2007 (4) TMI 784 - SC - Indian Laws

Summary

Issues Involved:
1. Regularization of services of daily-rated Malies.
2. Equal pay for equal work.
3. Artificial breaks in service.
4. Creation of posts and payment of regular salaries.

Detailed Analysis:

1. Regularization of Services of Daily-Rated Malies:
The primary issue was whether daily-rated Malies working for Hindustan Aeronautics Ltd. (HAL) should be regularized. The petitioner union argued that their members had worked continuously for more than 240 days each year and were entitled to regularization. The appellant HAL countered that the work was intermittent and not sufficient to justify regular employment. The Supreme Court held that completion of 240 days in a year does not confer a right to regularization under the Industrial Disputes Act. The Court reiterated that regularization can only be done in accordance with statutory rules and not de hors the rules. The Court referenced previous judgments, including *Madhyamik Shiksha Parishad v. Anil Kumar Mishra* and *Indian Drugs and Pharmaceuticals Ltd. v. Workman*, to support this conclusion.

2. Equal Pay for Equal Work:
The petitioner union contended that daily-rated Malies were performing the same duties as regular Malies but were paid less. The Supreme Court did not specifically address this issue in isolation but implied that without regularization, the claim for equal pay could not stand. The Court emphasized that the legal position of an employee in an industrial establishment is different from that of a government servant, who enjoys a status and security of tenure.

3. Artificial Breaks in Service:
The petitioner union claimed that HAL created artificial breaks in service to deprive workers of continuity and regularization. The learned Single Judge initially found merit in this argument, directing HAL to absorb the petitioners as regular employees if perennial work was available. However, the Supreme Court overturned this, stating that the creation and abolition of posts and regularization are purely executive functions. The Court held that judicial directions to absorb employees or pay regular salaries encroach upon executive functions.

4. Creation of Posts and Payment of Regular Salaries:
The High Court had directed HAL to create posts and pay regular salaries to the petitioners. The Supreme Court set aside this direction, emphasizing that the judiciary cannot create posts where none exist. The Court referenced *P.U. Joshi v. Accountant General, Ahmedabad* and *Secretary, State of Karnataka v. Uma Devi* to support its stance that such actions are executive functions and should not be performed by the judiciary. The Court concluded that unless there exists some statutory rule, no direction can be issued for continuation in service or payment of regular salary to a casual, ad hoc, or daily rate employee.

Conclusion:
The Supreme Court allowed the appeals, setting aside the judgments of the learned Single Judge and the Division Bench. The writ petitions filed by the respondents were dismissed. The Court made it clear that any violation of the terms of the settlements by HAL could be addressed in accordance with the law. No costs were awarded.