U.P.Rajkiya Nirman Nigam Ltd.,Lucknow vs U.P.Rajkiya Nirman Nigam Karmchari Union and Another

D. K. Seth, J.—Ex pane award dated 781990 passed by the Industrial Tribunal, Allahabad, in Adjudication Case No. 26 of 1989, has been impugned in the present writ petition No. 6155 of 1991. Contempt Notice No 318/ AD.1I (l)26/89, dated 1881993 issued by the Industrial Tribunal, U. P. Allahabad under Section 11F of the U. P. Industrial Disputes Act, 1947 in connection with the award impugned in the first writ petition has been impugned in the second writ petition namely, writ petition No. 21079 of 1994,

The case made out in the writ petition No. 6155 of 1991, inter alia, is that the petitioners, U. P. Rajkiya Nirman Nigam, a construction company undertakes contract for construction at different locations and establishes different units at different projects, sometimes simultaneously. I* recruits such hands necessary for completion of such different Projects at different places. The respondent No. 1, Karmachari Union, had raised a dispute out of reference of which, above adjudication Case No. 26 of 1989 was registered. The said reference contains the name of ''56'' persons who were engaged at different projects during different period. A scheme was formulated for regularising such persons, according to the requirements. The said persons were being engaged casually through P.W.R. (labour supplier) and were being paid on daily wage basis. The said adjudication case, however, proceeded, ex parte and the award passed ex pane, due to which the petitioners were unable to place their case. However, the learned counsel for the petitioners at a later stage, was permitted to participate in the proceeding and was allowed to crossexamine the sole witness of the employee Shitla Prasad, who stated that the appointment letter was issued but he ,vas unable to file the same. He further contended that similar appointment letter might have been issued to other employees. In absence of opportunity, the petitioner was unable to produce the relevant documents and prove the correct position. According to the petitioner the employees shown at serial numbers 15,17,19,20,28 and 44 of Annexure 1 (b) are the employees of the contractor and they are not muster roll employees of the Nigam. Similarly, the employees shown at serial No. 2 of Annexure l(c), are also employees of the contractor. The employees shown at serial numbers 13,30 and 35 of Annexure l(b) had left the Nigam as per the record. Therefore, they are not entitled to any relief. Many of the other employees shown in the said list are not muster roll employees of the Corporation. Though, however, the muster roll employees may be regularised according to the scheme formulated by the petitioner.

Before the said ex parte award was passed on 781990 as soon as ex pane hearing, was closed on 3041990 an application for recalling the said order was moved, but the same stood rejected.

The respondent No. 1 on the other hand filed counter affidavit to the said writ petition and contended that the award was rightly passed after the petitioner had defaulted in contesting the case despite sufficient opportunity given to them. The workmen having worked for more than three years, when reference was sought to be made the workmen were entitled to be absorbed on regular post and scale. Four persons named in Appendix I to the reference were working as Mixture Operators, Mechanic and Tractor Driver while ''45'' workers mentioned in Appendix 1 (kha), were working in different capacities and out of seven workers, mentioned in Appendix I(ga) two of them were working as Chaukidars, two as Supervisors, one as Store Assistant and one as Bhishti. The said persons have been working between the year 1975 to 1987. The minimum period was even more than three years.

Learned counsel for the petitioner submitted that the Tribunal has exceeded in its jurisdiction in directing for regularising the services of the workmen without ascertaining the vacancy position. Inasmuch as there is no post in which the workmen can be regularised. In support of his contention he has relied on the decision in the case of State of Haryana v. Pyara Singh, AIR 1992 SC 2130. He secondly contended that nowhere the workmen had pleaded that they were regular on the other hand they had admitted that they were transferred from job to job and place to place. H; thirdly contended that the Tribunal did not go into the question as to what was the nature of the work done by each of the workmen.

Learned counsel for the respondent No. 2, on the other hand contends that the petitioner did not plead before the Tribunal what they are now pleading before this Court. Therefore, the present contention cannot be available to the petitioner now. Secondly, he contends that the petitioner did not lead evidence to show that the workmen were casual. On the contrary he submits that if the workmen were casual then why the workmen were transferred from place to place. Thirdly, he contends that when the dispute was raised the workmen had continued for more than six years and when the award was passed it was about ten years. Now it is almost twenty years. Therefore, there is no point in reversing the award at this stage when the workmen have been allowed to continue for almost twenty years. This raises a presumption about the existence of need for the service. If there is no vacancy, it is required to be created. Relying on para 25 of the decision in the case of Pyara Singh (supra) he co tends that if a person performs continuous service for over three years in that event such presumption is to be drawn. His fourth contention was that payment of daily wage does not determine nature of work of a workman. The nature of work depends upon the work performed by the workman. Lastly, he contends that the power of the Tribunal are wider than that of the Civil Court in relation to deciding the dispute in the industrial case and the Tribunal has power even to defect absorption event though there may not be any vacancy and determine the scale, where occasion so demands and it is one such case. In support of his contention he relied upon the judgment decided in the case of Bhagwati Prasad v. Delhi State Mineral Development Corporation.

It appears from the record, as has been observed in the award itself that despite having obtained adjournment in filing the written statement on 3041990 no written statement was filed on the adjourned date i.e. 1451990. Therefore the order was passed for proceeding ex parte and an application was filed on 2861990 for recalling the said order. But the same was rejected on the ground that the case made out therein were incorrect. On 1371990 when the case was taken up for evidence it was noted that the case was proceeding ex parte and at this stage the learned counsel for the petitioner were allowed to crossexamine the witnesses of the employee.

The position appears to be somewhat anomalous inasmuch as if there is an order for proceeding ex parte in that event there can be no question for allowing opportunity to crossexamine the witnesses. The system is normally unknown. But then the Tribunal established under the Industrial Tribunal Rules, no specific rules having been framed and the Tribunal being at liberty to determine its own procedure may adopt any procedure. But the same must be wholesome and reasonable. The fact remains that the date was fixed on 3041990 and refixed on 1451990, on which date order for proceeding ex pane was allowed and the award was passed on 781990. Therefore, it appears that there was a little haste in passing the order for hearing ex parte. However, in the meantime long time has lapsed after the award is passed. Therefore, I refrain myself from deciding the said question with regard to ex parte proceeding.

Now turning to the merits, it appears that the Tribunal had proceeded on the basis of Appendix or Annexure to the order of reference which shows that that persons therein were in continuous service for more than three years and that they were doing the work of permanent nature and they have neither been regularised nor granted the same scale of pay or benefit which have been allowed to the permanent workers. The Tribunal has found that the said facts have been established beyond any doubt by the testimony of Shitla Prasad, witness No. 1, for workers. On the other hand the facts remained that the said worker was allowed to be crossexamined in reply whereof he could not produce appointment letter, by which he was supposed to have been engaged and had testified that other workers might have been issued such appointment letters without a definite assertion. At the same time, admittedly, no document relating to their appointment were produced. There was also nothing to show that how these workers were working in which capacity and how they are entitled to the relevant scale and who is entitled to which scale. There is nothing on record to show as to whether designation given in Appendix 1A, l(b) and l(c) are equivalent to any designation or scale of any existing designation or scale of the petitioner. Nothing has been specified as to how and in what manner each individual worker was performing equal work or duty commensurate to a particular designation. No details are available from the testimony of the said Shitla Prasad.

Admittedly, even if the matter proceeded ex parte the claimant has to establish its own claim with sufficient evidence and material. A bald statement cannot be accepted with closed eyes. It is the duty of the Tribunal to come to its own conclusion on the basis of evidence and material placed even when the matter has proceeded ex parte. The testimony of the said witness having been subjected to crossexamination the said part is also relevant and had been required to be referred to. The Tribunal did not refer to the part of crossexamination.

It appears from the reasons recorded in the award that the Tribunal had accepted the testimony of Shitla Prasad as gospel truth. He has not adverted to any reasons as to why he has accepted the said testimony though no particular could have been spelt out by the said witness with regard to each individual workman. This is a case where not only regularisation has been claimed but scale had also been claimed. There having been nothing on record to show as to how and in which manner individual workman is performing the same duty and entitled to which scale. Therefore, the award so far as it purports to confer entitlement to regular scale appears to be wholly perverse.

The Tribunal appears to have proceeded on the basis of proposition of law as laid down in the case of Bhagwati Prasad (supra) and deliberated on the same on the basis of his observation that "for more than three years the present fifty six labourers have been working in the Nigam in different capacities and there is sole testimony or'' one of them that the work they are doing is similar to the work that is done by the regular employees of the Nigam and yet they have neither been regularised nor are being given the same payscale and benefits which are being given to the regular appointees of the Corporation, doing similar work." The Tribunal has also observed that by reason of the statement of Shitla Prasad that the statement appended in the annexure are correct and, therefore, annexures were also proved to be correct, though no documents have been produced to prove that the statement made in the annexures are correct. Annexure is neither a document nor testimony the same might have been prepared on the basis of claim made by the workmen. Therefore such annexures could not have any evidentiary value unless corroborated by sufficient material.

In the case of Pyara Singh (supra) Hon''ble Supreme Court has held in similar circumstances, where directions were given to allow the workman to continue in service and the applications applicable to him would be governed by the clause applicable to such workmen on the category which he belongs and he is found eligible for regularisation and he should be assigned his proper place. Hon''ble Supreme Court observed, "the Court must while giving such direction act with due care and caution. It must first ascertain the relevant facts and must be cognizant of the several situations and eventualities that may arise on account of such directions. A practical and pragmatic view has to be taken inasmuch as every such direction not only tells upon the public exchequer but also has the effect of increasing the cadre strength of a particular service class or category."

In the said case it has been further observed :

"Now coming to the direction that all those ad hoc temporary employees who have continued for more than one year should be regularised, we find it difficult to sustain it. The direction has been given without reference to the existence of a vacancy. The direction in effect means that every ad hoc temporary employee who have been continued for one year should be regularised even though (a) no vacancy is available for himwhich means creation of a vacancy (b) he was not sponsored by the Employment Exchange nor was he appointed in pursuance of a notification calling for application which means he had entered by a backdoor (c) he was not eligible and/or qualified for the post at the time of his appointment (d) his record of service since his appointment is not satisfactory. These are in addition to some of the problems indicated by us in para 12, which would arise from giving of such blanket orders. None of the decisions relied upon by the High Court justify such wholesale, unconditional orders. Moreover, from the mere continuation of any ad hoc employee for one year, it cannot be presumed that there is need for a regular post. Such a presumption may be justified only when such continuance extends to several years. Further there can be no rule of thumb in such matters. Conditions and circumstances of one unit may not be the same as of the other. Just because in one cage, a direction was given to regularise employees who have put in one year''s service as far as possible and subject to fulfilling the qualifications, it cannot be held that in each and every case such a direction must follow irrespective of and without taking into account the other relevant circumstances and considerations. The relief must be moulded in each case having regard to all the relevant facts and circumstances of that case, it cannot be a mechanical act but a judicious and judged from the stand point, the impugned directions must be held to be totally untenable and unsustainable."

Therefore, it appears that the presumption can be justified when continuation extends to several years which also find place in para 25 which confirms directives of Hon''ble Supreme Court laying down the rule for regularisation in the following manner :

"(25). Before parting with this case, we think it appropriate to say a few words concerning the issue of regularisation of ad hoc/ temporary employees in Government service. The normal rule of course, is regular recruitment through the prescribed agency but exigencies of administration may sometimes call for an ad hoc or temporary appointment to be made. In such a situation, effort should always be to replace such an ad Ace/temporary employee by a regularly selected employee as early as possible. Such a temporary employee may also compete alongwith others for such regular selection/appointment. If he gets selected well and good, but if he does not, he must give way to the regularly selected, candidates. The appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an ad hoc temporary employee.

Secondly, an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee he must be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority.

Thirdly, even where in ad hoc or temporary employment is necessitated on account of the exigencies of administration he should ordinarily be drawn from the employment exchange unless it cannot brook delay in which case the pressing cause must be stated on the file. If no candidate is available or is not sponsored by the employment exchange, some appropriate method consistent with the requirements of Article 16 should be followed. In other words, there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly.

An unqualified person ought to be appointed only when qualified persons are not available through the above processes.

If for any reason, an ad hoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularisation provided he is eligible and qualified according to rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State.

The proper course would be that each State prepares a scheme, if one is not already in vogue, for regularisation of such employees consistent with its reservation policy and if a scheme is already framed, the same may be made consistent with our observations herein so as to reduce avoidable litigation in this behalf. If and when such person is regularised he should be placed immediately below the last regularly appointed employee in that category, class or service as the case maybe. So far as the workcharged employees and casual labour are concerned the effort must be to regularise them as far as possible and as early as possible subject to their fulfilling the qualifications, if any prescribed for the post and subject also to availability of work. If a casual labourer is continued for a fairly long spellmay two or three yearsa presumption may arise that there is regular need for his service. In such a situation, it becomes obligatory for the concerned authority to examine the feasibility of his regularisation. While doing so, the authorities ought to adopt a positive approach coupled with an apathy for the person. As has been repeatedly stressed by this court, security of tenure is necessary for an employee to give his best to the job. In this behalf we do commend the orders of the Government of Haryana (contained in its letter, dated 641991 referred to hereinbefore) both in relation to workcharged employees as well as casual labour.

We must also say that the orders issued by the Governments of Punjab and Haryana providing for regularisation of ad hoc temporary employees who have put in two years/one year of service are quite generous and leave no room for any legitimate grievance by any one.

These are but a few observations which we thought it necessary to make, impelled by the facts of this case, and the spate of litigation by such employees. They are not exhaustive nor can they be understood as immutable. Each Government or authority has to devise its own criteria or principles for regularisation having regard to all the relevant circumstances, but while doing so, it should bear in mind the observations made herein."

On the other hand in the case of Bhagwati Prasad, (supra) a dispute was raised to the extent that despite their continuous service the workmen were not allowed "equal pay for equal work". The dispute was directed to be decided by the Tribunal which after giving reasonable opportunity to both the parties had submitted a report to the effect. "After taking into consideration all the facts and circumstances I come to the conclusion that all the petitioners/workmen are performing same or similar duties as are performed by the incumbents of Group ''D'' posts......''" While dealing with the said report Hon''ble Supreme Court observed, "On the question of the nature of the work being discharged by the petitioners if found that some of the workmen are shown to have been working with designation such as Wages Slip, Truck Loading Clerk, Attendance keeper clerk, Drill man, Office work, Stone Bricks Clerk, Fitter Survey, Pipe Fitter, Operator, Pump operator, Creche Checkpost Clerk, and Permit Clerk etc. Which go to suggest that those workmen were performing skilled or semiskilled jobs or work of clerical nature. It, therefore, suggested that the workmen with these designations may also be equated with incumbents of Group ''D'' posts. However, it held that their scale of pay and the entitlement to the wages should be worked out in an inquiry under Section 33C (2) of the Industrial Disputes Act. It also further found that since the petitioners have been appointed way back between 1983 and 1986 they are to be regularised first l/3rd of them immediately in the payscale of Rs. 196232 or the corresponding revised scale with allowances ; another onethird of the petitioners workmen to be regularised by April 1, 1990 and the remaining onethird to be regularised by April 1, 1991. The workmen are entitled to one increment for every two complete years of their service counted from the date of commencement of service under the Management and by ignoring the artificial breaks created by the respondent. It also held that the dismissal of the workmen without following the rule of last come first go is an unfair labour practice."

Now, therefore, in the present case, the workmen are still working a very long time has passed. Therefore, in view of the ratio decided in the case of Pyara Singh (supra) I am not inclined to interfere with the impugned award dated 781990 so far as it directs regularisation of the workmen. But the question of determination of scale is the matter to be determined in accordance with the nature of work of each individual workman. In the present case there is no such material as were present in the case of Bhagwati Prasad (supra). But only in view of the fact that the workmen are still working and very long time has lapsed in between, therefore the award dated 781990 is modified to the extent, indicated below, after having drawn inspiration from the ratio decided in the case of Pyara Singh and that of Bhagwati Prasad (supra).

The petitioner is directed to formulate a scheme for observing the workmen within 3151996. The petitioner shall formulate the scheme for such absorption and shall also determine while observing nature of actual work performed by each of the workman and designation, in case the work" man performs the job as designated in the annexures in that event he shall be allowed the same payscale which are given to the similarly situated regular workmen. The petitioner shall continue to pay the workmen as is being paid now till the absorption. With effect from the date of absorption the workmen should be given respective scale on the basis of such scheme. So far as back wages are concerned the same shall be calculated with effect from 781990 namely the date of award. The question of determination of seniority shall also be included within the said scheme. The absorption and grant of scale shall be computed within 3061996. Thus the award dated 781990 stands modified to the above extent.

In view of the orders passed in the above writ petition No. 6155 of 1991, writ petition No. 21079 of 1994 stands allowed and the impugned contempt notice is hereby discharged. However, this order will not prejudice the workmen to seek implementation of the award dated 781990, as modified herein and take appropriate steps therefore, as may be advised. With these observations the present writ petition No. 21079 of 1994 stands allowed. With these observations this writ petition No. 6155 of 1991 is disposed of. There will be, however, no order as to costs.

Decided accordingly.