Abdul Rahman vs Electronics Corporation of India Ltd.

D.J. Jagannadha Raju, J.—This writ petition is filed by a Site Engineer, who is drawing a consolidated salary of Rs. 1,700/- per month, to seek a direction to the respondent to regularise his services in a suitable post with effect from the date of one year after the original appointment, namely, 2-7-1988.

The writ petitioner claims that he has been a Site Engineer of the respondent-corporation on a consolidated pay and he has been serving the respondent for over two years. He was appointed at a time for three months and with a break of two or three days, he was being continued in employment. He claims that he is not allowed to draw the time-scale of pay, but he is only paid a consolidated salary and the corporation which comes within the definition of ''State'' and ''instrumentality of State'' is violating Articles 14 and 16 of the Constitution of India by not regularising his services. He claims that similar writ petitions were allowed by this Hon''ble Court and the respondent was directed to absorb all employees who were paid consolidated salary and who completed 240 days of service. Hence he is entitled to be absorbed in a suitable post with effect from the date one year after the original appointment and he should be allowed the benefit of time-scale of pay and all other attendant benefits. Along with the writ petition, he has filed the various orders issued to him appointing him at a time for three months on a consolidated pay and these orders indicate that from 2-7-1988 to 30-7-1989, he was working in 32 M VSNL Project Works as a Site Engineer. The orders also show that between the expiry period of one order and the commencement of the next order, there is always an interval of three or four days. For the period 3-10-1989 to 30-12-1989, he was working in the Project 13 M VSNL INMARST Antenna Project at Arvl. Similarly from 1-1-1990 to 12-9-1990, he was working in the same 13 M VSNL INMARST, Antenna Project. He filed the present writ petition on 23-7-1990.

During the pendency of the writ petition on 25-7-1990, he obtained interim orders in W.P.M.P.No. 13367of 1990. His Lordship Justice Syed Shah Mohammed Quadri was pleased to pass the order in the following terms:

"The respondent to continue the petitioner in service pending further orders in this petition."

This order was modified when respondent approached the court through W.V.M.P.No. 1757 of 1990. His Lordship justice Kadhaknshna Rao cm 19-11-1990 passed the order in the following terms:-

"Interim order is made absolute in the following manner.

The petitioner are only working as ''worked charged employees'' and are working in different projects in India. If there is work in the projects, the petitioners be continued.

In the case of work charged employees, it is not desirable for this court to give absolute directions to continue the petitioners in service. It is for the management to find out whether there is work or not.

In the circumstances, if there is work in the projects, instead of appointing other persons, the petitioners may be continued in service in any project."

Subsequently the petitioner filed W.P.M.P.No,1455 of 199'' seeking a direction to the respondent to continue the petitioner as Site Engineer pending disposal of the writ petition. By order dated 5-9-1991, His Lordship Syed Shah Mohammed Quadri was pleased to dismiss the petition as not maintainable. While the writ petition was being argued, the learned counsel for the petitioner represented that the petitioner is still continuing in service as Site Engineer.

The writ petition is resisted by the respondent on the following grounds:

The Corporation undertakes certain important projects which are to be completed within the specified period. The staff employed for the project will not have any work when the project is completed. The petitioner was appointed on work charged basis in such projects. His appointment is purely temporary and it is on work-charged basis for the specified project, The services are automatically terminated once the term of appointment conies to a dose or the project comes to a close. All the projects are essentially of a temporary nature. The various allegations in the writ petition are not tenable. The petitioner is not entitled to any permanent post in the respondent-corporation by virtue of his temporary appointment. He is not sponsored by the Employment Exchange and he was employededly on adhoc basis and paid wages on consolidated basis fixed as per the Minimum Wages Act. The petitioner has no preferential also petitioner a vested right. The threat of discontinuance and absence of security of employment is not a ground for absorbing work-charged employees. As he is not sponsored by the Employment Exchange he cannot be regularised. The judgment of the Supreme Court mentioned in the affidavit has no application to the facts of this case. There is no obligation on the respondent to regularise his services, on his completion of one year''s service. The petitioner is not working in any clear or regular vacancy. Even though one learned single judge has disported of a similar writ petition by giving a direction to the respondent to absorbed those petitioners who completed 240 days in service, another single judge of this Hon''ble Court differed from that view and referred the matter to a Division Bench. The Division Bench did not grant any interim directions. The petitioner has an alternative remedy by way of approaching the Labour Court or Industrial Tribunal in which the nature of the duties of the petitioner and his duration of employment can be gone into by adducing evidence. The writ petition is not maintainable. In the respondent-corporation, all regular appointments and appointment on daily wages are made only through Employment Exchange. As he is engaged on work charged basis and as he is not sponsored by the Employment Exchange no rules of reservation were following at the time of his appointment. He is not entitled to be absorbed in the respondent-Corporation.

The petitioner''s advocate, Sri A.Krishna Murthy, urged before me that in this High Court, several other writ petitions of similar nature were allowed and people who have put in 240 days of service have been directed to be regularly absorbed in the employment of the corporation. He submitted that, in fact, in one batch of cases, contempt applications were filed and the Managing Director offered unconditional apology and the orders of the court were implemented. He relied upon the judgment of this court dated 21st September, 1989 in a batch of writ petitions W.P.Nos. 16098/88, 180515/88, 8482/89 and 9966 of 1989, a judgment delivered by His Lordship Justice Sardar Ali Khan and another judgment of the same learned judge dated 12-8-1990 in a batch of writ petitions - W.P.Nos. 3080/90, 9320/90, 6541/90, 4785/90 and 7726/90 and the order dated 25-10-1991 in Contempt Applications-C.A.Nos. 397, 398, 399 and 400 of 1991.

As the petitioner asked the relief of absorption in a suitable post and as the petitioner did not indicate his qualifications and for which post he is seeking absorption, this court had to ask him to specify what exactly are the suitable posts and for which he is seeking relief and what exactly are his qualifications. The petitioner then filed additional affidavit on 31-10-1991 and that affidavit discloses the following facts.

By inadvertence these particulars were not given in the original affidavit filed in the writ petition. The petitioner is a B.Tech. (Civil) First Class graduate. He was originally appointed as Site Engineer on 2-7-1988. He has been working as Site Engineer till now. He has worked in various projects specially Antenna Foundation Works for more than two years. He worked at Arvi, Pune, Dharwad, Alleppey and he also worked in Site Preparation Works for installation of computers at various places. He also stated that he is paid a consolidated salary of Rs. 1,700/- per month. He reiterated that for the past 3 1/2 years, he is working in the respondent-corporation and hence his services may be regularised.

On behalf of the respondent, it is contended that by filing these writ petitions, the petitioner and similarly placed employees have subverted normal procedures of recruitment and the service rules and confusion is created in the corporation. The respondent corporation''s counsel submits that the relief asked for by the petitioner cannot be granted because he was employed purely on ad hoc basis in different projects at different points of time for short periods.

Mr. Krishna Murthy, contends that wherever a person worked for a long period and whenever he has completed 240 days of continuous service, he is bound to be regularised and absorbed on a permanent basis. The court put a specific question to him as to how the petitioner is entitled to rely upon the principle of the Industrial Disputes Act when the petitioner is a site Engineer drawing a salary of Rs. 1,700/- per month and as to how the judgments relied upon by him are in accordance with the Industrial Disputes Act. In this context; it would be pertinent to refer to the provisions of the Industrial Disputes Act.

Section 2(s) defines ''workman''. Under Clause (IV), it is crystal clear that a person who draws wages exceeding Rs. 1,600/- per mensem or who exercises supervisory duties or managerial functions does not come within the definition of a workman. In view of the definition given in Section 2(8), the present petitioner cannot claim to be a workman. He is outside the place of the definition. Section 2(oo) defines retrenchment. Clause (bb) which was introduced by way of amendment with effect from 18-8-1984 is to the following effect: Termination of the service as a result of non-renewal of the contract of employment does not amount to retrenchment. Similarly termination of employment on expiry of the term of contract does not amount to retrenchment. This is made clear by the amendment made by Act 49 of 1984 and the introduction of Clause (bb).

The popular principle of regularising employees who completed 240 days of employment is introduced by reason of Section 25B of the I.D. Act. Sub-section (2) of this Section lays down that where a workman is not in continuous service within the meaning of Clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer- (a) for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than- (i)......(ii) two hundred and forty- days, in any other case."

It is quite clear from the way in which the writ petition is filed that this principle enunciated under the Industrial Disputes Act is sought to be applied to the petitioner who does not satisfy the requirements of a workman. On the very face of it, his claim for the absorption on the ground that he worked for 240 days under the respondent is not tenable. When this objection was pointed out to the learned advocate with reference to the provision of the Industrial Disputes Act, he claims that he is more relying upon the judgments of this court and the principle that the petitioner has been in long service on a temporary basis and hence should be regularised.

In this context, it is my unpalatable task to point out that some of the earlier judgments were obtained by suppressing certain facts and not bringing to the notice of the court the correct provisions of law that are applicable. Originally a batch of writ petitions were decided by His Lordship Sardar Ali Khan in W.P.Nos. 16098/88, 180515/88, 8482/89 and 9966/89. The judgment does not refer to the nature of employment of the petitioners and what posts they were holding in the Electronics Corporation of India Ltd. I had to send for the records of these writ petitions and verify the facts. Then I found that though it is not specifically stated in the body of the judgment as to what is the nature of the employment held by each of the petitioners, I found that they are all persons who satisfy the definition of workman u/s 2(s) of the Industrial Disputes Act. On the ground that they have put in more than 240 days of service, Hid Lordship found that they deserve to have their services regularised. Accordingly, His Lordship allowed the writ petitions giving certain positive directions. On facts, no fault can be found with this judgment. But the mischief has in applying this judgment to cover the other cases. In this batch of writ petitions Sri V. Venkataramana and Sri V. Srinivas, who are well-acquinted with the Industrial law, appeared and relying upon the principles of 250 days of continuous service, they obtained relief for their clients. Then another batch of writ petitioners were filed by the present writ petitioner''s advocate Mr. A.Krishna Murthy. On 12-8-1991, His Lordship Justice Sardar Ali Khan, passed the judgment in the batch of cases stating as follows:-

"After hearing the learned counsel appearing on either side for some time in this batch of writ petitions, the point which clearly emerges is that these writ petitions are covered by an earlier order passed by this court in W.P.No. 16098/88 and batch dated 21st September, 1989. The same order will be applicable to these matters with the future clarification that the services of the petitioners may be regularised subject to the availability of vacancies...."

Unfortunately, His Lordship''s attention was not brought to the fact that the petitioners in these writ petitions included some persons who are Site Engineers and who did not satisfy the definition of workman u/s 2(s) of the Industrial Disputes Act. Obviously by suppressing the fact that some of the petitioners are Site Engineers, drawing consolidated salaries beyond Rs. 1,600/- this judgment was obtained. In my humble opinion, what has been done in this batch of writ petitions by the petitioners'' advocate amounts to misrepresentation of the true facts and playing fraud on the court. A subsequent development is that after obtaining the judgment dated 12-8-1991 in this manner, Contempt Applications were filed as C.C.Nos. 397, 398, 399 and 400 of 1991 and the Managing Director of the E.C.I.L. was made to tender unqualified apology for infringement of the order dated 12-8-1991.

In the present writ petition, the same mischief is sought to be played on this court, but fortunately the court took the objection and the whole thing had to be exposed. After this exposure, Mr. Krishna Murthy did not pursue further with his arguments and after having filed a few papers into the court, he requested that the matter may be decided on the material available on the record.

The various papers filed by him only show that Sarvasri Manojkumar, Ramesh Kumar and Santosh Kumar, Site Engineers, who worked for 3 to 5 years, were strongly recommended for their continuance in their present jobs and absorption in E.C.I.L. by letter dated 24th January, 1991, addressed by the Deputy General Manager to the Director. This Manojkumar is the writ petitioner in W.P.No. 4785/90 and the petitioner in Contempt Petition 398/91. The judgment dated 12-8-1991, by His Lordship Justice Sardar Ali Khan, was obtained by misrepresentation and persons who are not entitled to seek the benefits of Industrial Disputes Act, have obtained the benefit by suppressing facts. That judgment and the earlier judgment which relates to persons who satisfy the definition of workman u/s 2(s) of the I.D. Act, cannot come to the rescue of the petitioner in this case.

On the basis of long service on a temporary basis, the petitioner''s advocate contends that the petitioner should be absorbed in service. For this purpose, he relied upon a judgment of a Division Bench of this court in Writ Appeals Nos.38 and 391 of 89 and a batch of writ petitions which were heard by Their Lordships Justice Lakshmana Rao and Justice Venkatarama Reddi. In that judgment dated 2nd April, 1991, the Division Bench was considering the claims of the employees of the A.P. State Rousing Corporation who were originally recruited under work experience programme and who have served for long periods in the Housing Corporation. Some of them have served from 1979-80 to 1990. In fact, the judgment discloses that as early as 1984, the Directors of the Corporation suggested to the Government that these persons should be absorbed on regular basis. The details of the judgment also indicate that all the petitioners are persons who were drawing less than Rs. 1,600/-salary. It should be remembered that the principle enunciated in that judgment cannot be made applicable to the petitioner who was employed on temporary projects on ad hoc basis and who did not have continuous service. Even if it can be said that he did have continues service, the totality of the short periods of employment is not very much. It comes just beyond two years.

In my considered opinion, the petitioner has no legal right to be permanently absorbed in the employment of the respondent. However, I would consider his case from the human angle and on the basis of merits of his qualification and experience.

The petitioner is a B.Tech. (Civil) First Class graduate. He appears to have secured 63.30%. This clearly shows that he has a good academic record. As indicated by his additional affidavit, soon after passing B.Tech. examination, he worked from 1-3-1987 to 31-5-1988. He worked in building works of the South Central Railways. Subsequently, he was appointed on a temporary basis as a Site Engineer (Civil) in the corporation. According to the certificate issued by the Deputy General Manager, his work is found to be good. By certificate dated 23-5-1990, the Deputy General Manager, Antenna Products Division of the respondent-corporation certified that the petitioner has executed prestigious civil foundation works for 32 M. Wheel and Track Antenna and other Antenna Foundation Works. He certified that he found him to be very sincere and hardworking. It is represented in the course of the arguments that when the corporation advertised for Assistant Engineer in February, 1991 the petitioner applied for it but he was not selected. He failed to get selected in the interview conducted on 26-5-1991.

Considering the experience he has gained and considering the qualifications he possesses, I feel that on purely humanitarian ground the respondent-corporation might consider absorption of the petitioner in a lower post like a Technical Assistant or Supervisor (Civil) because the corporation would be continuously doing works on contract for various projects. It is hereby made clear that the corporation has no statutory obligation to absorb him or regularise him. His claims may be considered treating him as an internal candidate.

With the above observations, the writ petition is disposed of. Each party to bear its own costs.