Modern Food Industries Employees ... vs Modern Food Industries And Anr.
1999 Latest Caselaw 426 Del

JUDGMENT

K. Ramamoorthy, J.

1. The petitioner-Union has prayed for the following reliefs:

(i) Issue an appropriate writ, order, or direction in the nature of mandamus commanding the respondents to regularise the services of the casual workmen mentioned above with retrospective effect i.e. from the date they got their first appointment.

(ii) Direct respondents to follow the directive of equal pay for equal work and to pay the casual workmen accordingly.

2. The petitioner is praying for regularisation of the service of the casual labourers, who according to the petitioner-Union, have been working with the first respondent since 1985 as operators, loaders and peons. According to the petitioner-Union the nature of the work done by the workers is of permanent nature. The petitioner-Union has given a list of workmen who according to petitioner-Union are entitled to regularisation and to payment as permanent workmen on the basis of equal pay for equal work. It is stated in paragraph 7(iv) of the writ petition as under :

"It is humble submission of the petitioner that as against a strength of 250 permanent employees,200 casual labourers have been engaged by the respondent No.2 in different capacities such as operator, loader and peon for the last many years. The nature of job that they are performing is of permanent nature. Still the

management does not regularise them. It keep on terminating the senders of the casual workmen and again reappointing them so that they do not put in regular service and claim even the minimal retrenchment benefit. Needless to say, the same is being done by an organ of State to exploit cheap labour, a practice reminiscent of primitive capitalism. It is humble submission that the same is not only legally untenable under Industrial Disputes Act, it is also opposed to human dignity, constitutional propriety and civilized norms of any society that believes in Socialist values. More so, when the exploiter is not an individual, but the State itself."

3. It is further stated that there is great disparity between the salary paid to the casual workers and the permanent workmen. According to the petitioner-Union the first respondent has not evolved a scheme of absorption as laid down by the Supreme Court in various cases.

4. On 4.4.1994 the first respondent filed its reply. It is stated in paragraph 1 in parawise reply as under:

"In reply to the contents of paragraph 1 of the writ petition, it is denied that the daily rated casual workmen, whose names have been set out in paragraph 7(v) of the writ petition, are performing jobs of permanent nature. It is submitted that the respondent-company is engaged in the manufacture and supply of bread which is an essential commodity and because any disruption in the production of the said product could have wider repercussions. People, it is submitted, are appointed on daily wage basis to work in the place of workmen discharging various duties in the unit who absent themselves from time-to-time. People are employed on daily wage basis to work in place of these absentee employees. These casual workers working in the respondent-Company are considered for regular appointment as and when any vacancy arises. There is a selection procedure provided to fill up the regular post in the respondent-Company and as and when the vacancy arises, in accordance with the said procedure the employees are called for interview and after taking into account their past performance and their date of seniority, they are considered for regular appointment. It is incorrect that holidays and national holidays are denied to casual workmen. Holidays, it is submitted, are given to them in accordance with the provisions of law including the factories Act."

5. The respondent has explained its position by stating at page 47 of the reply affidavit as under:

"Since the nature of work of the respondent-Company is to manufacture and supply the essential commodity, any disruption or production would affect the society at large including school children and other welfare projects to whom bread is regularly supplied by the respondent-Company. For this reason, persons are employed on daily wages to work in place of absentee employees. The said workmen working in the respondent-Company are considered for regular appointment as and when vacancy arises. These persons are considered along with other eligible candidates and if found fit, their services are regularised, in the past, a number of casual workers have been given regular appointment in the unit."

6. The first respondent has also denied the disparity in the wages paid by the first respondent to the workers.

7. The first respondent filed additional affidavit on 6.10.1998. The additional affidavit is filed by Senior General Manager of the first respondent-Company. It is explained in the additional affidavit that the first respondent is maintaining a list of casual labourers. The requirement of total workforce for each shift and the number of persons absenting themselves in that shift would keep on changing, therefore the first respondent has to have substitutes. The first respondent is in the business of manufacturing bread and the quantum of business depends upon the season, festivals and working days for schools and various other factors. The need for the workforce also would depend on the demand upon procurements of the Management in the market. The casual labourers are taken into service as Bad Ms (replacement). The first respondent is keeping a regular list of casual labourers and it is only from that list the first respondent selects the workman for regularisation. According to the first respondent for this purpose on 9.3.1995 it had constituted a Selection Committee and about 24 workmen belonging to Scheduled Casts and Scheduled Tribes and other backward classes were selected. On 9.12.1997 a Selection Committee was again constituted for the same purpose. It is further stated in the additional affidavit that some of the persons mentioned in the list maintained by the first respondent do not turn up and the first respondent has not availed the service of any new workman since 1992. In paragraph 15 of the additional affidavit the first respondent has stated as under:

"In view of what is stated above, it is further submitted that the respondent is regularising the casual persons from time-to-time through interview by Selection Committees of the senior executives. The criteria for selection has also been laid down depending upon the nature of job and the industry. In no manner the acts of the respondent can be called as arbitrary or capricious. On the other hand, the respondent has acted in a just and fair manner with the casuals. The whole petition of the petitioner is totally misconceived and ill-conceived. It is further submitted that considering that the respondent is following a just and proper method for regularising the casuals, no writ as prayed for by the petitioner is required. The whole approach of the petitioner in the writ petition is to request this Hon'ble Court to act as an Appellate Authority over the acts and activities of the respondent regarding regularisation of casual persons which is not the jurisdiction of this Hon'ble Court in writ proceedings under Article 226 of the Constitution."

8. Dealing with the claim of equal pay the first respondent has explained its position in para 16 as under:

"The second prayer of the petitioner is for directions for equal pay to the casual persons as that of the regular employees. In this regard, it is relevant to state that casual persons are not having the experience, suitability and ability to perform the work in the manner as with the regular employees. Further, when they are taken they are given comparatively lighter assignment. It is not that the casuals are doing exactly the same nature of work as is done by the regular employees. What is done is that, the casuals are taken in the team along with the regular employees to constitute the minimum required strength, and it is the regular employees who look after the technical and the heavier workload as compared to the casual persons. The regular employees doing the work regularly are more trained and suitable for the given assignment which is not there in the case of casuals. It is submitted that the principle of equal pay for equal work is not applicable in the present case. The two groups i.e. the regular employees and the casuals do not constitute one homogeneous group but are two different groups. The regulars a re more qualified, more suitable for the jobs and more experienced as compared to the casuals. The allegations made in the writ petition in this regard are wrong and denied. The petitioner-Union is raising disputed allegations. No specific case has been given how the principle of equal pay for equal work is applicable. On the other hand, some general allegations have been made for al I the casuals at a time. This prayer of the petition is also liable to be dismissed."

9. In the light of the categorical stand taken by the first respondent referring to the factual aspects, the questions raised by the petitioner-Union could be decided only on taking evidence and it can be decided only by the Labour Court or Industrial Tribunal. This Court sitting in Article 226 cannot adjudicate on questions of fact.

10. Mr. K.K. Rai, the learned Counsel for the petitioner submitted that the first respondent is bound to formulate a scheme for regularisation and the facts mentioned in the additional affidavit do not reflect the correct position. The learned Counsel for the petitioner further submitted that the first respondent has not produced all the documents to substantiate his case as stated in the additional affidavit and also in the counter-affidavit.

11. Mr. K.K. Rai, the learned Counsel for the petitioner placed reliance on the following rulings in support of his submissions:

1. H.D. Singh v. Reserve Bank of India and Ors., .

2. Daily Rated Casual Labour employed under P &T Department v. Union of India, .

3. Daily Rated Casual Labour employed under P & T Department through Bhartiya Dak Tar Mazdoor Manch v. Union of India, .

4. The General Secretary, Bihar State Road Transport Corporation, Patna v. The Presiding Officer, Industrial Tribunal, Patna and Ors., JT 1988(1) SC 29.

5. Delhi Municipal Karamchari Ekta Union (Regd.) v. P.L. Singh and Ors., .

6. U.P. Income-tax Department Contingent Paid Staff Welfare Association v. Union of India and Ors., .

7. Randhir Singh and Ors. v. Board of School Education, Haryana and Anr., 1989 Supp. (2) SCC 301.

8. Bhagwati Prasad v. Delhi State Mineral Development Corporation, .

9. The Dhanvad Distt. P.W.D. Literate Daily Wages Employees Association and Ors. etc. v. State of Karnataka and Ors. etc., .

10. State of Haryana and Ors., etc. etc. v. Piara Singh and Ors. etc. etc., .

11. Chief Conservator of Forests and Anr. v. Jagannath Maruti Kondhare and Anr., .

12. Air India Statutory Corporation etc. v. United Labour Union and Ors. etc.,

12. A brief survey of these authorities in the context of the facts of the instant case would show that the ratio decidendi laid down in these cases would not apply to the facts of the instant case.

13. In H.D. Singh v. Reserve Bank of India and Ors., (supra), the facts noticed by the Supreme Court are as follows:

The appellant was a Tikka Mazdoor with the first respondent, the Reserve Bank of India. A Tikka mazdoor is a person who helps the examiners of coins/notes. He was so selected on daily wages of Rs. 3 as per appointment letter dated 30.4.1974.

As per the appointment order, he used to report to the Bank regularly at 9.30 A.M.

to ascertain whether he could get work every day. On days when no work was given to him, he had to wait till noon to be told by the authorities concerned that no work was available on such days. Thus, he was given work only for a period of four days in 1974, one hundred and fifty-four days in 1975 and one hundred and five days in 1976. At the time he was selected for employment, he was not a matriculate. He passed the matriculation examination in the year 1975. At the time he was selected he was not told that his name would be struck off the list of Tikka Mazdoors if he passed the matriculation examination. On 23.7.1976, he received a letter from the Bank asking him to state within a week (latest by 29.7.1976) as to what his educational qualification was. He was also informed that his name would be struck off since he had concealed his educational qualification and that his services would be terminated without any notice and compensation from the Bank. It appears that Tikka Mazdoors are placed in List II maintained by the Bank.

A confidential circular seems to have been issued by the Bank on 27.6.1976 to the effect that matriculates would not be retained in this list. The appellant sent a reply stating that he was not a matriculate in 1974 when he was selected and that he passed the examination only in 1975. He enclosed the certificate and the mark-

sheet to prove that he passed the examination only subsequent to his selection as Tikka Mazdoor.

13.1. The Supreme Court further noticed the facts:

The appellant was not given any work after July, 1976. There is no written order terminating his services. The representative of the first respondent admitted, while he was cross-examined, that no formal order intimating the appellant that his name was struck off the list was issued. His father was also an employee of the Bank. He knew that the appellant's name had been removed permanently from the list of Tikka Mazdoors. Thereupon, both his father and the appellant made representations to the Bank against the action taken. No reply was given to these representations. When his attempt to get his grievances redressed by correspondence failed, he moved for conciliation. The Assistant Labour Commissioner appeared to be impressed with the genuineness of his case, but his persuasion did not move the Bank in his favour. Thereupon, the Central Government made a reference by Notification dated 19.9.1979, for adjudication of the following dispute to Central Government Industrial Tribunal, New Delhi:

"Whether the action of the Management of Reserve Bank of India, Kanpur,

in striking off the name of Shri H.D. Singh from the list of approved Tikka Mazdoors from July 1976, is justified and legal? If not, to what relief the workman in question is entitled?"

13.2. The point that was mooted out before the Supreme Court was that whether the respondents had proved the fact. The petitioner had not worked for a number of days as asserted by the petitioner by producing the necessary records. The Supreme Court observed as under:

"The appellant charged the Bank with having tampered with the records. To contradict the appellant's case, the first respondent-Bank did not produce its records. The appellant wanted the relevant records to be filed but they were not . produced. Grounds 18 to 20of the special leave petition make mention of this plea of the appellant. These grounds are met by the first respondent-Bank in their counter affidavit filed in this Court by stating that "when the matter was before the Industrial Tribunal, the registers in question were filed in another case be fore the Industrial Tribunal-cum-Labour Court and produced in that Court. However, I submit that now the attendance register has been destroyed but the payment registers are available with the respondent-Bank as proof of the number of days on which the appellant worked." In the absence of any evidence to the contrary, we have necessarily to draw the inference that the appellant's case that he had worked for more than 240 days from July, 1975 to July, 1976, is true."

14. The facts in Daily Rated Casual Labour employed under P & T Department v. Union of India, (supra) are clearly distinguishable. The facts of the case in U.P. Income-tax Department Contingent Paid Staff Welfare Association v. Union of India and Ors., (supra) are also easily distinguishable.

15. In Daily Rated Casual Labour employed under P & T Department through Bhartiya Dak Tar Mazdoor Manch v. Union of India, (supra) the Supreme Court noticed the grievance of the petitioners in the following terms:

"The principal complaint of the petitioners is that even though many of them have been working for the last ten years as casual labourers, the wages paid to them are very low and far less than the salary and allowances paid to the regular employees of the Posts and Telegraphs Department belonging to each of the categories referred to above and secondly no scheme has been prepared by the Union of India to absorb them regularly in its service and consequently they have been denied the benefits, such as increments, pension, leave facilities etc. etc. which are enjoyed by those who have been recruited regularly. They allege that they are being exploited by the Union of India."

15.1. The Supreme Court referring to the position under the Constitution observed in para 9 as under:

"India is a socialist republic. It implies the existence of certain important obligations which the State has to discharge. The right to work, the right to free choice of employment, the right to just and favourable conditions of work, the right to protection against unemployment, the right of everyone who works to just and favourable remuneration ensuring a decent living for himself and his family, the right of everyone without discrimination of any kind to equal pay for equal work, the right to rest, leisure, reasonable limitation on working hours and periodic holidays with pay, the right to form trade unions and the right to join trade unions of one's choice and the right to security of work are some of the rights which have to be ensured by appropriate legislative and executive measures. It is true that all these rights cannot be extended simultaneously. But they do indicate the socialist goal. The degree of achievement in this direction depends upon the economic resources, willingness of the people to produce more than all the existence of industrial peace throughout the country. Of those rights the question of security of work is of utmost importance. If a person does not have the Reeling that he belongs loan organization engaged in production he will not put forward his best effort to produce more. That sense of belonging arises only when he feels that he will not be turned out of employment the next day at the whim of the management.

It is for this reason it is being repeatedly observed by those who are in charge of economic affairs of the countries in different parts of the world that as far as possible security of work should be assured to the employees so that they may contribute to the maximisation of production. It is again for this reason that managements and the governmental agencies in particular should not allow workers to remain as casual labourers or temporary employees for an unreason able long period of time. Where is any justification to keep persons as casual labourers for years as is being done in the Posts and Telegraphs Department? Is it for paying them lower wages? Then it amounts to exploitation of labour. Is it because you do not know that there is enough work for the workers? It cannot be so because there is so much of development to be carried out In the communications department that you need more workers. The employees belonging to skilled, semi-skilled and unskilled classes can be shifted from one department to another even if there is no work to be done in a given place- Administrators should realise that if any worker remains id le on any day, the country loses the wealth that he would have produced during that day. Our wage structure is such that a worker is always paid less than what he produces. So why allow people to remain idle?

Anyway they have got to be fed and clothed. Therefore, why don't we provide them with work? There are Several types of work such as road making, railway construction, house building, irrigation projects, communications etc. which have to be undertaken on a large scale. Development in these types of activities (even though they do not involve much foreign exchange) is not keeping pace with the needs of society. We are saying all this only to make the people understand the need for better management of manpower (which is a decaying asset) the non-

utilisation of which leads to the inevitable loss of valuable human resources. Let us remember the slogan: "Produce or Perish". It is not an empty slogan. We fail to produce more at our own peril. It is against this background that we say that non-

regularisation of temporary employees or casual labour for a long period is not a wise policy. We, therefore, direct the respondents to prepare a scheme on a rational basis for absorbing as far as possible the casual labourers who have been continuously working for more than one year in the Posts and telegraphs Department."

15.2. The Supreme Court directed the preparation of a scheme for absorbing the casual labourers. The Supreme Court also directed the payment of arrears of wages to the casual labourers. That judgment was rendered by the Supreme Court on 27.10.1987.

16. In The General Secretary, Bihar State Road Transport Corporation, Patna v. The Presiding Officer, Industrial Tribunal Patna and Ors., (supra) the Supreme Court followed its earlier cases in Daily Rated Casual Labour employed under P &T Department v. Union 'of India, (supra) and LIP. Income-tax Department Contingent Paid Staff Welfare Association v. Union of India and Ors., (supra). Here also the Supreme Court directed the Dinar State Road Transport Corporation to prepare a reasonable scheme of regularization of the casual labourers.

17. In Randhir Singh and Ors. v. Board of School Education, Haryana and. Anr., (supra) the Supreme Court held :

"In our opinion, it is a fit case where the Board should have regularised the services of the appellants as they were employed as casual workers, although admittedly they were clerks in the office of the Board. It is therefore directed that their services will be regularised from the date they joined initially in the service of the Board.

However, it is made clear that they will not get monetary benefit for the period they were not in service, but they will, gain other advantages of continuous service during this period."

18. In Bhagwati Prasad v. Delhi State Mineral Development Corporation, (supra) the facts as noticed by the Supreme Court are:

"The petitioners in both the writ petitions are daily rated workers working in the respondent-Corporation and they are seeking relief under Article 32 of the Constitution for a writ of mandamus or other directions to regularise their services in the respective units and to pay them equal wages with initial basic pay, D.A. and other admissible allowances at par with regularly appointed employees of the respondent performing the same or similar duties. Admittedly, they have been appoint-ed on daily wages between 1983 and 1986 and they have been working ever since. It is contended by them that despite their continuous service respondent has resorted to unfair labour practice in creating artificial break in-service to deprive them of the benefit of continuous service. As they are not being paid equal wages at par with regular employees, this offends their right to equality of pay under Article 14 and such action is contrary to the provisions of Article 39."

18.1 The Supreme Court by order dated 27.1.1989 directed the Industrial Tribunal, Delhi to examine the contentions of the petitioners and the stand taken by the respondent, on all issues after providing full opportunity to the parties of hearing including leading of evidence, oral and documentary, and giving oral hearing the Industrial Tribunal following the direction of the Supreme Court heard and submitted its report. On the basis of those materials the Supreme Court directed the framing of a scheme for regularising the services of the petitioners.

19. In The Dhanvad Distt. P. W.D. Literate Daily Wages Employees, Association and Ors. etc. v. State of Karnataka and Ors. etc., (supra) the Supreme Court directed the framing of a scheme by the State Government and the judgment was reported in (1988) 3 JT 120 and thereafter further directions were issued by the Supreme Court with a view to giving final shape to the scheme.

20. In State of Haryana and Ors. etc. etc. v. Piara Singh and Ors. etc. etc., (supra) the Supreme Court noticed the appointments made by the States of Punjab and Haryana to Class III and IV services. The Supreme Court observed in para 2 as under :

"Over the last several years a large number of appointments were made to Class III and IV services in the States of Punjab and Haryana on ad hoc basis i.e., without reference to Public Service Commission or the Subordinate Services Selection Board and without adhering to employment exchange requirements. They were initially appointed for a period of six months or so but were continued for years together under orders passed from time-to-time. (Insofar as the State of Haryana is concerned, most of the Class III posts in the Education Department were kept out of the purview of the S.S.S.B. during the period 1970 to 1987. For a period of 10 years, it is stated, there was no Board in existence in the State. Only in March 1987, almost all the posts in Education Department and other Departments were brought within the purview of the S.S.S.B.). As a result of the above policy, a large number of ad hoc employees came into existence in both the States, who were continuing Over several years without being regularised and were agitating for their regularization. To meet the situation, both the Governments issued orders from time-to-time for regularization of such employees subject to certain conditions. The orders issued by the Government of Punjab are the following:

S.

No.

Date of Issue

Substance of the Order

1.

3.3.1969

regularization of ad hoc employees completing one

year service on 28.2.1969.

2.

29.1.1973

regularization of ad hoc employees completing one

year service on 1.1.1973.

3.

3.5.1977

regularization of ad hoc employees completing one

year service on 1.4.1977.

4.

20.10.1980

regularization of ad hoc employees completing one

year service on 1.10.1980

5.

20.10.1982

regularization of ad hoc employees completing one

year service on 26.10.1982

6.

29.3.1985

regularization of ad hoc employees completing one

year service on 1.4.1985

7.

8.8.1985

Modifying the order issued on 29.3.1985 and

directing that all Class III ad hoc employees having

one year service on 1.4.1985 may be regularised.

8.

1.9.1986

regularization of Class III ad hoc employees

appointed after 1.4.1984.

The orders issued by the Government of Haryana are the following:

s. no.

Date of Issue Substance of the Order

1. 1.1.1980 regularization of all Class III ad hoc employees who have completed two years' service on 31.3.1979.

2. 3.1.1983 regularization of ad hoc Clerks in Class III who have completed two years' service on 15.9.1982.

3. 19.1.1984 regularization of Class III ad hoc employees who have completed two years of service on 15.9.1982. The employees who were left out in the orders dt. 3.1.1983 were brought within the purview of this order.)

4. 15.2.1987 regularization of all Class III ad hoc employees other than teachers working against posts which have been taken out of the purview of the S.S.S.B. and who have completed two years' service on 1.11.1986.

In pursuance of the above orders a number of persons who satisfied the conditions prescribed in each of those orders were regularised but many could not be. Their services could not be regularised for the reason that they did hot satisfy one or the other of the conditions prescribed in the said orders. They were, however, allowed to continue in service. It is this category of people who approached the High Court of Punjab and Haryana praying for issuance of writ, order or direction for regularization of their services.

20.1. The Supreme Court noticed further points for consideration as under:

"At this stage, it would be appropriate to notice the conditions prescribed by the aforesaid orders which were not satisfied by the writ petitioners and on account of which they were not regularised. The Order of the Government of Haryana dated 1st January, 1980 prescribed the following conditions for regularization:

(1) He must have put in a minimum service of two years on 31.12.1979.

(2) He must have been recruited through the Employment Exchange.

(3) The service and conduct of such employee should be of an overall good category.

(4) He must have possessed the prescribed qualifications for the post at the time of his appointment on ad hoc basis.

In the Order dated 3rd January, 1983, a further condition/besides the aforesaid conditions, was imposed viz., that the employees must belong to the category for which the post stands reserved.

Similarly in the Order dated 29th March, 1985 issued in the case of Government of Punjab (issued by the President of India) the conditions prescribed were the following.

(1) He must have completed a minimum of two years' service on 1st April, 1985. "

(2) He must have fulfillled the conditions for eligibility (academic qualifications, experience and age) at the time of his first ad hoc/temporary appointment.

(3) He must have been recruited through the Employment Exchange or by open advertisement.

(4) His record of service has been satisfactory.

(5) He is found medically fit for entering the Government service, his character and antecedent have been duly verified and found suitable for Government service.

(6) A regular post/vacancy is available for regularization.

(7) He has been found fit for regularization by the Department Selection Committee.

(8) ( Among the persons regularised, inter se seniority would be observed. All these persons would be placed junior to those working on regular basis.

These are the conditions common to all the orders issued from time-to-time by the Governments of Punjab and Haryana. Only those ad hoc /temporary employees who could not be regularised for want of satisfying one or the other of the conditions prescribed in the respective orders that had approached the High Court by way of Writ Petitions. They contended that the conditions prescribed in the said orders were arbitrary, discriminatory and unrelated to the object. It is this contention which was examined at some length and accepted by the High Court."

20.2..In paragraph 10 of the Judgment the Supreme Court observed as under:

"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 tinder the proviso to Art, 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 not 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 a 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 a 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 regularization. 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. The principles relevant in this behalf are stated by this Court in several decisions, of which it would be sufficient to mention two' decisions having a bearing upon the issue involved here. They are Dhanvad District P. W.D. Literature Daily Wage Employees Association v. State of Karnataka, (supra) and Jacob v. Kerala Water Authority, (supra). In the first case, it was alleged that about 50,000 persons were being employed on daily-rated or on monthly-rated basis over a period of 15 to 20 years, without regularising them. It was contended that the very fact that they are continued over such a long period is itself proof of the fact that there is regular need for such employment. In that view of the matter, following directions were given, after reviewing the, earlier decisions of this Court elaborately (at pp. 890-91 of AIR):

"From amongst the casual and daily rated employees who have completed ten years of service by December 3l, 1989, 19,600 shall immediately be regularised with effect from January 1, 1990 on the basis of senjority-cum-suitability.

There shall be no examination but physical infirmity shall mainly be the test of suitability.

The remaining monthly rated employees covered by the paragraph 1 who have completed ten years of service as on December 31, 1989 shall be regularised before December 31, 1990, in a phased manner on the basis of seniority-cum-suitability, suitability being understood in the same way as above.

The balance of casual or daily rated employees who become entitled to absorption on the basis of completing ten years of service shall be absorbed/ regularised in a phased manner on the same principle as above on/or before December 31, 1997.

At the point of regularization, credit shall be given for every unit of five years of Service in excess of ten years and one additional increment in the time scale of pay shall be allowed by way of weightage.

There was a direction that the claims on other heads would be considered at the time of final disposal. We have come to the conclusion that apart from these reliefs no other would be admissible."

Having given the said direction, the Bench (Ranganath Misra, M.M. Punchhi and S.C Agarwal, JJ.) made the following observations (at p. 891 of AIR):

"We are alive to the position that the scheme which we have finalised is not the ideal one but as we have already stated, it is the obligation of the Court to individualise justice to suit a given situation in a set of facts that are placed before it. Under the scheme of the Constitution the purse remains in the hands of the executive, the Legislature of the State controls the Consolidated Fund out of which the expenditure to be incurred, in giving effect to the scheme, will have to be met. The flow into the Consolidated Fund depends upon the policy of taxation depending perhaps on the capacity of the payer. Therefore, unduly burdening the State for implementing the constitutional obligation forthwith would create problems which the State may not be able to stand. We have, therefore, made our directions with judicious restraint with the hope and trust that both parties would appreciate and understand the situation. The instrumentality of the State must realise that it is charged with a big trust. The money that flows into the Consolidated Fund and constitutes the resources of the State comes from the people and the welfare expenditure that is meted out goes from the same Fund back to the people. May be that in every situation the same tax payer is not beneficiary. That is an incident of taxation and a necessary concomitant of living within a welfare society."

20.3. Therefore, to consider the claims of the Union in the instant case there should be materials and there should be consideration by an appropriately constituted authority and the questions now mooted out cannot be gone into in a writ petition.

20.4. In paragraph 12 of the judgment the Supreme Court referring to the duty of the Court observed :

"As would be evident from the observations made and directions given in the above two cases, the Court must/while giving such directions, act with due care and caution. It must first ascertain the relevant facts, and must be cognizant of the several situations and eventualities that may arise on account of such directions.

A practical and pragmatic view has to be taken, inasmuch as every such direction not only tells upon the public exchequer but also has the effect of increasing the cadre strength of a particular service, class or category. Now, take the directions given in the judgment under appeal. Apart from the fat the High Court was not right -- as we shall presently demonstrate in holding that the several conditions imposed by the two Governments in their respective orders relating to regularization are arbitrary not valid and justified -- the High Court acted rather hastily in directing wholesome regularization of all such persons who have put in one year's service, and that too unconditionally. We may venture to point out the several problems that will arise if such directions become the norm :

(a) Take a case where certain vacancies are existing or expected and steps are taken for regular recruitment either through Public Service Commission or other such body, as the case may be. A large number of persons apply. Inevitably there is bound to be some delay in finalising the selections and making the appointments. Very often the process of selection is stayed or has to be re-done for one or the other reason. Meanwhile the exigencies of administration may require appointment of temporary hands. It may happen that these temporary hands are continued for more than one year because the regular selection has not yet been finalised. Now according to the impugned direction the temporary hands completing one year's service will have to be regularised in those posts which means frustrating the regular selection, there would be no post left for regularly selected persons even if they are selected. Such cases have indeed come to this Court from these very two States.

(b) In some situations, the permanent incumbent of a post may be absent for more than a year. Examples of this are not wanting. He may "go on deputation, he may go on Faculty Improvement Programme (F.I.P.), or he may be suspended pending enquiry into charges against him and so on there may be any number of such situations. If a person is appointed temporarily in his place and after one year he is made permanent where will the permanent incumbent be placed on his return? Two persons cannot hold the same post on a regular or permanent basis.

(c) It may also happen that for a particular post a qualified person is not available at a given point of time. Pending another attempt at selection later on an unqualified person is appointed temporarily. He may continue for more than one year. If he is to be regularised, it would not only mean foreclosing of appointment of a regular qualified person, it would also mean appointment of an unqualified person.

(d) Such directions have also the effect of disregarding and violating the rule relating to reservation in favour of backward class of citizens made under Article 16(4). What cannot be done directly cannot be allowed to be done in such indirect manner.

(e) Many appointments may have been made irregularly -- as in this case --

in the sense that the candidates were neither sponsored by the Employment Exchange nor were they appointed after issuing a proper advertisement calling for applications. In short, it may be a back-door entry. A direction

to regularise such appointments would only result in encouragement of such unhealthy practices.

These are but a few problems that may arise, if such directions become the norm. There may be many such and other problems that may arise. All this only emphasises the need for a fuller consideration and due circumspection while giving such directions."

21. In Chief Conservator of forests and Anr. v. Jagannath Maruti Kondhare and Anr., (supra) the Supreme Court dealing with the casual labourers working in Pachgaon Parwati Scheme uphold the order of the Industrial Tribunal.

22. In Air India Statutory Corporation etc. v. United Labour Union and Ors., etc., (supra) the Supreme Court had to deal with the scope of the Contract Labour (Regulation and Abolition) Act (37 of 1970). The ratio laid' down in this case in my view cannot be press into service by the petitioner to the facts of the instant case.

23. Mr. Raj Birbal, the learned Senior Counsel for the first respondent submitted that before the Union could claim regularization the sine qua non is that it should be established that posts are available for absorption. No Union can compel the employer to create posts on the assumption that the job rendered by the workmen is of permanent nature without referring to the nature of the work done by the employees and the demand by the employer for the work force and the peculiar circumstances under which the business is carried on by the employer.

24. Mr. Raj Birbal, the learned Senior Counsel for the first respondent referred to the case of Jaswant Singh and Ors. v. Union of India and Ors., . The Supreme Court dealt with the rights of work charged employees. There is no ratio laid down by the Supreme Court which could be applied to the facts and circumstances of the instant case.

25. Mr. Raj Birbal, the learned Senior Counsel for the first respondent also referred the case of Satyanarayan Sharma and Ors. v. National Mineral Development Corporation Ltd. and Ors., . It is laid down therein that if there are no vacancies or work available in an establishment question of absorption or regularization would not arise for consideration. In paragraph 4 the Supreme Court has observed as under:

"We do not find any ground to interfere with the High Court's decision in view of the clear findings supported by evidence that there are no vacancies or work available in the establishment for absorption of the petitioners and that for quite some time they have been continued on rolls and paid in spite of there being no work for them. On these facts, the question of directing their absorption and regularization does not arise. The principle of regularization of a daily-rated workman and payment to him of the pay equal to that of a regular workman arises only when the daily-rated workman is doing the same work as the regular workman and there being a vacancy available for him, he is not absorbed against it or not even paid the equal pay for the period during which the same work is taken from him. On the clear findings in this case, this is not the position. This petition must, therefore, fail".

26. Mr. Raj Birbal, the learned Senior Counsel for the first respondent also referred to the case of Union of India and Ors. v. Tejram Parashramji Bombhate and Ors., . The teachers working in a school run by officers of Ordnance Factory who were paid honorarium claimed regularization of their services. The teachers approached the Central Administrative Tribunal. The Central Administrative Tribunal issued directions which are in the following terms:

"(i) The respondents will immediately take up an assessment of the needs of the school to carry on its activities at their present level and the number of additional teachers required for this purpose; (ii) After assessing the number of teachers needed, the respondents will proceed to create a sufficient number of posts to be filled up on a regular basis; (iii) After completing the above exercise respondents will take steps to fill up the newly created posts in accordance with recruitment rules to be framed for the purpose, the applicants who have worked as teachers in past should be first considered for the posts and only if they are found unsuitable should candidates from sources like the Employment Exchange be considered; (iv) Once the procedure outlined above is completed all persons selected should be appointed on a regular basis and on remuneration admissible to the regular teachers of the primary school; (v) Similar procedure should also be followed in respect of posts of peon giving Shri Tadas an opportunity of competing for regular appointment; (vi) Till the exercise outlined above is completed which we hope will be done before the academic year 1989-90 commences--the present procedure may continue and such of the applicants as are selected for appointment will be subject to the same conditions of service as before."

26.1. This was challenged by the Union of India. The Supreme Court held:

"The Tribunal, however, has directed the Central Government immediately to take up an assessment of the needs of the school to carry on its activities at the present level and to create a sufficient number of posts to be filled up on a regular basis. The Tribunal has further directed the Central Government to take steps to fill up the newly created posts in accordance with the recruitment rules to be framed for the purpose. These directions are indeed amazing. It has compelled the Government to sanction the Secondary School, create adequate number of posts and fill up the posts after framing the recruitment rules for the purpose. There is no law requiring the Central Government to sanction the Secondary School. The Central Government has taken a decision that it will not involve itself in sanctioning or running classes beyond the Primary School level. It, is a policy matter involving financial burden. No Court or the Tribunal could compel the Government to change its policy involving expenditure. The Tribunal therefore, could not have issued the directions as it did to compel the Central Government to assess the needs of the school and create the necessary posts without support of law."

26.2. Here also the ratio is entirely different, not applicable to the facts of this case.

27. Mr. Raj Birbal, the learned Senior Counsel for the first respondent also referred to the case of Delhi Development Horticulture Employees' Union v. Delhi Administration, Delhi and Ors., 1992 (2) Labour Law Journal 452. The persons who worked on daily wage basis in development of horticulture by Delhi Administration claimed wages that are paid to the regular employees of the same cadre. The Supreme Court held:

"For regularization, there must be regular and permanent posts or it must be established that although the work is of regular and permanent nature, the device of appointing and keeping the workers on ad hoc or temporary basis has been resorted to, to deny them the legitimate benefits of permanent employment."

28. Mr. Raj Birbal, the learned Senior Counsel for the first respondent submitted that this should be established by the workman in the instant case.

29. Mr. Raj Birbal, the learned Senior Counsel for the first respondent also referred to the case of Union of India and Ors. v. Dinesh Kumar Saxena and Ors., . The employees appointed on contract basis/Directorate of Census Operations claim regularization and challenged the orders of termination. The Supreme Court noticed on facts as under:

"In the present case, however, the additional work which is available is periodic in nature, available only at the end of each decennial when census operations are carried out. The additional work lasts for a period of about 2 or3 years. Hence additional hands are required only for this periodical increase in work and while the work subsists. They are, therefore, engaged for a fixed period (during which the additional work exists) and they are paid a fixed salary. It is difficult to see how such employees can be regularised since there is no regular work available in the department for them."

29.1. The Supreme Court proceeded to discuss the legal issues and held:

"The Court has not directed regularization of employees if work is not available for them. Thus, in the case of Director, Institute of Management Development, U.P. v. Pushpa Srivastava (Smt)., the appointment of the respondent was purely contractual and on an ad hoc basis on a consolidated pay for a fixed period. The period of contract was extended for one year and thereafter the post was abolished. This Court held that looking to the nature of appointment, since the contractual period had expired, the respondent had no right to continue.

In the case of Sandeep Kumar v. State of Uttar Pradesh, 1993 Suppl. (1) SCC 525: (1992 AIR SCW 353) daily-rated Junior Engineers were employed by the City Board, Ghaziabad in a temporary project known as the Slum Clearance Project. The project was financed partly by the State of Uttar Pradesh and partly by the World Bank funds. These Junior Engineers were employed on a daily-rated basis. This Court held that the scheme under which these petitioners were working was of a very specific nature. The work was not permanent in character. Since the project was for a particular purpose, it was not possible to direct that the petitioners may be regularised in service. The Court, however, clarified that the petitioners were entitled to regularization of their services by recruitment through the State Public Service Commission for vacancies other than those on which they were employed. It directed that as and when such vacancies arise and are duly notified, the claim of the petitioners for appointment to such vacancies should be considered subject to their satisfying the requisite qualifications prescribed therefor under the rules. This Court further observed that it was open to the State Public Service Commission to consider giving any weight age to the services rendered by these employees but the Court declined to give any direction in this regard. The Court further said that continuity of service of the petitioners may be taken into account for overcoming the age bar.

The facts of the present case are closer to those of Sandeep Kumar v. State of Uttar Pradesh, (1992 AIR SCW 353) (supra) then the other cases cited earlier. Here also the respondents have been temporarily employed to handle work which is of a limited duration. It is not possible, therefore, to direct the framing of any scheme for their being regularised in the Census Department since there is not enough work of a permanent nature to keep these extra employees busy throughout. We also do not see how these employees, who have been engaged on a contract basis for a limited and fixed duration and on a fixed pay, can be directed to be absorbed in any other department of the Government. Ends of justice will be met if the Directorate of Census Operations, UP. is directed to consider those respondents, who have worked temporarily in connection with 1981 and/or 1991 census operations, and who have been subsequently retrenched, for appointments in any regular vacancies which may arise in the Directorate of Census Operations and which can be filled by direct recruitment, if such employees are otherwise qualified and eligible for these posts. For this purpose the length of temporary service of such employees in the Directorate of Census Operations should be considered for relaxing the age bar/if any, for such appointment. Suitable rules may be made and conditions laid down in this connection by the appellants. The appellants and/or the Staff Selection Commission may also consider giving weightage to the previous service rendered by such employees in the Census Department and their past service record in the Census Department for the purpose of their selection to the regular posts. It is directed accordingly. The appellants have, in their written submissions, pointed out that as of now, 117 posts are vacant to which direct recruits can be appointed. They have also submitted that out of these posts, there were 88 vacant posts of Data Entry Operator, Grade B, which had been advertised for being filled up only from amongst the retrenches of 1981, 1984 and 1991. As per recruitment rules, only those retrenches were eligible to apply who were graduates and had a speed of 8000 ky depressions per hour of data entry. Although approximately 800 retrenches applied, only 476 appeared in the test conducted by the NIC of the Lucknow Unit and only two applicants qualified. Out of these, only one could be appointed, since the other person was overage even after allowing for age relaxation. Whatever may be the difficulties in giving regular appointments to such retrenched employees in the past, the appellants, namely, the Union of India and the Directorate of Census Operations, U.P. are directed to consider these retrenched employees for direct recruitment to regular posts in the Directorate of Census Operations, U.P. in the manner hereinabove stated. There trenched employees will, however, have a right to be considered only if they fulfill all other norms laid down in connection with the posts in question under the recruitment rules and/or in other departmental regulations/circulars in that behalf."

30. Therefore, the Union in the instant case has to produce relevant materials to substantiate its claim.

31. Mr. Raj Birbal, the learned Senior Counsel for the first respondent also referred to the case of Rajasthan State Road Transport Corporation and Anr. v. Krishna kant and Ors., . The main question decided by the Supreme Court was whether civil Court could entertain suit challenging the non-employment by the employer without effective alternative remedy is available. Therefore, this case is of no assistance to the resolution of the point raised by the petitioner.

32. In State of H.P. v. Ashwani Kumar and Ors., (1996) 1 SCC 773 the facts noticed by the Supreme Court are:

"The facts are that the respondents were engaged on daily wages on muster-roll basis in Central Scheme and were paid out of the funds provided by the Central Government. It is stated that after the scheme was closed their services were dispensed with. When the respondents field the writ petition in the High Court, the High Court gave interim direction dated 6.1.1993 and directed them to be reengaged elsewhere. Pursuant to the interim direction the writ petition came to be disposed of on 9.3.1993. Thus this appeal by special leave."

32.1. The Supreme Court held:

"It is seen that when the project is completed and closed due to non-availability of fund s, consequently, the employees have to go along with the closed project. The High Court was not right in giving the direction to regularise them or to continue them in other places. No vested right is created in temporary employment. Directions cannot be given to regularise their services in the absence of any existing vacancies nor can directions be given to create posts by the State to a non-existent establishment. The Court would adopt pragmatic approach in giving directions. The directions would amount to creating of posts and continuing them in spite of non-availability of the work. We are of the considered view that the directions issued by the High Court are absolutely illegal warranting our interference. The order of the High Court is set aside."

This case also cannot be of any assistance.

33. In State of U.P. and Ors. v. U.P. Madhyamic Shiksha Parishad Shramik Sangh and Anr., the respondent was representing a group of daily wagers in Class IV service of the UP. Madhyamik Shiksha Parishad. The High Court of Allahabad found that they have been regularly working for over 15 years doing similar work done by the regular Class IV employees and directed the appellants before the Supreme Court to pay equal pay and directed regularization of their services by creating appropriate posts. The Supreme Court held:

"It is an administrative procedure that creation of a post is a condition for filling up the post on permanent basis. The exigencies of the administration and the need for the creation of number of posts are matters of executive policy by the appropriate Government. It is stated in the special leave petition filed in this Court that during the examinations conducted by the Board, when the exigencies demand for doing the manual work like lifting of bundles, pasting of envelopes and shifting of answer books etc. the daily wagers are engaged and a sum of Rs. 25/-per day was being paid as fixed by the District Magistrate of Allahabad under the Minimum Wages Act. Unless the posts are created, they are not entitled to be fitted into any regular post. The performance of the manual duty may be like the duty of regular Class IV employees. However, they are not entitled for the payment of equal wages so long as there are no posts created in that behalf. We can understand that if there are vacant posts available in Class IV and they are filled up by appointing them to these posts on daily wages performing the same duties of regular employees, perhaps there may be justification for issuing directions for regularization of their services according to rules and payment of the salary to the post to which they are fitted. But in view of the fact that no posts are created or existing, we cannot uphold the direction issued by the High Court to pay equal wages or to regularise their services."

34. Therefore, it is clear from the above discussion that the Supreme Court has held before regularization can be claimed the employees concerned must establish that there are posts available in an establishment. That could be done only by adducing evidence both oral and documentary.

35. Mr. Raj Birbal, the learned Senior Counsel for the first respondent referred to authorities to show that proper Forum for the petitioner is the Labour Court and the petitioner cannot seek to invite this Court for adjudication of disputes treating this Court as an Industrial Court. In Dinesh Prasad and Ors. v. State of Bihar and Ors., 1985 1 L.L.J. 343 the Full Bench of the Patna High Court had to consider the question. Facts as noticed by the Patna High Court are:

"The writ petitioner therein claims to have been temporarily appointed as a clerk by the Chairman of the respondent Mithila Kshetriya Gramin Bank, Darbhanga, and thereafter performed his duties from the 17th July, 1981, till the 5th October, 1981. His services were apparently terminated thereafter, but it is claimed that by several subsequent appointment letters the petitioner served in the same capacity for varying periods commencing from the 17th July, 1981 to the 20th July, 1982. It is sought to be claimed that the petitioner has rendered 335 days of continuous service within the meaning of Section 25B of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act), and on these premises, is entitled to the benefit under Section 25F of the said Act. Apprehending that the petitioner's services would be terminated, he instituted a title suit being Title Suit No. 65 of 1982, in the Court of the First Munsif, Darbhanga and secured a temporary injunction restraining the defendant Bank from terminating the petitioner's services. Against this injunction, the respondent Bank filed a miscellaneous appeal before the District Judge of Darbhanga, which was allowed and the injunction granted was vacated. Consequent thereto the respondent Bank (vide Annex. 'I'), by a wholly non-stigmatic and innocuous letter, terminated the writ petitioner's services as these were no longer required. Thereafter, the petitioner chose to withdraw the title suit and he preferred the present writ petition, claiming the relief wholly under Section 25F of the Act."

35.1. In paragraph 12 the Full Bench observed as under:

"The aforesaid principle has received unstinted approval of our final Court as well. Therefore, it seems to follow that where both right and remedy stem from the same statute it is inevitable that the right conferred is itself within the confines and parameters of the modus of its enforcement. Therefore to say that because the statutory remedy provided is hedged down by a pre-condition it would lose the label of being a legal remedy at all seems to be plainly untenable on principle. That a legal remedy may be limited or confined by pre-conditions or post-conditions

for its enforcement is not at all unknown to the realm of law and indeed in many cases it seems to be the rule rather than the exception."

35.2. In paragraph 16 the Full Bench held as under:

"In fairness to learned Counsel for the writ petitioners one must, however, notice, what appears to me as a hyper-technical argument that even though a statutory reference under Section 10 may be an adequate and efficacious remedy yet it was not an alternative one. Perhaps this submission has only to be noticed and rejected. There is no definition of the words "alternative remedy" provided in any statute. However, what it would mean in the realm of law seems to be well known. Where the similar or identical relief can be granted in another Forum of law then it must necessarily be held that it provides an alternative remedy to the suitor. To put it in other words, if qualitatively and quantitatively the same relief would be given for redress of the injury to the petitioner elsewhere then there is no choice but to name the same as an alternative remedy. Now it seems beyond cavil that what is sought here in the Forum of the writ jurisdiction can equally be secured in the Forums under the Act ranging from the Conciliation Officer and the Labour Court at the bottom to the National Industrial Tribunal at the top. Indeed as their Lordships observed in the Premier Automobilies' case (supra) the powers of the Labour Courts and the Tribunals under the Act are much wider in nature. It is well known that a writ Court will not easily travel into issues of fact and would otherwise interfere only on the question of jurisdiction and errors patent in law whilst the authority under the Act is more than amply entitled to resolve the disputes on facts hedged in by no constitutional limitations and indeed can interfere by substituting its own discretion for that of the employer whose action may be impugned. Consequently it seems to follow that the remedies provided under the Act are not only alternative but indeed wider and more specific. Finally, it must be recalled that in the Premier Automobiles' case (supra) their Lordships in terms said that the remedies under the Act were alternative remedies. The tenuous submission in this context must,, therefore, be rejected."

36. In Tarlok Chand and Ors. v. National Industrial Development Corporation Ltd. and Ors., 1994 II LLJ 1130 the learned Judge of this Court held:

"A plain reading of the petition and the counter affidavit also shows that the allegations of fact in the petition are disputed by the respondents. As such there are disputed questions of fact also involved in the present case. I am also satisfied that this is a case where there is an adequate and efficacious alternative remedy available to the petitioners under the provisions of Industrial Disputes Act, 1947 and further that the Tribunal created under the said Act is the appropriate Forum to go into the disputed questions of fact after looking into the evidence that may be adduced by the parties."

37. In Shri D.P. Singh v. Engineering Projects (India) Limited, 1995 1 AD (Delhi) 478 this Court again held that the remedy available under the Industrial Disputes Act is an adequate and efficacious alternative remedy and, therefore, writ petition was not competent.

38. In Chet Ram v. Union of India, 1998 IV AD (Delhi) 816 this Court held that when a party has got an effective alternative remedy, it is a matter of discretion of the High Court in exercising his powers and the writ petition was dismissed on the ground that the alternative remedy was available.

39. Mr. K.K. Rai, the learned Counsel for the petitioner sought to rely on the following two cases:

1. Malkhan Singh v. Union of India and Ors., 1981II LL] 174.

2. Suresh Kumar and Ors. v. Union of India and Anr., .

40. In Malkhan Singh v. Union of India and Ors., (supra) the Cleaners and the Khalasi approached this Court challenging the termination of their services. On the merits this Court held that the orders passed were clearly illegal and the termination of the services would amount to retrenchment and since the provisions of Sections 25-A and 25-G have been violated the retrenchment was invalid. Having taken this view the Bench observed in para 36 as under:

"It is also very doubtful whether the mode of redress provided to a workman by the Industrial Disputes Act can at all be regarded as a "remedy". In this context, the word "remedy" normally denotes a procedure to which an aggrieved person can resort as of right. In doing so he is not dependent on the violation of some other person or authority. But under Section 10 of the Industrial Disputes Act the making of a reference is the discretion of the appropriate Government. If a reference is refused, the workman cannot himself directly approach the Labour Court or Industrial Tribunal. Thus the remedy is not available as of right."

40.1. This observation runs counter to the view expressed by the Supreme Court. In paragraph 41 the Bench observed as under:

"Besides, as I have tried to show, the so-called alternative remedy is not available to the petitioners as of right. No one can say whether the appropriate Government will make references under Section 10 of the Industrial Disputes Act if the petitioners are refused relief here. In any event, there will be much further delay and uncertainty, whereas the petitioners are in urgent need of relief. They have been out of employment for over two years. Also, the notice terminating their services are patently illegal according to the present state of the case law. And, there are no questions of fact in dispute."

41. Therefore, this decision cannot be said to have laid down the law on the point and it would not be open to the petitioner to say on the strength of this decision this Court should adjudicate on facts and come to a decision.

42. In Suresh Kumar and Ors. v. Union of India and Anr., (supra) the employees working under the Central Research Institute for Yoga claimed regularization of their services. The facts as noticed by this Court are:

"Briefly stated the facts are that petitioner No. 1 was appointed on 8th April, 1981 as an Attendant by respondent No. 2 on daily wages w.e.f. 2nd April, 1981. Petitioner No. 2 was appointed as a Sweeper vide order dated 29th October, 1984 by the said Institute on daily wages. Similarly, petitioner No. 3 was appointed on 19th January, 1982 on daily wages as a Peon by the said Institute. It is the case of the petitioners, and this is not denied by the respondents, that the petitioners continued to work on daily wages till their services were ultimately terminated on 11th December, 1987 after the filing of the present writ petition.

At the time when the petition was filed the grievance of the petitioners was that the respondent-Institute advertised in the newspaper on 1st February, 1987 a number of posts, including the posts of Peons and Sweeper. It appears that interview letters were issued, but one of the petitioners was not even called for interview. The interviews were to be held on 7th December, 1987. The case of the petitioners is that the respondent-Institute is a 'State' within the meaning of Article 12 of the Constitution, and as the petitioners have put in more than 240 days of work in a year, they are liable to be absorbed in regular service in view of the numerous decisions of the Supreme Court."

42.1. On the question whether the Institute is a State or not this Court held that the Institute clearly appears to be an agency of the State and is, therefore, a "State" within the meaning of Article 12 of the Constitution. On the facts of the case this Court held as under:

"It may be that the petitioners may be able to approach the Industrial Tribunal or the Labour Court for redress, but the writ petition having been admitted, and as the action of the respondents in not treating the petitioners as regular is clearly contrary to law, in my opinion, this is a fit case where this Court should exercise its extraordinary jurisdiction under Article 226 of the Constitution. The respondent-Institute has in fact, in the instant case, acted in a most vindictive and irresponsible manner. On 11th December, 1987 the Institute was served with the interim order passed by this Court to the effect that any appointments which are made by the Institute would be subject to further orders of this Court. The action . of the respondent-Institute to terminate the services of the petitioners on that very day, i.e. on 11th December, 1987 not only shows the arbitrary manner in which it has acted, but also leave an indelible impression in my mind that the action was vindictive in nature. The Institute seems to have taken it as an affront that the petitioners had approached this Court and obtained an interim order in their favour. One would expect the Institutes sponsored by the Central Government to act with a certain amount of discretion and without at least appearing to be arbitrary. Even though in the writ petition there is no specific prayer for quashing of the orders dated 11th December, 1987,but as the said orders were passed during the pendency of the writ petition, it would be appropriate to quash the said orders as well."

42.2. This Court in this decision had not taken the view that the employees can directly approach this Court for the determination of industrial disputes.

43. Having considered the facts and circumstances of the case I am of the view that it is for the petitioner to raise an industrial dispute and this writ petition is not at all maintainable. Granting liberty to the petitioner to raise an industrial dispute the writ petition stands dismissed.

44. There shall be no order as to costs.