9911796707
TMI Blog2006 (11) TMI 655X X X X Extracts X X X X X X X X Extracts X X X X ..... s. The present dispute relates to the ten concerned employees who were appointed as casual workers on daily rate basis for the reason that they were dependants of employees dying in harness. Such appointments were made by the appellant due to the persistent and prolonged agitation by the trade union since the appellant wanted to maintain industrial harmony, although there was no rule/policy for such compassionate appointment in the service of the appellant company, which was already over-staffed. As against 1049 sanctioned posts, there were already 1299 employees working in the company at the relevant time. The aforesaid ten persons were paid wages according to the rates of daily wages, declared by the State Government from time to time, as agreed with the union. Since the appellant was already over-staffed in all its departments, the said persons were given work in the nature of cleaning window panes, sweeping floors and such sundry jobs on contract basis which work was not the work of the regular employees of the appellant-company. From the year 1986 the financial position of the appellant- company became critical as it was running on huge losses and hence its corporate off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ission of the learned counsel for the appellant. It has come in the evidence that the number of sanctioned posts in the company were only 1049, but there were already 1299 employees working in the company at the relevant time. We fail to understand how could 1299 employees be appointed when there were only 1049 sanctioned posts? Moreover, the ten concerned employees were over and above the 1299 already working in the company at the relevant time. It has come on record that the financial position of the appellant- company was going from bad to worse and all the measures taken by them during the critical years from 1988 onwards including a ban on recruitment and other austerity measures did not bear any fruitful result. The company incurred heavy losses and as against the meagre capital of ₹ 21 crores for the Rishikesh Unit, the petitioner had incurred an accumulated loss to the tune of ₹ 233 crores upto the year 1992-93. The annual accounts for the said year were produced as Exhibit E-11 before the courts below. Subsequently the appellant was declared a sick company by the BIFR. A revival proposal was prepared before the BIFR where the union agreed not to raise any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... till the age of superannuation (unless he is dismissed or removed after an inquiry, or his service is terminated due to some other valid reason earlier). As regards a temporary employee, there is no age of superannuation because he has no right to the post at all. Hence, it follows that no direction can be passed in the case of any temporary employee that he should be continued till the age of superannuation. Similarly, no direction can be given that a daily wage employee should be paid salary of a regular employee vide State of Haryana vs. Tilak Raj 2003 (6) SCC 123. We are afraid that the Labour Court and High Court have passed their orders on the basis of emotions and sympathies, but cases in Court have to be decided on legal principles and not on the basis of emotions and sympathies. Admittedly, the employees in question in Court had not been appointed by following the regular procedure, and instead they had been appointed only due to the pressure and agitation of the union and on compassionate ground. There were not even vacancies on which they could be appointed. As held in A. Umarani vs. Registrar, Cooperative Societies Ors. 2004(7) SCC 112, such employees cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orted to irregular appoints, especially in the lower rungs of the service, without reference to the duty to ensure a proper appointment procedure through the Public Service Commissions or otherwise as per the rules adopted and to permit these irregular appointees or those appointed on contract or on daily wages, to continue year after year, thus, keeping out those who are qualified to apply for the post concerned and depriving them of an opportunity to compete for the post. It has also led to persons who get employed, without the following of a regular procedure or even through the backdoor or on daily wages, approaching the courts, seeking directions to make them permanent in their posts and to prevent regular recruitment to the posts concerned. The courts have not always kept the legal aspects in mind and have occasionally even stayed the regular process of employment being set in motion and in some cases, even directed that these illegal, irregular or improper entrants be absorbed into service. A class of employment which can only be called litigious employment , has risen like a phoenix seriously impairing the constitutional scheme. Such orders are passed apparently in exercis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssary to notice all the decisions of this Court on this aspect. By and large what emerges is that regular recruitment should be insisted upon, only in a contingency can an ad hoc appointment be made in a permanent vacancy, but the same should soon be followed by a regular recruitment and that appointments to non- available posts should not be taken note of for regularization. The cases directing regularization have mainly proceeded on the basis that having permitted the employee to work for some period, he should be absorbed, without really laying down any law to that effect, after discussing the constitutional scheme for public employment . The underlined observation in the above passage makes it clear that even if an ad hoc or casual appointment is made in some contingency the same should not be continued for long, as was done in the present case. In paragraph 43, the Court observed: Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the ov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ages 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 requirements 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 of the Constitution are therefore overruled . (emphasis supplied) In paragraph 19 of the aforesaid judgment of the Constitution Bench, an important observation has been made about whether the Court can impose financial burden on the State in this manner. Paragraph 19 states as under: One aspect arises. Obviously, the State is also controlled by economic consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... establishment. A perusal of the record of the present case shows that the respondents were appointed on purely casual and daily rate basis without following the relevant service rules. Thus they had no right to the post at all, vide State of U.P. vs. Kaushal Kishore 1991 (1) SCC 691. In Delhi Development Horticulture Employees' Union vs. Administration, Delhi and others AIR 1992 SC 789 while deprecating the tendency of engaging daily wagers without advertisement this Court held the same to be back door entries in violation of Article 16 of the Constitution. As such this Court refused to give any direction to regularize the petitioners. Thus, it is well settled that there is no right vested in any daily wager to seek regularization. Regularization can only be done in accordance with the rules and not de hors the rules. In the case of E. Ramakrishnan others vs. State of Kerala others 1996 (10) SCC 565 this Court held that there can be no regularization de hors the rules. The same view was taken in Dr. Kishore vs. State of Maharashtra 1997(3) SCC 209, Union of India others vs. Bishambar Dutt 1996 (11) SCC 341. The direction issued by the services tribunal for regulariz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese appeals we may have a fresh look on the inter se functioning of the three organs of democracy under our Constitution. Although the doctrine of separation of powers has not been recognized under the Constitution in its absolute rigidity but the Constitution makers have meticulously defined the functions of various organs of the State. Legislature, Executive and Judiciary have to function within their own spheres demarcated under the Constitution. No organ can usurp the functions assigned to another. The Constitution trusts to the judgment of these organs to function and exercise their discretion by strictly following the procedure prescribed therein. The functioning of democracy depends upon the strength and independence of each of its organs. The legislature and executive, the two facets of people's will, have all the powers including that of finance. The judiciary has no power over the sword or the purse, nonetheless it has power to ensure that the aforesaid two main organs of the State function within the constitutional limits. It is the sentinel of democracy. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and execut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aying down any principle of law. This is often done on humanitarian considerations, but this will not operate as a precedent binding on the High Court. For instance, if the Supreme Court directs regularization of service of an employee who had put in 3 years' service, this does not mean that all employees who had put in 3 years' service must be regularized. Hence, such a direction is not a precedent. In Municipal Committee, Amritsar vs. Hazara Singh, AIR 1975 SC 1087, the Supreme Court observed that only a statement of law in a decision is binding. In State of Punjab vs. Baldev Singh, 1999 (6) SCC 172, this Court observed that everything in a decision is not a precedent. In Delhi Administration vs. Manoharlal, AIR 2002 SC 3088, the Supreme Court observed that a mere direction without laying down any principle of law is not a precedent. In Divisional Controller, KSRTC vs. Mahadeva Shetty 2003 (7) SCC 197, this Court observed as follows: ..The decision ordinarily is a decision on the case before the Court, while the principle underlying the decision would be binding as a precedent in a case which comes up for decision subsequently. The scope and authority of a precedent s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Karnataka, AIR 1991 SC 295: (1991 Lab 1 C 235), this Court while holding that the appointment to the post of clerk etc. in the subordinate courts in Karnataka State without consultation of the PSC are not valid appointments, exercising the power under the Article 142, directed that their appointments as regular, on humanitarian grounds, since they have put in more than 10 years' service. It is to be noted that the recruitment was only for clerical grade (Class-III post) and it is not a ratio under Article 141. In State of Haryana v Piara Singh, (1992 AIR SC 2130), this Court noted that the normal rule is recruitment through the prescribed agency but due to administrative exigencies, an ad hoc or temporary appointment may be made. In such a situation, this Court held that efforts should always be made to replace such ad hoc or temporary employees by regularly selected employees, as early as possible. Therefore, this Court did not appear to have intended to lay down as a general rule that in every category of ad hoc appointment, if the ad hoc appointee continued for long period, the rules of recruitment should be relaxed and the appointment by regularization be made. Thus co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Supreme Court in several decisions viz. Ramendra Singh vs. Jagdish Prasad, 1984 Supp SCC 142; K. Narayanan vs. State of Karnataka, 1994 Supp(1) SCC 44, and V. Sreenivasa Reddy vs. Government of A.P., 1995 Supp (1) SCC 572. These decisions have also been noticed by the Supreme Court in Sultan Sadik vs. Sanjay Raj Subba, 2004 (2) SCC 377 and A. Umarani vs. Registrar, Cooperative Societies and others, 2004 (7) SCC 112 . We are of the opinion that if the court/tribunal directs that a daily rate or ad hoc or casual employee should be continued in service till the date of superannuation, it is impliedly regularizing such an employee, which cannot be done as held by this Court in Secretary, State of Karnataka vs. Umadevi (supra), and other decisions of this Court. In view of the above discussion, we are of the opinion that the orders of the Labour Court as well as the High Court were wholly unjustified and cannot be sustained for the reasons already mentioned above. The appeal is, therefore, allowed. The impugned judgment of the High Court and the Labour Court are set aside and the Reference made to the Labour Court is answered in the negative. There shall be no order as to costs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... take a realistic view of the matter and must exercise self-restraint. In Rajendra vs. State of Rajasthan AIR 1999 SC 923 this Court following its own decision in Delhi Development Horticulture Employees Union vs. Delhi Administration, Delhi, AIR 1992 SC 789 held that the right to livelihood was found not feasible to be incorporated as a fundamental right in the Constitution and therefore employment was also not guaranteed under the Constitutional scheme. In Sandeep Kumar vs. State of U.P. AIR 1992 SC 713 this Court observed that where there was no work in the project the employees cannot be regularized. In State of Himachal Pradesh vs. Ashwani Kumar, 1996(1) J.T. 214 this Court held that where a project has to be closed down for non-availability of funds a direction to regularize the displaced employees of the project could not be given because such direction would amount to creating posts and continuing them in spite of non-availability of work. The same view was taken in State of U.P. vs. U.P. Madhyamik Shiksha Parished Shramik Sangh AIR 1996 SC 708. It follows from these decisions that there is no legal right in temporary employees (whether called casual, ad hoc, or daily ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
