Delhi High Court
Amrish Kumar & Ors. vs Indian Institute Of Mass ... on 14 February, 2020
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 14.02.2020
+ W.P.(C) 5906/2018 & CM APPL. 23016/2018
AMRISH KUMAR & ORS. ..... Petitioners
Through: Mr. Rajiv Agrawal, Adv. with
Ms. Meghna De, Ms. Liu Gangmei, Advs.
versus
INDIAN INSTITUTE OF MASS COMMUNICATION. Respondent
Through: Mr. Gaurang Kanth, Standing Counsel
with Ms. Aarti A. Mehto, Adv. for UOI.
Mr. Amit Singh, Adv. for R-1.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J. (Oral)
CM APPL. 6052/2020 (By R-1 for delay of 140 days in re-filing C/A)
1. For the reasons mentioned in the application, the delay is condoned.
2. The application stands disposed off.
W.P.(C) 5906/2018 & CM APPLs. 23016/2018, 23017/2018, 30979/2019
3. This petition impugns the order dated 01.05.2006 passed by the
learned Labour Court in I.D. No. 143/2003 dismissing the claim of the
petitioners for regularization of their services with effect from their initial
date of appointment along with consequential benefits. It is not in dispute
that they have been working with the respondent-management for more than
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KUMAR
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20 years without any break. Initially, they were paid minimum wages but
later on subsequently their emoluments were enhanced to Basic Pay + D.A.
The impugned order has relied upon the dicta of the Supreme Court in
Secretary, State of Karnatka and Others vs. Umadevi and Others, (2006) 4
SCC 1, to the effect that daily wagers or ad hoc employees would not have a
legal right to be made permanent, even though they have never been
appointed in terms of the relevant rules. Therefore, it held that the workmen
were not entitled to regularization. The learned counsel for the petitioners
submits that the jurisprudence on the subject has developed further. He
refers to the observation of the Supreme Court in para 53 of Umadevi
(supra) which read as under:-
"53. One aspect needs to be clarified. There may be cases where
irregular appointments (not illegal appointments) as explained in
S.V. NARAYANAPPA (supra), R.N. NANJUNDAPPA (supra),
and B.N. NAGARAJAN (supra), and referred to in paragraph 15
above, of duly qualified persons in duly sanctioned vacant posts
might have been made and the employees have continued to work
for ten years or more but without the intervention of orders of
courts or of tribunals. The question of regularization of the
services of such employees may have to be considered on merits
in the light of the principles settled by this Court in the cases
above referred to and in the light of this judgment. In that
context, the Union of India, the State Governments and their
instrumentalities should take steps to regularize as a one time
measure, the services of such irregularly appointed, who have
worked for ten years or more in duly sanctioned posts but not
under cover of orders of courts or of tribunals and should further
ensure that regular recruitments are undertaken to fill those
vacant sanctioned posts that require to be filled up, in cases
where temporary employees or daily wagers are being now
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employed. The process must be set in motion within six months
from this date. We also clarify that regularization, if any already
made, but not subjudice, need not be reopened based on this
judgment, but there should be no further by-passing of the
constitutional requirement and regularizing or making
permanent, those not duly appointed as per the constitutional
scheme."
4. It is also not in dispute that the petitioners were engaged as
casual workers by the respondent and had been working for the
respondent as under:
Sl. Name and Designation Date of
No. Joining
1. Shri Rajesh Kumar, Chowkidar 04.11.1997
2. Shri Amrish Kumar, Chowkidar 20.02.1997
3. Shri Subhash Chander, Chowkidar 07.03.1997
4. Shri Bal Kishan, Chowkidar 26.03.1997
5. Shri Sushil Kumar, Chowkidar 10.08.1997
6. Ramesh Kumar, Chowkidar 13.03.1998
7. Shri Kiran Pal, Chowkidar 04.05.1998
(since expired)
8. Shri Suresh Chandra, Messenger, 04.05.1998
Presently he is working as Computer
Assistant in Computer Section
5. This Court in Project Dir. Dep. Of Rural Devel vs. Its workmen
through D.P.V.V.I.E.UN, W.P.(C) 17555/2005, decided on
28.03.2019, has held, inter alia, as under:-
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"27. In my view, the rigors applicable for grant of regularization
in cases of public employment cannot be read in such a manner
so as to take away the wide powers of an Industrial Tribunal
under the ID Act. It needs no reiteration that the basic tenets of
service law are very different from those of labour law and,
therefore, the safeguards put in place to protect the interests of
workmen cannot be conflated with the service rules and
regulations applicable to government employees in the public
sector. Both of them stand on a different footing and can neither
be tested on the same touchstone nor enforced in the same
manner. Therefore, I am of the opinion that neither the decision
in Uma Devi (supra) nor in Anil Lamba (supra) has any
application to the facts of the present case. Even otherwise, a
perusal of the decision in Uma Devi (supra) shows that with
respect to the regularization of temporary employees, the
Supreme Court itself had specifically carved out an exception for
those contractual employees who, though appointed irregularly,
had completed at least 10 years of service. In the facts of the
present case, the respondents/workmen have as on date
completed more than twenty-two years of service and, therefore,
even as per the decision in Uma Devi (supra), they would be
entitled to the regularization of their services.
28. The decisions relied upon by the learned counsel for the
respondents in Ajaypal Singh (supra), ONGC (supra) and
Umrala Gram Panchayat (supra), also leave no manner of doubt
that the Supreme Court has specifically observed that the
prohibition laid down for regularization in Uma Devi (supra)
does not apply to industrial adjudication and that the Industrial
Tribunal has the power to direct regularization of services in
cases where pursuant to unfair labour practices, employees have
been made to render services for long periods of time on causal
basis for work that should ordinarily be done by regular
employees. Reference may also be made to the observations of a
Division Bench of this Court in the case of Ram Singh (supra),
wherein the decisions of the Supreme Court in Ajaypal Singh
(supra), ONGC (supra) and Umrala Gram Panchayat (supra)
were relied upon to arrive at a finding that denying
regularization of services to a temporary workman after he has
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been in uninterrupted service for a very long period, tantamounts
to an extremely unfair labour practice. For the sake of ready
reference, the relevant paragraphs of the decision in Ram Singh
(supra) are extracted hereinbelow in extenso:-
13. Mr. Rajiv Aggarwal, learned counsel
appearing for the appellant/Ram Singh has also
drawn our attention to a recent pronouncement of
the Supreme Court reported as 2015 (5) SCALE
353 in ONGC Limited v. Petroleum Coal Labour
Union & Ors. in support of his submission that
the prohibition laid down in Uma Devi does not
apply to industrial adjudication. We may usefully
extract the relevant portion of this judicial
pronouncement, which reads thus:- " 11. On
behalf of the workmen concerned, it was
contended before the Single Judge of the High
Court that the dispute falls within the jurisdiction
of the Tribunal under the provisions of the Act
and that the Tribunal had sufficient jurisdiction to
adjudicate the dispute referred to it. It was further
contended on behalf of the workmen concerned
that they have been working on temporary basis
from the year 1988 and continuing their services
on temporary basis is an unfair labour practice
on the part of the Corporation. Therefore, it was
contended that the Tribunal was right in directing
the workmen concerned to be regularised and that
the law laid down in Umadevi (3) [State of
Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006
SCC (L&S) 753] had no application to cases of
industrial adjudication.
xxx xxx xxx
27. Further, it is very clear from the facts that all
the workmen concerned have got the
qualifications required for their regularisation,
except one of them and have been employed by the
Corporation even prior to 1985 in the posts
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through various irregular means. The Tribunal
has got every power to adjudicate an industrial
dispute and impose upon the employer new
obligations to strike a balance and secure
industrial peace and harmony between the
employer and workmen and ultimately deliver
social justice which is the constitutional mandate
as held by the Constitution Bench of this Court in
a catena of cases. This abovesaid legal principle
has been laid down succinctly by this Court in
Bharat Bank Ltd. v. Employees [AIR 1950 SC
188], the relevant paragraph of the said case is
extracted hereunder: (AIR p. 209, para 61)
61. "We would now examine the process by which
an Industrial Tribunal comes to its decisions and I
have no hesitation in holding that the process
employed is not judicial process at all. In settling
the disputes between the employers and the
workmen, the function of the Tribunal is not
confined to administration of justice in
accordance with law. It can confer rights and
privileges on either party which it considers
reasonable and proper, though they may not be
within the terms of any existing agreement. It has
not merely to interpret or give effect to the
contractual rights and obligations of the parties.
It can create new rights and obligations between
them which it considers essential for keeping
industrial peace. An industrial dispute as has
been said on many occasions is nothing but a trial
of strength between the employers on the one
hand and the workmen's organisation on the other
and the Industrial Tribunal has got to arrive at
some equitable arrangement for averting strikes
and lock-outs which impede production of goods
and the industrial development of the country. The
Tribunal is not bound by the rigid rules of law.
The process it employs is rather an extended form
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of the process of collective bargaining and is
more akin to administrative than to judicial
function. In describing the true position of an
Industrial Tribunal in dealing with labour
disputes, this Court in Western India Automobile
Assn. v. Industrial Tribunal [(1949-50) 11 FCR
321] quoted with approval a passage from
Ludwig Teller's well known work on the subject,
where the learned author observes that: (FCR p.
345) "... industrial arbitration may involve the
extension of an existing agreement or the making
of a new one, or in general the creation of new
obligation or modification of old ones, while
commercial arbitration generally concerns itself
with interpretation of existing obligations and
disputes relating to existing agreements.‟ The
views expressed in these observations were
adopted in its entirety by this Court. Our
conclusion, therefore, is that an Industrial
Tribunal formed under the Industrial Disputes Act
is not a judicial tribunal and its determination is
not a judicial determination in the proper sense of
these expressions." It has been further held by
this Court in LIC v. D.J. Bahadur [(1981) 1 SCC
315 : 1981 SCC (L&S) 111] , as follows: (SCC p.
334, para 22) 22. "The Industrial Disputes Act is
a benign measure, which seeks to pre-empt
industrial tensions, provide the mechanics of
dispute resolutions and set up the necessary
infrastructure, so that the energies of the partners
in production may not be dissipated in
counterproductive battles and the assurance of
industrial justice may create a climate of
goodwill."
Thus, the powers of an Industrial
Tribunal/Labour Court to adjudicate the
industrial dispute on the points of dispute referred
to it by the appropriate government have been
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well established by the legal principles laid down
by this Court in a catena of cases referred to
supra. Therefore, the Tribunal has rightly passed
an award directing the Corporation to regularise
the services of the concerned workmen. 28.
Whether the appointment of the workmen
concerned in the services of the Corporation is
irregular or illegal?
31. In the case on hand, the workmen concerned
were employed by the Corporation initially
through contractors. Thereafter, on issuance of
the Notification dated 8-12-1976 by the Central
Government abolishing contract labour for the
posts of watch and ward, dusting and cleaning
jobs in the Corporation under Section 10(1) of the
Contract Labour (Regulation and Abolition) Act,
1970, the Corporation and the workmen
concerned arrived at a settlement under Section
18(1) of the Act, wherein a cooperative society
was formed in the name of "Thai Security Service
Priyadarshini Indira Cooperative Society" for
their welfare, thus dispensing with intermediary
contractors. During the pendency of the sanction
from the Central Government of the alleged
"policy decision", the workmen concerned were
appointed directly from 13-1- 1988 to 29-2-1988
and thereafter, they were employed continuously
without written orders by the Corporation. It is
the contention of the learned Senior Counsel on
behalf of the Corporation that the services of the
workmen concerned cannot be regularised as
their appointment was originally and initially
through contractors and thereafter, without
following any procedure of selection and
appointment as per the Recruitment Rules and
therefore, the same is illegal by placing reliance
on the decision of this Court in para 43 of
Umadevi (3) case [State of Karnataka v. Umadevi
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(3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753].
Further, this Court in Ajaypal Singh v. Haryana
Warehousing Corpn. [(2015) 6 SCC 321 : (2014)
13 Scale 636] opined that when a workman is
initially appointed in violation of Articles 14 and
16 of the Constitution of India, then the employer
at the time of reemployment of the retrenched
workman cannot take the plea that the initial
appointment was in violation of the
abovementioned provisions. The relevant
paragraph of Ajaypal Singh case [(2015) 6 SCC
321 : (2014) 13 Scale 636] is extracted
hereunder: (SCC p. 329, para 17)
17. "...The provisions of the Industrial Disputes
Act and the powers of the Industrial and Labour
Courts provided therein were not at all under
consideration in Umadevi (3) case [State of
Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006
SCC (L&S) 753] . The issue pertaining to unfair
labour practice was neither the subject-matter for
decision nor was it decided in Umadevi (3) case
[State of Karnataka v. Umadevi (3), (2006) 4 SCC
1 : 2006 SCC (L&S) 753] ." The plea of the
Corporation that the reason for not regularising
the workmen concerned under the Certified
Standing Orders of the Corporation is allegedly
due to the fact that the appointment of the
workmen concerned was made without following
due procedure under the Recruitment Rules and
that their appointments were illegal. This plea
cannot be accepted by us in view of the legal
principle laid down by this Court in the above
decision, wherein it is clearly laid down that the
Corporation cannot deny the rights of the
workmen by taking the plea that their initial
appointment was contrary to Articles 14 and 16 of
the Constitution." (emphasis supplied)
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15. In view of above, it is accordingly observed
that the Supreme Court has therefore, carefully
created a special class of cases, wherein, the
claim of unfair labour practice of continuing daily
wagers/ad hoc employment/casual workers for
long periods and regularization has withstood
scrutiny by an Industrial Adjudicator under the
Industrial Disputes Act, 1947. 16. Learned
counsel for the appellant has drawn our attention
to the para 17 of Umrala, wherein, the Supreme
Court has mandated that a person who has
completed 240 days of continuous service,
becomes entitled to regularization. The para 17 of
the Judgment reads thus:- "17. In view of the
reasons stated supra and in the light of the facts
and circumstances of the present case, we hold
that the services of the concerned workmen are
permanent in nature, since they have worked for
more than 240 days in a calendar year from the
date of their initial appointment, which is clear
from the evidence on record. Therefore, not
making their services permanent by the appellant-
Panchayat is erroneous and also amounts to error
in law. Hence, the same cannot be allowed to
sustain in law."
17. In the present case, we are not talking of a few
days or 240 days but a period of 43 years i.e.
since the year 1972, when the petitioner has
rendered satisfactory, blemishless and
uninterrupted services to the respondent. To say
the least, the denial of regular appointment to the
appellant has resulted in depriving him of regular
pay scale, emoluments as well as leave benefits
etc to the appellant which tantamounts to an
extremely unfair labour practice and exploitation
of the services of the poor worker."
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29. Thus, in the light of the observations of the Supreme Court in
Ajaypal Singh (supra), ONGC (supra) and Umrala Gram
Panchayat (supra) as also of this Court in Ram Singh (supra), I
find that the petitioner‟s reliance on the decision of the Supreme
Court in Uma Devi (supra) and of this Court in Anil Lamba
(supra) is wholly misconceived. In my opinion, once the Tribunal
was of the view that the petitioner was indulging in unfair labour
practice, it was well within its domain to pass an order directing
the petitioner to regularize the respondents‟ services. The
petitioner has failed to make out any ground to interfere with the
discretion exercised by the Industrial Tribunal in directing the
petitioners to regularize the services of the
respondents/workmen. There is no gainsaying that the writ
jurisdiction and powers of superintendence of this Court have to
be exercised only sparingly to ensure that the subordinate courts
do not exceed their own jurisdiction and exercise it as and when
required, or when there has been a manifest failure of justice, or
when the principles of natural justice have been flouted. In my
opinion, no such eventuality has occurred in the present case so
as to warrant the exercise of powers of this Court under Articles
226 and 227 of the Constitution."
6. In the present case too, the workmen admittedly have been
working for 23 years. It clearly tantamounts to unfair labour practice
by denying them the benefits of regular services for 23 years. The
objective of the Act is to prevent unfair labour practice which is
defined in detail in 5th Schedule of the Industrial Disputes Act, 1947,
with reference to section 2A. The specific definition applicable to the
present case is clause 10 which reads as under:-
"10. To employ workmen as "badlis", casuals or
temporaries and to continue them as such for years, with the
object of depriving them of the status and privileges of
permanent workmen."
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7. The facts of the instant case as discussed hereinabove clearly
show that keeping the workmen in uninterrupted service for 23 years
as casual workmen and denying them the status and privilege of
permanent workmen, constitutes unfair labour practice which is illegal
and needs to be quashed. Furthermore, similarly situated workmen of
the respondent who worked in its other administrative unit in Orissa
(Dhenkanal), for roughly half a century on ad hoc basis, have been
directed by the Orissa High Court in Basanta Kumar Sahoo vs. Union
of India, W.P.(C) 24759/2012, decided on 31.07.2017 to be
regularized. The said judgment had referred to and relied upon
Umadevi (supra) and State of Karnataka and Ors. vs. M.L. Kesari,
(2010) 9 SCC 247. The SLP against the said judgment of the Orissa
High Court was dismissed by the Supreme Court on 05.01.2018,
therefore, it has attained finality. The beneficiary workmen in that
case have become regular employees. The case of the present
petitioners is identical. That being the position i.e. they had worked
for almost 23 years; the employer was same; they had been working
against the sanctioned posts; they were not considered as regular
employees, therefore, the treatment meted out to them constitutes
unfair labour practice. In the circumstances, their services too shall be
regularized from initial date of joining, with all consequential benefits.
8. The petition is disposed off in the above terms.
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9. A copy of this order be given dasti under the signature of the
Court Master to the learned counsel for the parties.
NAJMI WAZIRI, J
FEBRUARY 14, 2020
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