1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
JUDGMENT
ITI Limited through its Sultana Ram Chairman & Managing Vs. Director, Bangalore (1) D.B.CIVIL SPECIAL APPEAL NO.57/2013 ITI Limited through its Ashok Kumar Sharma Chairman & Managing Vs. Director, Bangalore (2) D.B.CIVIL SPECIAL APPEAL NO.58/2013 UNDER RULE134OF THE RAJASTHAN HIGH COURT RULES. Date of Judgment: January 06, 2015 P R E S E N T HON’BLE THE ACTING CHIEF JUSTICE MR.SUNIL AMBWANI HON'BLE MR.JUSTICE PRAKASH GUPTA Mr.Muktesh Maheshwari, for the appellants. Mr.D.S.Rajvi, for the respondents. BY THE COURT :(PER HON' BLE THE ACT G. CHIEF JUST ICE) 1. We have heard Mr.Muktesh Maheshwari, learned counsel appearing on behalf of the appellants and Mr.D.S.Rajvi, learned counsel for the respondents.
2. Both the Special Appeals raise similar questions of law and are, thus, decided by a common judgment.
3. The Indian Telephone Industries (for short, “the 2 ITI”.) invited names from the Employment Exchange for engagement on the post of Technician and LDC (Accounts Clerk) in the year 1987. Ashok Kumar Sharma, respondent in Writ Petition No.3283/2001 was qualified and was called for interview on 12.11.1987. He was appointed on 28.11.1987. His services were extended from 31.12.1990 and, thereafter, he continued on the post upto 31.3.1992, when his services were dispensed-with on the ground that the work on the project was complete. He filed a Writ Petition No.2225/1992 “Ashok Kumar vs. Union of India”., which was dismissed on 12.3.1996 on the ground of alternative remedy. He made an application to the State Government on which a reference was made to the Industrial Tribunal, Bikaner to decide the labour dispute. The Reference No.56/1998 was made to decide as to whether the termination order dated 31.3.1992 was valid and legal?. The Industrial Tribunal passed the award on 23.2.2001 and quashed the termination order dated 31.3.1992 with directions to treat the workman to continue in service with costs of Rs.5000/-. The award was published on 12.6.2001. A Writ Petition No.3283/2001 filed by the appellant-ITI was dismissed on 30.10.2012 giving rise to D.B.Civil Special Appeal No.58/2013.
4. The facts giving rise to the connected D.B.Civil 3 Special Appeal No.57/2013 are also similar, except that the workman was called for interview, selected and appointed on 01.03.1989 as Technician, as he held a diploma in Engineering. His services were dispensed- with by order dated 31.3.1992 on the ground that the project had come to an end. The respondent-workman Sultana Ram preferred Writ Petition No.2038/1992, which was dismissed on 10.3.1998 on the ground of alternative remedy. The workman Sultana Ram made application to the State Government on which a reference was made to the Industrial Tribunal, Bikaner on 1.9.1998 to decide as to whether the termination order dated 31.3.1992 was legal and valid and the relief to which the workman was entitled. The Industrial Tribunal, Bikaner by an award dated 23.2.2001 answered the reference in favour of the workman and quashed the termination order dt.31.03.1992 as unlawful and directed to treat him to be continued in service with Rs.5000/- as cost. The award was published on 12.6.2001 against which the appellant-ITI preferred the Writ Petition No.3282/2001, which was dismissed on 30.10.2012 giving rise to D.B.Civil Special Appeal No.57/2013.
5. It is submitted by the learned counsel for the appellants that the Industrial Tribunal, Bikaner did not have the jurisdiction to consider the claim of the 4 respondent-workmen. In the affidavit of Shri R.B.Singh, the Project Manager, ITI Limited, Bikaner, it was stated that ITI Limited is a Company, registered under the Companies Act, 1956 in which the Central Government holds 100% share. The Ministry of Defence had entrusted the project for Army Static Communication Network to the Company. The project was assigned to ITI, Bikaner. The project was temporary in nature. The respondents as well as other workmen were engaged on non-technical work for which according to the availability of work in the project, their period of service was extended from time to time. The project came to an end on 31.3.1992, after which their services could not be extended. The respondents were given gratuity of 15 days for every completed year of employment, leave encashment and one month's notice pay in advance before their services were dispensed- with. The respondents were paid the balance in their P.F. a/c and compensation for retrenchment calculated at Rs.6440/- and Rs.7960/- respectively by cheques on 27.3.1992.
6. It was further stated in the affidavit of Shri R.B.Singh that Askar Ali, Technician(A) was engaged for the work of Attendant, Shri Kailash Chandra as Driver and Shri Mahesh Kumar as Technician & Wireman. Their work was different than the work of the respondents. 5 7. The Industrial Tribunal after considering the evidence led by the parties, held that the appellant-ITI has 50 offices with its 25,000 employees. It had not taken permission from the Government before terminating the services of the respondents. The explanation for non-production of the record was not sufficient inasmuch there was no proof that the entire records of the project were handed over to Defence establishment. The Industrial Tribunal observed that the employer has deliberately withheld the records and, thus, it cannot be held that the workmen were employees of the Ministry of Defence. It further held that before terminating services of the workmen, the provisions of Section 25F of the Industrial Disputes Act, 1947 (for short, “the Act”.) were not followed and that Section 25FFF(2) of the Act was not applicable, as the workmen had worked for more than one year in Establishment. The Industrial Tribunal further held that the provisions of Section 25N of the Act have not been complied-with for which three months' notice or notice pay under Sec.25F of the Act was not given. The seniority list of the workmen was not produced to record any finding as to whether the principle of “last come first go”. was followed. The Industrial Tribunal held that the services of the respondents in the circumstances were terminated illegally and since the respondents had not worked in any other establishment 6 of the employer, they may not be entitled to back wages but are entitled to continue in employment with continuity in service and the workmen were also awarded a sum of Rs.5000/- as compensation.
8. Learned Single Judge dismissed the writ petitions with observations that whereas the employment and continuance prior to termination with effect from 31.3.1992 is not in dispute, no appointment orders were produced by the employer before the Industrial Tribunal and, therefore, the finding of the Industrial Tribunal that the respondents were engaged on contract basis, is not sustainable in law. Further, the finding of the Industrial Tribunal that no notice was given in compliance of Section 25F and 25N of the Act, is a finding of fact, which does not require interference under Articles 226 & 227 of the Constitution of India.
9. Learned Single Judge followed the case of Harjinder Singh vs. Punjab State Warehouse Corporation Limited, AIR2010SC1116in which it was held that challenge to validity and legality of the initial appointment cannot be made at a later stage and in the event of completion of 240 days by a workman during 12 calendar months preceding termination, the employer is under obligation to make compliance of Section 25F so also Rule 77 of the Industrial Disputes 7 Rules made under the Act. Relying upon para 16 of the judgment in Harjinder Singh's case (supra), the learned Single Judge did not interfere with the judgment of the Industrial Tribunal.
10. Learned counsel for the appellants has relied upon the judgments of the Apex Court in Mohd.Abdul Kadir vs. Director General of Police Assam, (2009) 6 SCC611 Harinandan Prasad vs. Employer I/R to Management of FCI, 2014(3) RLW2425(SC) and Divisional Manager, Aravali Gold Club vs. Chander Hass, (2008) 1 SCC683and the judgment of this court in Ashok Godara vs. State, 2014(3)RLW2649(Raj) and Management of Divisional Engineer Telecommunication vs. Venkataiah, 2007(112) FLR24, in submitting that the staff employed for a particular project or scheme, which is temporary in nature, cannot stake a claim to continue on regular basis. Their services would come to an end, as and when the project or scheme is complete. The employment given to the respondents was a contractual employment for which no sanctioned post was available, nor any post was created. Where there is no post created or extended even if a workman is working for a long period of time, he cannot be directed to be regularised in service. 8 11. It is submitted that this court in S.B.Civil Writ Petition No.5002/2004 “Ganpat Lal Prajapat vs. ITI Ltd.”
. and four other connected petitions by a judgment dated 10.9.2008, allowed the writ petitions filed by the petitioners working as Technician in the same organization viz; ITI Limited, which is an undertaking of Union of India and is, thus, State within the meaning of Article 12 of the Constitution of India and held, by a long and detailed judgment, following the judgments of the Apex Court in the cases of Secretary, State of Karnataka vs. Uma Devi, (2006) 4 SCC1(para
53) and Punjab Water Supply and Sewerage vs. Ranjot Singh, (2007) 2 SCC491, as follows: “However, in respect of the present controversy, the facts clearly support the claim of the petitioner because admittedly the petitioner was appointed through Employment Exchange and he was possessing the requisite qualification as laid down by the respondents for selection. Besides, in the appointment order there is assertion that the petitioner has been selected for temporary appointment on the post of Technician. Thereby meaning, the respondent Company – an instrumentality of the State, appointed the petitioner after following due process in consonance with law and the post of Technician was in existence upon which the petitioner is still working and after his first appointment the term of appointment was extended from time to time. Again, in the year 1998 he was given appointment apparently upto 2001 but, thereafter too, the 9 petitioner is still continuing on the said post. Therefore, the contention of the respondents that there is no such post cannot be accepted being baseless. The entire scenario therefore only leads to the conclusion that right to regularization is accrued to the petitioners having been continuously in the service of the respondents since 1989 after initial appointment on the post of Technician and being thus continued by the respondents themselves and, thereafter, appointments being made of other persons also, therefore, the law laid down by the Supreme Court in the case of Secretary, State of Karnataka vs. Uma Devi, reported in (2006) 4 SCC1shall apply to the present case. As a result of the aforesaid, all these writ petitions are allowed. The respondents are directed to consider the case of the petitioners in the light of the directions issued by the Supreme Court in the case of Secretary, State of Karnataka vs. Uma Devi (supra) for regularization on the post of Technician, upon which they were initially appointed and allowed to work since 1989 and, accordingly, grant regular pay scale of the post, within a period of three months. There shall be no order as to costs.”. 12. It is submitted that in the present case arising out of the judgment of the Industrial Tribunal, the same Hon'ble Judge has taken a different view regarding the directions issued by the Industrial Tribunal for 10 continuing the respondents in service, whereas there was not much difference on facts.
13. Learned counsel for the appellants submits that the ITI is a Central Government undertaking and, thus, the Central Industrial Tribunal alone had the jurisdiction to entertain and decide the dispute. The application could only be made to the Central Government, which had the power and authority to decide as to whether the Central Industrial Tribunal or the State Industrial Tribunal will be the appropriate adjudicatory authority to decide the dispute. The Industrial Tribunal as well as the learned Single Judge erred in law in proceeding with the matter without deciding as to whether the dispute could be adjudicated by the State Industrial Tribunal. It is further submitted that in any case, the Industrial Tribunal in the award, giving rise to these Special Appeals, has grossly erred in law in directing reinstatement and continuity in service with cost on the ground that the ITI Limited is a large Company with 50 offices and 25000 workmen in which the employment is perennial and, thus, the respondents should be reinstated. The employment must have been seen in relation to the project, which was temporary in nature. The employment was allowed to continue only until the project lasted. The respondents have no claim for regularization at all. On the closure of the project, they 11 were paid whatever was due to them viz; they were given the amount in the Provident Fund account and one month's notice pay and, thus, it cannot be said that the provisions of Section 25F and 25N of the Act were not followed.
14. Learned counsel for the respondents, on the other hand, has submitted that the termination was bad in law, as it amounted to retrenchment without taking recourse to the provisions of the Act. The permission of the Central Government was not taken before terminating services of the respondents and that they were not even given notice and, thus, the Industrial Tribunal as well as this court rightly came to the conclusion that as a large industrial undertaking, the ITI Limited could not have terminated services of the respondents, who had completed 240 days during twelve calendar months.
15. We have gone through the judgments of the Industrial Tribunal. In our opinion, the Industrial Tribunal as well as the learned Single Judge have grossly erred in law in directing reinstatement and continuity in service without back wages.
16. The objection raised by the learned counsel for the appellants that since ITI Limited is a Central 12 Government undertaking, the reference can only be made to the Central Government for appropriate forum for industrial adjudication and which, in the present case, is the Central Industrial Tribunal, was not pressed either before the State Industrial Tribunal or before the learned Single Judge. There is no reference of the plea urged by the learned counsel appearing for the ITI Limited either in the State Industrial Tribunal or before the learned Single Judge.
17. In our view, the matter in dispute is squarely covered by the ratio of the judgment in the case of Mohd.Abdul Kadir (supra) in which it was held in para 13 to 15 as follows:
“13. The fact that the appellants were employed under the PIF Additional Scheme is not disputed. The duration of PIF Additional Scheme under which they are employed was initially two years, to be reviewed for continuation along with the original PIF Scheme. The said scheme is being extended from time to time and is being continued. If the temporary or ad-hoc engagement or appointment is in connection with a particular project or a specific scheme, the ad hoc or temporary service of the persons employed under the Project or Scheme would come to an end, on completion/closure/cessation of the Project or the Scheme.
14. The fact that the Scheme had been in operation for some decades or that the employee concerned has continued on ad hoc basis for one or two decades would not entitle the employee to seek permanency or 13 regularization. Even if any posts are sanctioned with reference to the Scheme, such sanction is of ad hoc or temporary posts co-terminus with the scheme and not of permanent posts.
15. On completion of the project or discontinuance of the scheme, those who were engaged with reference to or in connection with such Project or Scheme cannot claim any right to continue in service, nor seek regularization in some other project or service. (See Bhagwan Dass v. State of Haryana, Delhi Development Horticulture Employees' Union v. Delhi Administration, Hindustan Steel Works Construction Ltd. v. Employees Union, UP Land Development Corporation v. Amar Singh, Madhyamik Shiksha Parishad UP v. Anil Kumar Mishra, State of Karnataka v. Umadevi, Indian Council of Medical Research v. K. Rajyalakshmi, and Lal Mohammed v. Indian Railway Construction Co. Ltd. In view of this settled position, the appellants will not be entitled to regularization.”. 18. In the present case, the respondent-workmen were appointed by the ITI Limited in a project, which had come to an end and, thus, the services of the respondents were dispensed-with after giving them the balance of their P.F.a/c, gratuity, leave encashment and one month's notice pay. The writ petitions were filed before this court against the orders of dispensation of service in April, 1992, which were dismissed in March, 1996/1998 on the ground of alternative remedy.
19. In the reply, given by the Project Manager, Indian Telephone Industries, before the Industrial Tribunal, it 14 was clearly stated that the respondents were appointed in a project. Since the project was not completed in time, their services were also extended but that their employment continued to be temporary and coterminous with the project. They could not have continued in employment, as they were not appointed against any post. Their services were, thus, governed under Sec.25FFF(2) of the Act. On 31.3.1995, the project was completed and was dedicated to the nation by the Hon'ble Prime Minister on 19.8.1995, after which there was no requirement of the respondents to be continued in service in ITI Limited. The branches of the Organization as well as number of workmen employed, will not give them any right, as an employee on a project cannot claim to be appointed on any other post or to be rolled over in another employment.
20. In Mohd. Abdul Kadir's case (supra), relying upon the cases of the Apex Court beginning from 1987 to 2007, it was held that on completion of the project or discontinuance of the scheme, those, who were engaged with reference to or in connection with such project or scheme, cannot claim any right to continue in service, nor can they seek regularization in some other project or service. In para 17, it was further held that when the adhoc appointment is under a scheme and is in accordance with the selection process prescribed by the 15 scheme, there is no reason why those appointed under the scheme should not be continued as long as the scheme continues. Adhoc appointments under schemes are normally coterminous with the scheme (subject of course to earlier termination either on medical or disciplinary grounds, or for unsatisfactory service or on attainment of normal age of retirement).
21. The employees working on adhoc service or under any scheme, are not entitled to regularization nor to the security of tenure nor to the service benefits, available to the regular service employees. After the project comes to an end and the engagement of the employee is terminated with the settlement of his dues, no relief can be given to allow him to continue in service, as in such cases, the employer would be saddled with the employment for which there is no financial arrangement to allow him to continue. The creation and sanction of post is a prerogative of the executive or the legislative authorities, as the case may be, and not of the courts. The court cannot direct the employer to continue an employee in employment on the ground of sympathy or compassion.
22. Recently, in a judgment, delivered on 17.2.2014 in the case of Hari Nandan Prasad(supra), it was held that merely because an employee is working as a daily 16 wager for the long time, the Labour Court cannot direct regularization, allowing back door entry in service.
23. In the case of Secretary, State of Karnataka vs. Uma Devi (supra), the Supreme Court has not favoured regularization, where the post or employment is not in existence.
24. The Supreme Court in Hari Nandan Prasad's case (supra) took notice of the judgment in BSNL vs. Bhurumal, 2013(15) SCALE131and which, in turn, had taken notice of the judgments in the cases of Incharge Officer & anr. vs. Shankar Shetty, (2010) 9 SCC126 Jagbir Singh vs. Haryana State Agriculture Mktd. Board, (2009) 15 SCC327 and Telegraph Department vs. Santosh Kumar Seal, (2010) 6 SCC773, in which only two aspects viz; reinstatement and regularization were discussed. On the question of regularization, reconciling the judgment in Maharashtra State Road Transport Corporation vs. Casteribe Rajya Parivahan Karmchari Sanghatana, (2009) 8 SCC556, in which it was held that Uma Devi's case (supra) will be binding on industrial and labour courts and in U.P.Power Corporation vs. Bijli Mazdoor Sangh, (2007) 5 SCC755in which it was held that Uma Devi's case (supra) has no application to the industrial adjudication, it was 17 held that the Labour courts/Industrial Tribunals are given wide powers not only to enforce the rights but even to create new rights, with the underlying objective to achieve social justice. At the same time, the powers conferred upon the labour courts/industrial tribunals are not unbridled and are circumscribed and conditioned by the subject matter with which it is dealing and also by the existing industrial law. It is not open to it, while dealing with a particular matter before it to overlook the industrial law, relating to the matter as laid down by the legislature or the courts. The fine balancing is required to be achieved, while adjudicating a particular dispute, keeping in mind that the industrial disputes are settled by industrial adjudication on principle of fair play and justice. Concluding the discussion, the Supreme Court in Hari Nandan Prasad's case (supra) held as follows:
“34. On harmonious reading of the two judgments discussed in detail above, we are of the opinion that when there are posts available, in the absence of any unfair labour practice the Labour Court would not give direction for regularization only because a worker has continued as daily wage worker/adhoc/temporary worker for number of years. Further, if there are no posts available, such a direction for regularization would be impermissible. In the aforesaid circumstances giving of direction to regularize such a person, only on the basis of number of years put in by such a worker as daily wager etc. may amount to backdoor entry into the service which is an anathema to 18 Article 14 of the Constitution. Further, such a direction would not be given when the concerned worker does not meet the eligibility requirement of the post in question as per the Recruitment Rules. However, wherever it is found that similarly situated workmen are regularized by the employer itself under some scheme or otherwise and the workmen in question who have approached Industrial/Labour Court are at par with them, direction of regularization in such cases may be legally justified, otherwise, non-regularization of the left over workers itself would amount to invidious discrimination qua them in such cases and would be violative of Article 14 of the Constitution. Thus, the Industrial adjudicator would be achieving the equality by upholding Article 14, rather than violating this constitutional provision.”. 25. It is submitted that some of the employees viz; Ganpat Lal Prajapat, Mahesh Kumar, Kailash Chandra, Moda Ram Bishnoi and Mool Chand Dadhich in S.B.Civil Writ Petition Nos.5002/2004, 785/2005, 786/2005, 1275/2002 and 3406/2002 respectively, were allowed the benefit by the same court on September 10, 2008 and in which, directions were issued to consider the cases of petitioners in the light of the directions issued in the case of Uma Devi (supra) for regularization on the post of Technician on which they were initially appointed and were allowed to work since 1989 and, accordingly, granted regular pay scale of the post.
26. As observed above, in the cases of Ganpat Lal Prajapat and other connected cases, it was found that 19 though the appointment letter stated that the petitioners had been selected for temporary appointment on the post of Technician, the respondent Company, an instrumentality of the State, appointed him after following due process in consonance with law and the post of Technician was still in existence upon which the petitioner was then working and that after his first appointment, the term was extended from time to time and again, in the year 1998, he was given appointment apparently upto 2001 but thereafter too, the petitioner was continuing on the post.
27. The facts in the case of Ganpat Lal Prajapat (supra) adjudicated in the writ petition in which the petitioner was continuing in employment even after 2001, are different and cannot be compared with the facts of the present case in which services of the petitioners were dispensed-with in the year 1992 on the closure of the project.
28. For the aforesaid reasons, we find that the relief of reinstatement and continuance in service by way of regularization was not admissible to the respondents. They were appointed on a project and their services were dispensed-with on completion of project. There was no work in the project available nor there was any post on which the respondent-workmen could be 20 directed to be adjusted or seconded by the appellant- ITI. They had no right to claim continuance in service after their services were dispensed-with and their entire dues, including notice pay, were paid to them.
29. Both the Special Appeals are, accordingly, allowed. The judgments of the learned Single Judge, impugned in the Special Appeals, of the same date i.e. 30.10.2012 as well as the awards of the Industrial Tribunal in both the cases of the same date i.e. 23.02.2001 are set aside. In the circumstances of the case, there will be no order as to costs. A copy of this judgment be placed in the file of DBCSA No.58/2013. (PRAKASH GUPTA), J.
(SUNIL AMBWANI), A.C.J.
RANKAWAT JK, PS