Sh. Naval Kishor Nagar And Anr. vs Union Of India (Uoi) And Anr.
2006 Latest Caselaw 1802 Del

JUDGMENT

Manju Goel, J.

1. The petitioners are ex-servicemen and have been working with the respondent No. 2, namely, Oil and Natural Gas Corporation (hereinafter referred to as `the respondent'). Their prayer in the writ petition is for a direction to restrain the respondent from terminating their services, a direction to regularize the services of the petitioners and also a direction to give the petitioners equal wages and other consequential benefits at par with the regular employees of the respondent. The petitioners allege that they have been working continuously without break for more than 240 days preceding the presentation of the writ petition, that they are fully eligible for posts against which they are working, that the work given to the petitioners are of permanent and perennial nature, that although ostensibly they have been employed through a contractor they are under the control and supervision of the respondent, that the Government of India issued a Notification under Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970 on 8.9.1994 prohibiting the employment of contract labourers in the work mentioned in the Schedule therein including telecommunication operators in the respondent Corporation, that the present petitioners are covered by the Notification dated 8.9.1994 and in view of the judgment in Air India Statutory Corporation v. Labour Union 1996 (9) SCALE 70 the petitioners are entitled to be absorbed in the service of the respondent and that the petitioners should be given the same benefits of absorption in service as was given to other similarly placed employees who had filed W.P.(C). No. 3106/95 in this Court in which the direction to absorb them had been given on 28.9.1995.

2. The writ petition is vehemently opposed by the respondent in the counter affidavit. It is contended in the first place that the petitioners started working with the respondent with effect from 17.7.1995 & 28.7.1995 as contract labourers deputed by the contractors under the Contract Labour (Regulation and Abolition) Act, 1970 and their contract employment with the respondent expired on 30.9.1995 and thus their employment had come to an end only after two months. It is further pleaded that the respondent engaged the petitioners on ad hoc basis with effect from 1.10.1995 for temporary periods of two months with specific conditions that the petitioners would not be entitled to any regular employment and their service would be liable to be terminated even during the said period of two months without assigning any reason.

3. The respondent contends that the petitioners have worked on such ad hoc appointments as were extended from time to time. It is then contended that the petitioners are not entitled to wages equal to the regular employees and that they have no right of being regularized. It is further contended that the petitioners were engaged as maintenance staff and not as operators. The petitioners have filed a rejoinder to reiterate the case made out in the petition.

4. One of the grounds for seeking the relief was that certain other workers similarly placed as petitioners had filed a writ petition being W.P.(C). No. 3106/95 and that the relief given to those petitioners should be available to the present petitioners also. During the pendency of the present writ petition, W.P.(C). No. 3106/95 was decided but subsequently in LPA Nos. 5-8/98 & LPA No. 12/98 which were decided by a common judgment dated 22.12.2005 the judgment of the Single Judge was set aside and the LPAs were allowed and whatever protection was given to the co-workers of the petitioners by the Single Judge was also withdrawn. It was held in the LPA judgment that there are disputed questions of facts which cannot be decided in the writ petition. The petitioners herein, therefore, have to make out a case on the merit of their own case.

5. The petitioners claim that they do not have to depend upon the Contract Labour (Regulation & Abolition Act), as they have an independent right having worked under the respondent for more than 240 days in a calender year. The petitioners claim that in the calender year of 1996 they have worked with the petitioners for more than 240 days. One of the appointment letters issued to the petitioner No. 1 is Annexure R-1 to the counter affidavit of the respondent. According to this appointment letter dated 10.11.1995 the petitioner was engaged for the maintenance job in the communication department on ad hoc basis with effect from 1.10.1995 for a period of two months on a remuneration of Rs. 2749/- per month. One of the conditions in this appointment letter is that the petitioner would not be entitled to any regular employment or any related claim on account of this ad hoc employment. A similar appointment letter dated 10.11.1995 issued to petitioner No. 2, Babu Singh, is also placed on the record by the respondent. The appointment letters establish the nature of the job done by the petitioners, namely, maintenance job. The respondent has not given any specific period during which these petitioners were engaged. One document on record dated 1.11.1996 shows that their appointment of 1.10.1995 continued up to 31.10.1996 and that they were recommended for further extension for the period up to 28.2.1997. Thus, it can be said that the petitioners had worked for 240 days in the maintenance work on being engaged by the respondent on ad hoc basis.

6. Such ad hoc workers are not entitled to regularization as is held by the Supreme Court in the case of Secretary, State of Karnataka v. Uma Devi 2006 (4) SCALE 197. The petitioners are still claiming regularization on account of having worked for 240 days. Nonetheless they base their claim on the Standing Orders reproduced in pages 9 & 10 of this writ petition which, inter alia, provide that a workman who has been on the rolls of the respondent and has put in not less than 180 days of attendance in any period of 12 consecutive months shall be a temporary workman and that a temporary workman who has put in not less than 240 days and who possesses the minimum qualification prescribed by the respondent may be considered for conversion as regular employees. It is contended that this provision has not so far been declared ultra vires and, therefore, despite the Supreme Court judgment in the case of Uma Devi (Supra) the petitioners are entitled to be considered for conversion as regular employees. It is difficult to agree with this proposition. The Supreme court has considered the claims of temporary or ad hoc employees for regularization in the light of the provisions of Constitution of India and it has been held that regularization of employees who have not been appointed in the usual mode of recruitment is violative of Articles 14 & 16 as well as other Articles, namely, 21, 23, 226 & 309 of the Constitution of India. It has been mentioned in this judgment that an obligation has been placed on the State at the time of employing a servant to notify the vacancies that may arise in the various departments and that any other course adopted for appointment of employees cannot be approved of when examined in the light of various provisions of the Constitution. Although the Standing Orders quoted in the petition have not been actually discarded as ultra vires the judgment of the Supreme Court in the case of Uma Devi (Supra) has defeated the efficacy of the Standing Orders. The Standing Orders, it may be clarified, has not given the petitioners a right of being absorbed as regular employees. All that the Standing Orders say is that the petitioners may be considered for conversion as regular employees. This consideration cannot be done in violation of any provision of the Constitution of India. If they are converted into the regular employment only on account of their employment with the respondent for a period of 240 days the same will be violative of the provisions of Article 14 of the Constitution. This court will not direct the respondent to consider the petitioners for regular employment only because a Rule of this nature is in existence in the Certified Standing Orders of the respondent.

7. The second plea of the petitioners which is pressed despite the orders in the LPAs and the judgment of Uma Devi (Supra)'s case is that the petitioners should be entitled to wages equivalent to those of regular employees. The petitioners claim that equality in pay and allowances with other employees of the respondent is based on the well known principles of `equal pay for equal work' but there are two major impediments in the way of the petitioner. The first is that the appointment letters of the petitioners available on record show that the petitioners were employed for the maintenance job in communication department. The petitioners are not willing to accept this position. According to the petitioners they were employed as communication operators. In the rejoinder, the petitioners say that they have been working as operators and the respondent has used the word `maintenance' in the appointment letter dated 10.11.1995 with a mala fide intention to bring them out of the Notification dated 8.9.1994. The respondent insists that the petitioners were employed for the maintenance job as maintenance staff and not as operators. The respondent further contends that the petitioners were not performing the same or similar duties as that of the regular employees of the respondent. Thus, before any relief can be given to the petitioners on the principle of equal pay for equal work, a disputed question of fact has to be settled. This exercise cannot be done in a writ petition.

8. The second impediment is the opinion of the Supreme Court expressed in the case of Uma Devi (Supra) that those employed on daily wages cannot claim parity in wages with those regularly employed. The following portion of the judgment can be quoted with profit:

39. ...The employees before us were engaged on daily wages in the concerned department on a wage that was made known to them. There is no case that the wages agreed upon was not being paid. Those who are working on daily wages formed a class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules.

... The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals.

9. It may be mentioned here that the counsel for the petitioner, Ms. Asha Jain Madan, made it categorically clear that the petitioners were not simply looking for equality in the matter of wages but were also looking for equality in the matter of other allowances like, HRA, medical reimbursement benefits, etc. This demand is seeking equality amongst unequals. As the Supreme Court has mentioned the daily wagers cannot claim themselves to be equal with those regularly appointed. Daily wagers and in the present case the present petitioners appointed only for a limited tenure of two months on ad hoc basis cannot claim that they are equals with those regularly appointed.

10. In view of the above discussion, the petitioners cannot claim equality in wages and allowances with those regularly appointed employees whether they are maintenance staff or communication operators.

11. On 1.5.1997 an order of status quo with regard to the services of petitioners was directed by this Court in C.M. No. 3203/1997. The order was confirmed and made absolute till the decision of the writ petition on 9.1.2002. The petitioners have, inter alia, made a prayer in the writ petition that the respondent should be restrained from terminating the services of the petitioners. The petitioners have been appointed on ad hoc basis. The judgment of the Supreme Court in the case of Uma Devi (Supra) does not permit regularization of the petitioners in service. Accordingly the petitioners cannot also claim that the respondent be restrained from terminating their services. Accordingly this relief of the petitioners also has to be declined. However, in order to enable the petitioners to seek appropriate relief, if any, against this judgment, the respondent shall not terminate the services of the two petitioners till 18.10.2006.

12. In view of above, the writ petition is dismissed. The interim orders dated 1.5.1997 & 9.1.2002 stands vacated with the above directions.