Gujarat Agricultural University vs Rudabhai Gigabhai and Others

In this petition, the petitioner, Gujarat Agricultural University, has challenged award dated November 26, 1999 passed by Labour Court, Junagadh in Reference (LCD) No. 25/1990 (Old Reference (LCD) No. 70/87) whereby the learned Labour Court has directed the petitioner-university to treat the concerned persons as "permanent workman" by conferring status of "permanancy" to the persons concerned in the Reference with retrospective effect i.e. from August, 1987. The Labour Court has also directed the petitioner-University to grant notional benefit of increase or in revision in wages for the period from August 1, 1987 to December 31, 1995 and to fix the pay of the concerned workman accordingly. By the award impugned in present petition, the Labour Court has also directed the petitioner to pay, after-carrying out the aforesaid exercise of notional fixation of salary, arrears with effect from January 1, 1996.

At the outset, it is required to be mentioned that originally when the order of Reference was made, it concerned 47 workmen. For the reasons mentioned in the award, ultimately the Reference was decided in respect of 23 workmen only, whose names are mentioned in the annexure to the award. Thus, the benefits flowing from the award are restricted to or are available to the said 23 persons only. Thus, the petition is preferred against the said 23 persons. The heirs of one Mr. Alabhai Visabhai, (whose Reference is made in sub-para 2 of the operative portion of the award) are also named/joined as respondents.

The persons concerned in the Reference raised industrial dispute demanding their regularization in service of the petitioner-University. They raised the demand on the ground that they were in the employment of the petitioner-university since last many years, however, various benefits available under law were not being extended to them and they were being exploited and unlike their counterpart in other Government or semi-Government organizations, though they had also completed work of 240 days, the benefits available under law were not being granted and extended to them. On such premise, the said persons raised industrial dispute which came to be referred to Labour Court for adjudication vide order of Reference dated August 1, 1986. On behalf of the concerned persons, Statement of Claim was filed whereby the concerned persons claimed benefit of equal pay for equal work'' and also the benefit of regularization and permanent status. The said Reference was contested by the petitioner-University by filing its written statement. The contesting parties adduced documentary and oral evidence. Thereafter, the Labour Court passed the impugned award. Aggrieved by the directions, the petitioner-University is before this Court.

Mr. D.G. Chauhan, learned advocate has appeared for the petitioner-University. The respondents are served, however nobody has entered appearance.

4.1 Mr. Chauhan, learned advocate submitted that the petitioner-University has served the notice of Rule to the respondents individually, twice. However, no one has entered appearance. The cause-list also shows that the respondents are served.

4.2 Originally, the cause-list showed that affidavit of direct service in respect of respondents No. 3/A, 3/B, 24/A and 24/C was not filed, however, the office has put up a note clarifying that affidavit of direct service in respect of the said respondents is also filed in the Registry. Thus, as per the information made available to this Court by the office, the respondents are duly served. The petition has been admitted by order dated June 28, 2000 and interim relief has remained in operation until now.

Mr. Chauhan assailed the award and submitted that the concerned persons are not duly qualified and/or eligible for regularization and the learned Labour Court has passed the impugned directions without taking into consideration the availability of vacancy and/or availability of sanctioned posts etc. He further submitted that the Labour Court also erred in not considering the submission of the petitioner-university that mere completion of work of 240 days would not entitle the; concerned persons for benefit of status of permanent workman and that even continuous employment on ad hoc or temporary or casual basis for long duration also does not entitle a person for automatic absorption and/or regularization or permanent status. He submitted that the petitioner-University did not have on its establishment sanctioned posts where the concerned persons could have been or can be regularized and status of permanent employee can be conferred. He submitted that this is besides the point that not all of them possessed necessary and prescribed qualification and eligibility criteria. On such premise, he assailed the award and submitted that the impugned award deserves to be set aside. In support of his submissions, Mr. Chauhan, learned advocate for petitioner heavily relied upon the judgment of the Hon''ble Supreme Court in the case between Secretary, State of Karnataka and Others Vs. Umadevi and Others, . Relying upon the said judgment and in particular the overruling of the scheme of the petitioner-University, Mr. Chauhan submitted that the directions by the learned Labour Court to confer status of permanent workmen to the respondents from August 1, 1987 and the direction to notionally fix their salary by calculating benefits etc., for the period from August 1, 1987 to December 31, 1995 and the direction to pay arrears with effect from January 1, 1986 are unjustified and contrary to law settled by the Hon''ble Supreme Court and therefore the same deserves to be set aside.

It comes out from the award that the Labour Court has proceeded only on the premise that (i) the persons concerned in the Reference proceedings were in employment for a long time and some of them were in employment for about 9 to 10 years and (ii) that all of them have put in work of 240 days.

6.1 Some of the relevant aspects, very crucial and vital in matters involving claim for regularization and absorption, such as eligibility criteria, the selection and recruitment procedure, relevant and applicable rules and regulations, fitness, availability of sanctioned posts, availability of vacancy etc., have not been duly addressed and discussed or considered and applied by the Labour Court in this case while making the award.

6.2 It comes out that the Labour Court has placed stress, in the award, on the fact that the petitioner-university could not establish before the Labour Court that concerned persons had not completed 240 days of work, and that it also could not establish before the Court its contention that the work for which the concerned persons were being engaged was not the work which lasted throughout the year. The Labour Court also appears to have not considered the petitioner-university''s submission that if the relief as prayed for is granted, it would result in unbearable financial burden on a body which receives Grant from Government. Thus, it comes out from the award that the findings and directions of the Labour Court are based mainly on 2 aspects namely; (1) that the concerned persons have put in work of 240 days; and (2) that they have been in the employment of the petitioner-university since long time.

6.3 It deserves to be mentioned that even this aspect flowing from the evidence was put on record by only 2 out of 23 workmen, inasmuch as only two workmen stepped into the witness box and others did not give any oral evidence. It is surprising that, on the basis of evidence of only two persons, the Labour Court assumed that all of the concerned persons had completed work of 240 days and all had put in service of about 9 to 10 years. The learned Court ought to have resisted and avoided such assumption and ought to have asked the concerned persons to establish their respective and individual factual aspects. Such assumption is not very acceptable mode of deciding contested and disputed facts and issues.

6.4 As noticed above, the observations by the Labour Court are mainly based on two findings of fact. Other relevant aspects, which deserve detailed consideration before granting such directions, do not appear to have been taken into consideration by the Labour Court. Thus, the said directions deserve to be set aside.

Mr. Chauhan, learned advocate supplemented his submissions by stating that at earlier point of time the petitioner-University had framed a scheme for the purpose of regularization of daily-rated labourers working with the University for 10 years. He submitted that under the said scheme the petitioner-University has, in the interregnum regularized number of respondents. He also submitted that three of the respondents have unfortunately, expired. As per his submissions, as of today, there are only 4 persons who are not regularized, and therefore the grievance in this petition as such survives, so far as direction regarding regularization is concerned, only in respect of 4 persons however the grievance against the other directions would survive with regard to all the respondents. He was also quick to add that even the above referred scheme of the petitioner-University has been overruled by the Hon''ble Supreme Court in the judgment in the case of Secretary, State of Karnataka v. Umadevi (3)(supra).

The Hon''ble Apex Court has, in the case of Secretary, State of Karnataka and Others Vs. Umadevi and Others,

While directing that appointments, temporary or casual, be regularised or made permanent, the Courts are swayed by the fact that the person concerned has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargain -not at arm''s length - since 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 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 is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not (sic) one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution.

When a (person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognised by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.

The Hon''ble Supreme Court has, in the judgment in the case of Hindustan Aeronautics Ltd. Vs. Dan Bahadur Singh and Others, held that at p. 239 of LLJ:

The next question which requires consideration is whether completion of 240 days in a year confers any right on an employee or workman to claim regularisation in service. In Madhyamik Shiksha Parishad v. Anil Kumar Mishra it was held that the completion of 240 days'' work does not confer the right to regularisation 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 v. Manoj Shrivastava (para 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 regularised in service. This view has been reiterated in Gangadhar Pillai v. Siemens Ltd. The same question has been examined in considerable detail with reference to an employee working in a government company in Indian Drugs & Pharmaceuticals Ltd. v. Workmen and paras 34 and 35 of the Report are being reproduced below:

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 Others Vs. State of Kerala and Others, 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 and Others, and 1996 VIII AD 680 (SC) The direction issued by the Services Tribunal for regularizing the services of persons who had not been appointed on regular basis in accordance with the rules was set aside although the petitioner had been working regularly for a long time.

In Dr. Surinder Singh Jamwal and another Vs. State of Jammu and Kashmir and others, it was held that ad hoc appointment does not give any right for regularization as regularization is governed by the statutory rules.

In the case of Dr. Arundhati Ajit Pargaonkar Vs. State of Maharashtra and others, the Hon''ble Supreme Court has held that at p. 930 of LLJ:

Nor the claim of the appellant, that she having worked as Lecturer without break for nine years on the date the advertisement was issued she should be deemed to have been regularised appears to be well founded. Eligibility and continuous working for howsoever long period should not be permitted to over-reach the law. Requirement of rules of selection through Commission cannot be substituted by humane considerations. Law must take its course. Consequently the appellant was not entitled to claim that she should have been deemed to have been regularised as she had been working without break for nine years.

The impugned directions by the learned Labour Court are contrary to the legal position settled by Hon''ble Apex Court. The learned Court has also failed to take the relevant factors e.g. Availability of sanctioned posts, selection procedure, qualifying and eligibility criteria etc., before and while granting the directions. In this regard, the below mentioned judgments are also relevant:

Delhi Development Horticulture Employees'' Union Vs. Delhi Administration, Delhi and others,

Satyanarayan Sharma and others Vs. National Mineral Development Corporation Ltd. and others,

M.I. Isani, Executive Engineer, Sunderanagar District Panchayat Vs. Surendranagar Jilla Panchayat Bandhakam Majoor Sangh,

Dinesh Shivubha Parmar Vs. State of Gujarat and Others,

Bharatiben Manibhai Bulsara v. State of Gujarat 1989 (1) GLR 659.

K.N. Thanaki v. State of Gujarat 1989 (2) GLH 254.

State of Uttar Pradesh and Another Vs. Kaushal Kishore Shukla,

State of Haryana and others Vs. Piara Singh and others etc. etc.,

Sureshchandra v. State of M.P. 1993 Lab. IC 823 (MP).

Zakir Hussain Vs. Engineer-in-Chief, Irrigation Dept. and Others,

Ghaziabad Development Authority and others Vs. Sri Vikram Chaudhary and others,

State of U.P. and others Vs. U.P. Madhyamik Shiksha Parishad Shramik Sangh and another,

P. Ravindran and Others Vs. Union Territory of Pondicherry and Others,

State of U.P. and Others Vs. Ajay Kumar,

On overall consideration of the matter and in light of the settled legal position, the impugned award deserves to be set aside. Accordingly, the same is hereby set aside. Rule is made absolute to the aforesaid extent. No order as to costs.