WA/224/2020
2022 Latest Caselaw 5136 Gua

                                                                   Page No.# 1/19

GAHC010188422020




                                          Judgment delivered on : 22.12.2022



                    THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)



                   WRIT APPEALNO.224 OF 2020
                   The Management of North Eastern Regional Agricultural
                   Marketing Corporation Limited, (NERAMAC), (a
                   Government of India Enterprise, Registered Office 9,
                   Rajbari Path, GS Road, Ganeshguri, Guwahati-781005,
                   Assam.)


                                                           ........Appellants


                                     -Versus-

                   1.    The Workmen represented by the President,
                   NERAMAC Workers' Union, Tripura State Committee,
                   Tripura, Nalkata, P.O-Kanchanchera, District-Dholai,
                   799264, Tripura.

                   2.    Central Government Industrial Tribunal-cum-Labour
                   Court, R.K. Mission Road, Kendriya Shram Sadan, 2 nd
                   Floor, Birubari, Guwahati-781016.

                                                         ........Respondents

Page No.# 2/19

-B E F O R E -

HON'BLE THE CHIEF JUSTICE MR. R.M. CHHAYA HON'BLE MR. JUSTICE SOUMITRA SAIKIA

Advocate for the appellants : Mr. H.K. Das, learned counsel.

Advocate for the respondents : Mr. N.K. Baruah, learned counsel.

JUDGMENT AND ORDER

(Soumitra Saikia, J)

Heard Mr. H.K. Das, learned counsel for the appellants and Mr. N.K.

Baruah, learned counsel for the respondents.

2. Being aggrieved by the Judgment and Order dated 19.06.2019

passed by the learned Single Judge in WP(C) 6520/2015 as well as the

order dated 15.10.2020 passed in review petition being Review Petition

No.117/2019, the present intra Court appeal has been directed by the

appellants, namely, The Management of North Eastern Regional

Agricultural Marketing Corporation Limited, (NERAMAC), (a Government

of India Enterprise, Registered Office 9, Rajbari Path, GS Road, Page No.# 3/19

Ganeshguri, Guwahati-781005, Assam.

3. The appellants--North Eastern Regional Agricultural Marketing

Corporation Limited, (NERAMAC) is a Government of India Enterprise,

having its registered Office at 9, Rajbari Path G.S. Road, Ganeshguri,

Guwahati. The appellants--NERAMAC was incorporated to facilitate

purchase of marketable surplus of fruits, vegetables and other forest

products in the North Eastern Region through a network of centers and

also to further facilitate for its processing and marketing. The appellants

are under the Administrative control of the Ministry of Development of

North Eastern Region (DONER). As per the instructions of the

Government of India, the appellants are to generate its own revenue for

meeting recurring expenditures.

4. The respondent No.1 is the NERAMAC Workers' Union, Tripura State

Committee, Tripura, Nalkata, P.O-Kanchanchera, District-Dholai, 799264,

Tripura, who represents the workmen, who were appointed in various zonal

as well as the Head Office at the Fruit Juice Concentration Plant (FJCP),

Nalkata on various dates from 1988 to 2001 in various posts, such as typist,

steno, electrician, A/C, gatekeepers etc. It is the case of the respondent

No.1 that altogether 32 casual employees were appointed by following due Page No.# 4/19

procedures prescribed. Out of the 32 casual employees, 7 of those casual

employees left the organization due to their personal reasons and some had

expired in the meantime. Those remaining 25 employees had continued to

work continuously without any break in services on a full time basis and that

to the satisfaction of the Management of the NERAMAC. It is contended on

behalf of the respondents that some of the employees had completed 22

years of their service. Although some benefits like CPF, leaves, gratuity and

medical benefit etc. were granted to these casual employees at par with the

regular employees, however, inspite of working on full time basis since 1988,

they had never been regularized. The Union demanded regularization of the

services of these workmen.

5. The Ministry of Labour, Government of India vide their Order No. L-

42011/35/2012-IR (DU) dated 04.07.2012 initiated a reference as an

industrial dispute between the appellants and the respondent No.1.

Another reference between the same parties was also initiated by the

Ministry of Labour, Government of India vide its Order No.L-

42011/35/2012-IR (DU) dated 12.07.2012. The first reference was

initiated by Order dated 04.07.2012 and was registered as Reference

Case No.23/2012 whereas the second reference initiated by Order dated

12.07.2012 was registered as Reference Case No.24/2012. The references Page No.# 5/19

made by the Government of India were similar in both the reference

cases and the schedule of the reference read as under :-

"Schedule

Whether the action of the Management of NERAMAC by not

regularizing the services of 32 numbers of casual/contingent workers

(as per list in Annexure-A) or not granting equal pay for equal work

at par to the regular employee of instantly are legal and justified?

What those groups of casual workers/contingent workers are entitled

to?"

6. The Central Government Industrial Tribunal-cum-Labour Court,

Guwahati before whom the two references were made, framed the

following 4 (four) issues:-

"i) Whether the appointment of the workmen involved in the

reference was illegal?

ii) Whether the said workmen were appointment against the

sanctioned posts?

iii) Whether the workmen are discharging similar nature of works as Page No.# 6/19

done by the regular employees of the Management?

iv) Whether the financial position of the NERAMAC does not permit

regularization of the workmen raising the dispute?"

7. Upon hearing the parties to the proceedings, the Tribunal vide a

common award dated 01.04.2015 in both the reference cases being

Reference Case No. 23/2012 and Reference Case No.24/2012 delivered a

finding that the appointments of the workmen although irregular was not

illegal and all the 4 (four) issues were decided in favour of the workmen.

The Tribunal held that the 25 casual /contingent workers were entitled to

regularization with financial benefits with effect from 23.04.2004.

8. Being aggrieved, the writ petition being WP(C) No.6520/2015 was

filed by the petitioner/management challenging the award of the Tribunal.

Before the Writ Court the appellant challenged the award and assailed the

findings of the Tribunal for regularization of the workmen as well as for

grant of pay benefits. The Learned Single Judge upon hearing the parties

and upon perusal of the materials before the Court held that the finding

of the Tribunal in so far as it relates to the regularization of the appellants

is found to be not sustainable on facts and on law as it runs counter to Page No.# 7/19

the ratio laid down in Umadevi (3) reported in (2006) 4 SCC and M.L.

Kesari reported in (2010) 9 SCC 247 . The learned Single Judge came to

the conclusion that in respect of the relevant factors regarding existence

of sanctioned post, vacancies in those sanctioned post, appointment

orders of the workmen, recruitment Rules of the appellant whether validly

made by competent authority, manner of appointment of the workmen

whether through a competitive selection process and whether each of

these workmen have a minimum qualifications to be appointed to the

post, no evidences were adduced before the Tribunal and therefore held

that the order of the Tribunal directing regularization is not valid. The

learned Single Judge came to the conclusion that a blanket direction to

regularize the workmen cannot be an order for a mere asking and

without the Court rendering a finding in respect of various factors which

have been elaborately dealt with by the Apex Court in the case of

Umadevi (3) (Supra) and M.L. Kesari (Supra).

9. The learned Single Judge, however, partly allowed the writ petition

by directing the appellants to grant financial benefit of ' equal pay for

equal works' to those casual/contingent workmen who were working at

par with the regular employees. The direction for ' equal pay for equal Page No.# 8/19

works' would operate prospectively with effect from 04.07.2012 which is

the date of reference made by the Ministry of Labour, Government of

India (reference case No.23/2012). The entire process of granting

financial benefits was directed to be completed within a period of 4 (four)

months from the date of receipt of the certified copy of the order.

10. In respect of the directions of the Tribunal in so far as it relates to

the claims of the regularization of the workmen, the Learned Single Judge

interfered with and set aside the award to that extent and the matter was

remanded back to the Tribunal for a fresh decision in the light of the

discussions made in the order of the Learned Single Judge. The relevant

paragraph of the Judgment and Order of the learned Single Judge is

extracted below:-

"26. In view of the discussions above, this Court is of the considered

opinion that he finding by the learned CGIT & LC runs counter to the

ratio laid down in the case of Umadevi (3) (supra) and M.L. Kesari

(supra), because there no finding has been recorded by the learned

CGIT & LC on the following factors, viz., (i) the existence of sanctioned

posts, (ii) the then existing vacancies in sanctioned posts (iii) whether

the appointment orders of the workmen involved was made by a Page No.# 9/19

competent "Appointing Authority" as described in Clause 2(iii) of the

Recruitment Rules of NERAMAC and whether they were valid and made

by competent authority; (iv)Whether the appointment of the particular

workmen covered by the reference was made pursuant to a competitive

selection process; (v) whether each of the workmen had the minimum

qualification to be appointed to the post where he/she had been

appointed, Hence, the impugned order is found to be vitiated owing to

non consideration of well established legal principles of law. A blanket

direction to regularise workmen cannot be ordered for a mere asking

and without the Court rendering a finding in respect of various factors,

which is

elaborately dealt with by the Supreme Court of India in the case of

Umadevi (3) (supra) and M.L, Kesari (supra).

27) It is seen that the learned CG/T & LC had relied on the case of

State Electricity Board Vs. Pooran Chandra Pandey and Others, (2007)

11 SCC 92. However, the learned senior advocate for the petitioner had

rightly assisted this Court in submitting that the case of Pooran Chandra

Pandey (supra) was specifically overruled by a Bench of three Judges of

the Supreme Court of India in the case of Official Liquidator Vs.

Dayanand & Ors., (2008) 10 SCC 1. For the said reason, with all respect,

this Court is not inclined to follow the decision rendered by the Hon'ble Page No.# 10/19

High Court of Tripura in the case of Ajay Choudhury & ors. Vs. North

East Regional Agricultural Marketing Corporation Ltd. (NERAMAC) & ors.,

WP(C) No. 168/2012, decided on 12.06.2017, which was cited by the

learned advocate for the respondents,

28) In the absence of finding on the above 5 (five) factors, this Court is

constrained to hold that the order impugned herein is not sustainable.

However, as the case involves long period of service rendered by the

workmen of NERAMAC, this Court is inclined to remand the matter for a

fresh decision by the CGIT & LC i.e. Central Government Industrial

Tribunal-cum-Labour Court.

29) In order to enable the respective parties to address the learned

CGIT&LC on the said 5 (five) factors as indicated above, it is provided

that it would be open for the parties to the said Ref. Case No. 23/2012

and Ref. Case No. 24/2012 to make suitable prayer before the said

learned CGIT&LC to amend their pleadings and/or to lead further

evidence in respect of the said five factors. If such prayer is made, the

said learned CGIT&LC shall give a reasonable opportunity to both sides

and decide the Ref. Case No, 23/2012 and Ref. Case No. 24/2012

afresh. It would be open for the said learned CGIT&LC to limit

adjournment to both sides for expeditious disposal of the cases.

Page No.# 11/19

33) Thus, the writ petition is partly allowed. That apart of the impugned

judgment and award dated 01.04.2015, in Ref. Case No. 23/2012 and

Ref. Case No. 24/2012, wherein direction has been given to regularise

the service of 25 casual/ contingent employees is interfered with and is

set aside. In that regard, the matter is remanded back to the CGIT & LC

for a fresh decision in the light of the discussions above.

34) In order to enable the respective parties to address the learned

CGIT&LC on the said 5 (five) factors as indicated above, it is provided

that it would be open for the parties to the said Ref. Case No. 23/2012

and Ref. Case No. 24/2012 to make suitable prayer before the said

learned CGIT&LC to amend their pleadings and/or to lead further

evidence in respect of the said five factors. If such prayer is made, the

said learned GIT&LC shall give a reasonable opportunity to both sides

and decide the Ref. Case No. 23/2012 and Ref. Case No. 24/2012

afresh. It would be open for the said learned CGIT&LC to limit

adjournment to both sides for expeditious disposal of the cases.

35) The petitioner is directed to comply with that part of the order

passed by the learned CGIT & LC to grant financial benefit of "equal pay

for equal work" to those casual/ contingent workmen who were working

at par with the regular employees. However, the said direction for equal Page No.# 12/19

pay for equal work would operate r prospectively from the date of

reference 1.e. 04.07.2002, the date when reference was made by the

Ministry of Labour, Govt. of India (Ref. Case No. 23/2012). The entire

process for granting financial benefit shall be concluded within a period

of 4 (four) months from the date of receipt of certified copy of the

order, failing which it would be open to the respondents to enforce that

part of the award passed by the learned CGIT & LC, as modified herein,

in accordance with law."

(Emphasis supplied)

11. Being aggrieved by the direction of the learned Single Judge,

directing the appellants to pass necessary order for grant of financial

benefit of 'equal pay for equal works' to the respondents, a review

petition was filed being Review Petition No. 117/2019. The Learned Single

Judge vide Judgment and Order dated 15.10.2020 accepted the prayer

for insertion of certain particulars relating to the date of reference as

regards Reference Case No.24/2012 and accordingly, paragraphs 31 and

35 of the Judgment and Order dated 19.06.2019 passed in WP(C) No.

6520/2015 stood rectified in terms of the review order. However, the

Learned Single Judge declined to review the directions to grant financial Page No.# 13/19

benefits of 'equal pay for equal works' to the respondent workmen by

holding that the same is beyond the scope of review jurisdiction.

12. Being aggrieved the appellants have approached this Court by filling

the writ appeal being W.A No.224/2020. During the course of the hearing,

it was pointed out that in terms of the Judgment and Order dated

19.06.2019 passed in WP(C) No. 6520/2015, whereby the writ petition

was partly allowed and the claim of regularization of the workmen was

remanded back to the Tribunal to re-decide the matter in terms of the law

laid down by the Apex Court in Umadevi (3) (supra) and M.L. Kesari

(supra), the Tribunal vide award dated 13.12.2021 declined to pass any

award giving directions for automatic regularization of the workmen

concerned as regular employees upon their failure to qualify the 5 (five)

factors determined by the learned Single Judge in Judgment and Order

dated 19.06.2019 passed in WP(C) No. 6520/2015 in paragraph 26. It is

informed at the bar that the subsequent award dated 13.12.2021 passed

by the Central Government Industrial Tribunal-cum-Labour Court,

Guwahati, whereby the Tribunal had declined to pass any award directing

automatic regularization of the respondent workmen upon their failure to

fulfill the factors mentioned in the Judgment and Order dated 19.06.2019 Page No.# 14/19

of the Learned Single Judge passed in WP(C) No. 6520/2015 has not

been assailed before this Court by the workmen.

13. Learned counsels for the parties have been heard. Pleadings on

record have been duly perused. The common award dated 01.04.2015,

the Judgment and Order dated 19.06.2019 passed by the learned Single

Judge in WP(C) No. 6520/2015 and Order dated 15.10.2020 passed in

Review Petition No. 117/2019 have been carefully perused.

14. It is seen that the questions before the learned Single Judge were

- (i) claim of regularization of the casual/contingent workers, who were

arrayed as respondents and (ii) grant of financial benefits 'equal pay for

equal works' .

15. In so far as the first issue is concerned the learned Single Judge

had elaborately considered the case laws rendered by the Apex Court

more particularly the Judgments rendered in Secretary, State of

Karnataka Vs Umadevi, reported in (2006) 4 SCC 1 and the case of State

of Karnataka Vs M.L. Kesari reported in (2010) 9 SCC 247. The learned

Single Judge by referring to the said Judgments had rendered a finding

that as held by the Apex Court before anyone can seek regularization the Page No.# 15/19

following factors must exist:-

(i) existence of sanctioned posts,

(ii) existing vacancies in sanctioned posts,

(iii) persons appointed in vacancies against sanctioned posts are duly

qualified persons and

(iv) appointment to such vacant post must have been made through

open competitive selection process.

16. It is seen that the learned Single Judge had returned the finding

that there is no material on record to show before this court that any of

the casual/contingent employees of the appellant in respect of whom the

references were made before the Central Government Industrial Tribunal-

cum-Labour Court were appointed by following open competitive

selection process. Relying upon Umadevi (3) the learned Single Judge

held that the regularization is not a mode of appointment and contractual

appointees cannot be regularized because it would amount to fraud on

the Constitution of India, and would be hit by the principles of the Article

14 and 16 of the Constitution of India. The learned Single Judge held that Page No.# 16/19

the respondent workmen did not present any materials to prove the

manner in which the vacancies were advertised for public participation in

the selection process. Out of 25 persons for whom the reference was

being persuaded, the appointment orders of only 14 workmen were

exhibited. Although the appointment orders were made by the Manager

Administration, i/c Fruit Juice Concentration Plant, Nalkatta, Zonal Manager,

NERAMAC, Agartala, Deputy Production Manager, Fruit Juice Concentration

Plant, Nalkatta , however the Tribunal did not return any finding as to

whether the appointments were so made were by the competent

appointing authority as defined under clause (iii) of the Recruitment rules

of NERAMAC .

17. The learned Single Judge held that as per Recruitment Rules,

Section II, Rule 1 (iv) provides that these Rules do not apply to

labourers/work charged employees in factory or other undertakings of the

Corporations unless the Board decides otherwise. It was held by the

learned Single Judge that without ascertaining as to which authority is

the competent appointing authority, the findings recorded by the Tribunal

that the appointment of the workmen involved in the reference was

irregular and not illegal, is not supported by the documentary evidences Page No.# 17/19

on record.

18. We have given our anxious thoughts to the contentions raised

before us. The only question which is presented before us is whether the

directions of the learned Single Judge directing the appellants to grant

financial benefits for 'equal pay for equal works' would require any

interference. The learned Single Judge had relied upon the Judgment of

State of Punjab Vs Jagjit Singh reported in (2017) 1 SCC 148 to issue the

directions to the appellants to grant financial benefit to the respondents.

19. For getting the benefit of equal pay at par with regular employees,

the workmen must get engagement on the basis of some selection and

not merely on a pick and choose basis. The employees who claimed

benefit of 'equal pay for equal works' must be performing work, which is

equal and of the same nature and quality of the work performed by

regular employees. There has to be evidence brought before the Tribunal

on the basis of which such findings can be returned. The learned Single

Judge in the impugned Judgment had clearly held that there was no

evidence led before the Tribunal in respect of the various factors in order

for the Tribunal to have allowed the prayers for regularization. These Page No.# 18/19

factors which the learned Single Judge held were necessary for

determining the claim of the regularization of the respondent workmen,

will also be relevant in determining whether they are entitled to the

financial benefit of 'equal pay for equal works'.

20. However, a careful perusal of the Judgment under Appeal as well as

the common award dated 01.04.2015 passed by the Tribunal, we find

that there was no evidence brought before the Tribunal to support the

claim of the workmen to return a finding that the respondent workers

were doing similar works as other regularized employees. Such findings

are required to be rendered on the basis of evidences adduced before the

Tribunal. The learned Single Judge had correctly held that there was no

evidences led before the Tribunal to arrive at a finding that the

appointments/engagements of the respondents were irregular and not

illegal. Similarly for returning a finding that the respondents workers had

been rendering similar works as other regularized employees and

therefore, were entitled to be granted the financial benefits of ' equal pay

for equal works' is also required to be based on evidences led before the

Tribunal. In the facts of the present case we find that no such evidences

were led before the Tribunal. In that view of the matter we are of the Page No.# 19/19

considered view that the directions of the learned Single Judge directing

grant of financial benefits to the respondents cannot be sustained in law

in the absence of any evidence led before the Tribunal to that effect and

the same is therefore set aside. The matter is remanded back to the

Tribunal to re-decide on these issues by leading such evidences as may

be adduced before the Tribunal by both parties to the proceedings.

21. In view of the above discussions we are of the considered view

that the Judgment under appeal needs to be interfered with and set

aside. The same is therefore, set aside and the matter is remanded back

to the Tribunal to re-decide the issue as directed above and the appeal is

allowed to the extent indicated above.

22. The Writ Appeal is accordingly allowed to the extent indicated.

23. No Order as to cost.

                      JUDGE               CHIEF JUSTICE


Comparing Assistant