Management Of Hotel Samrat vs Government Of Nct And Ors.
2007 Latest Caselaw 20 Del

JUDGMENT

Shiv Narayan Dhingra, J.

1. By this judgment, I shall dispose of the above two writ petitions.

2. Briefly, the facts are that the workman claimed that he along with one other workman Sapan Vishwas was working with the management as a Cook with effect from 25.9.1985 on daily wages basis. He was performing the same duty as other regular cooks, but was not being paid equal wages and other benefits of regular employees. Both made representation to the management for regularization but the management did not regularize them hence they raised industrial dispute about their regularization which was referred by the appropriate Government in following terms:

Whether the workman S/Shri Hira Singh and Swapan Vishwas are entitled to be regularized and if so, what directions are necessary in this regard?

3. The management took the stand that the workman Sapan Vishwas was not reporting for duty since 24.12.1989 without any intimation and that he had abandoned the job. The dispute, as raised by the workman, was bad for want of valid espousal. The workman had no right to be regularized as the workman was appointed temporarily, on the respondent getting a contract of catering from Indian Airlines. When this contract comes to an end, the workman Hira Singh and other similarly placed workmen's services shall not be required. The Labour Court framed the following issues:

1. Whether the cause of the workmen has been properly espoused?

2. Whether Sh. Swapan Vishwas, workman is absent from duty from 19.12.1989, as alleged in WS?

3. As per the terms of reference.

4. The Labour Court gave its finding on issue No. 1 against the workman and held that there was no espousal of the dispute of the workman. The Labour Court also held that Sapan Vishwas had neither signed the statement of claim nor he was joining the duties of the management. He was absenting from duty since 24.12.1989 and had abandoned the job. The Labour Court further observed that the workman Hira Singh was working continuously in the Bakery Section of the management. The nature of job was permanent. He was not working in catering section. He was, therefore, entitled to equal pay as a regular employee. For technical reason of non-espousal of the cause of workman, this right cannot be denied to him. The Labour Court, therefore, passed the impugned award dated 17.7.2001 in favor of the workman directing that he be treated as regular employee with effect from 25.9.1986 and he should be paid wages of regular employee.

5. The management has challenged the award of the Labour Court being perverse. The workman also challenged the decision of the Labour Court on issue No. 1.

6. It is argued by learned Counsel for the management that there was no valid espousal of the cause of the workman and no industrial dispute, therefore, arose or could have been referred or decided by the Tribunal. It is also argued that the Tribunal wrongly directed that the workman be regularized.

7. Section 2(k) of the Industrial Disputes Act reads as under:

industrial dispute" means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any persons;

8. It is apparent from the above definition that I.D. Act envisaged a collective dispute only as an industrial dispute. The I.D. Act was amended in 1965 and Section 2A was added making individual dispute of a workman as an industrial dispute, if the dispute related to dismissal, discharge, retrenchment or termination of individual workman. Thus Section 2A carved out an exception to the definition of individual dispute as given in Section 2(k) of the I.D. Act.

9. Section 10 of the Industrial Disputes Act authorizes the appropriate Government to refer to a Tribunal or Labour Court only an industrial dispute. If there is no industrial dispute, the same cannot be referred. As per Labour Jurisprudence, the dispute between an individual and the management cannot be an industrial dispute unless it is covered under Section 2A of the I.D. Act. Thus in order to be an industrial dispute, it must satisfy the definition of Section 2(k) of the I.D. Act. In J. H. Jadhav v. Forbes Gokak Ltd. , Supreme Court observed as under:

The definition of "Industrial Dispute" in Section 2(k) of the Act shows that an Industrial Dispute means any dispute or difference between an employer and employers or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of the employment or with the condition of labour, of any person. The definition has been the subject matter of several decisions of this Court and the law is well settled. The locus classicus is the decision in the Workman of Dharampal Premchand(Saughandhi) v. Dharampal Premchand(Saughandhi) where it was held that for the purposes of Section 2(k) it must be shown that (1) the dispute is connected with employment or non employment of a workman.(2) the dispute between a single workman and his employer was sponsored or espoused by the Union of workmen or by a number of workmen. The phrase "the union" merely indicates the Union to which the employee belongs even though it may be Union of a minority of the workmen, (3) the establishment had no union on its own and some of the employees had joined the Union of another establishment belonging to the same industry. In such a case it would be open to that Union to take up the cause of the workmen if it is sufficiently representative of those workmen, dispute the fact that such Union was not exclusively of the workmen working in the establishment concerned. An illustration of what had been anticipated in Dharam Pal's case is to be found in the Workmen of Indian Express Newspaper(Pvt.) Ltd. v. Management of Indian Express Newspaper Private Ltd. where an 'outside' union was held to be sufficiently representative to espouse the cause.

10. Thus, in order to give jurisdiction to the appropriate Government to refer the dispute and to the Tribunal/Labour Court to adjudicate the dispute, it was essential for the workman to show that his individual dispute for regularization was sponsored or espoused by a union of the workmen.

11. The Tribunal had considered the evidence led before it and came to conclusion that there was no espousal of the dispute of the workman. The workman has challenged this decision of the Labour Court on the ground that the Labour Court had not considered the fact that demand notice of regularization of services of the workman was issued by All India TDC Mazdoor Janta Union and the proceedings were initiated before the Conciliation Officer by the same union, which clearly showed that the cause of the workman was properly espoused by the union. The General Secretary of the union had deposed before the Labour Court that he had requested the management number of times to pay house rent to the petitioner at par with other employees and to issue him an appointment letter, but the Labour Court had not considered this evidence and given perverse findings on issue No. 1.

12. The dispute between an individual workman and the employer can be treated as an industrial dispute only where the workmen as a body or a considerable section of them, make common cause with the individual workman and espoused his demand. The question arises how the espousal can be inferred. Espousal means that the dispute of an individual workman is adapted by union as its own dispute or a large number of workmen give support to the cause of an individual workman. In the instant case, the only evidence available on record about espousal of the cause is the statement of the Secretary of the Union made before the Tribunal. In his statement, he stated that he requested the management to treat workman Hira Singh at par with other employees and grant him regular pay scale and he met the management for this purpose and on his pursuance, the management started deducting provident fund from salary of the workman Hira Singh. There is no evidence apart from this evidence about the espousal of the cause. Does mere lending of name of the union by the union secretary while raising the conciliation proceedings or for issuing notice amount to 'espousal' of cause? Union is a representative body of the workmen. The cause of any workman can be espoused collectively by the Executive Body of the union by taking a decision in this respect. This decision may not be taken in a formal manner but can be taken in an informal manner but it has to be a collective decision of the executive body of the union. An individual member of the Executive body cannot take the character of the entire union and cannot bind the union. Merely because the union secretary met the management and requested for giving a regular appointment letter to the workman, would not amount to espousal of the cause. In this case, this is the only evidence available on record in respect of espousal. In J.H. Jadhav's case(supra), the Supreme Court observed that the union must formally express itself in the form of a resolution which should be approved by its members. However, the number of supporting members of the union may be relevant depending upon facts of each case. In 1961 II LLJ 436 Bombay Union of Journalists v. Hindi Bombay , the Supreme Court observed that an individual dispute can take the character of an industrial dispute only if it was proved that it was, before it was referred, supported by union of employees. In each case, for ascertaining whether an individual dispute has assumed character of an industrial dispute, the test is whether on the date of reference, the dispute was taken up and supported by the union of the workmen of the employer against whom the dispute is raised by the individual workman or by an appreciable number of employees. In this case, the Supreme Court observed that notice of the meeting for the purpose of considering request by the members for tenable cause of concerned workmen was not given to the employees of the Hindu Board which were not the members of the union at the relevant time. Hence, by mere passing of a resolution by other members of the union, the case of the appellant that the cause of concern workmen was supported by the other employees of Hindu Board, could not be supported. The Supreme Court observed that unless an individual dispute was taken up by union of employees of the employer or by appreciable number of employees of the union, it remains as an individual dispute and does not become an industrial dispute. In 2001(89) FLR 458 Prakash and Ors v. Superintending Engineer(ELEL) and Ors, the Karnataka High Court observed that an individual can raise a dispute, only for removal, termination or dismissal. If the workman wants to raise a dispute for his absorption and regularization, that can only be done through the union on behalf of workman or workmen.

13. In the instant case, there is no evidence on record of espousal of the dispute of the petitioner. There was no evidence that either the aggrieved workman had approached the union and asked the union to take up his cause or that union, at any point of time, or any appreciable number of employees, had taken up the cause of the workman with the management. If the union had passed a resolution or appreciable number of workmen had approached the union and raised the demand in respect of regularization of the workmen, it could be said that there was an espousal of the cause of the workman. Espousal can be expressed in many ways. The secretary of the union, who appeared as a witness has not uttered a single word that the union or any appreciable number of workmen had espoused the cause of the workmen. He simple stated that he had met the management (in his individual capacity). Under these circumstances, it could not be held that an industrial dispute existed between the employer and the workmen to enable the appropriate Government to make an order under Section 10 of the Industrial Disputes Act for referring it for adjudication to the Labour Court.

14. The award of the Tribunal is per se perverse. The Tribunal has jurisdiction to adjudicate only an industrial dispute. The Tribunal came to conclusion that the cause of the workmen was not espoused. Once the Tribunal decided the issue of espousal against the workman, the Tribunal lost its jurisdiction to adjudicate the dispute since no industrial dispute existed. However, the Tribunal considered that it was a mere technicality. I consider that the entire jurisprudence of Industrial Disputes Act, is in respect of resolution of collective dispute of the workmen. It is not a mere technicality. An individual dispute unless covered under Section 2A cannot be raised under Industrial Disputes Act

15. The other question raised by the management is about the power of court to direct regularization.

16. In Secretary, State of Karnataka and Ors. v. Umadevi and Ors. 2006 SCC(L&S) 753 Supreme Court held:

... 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 period of employment has come to an end or of ad hoc employee who by the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution, 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 the 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 maybe 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. (para43)

While directing that appointments, temporary or casual, be regularized or made permanent, the courts are swayed by the fact that the person concerned 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 open eyes. It may be true that he is not in a position to bargain-not at arm's 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 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 succour 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 conktext that one has to proceed on the basis that mhte employment was accepted fully knowing the nature of it and the consequences flowing from it. (para 45)

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 of the relevant rules. No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirement of Articles 14 and 16 of the Constitution. 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. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. The arguments based on Articles 14 and 16 of the Constitution are therefore overruled. (para 48)

17. Thus, it is clear from the law laid down by the Supreme Court that regularization cannot be a mode of recruitment. The Courts should not be swayed by sympathies and order absorption or regularization.

18. I consider that the award of the Tribunal is per se perverse and is liable to be set aside. Same is hereby set aside. The writ petition of the management being WP(C) No. 6682 of 2002 is allowed and the writ petition of the workman being WP(C) No. 6247 of 2004 is dismissed. No orders as to costs.