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TMI Blog2007 (4) TMI 784X X X X Extracts X X X X X X X X Extracts X X X X ..... ction in the nature of mandamus commanding the opposite parties to regularize the services of the members of the petitioner union fully described in Annexure No. 1 and place them in the pay scale of the post of Mali and allow them and treat them as continuing in service with all benefits without any break. It was averred in the writ petition that the petitioner union is a registered trade union under the provisions of the Trade Unions Act, 1926 with the Registrar, Trade Unions U.P., Kanpur, of daily rated Malies i.e. Muster Roll employees (workmen within the meaning of the Industrial Disputes Act) working in the establishment of the appellant herein. The petitioner union was seeking regularization of services of its members and their continuance in service without any break as well as equal pay for equal work. The members of the petitioner union whose names figure at serial Nos. 1 to 77 in Annexure 1, are land losers as their land was acquired for establishment of appellant and the remaining persons are non land losers. The members of the petitioner union were continuing as daily rated Malies for the last about 5 to 7 years with 2-3 days break on 2 or 3 occasions in each month alth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her than the minimum wages prescribed under the Minimum Wages Act but they could not be paid wages like Malies employed in regular pay scale. The writ petitioners cannot be given appointment on regular post as there is no continuous and full time work of that nature in the company. It was further averred that the company is already having surplus labour and, therefore, a ban has been imposed on recruitment. The writ petitioners were being engaged essentially to fulfil the terms of the settlement arrived at on 6.3.1989. Lastly, it was submitted that the basic object of the company was to produce state of art avionics equipment for aircrafts which was being manufactured for use by the Indian Air Force. The horticulture activities are in no way connected with the production activities of the company. It was purely seasonal and intermittent in nature and there was not enough continuous and full time workload to justify the employment of a large work force on permanent basis. A supplementary counter affidavit was also filed wherein it was averred that at the initial stage manpower was required for levelling of the land for gardening purposes and for purposes related to horticulture deve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not work and the respondents are only engaging the petitioners in order to provide them livelihood. If there is no work, the respondents company could request the Labour Commissioner to stop the engagement. No employer can pay his workmen without work. It shows that the work is there. In this background the contention of the petitioners that the artificial break in service is being created by the respondents in order to deny the regularization of petitioners who having completed 240 days and having rendered more than 8 years of services satisfactorily are entitled for their regularization, and the artificial break is liable to be ignored. In view of the aforesaid facts these petitions are disposed of with a direction to the respondents to absorb the petitioners as regular employees or such of them as may be required to do the quantum of work which may be available on perennial basis may be absorbed if they are otherwise found fit and they will be paid wages of regular employees. This shall be done within three months from the production of certified copy of this order. However, the rest of the petitioners shall not be disengaged and shall be allowed to continue as per settlement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Company within the meaning of Section 617 of the Companies Act and the persons employed in the factory of the appellant Company at Korwa are not government servants but are mainly governed by the provisions of Industrial Disputes Act and other allied enactments. A government servant enjoys a status on account of constitutional provisions and rules framed under Article 309 of the Constitution, which is not the case with the members of the respondent union. Learned counsel has submitted that the respondent union having entered into settlements with the appellant on 6.3.1989 and 26.7.1995 can claim rights only on the basis of the said settlements and no claim for regularization or permanency in service or grant of pay scale at par with those who are in the regular establishment of the appellant is maintainable. Learned counsel for the respondents has, on the other hand, submitted that the members of the respondent union had worked for more than 240 days in a year for more than 6-7 years before the filing of the writ petition. An artificial break of 2-3 days was deliberately created twice or thrice in a month in their service just to deprive them of continuity in service. He has furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny one of its departments as in the case of posts and telegraphs or the railways.... In A.K. Bindal v. Union of India (2003) IILLJ 1078 SC the difference between an employee of a government and an employee of a Government Company was pointed out and it was held: 17. The legal position is that identity of the Government Company remains distinct from the government. The Government Company is not identified with the Union but has been placed under a special system of control and conferred certain privileges by virtue of the provisions contained in Sections 619 and 620 of the Companies Act. Merely because the entire share holding is owned by the Central Government will not make the incorporated company as Central Government. It is also equally well settled that the employees of the Government Company are not civil servants and so are not entitled to the protection afforded by Article 311 of the Constitution (See Pyare Lal Sharma v. Managing Director (1990) ILLJ 32 SC). An employee working in an industrial establishment enjoys a limited kind of protection. He may lose his employment in various contingencies which are provided under the Industrial Disputes Act such as lay off as provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the right to regularization under the Industrial Disputes Act. It merely imposes certain obligations on the employer at the time of termination of the services. In M.P. Housing Board Anr. v. Manoj Shrivastava : (2006) IILLJ 119 SC (paragraph 17) after referring to several earlier decisions it has been reiterated that it is well settled that only because a person had been working for more than 240 days, he does not derive any legal right to be regularized in service. This view has been reiterated in Gangadhar Pillai v. Siemens Ltd. (2007) 1 SCC 533. The same question has been examined in considerable detail with reference to an employee working in a Government Company in Indian Drugs and Pharmaceuticals Ltd. v. Workman, Indian Drugs Pharmaceuticals Ltd. : (2007) 1 SCC 408 and paragraphs 34 and 35 of the reports are being reproduced below: 34. 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 and Ors. v. State of Kerala and Ors. : (1997) ILLJ 1215 SC this Court held that there can be no regularization de hors the rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able to point out any statutory rule on the basis of which their claim of continuation in service or payment of regular salary can be granted. It is well settled that unless there exists some rule no direction can be issued by the court for continuation in service or payment of regular salary to a casual, ad hoc, or daily rate employee. Such directions are executive functions, and it is not appropriate for the court to encroach into the functions of another organ of the State. The courts must exercise judicial restraint in this connection. The tendency in some courts/tribunals to legislate or perform executive functions cannot be appreciated. Judicial activism in some extreme and exceptional situation can be justified, but resorting to it readily and frequently, as has lately been happening, is not only unconstitutional, it is also fraught with grave peril for the judiciary. 47. 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 v. Umadevi : (20 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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