. The Industrial Tribunal was required to determine

whether the demand of Respondent No.1 for regularization of 1269 casual

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workers is justified and legal. If yes, only then the terms of reference

required the Industrial Tribunal to determine the relief which such workers

would be entitled to and also that the date from which such relief ought to

be awarded. In the present case, the Industrial Tribunal having come to

the categorical conclusion that the demand of Respondent No.1 for

regularization of 1269 casual workers was not justified, there was no

question of the Industrial Tribunal proceeding to determine and finally

granting relief to the workmen as it has done vide the impugned directions.

Such determination or grant of relief is beyond the terms of reference.

Consequently, the impugned direction is required to be set aside on this

ground as well.

13] In the case of State of Bank of India, Panaji Goa Vs. Gomantak

Madoor Sangh, Ponda Goa1, the reference made by the appropriate

Government read as follows:

"Whether the action of the Management of State Bank of India, Zonal Office, Panaji Goa in termination the service of 7 Security Guards as per list attached with effect from January 15, 2002 is legal and justified? If not, what relief the workmen are entitled to ?"

The Industrial Tribunal after concluding that there was no infirmity

with the termination of services of the seven Security Guards made an

award issuing following directions :

    1 208-III-LLJ-487(Bom)






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"But the workmen under reference should be employed as daily wagers till the final recruitment in accordance with law by the Bank".

The learned Single Judge of this Court Justice S.A. Bobde (as he

then was) ruled that the directions impugned by the bank traveled beyond

the terms of reference, inasmuch as the appropriate Government had not

referred any dispute on the question pertaining to re-employment of the

workmen with the bank, but only referred the question of validity of the

action of terminating their services. Accordingly, the directions referred to

above were deleted from the award.

14] In the case of State of Bank of Bikaner & Jaipur vs. Om Prakash

Sharma1, the terms of reference to the Industrial Tribunal were as follows:

"Whether the action of the management of SBBJ, Jaipur is justified in terminating the services of Wrokman Shri Om

Prakash Sharma S/o Shri Sita Ram Sharma w.e.f. 19/11/94 and employing another junior workman Shri Vijay Kumar in his place without giving any opportunity of employment in violation of section 25H of ID Act, 1947? If not, what relief

the workman is entitled?"

The Labour Court recorded finding of fact that the workman failed to

prove that after his termination of services Vijay Kumar was employed in

his place in violation of Section 25H of the Act or otherwise. A finding

however, was arrived at that, no seniority record was maintained, as is

required under the Rules. The appellant was, thus, found to have violated

1 2006-II-LLJ 1046

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Rule 77 of the ID Rules. A further finding was arrived at that Rule 77 being

mandatory in nature, the respondent was entitled to be reinstated in

service with 50% of back wages.

15] The Supreme Court did not approve such approach of the Labour

Court, which is clear from the following observations:

12. The specific issue which was, therefore, referred for determination by the Labour Court, related to the

dispute as regards violation of Section 25H of the Act. If the said provisions had not been found to be violated, the

question of setting aside the order of termination by the Labour Court did not and could not arise. The learned Single Judge proceeded on the premise that the High

Court, in exercise of its writ jurisdiction, cannot sit in appeal over the Award of the Labour Court. The learned Single Judge was right, but then, only because the jurisdiction of the High Court, while exercising of its power of judicial review was limited, it would not mean that even a

jurisdictional error could not have been corrected. The provisions of Article 226 and 227 of the Constitution of

India would be attracted if the inferior Tribunal has, inter alia, committed a jurisdictional error. What would be the ground for judicial review, in regard to the orders passed by an inferior Tribunal is no longer a res integra.

13. In Sadhna Lodh vs. National Insurance Co. Ltd. [(2003) 3 SCC 524], the issue which came for consideration before this Court was as to whether in the face of the provision for an appeal, the High Court could exercise its power of judicial review. It was held that when

an appeal power is vested in the High Court, ordinarily the writ jurisdiction could not be taken recourse to. Even in such a case, the court was held to have limited jurisdiction.

14. In the instant case, the Award of the Labour Court suffers from an illegality, which appears on the face of the record. The jurisdiction of the Labour Court emanated from the order of the reference. It could not have passed an order going beyond the terms of the reference. While

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passing the Award, if the Labour Court exceeds its jurisdiction, the Award must be held to be suffering from a jurisdictional error. It was capable of being corrected by the

High Court in exercise of its power of judicial review. The High Court, therefore, clearly fell in error in refusing to

exercise its jurisdiction. The Award and the judgment of the High Court, therefore, cannot be sustained. Consequently, the appeal is allowed and the judgment of the High Court is set aside. The award is set aside to the extent of order of

reinstatement with back wages. The writ petition filed by the appellant in the High Court is, thus, allowed.

16] The exercise undertaken by the Tribunal in the present case is not

one of moulding relief. The terms of reference in the present case were

specific. This position has been accepted by the Industrial Tribunal in

paragraph 13 of the award, which reads thus

"The terms of the reference are very specific and they restrict the scope of the reference to the extent that as to whether the demands of Mumbai Mazdoor Sangh is legal

and justified for regularization of 1269 temporary workers with Indian Airlines and, if it is so, as to that relief is to be

given to them. The demand as it stands is apparently not acceptable and cannot be held to be legal and justified on view of the recent pronouncements made by the Honourable Supreme Court and the High Court in the year

2006. For this, the reference may be made to the case, (I) Secretary State of Karnataka and ors vs. Umadevi and others, 2006 (1) 252 Supreme Court Service Law Judgment page 480 (ii) State Bank of M.P. And ors. V.s Yogesh Chawan Dubey and ors. 2006 (8) S.C.C. Page 67 and (iii) Accounts Officer (A & I) A.P.S.R.T.C and ors. Vs. P.

Chandra Sekhar Rao and ors 2006 (8) SCC page 67. The Honourable Apex Court has held that the persons appointed on temporary/casual/contract basis without following with due process of selection as recognized by the relevant rules that continued for long years and some of them up to 10 year have no right to be permanently absorbed in the employment. Similarly, the reference may also be made to the judgment of Honourable High Court of

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Calcutta in Civil Appeal No.1347 of 1997 in between Phani Bhusan Duatta vs. Indian Airlines decided on December 4, 1997, against which SLP had been preferred before the

Honourable Supreme Court and the same resulted in dismissal. That being so the settled legal position, the

workers under reference are not entitled under the law for regularization or absorption permanently and hence, the reference is to be dismissed on the face of it."

17] Upon concluding that the casual workers were not entitled under law

for regularization or permanent absorption and "reference is to be

dismissed on the face of it", the Industrial Tribunal could not have

proceeded to make the impugned directions. In passing an award, if the

Industrial Tribunal travels beyond the terms of reference, then it exceeds

jurisdiction and as observed by the Supreme Court in the case of State

Bank of Bikaner (supra) must be held to be suffering from a jurisdictional

error which can be corrected by the High Court in exercise of its power of

judicial review.

18] The impugned directions cannot be regarded as incidental or

ancillary to either main relief or the terms of reference. In any case, upon

concluding that workmen are not entitled to main relief, which in the

present case was 'regularisation', there was no jurisdiction vested in the

Industrial Tribunal to exercise any incidental or ancillary powers. The ruling

in the case of Jaipur Spinning and Weaving Mills, Ltd. Vs. Jaipur Spinning

and Weaving Mills, Ltd., Mazdoor Union and anr.1 , which deals with the 1 1959 LLJ 656

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powers of a Tribunal to make interim award by the exercise of incidental

and ancillary powers, is distinguishable on the fact situation prevalent in

the said case.

19] Accordingly, the impugned directions in the award dated 23.1.2007,

which reads thus:

"However, the Company has to include the names of all the workmen under reference after verifying facts other than

998 workers whose names have already been included in the pool. The company should endeavour to comply with

the scheme expeditiously and provide employment to workmen under reference till regular recruitment."

are quashed and set aside. Rule is made absolute in terms of prayer

clause (a) of the petition.

20] In the facts and circumstances of the case, there shall be no order

as to costs.

(M. S. SONAK, J.)

dinesh