D.K. Seth, J.
1. An award dated November 15, 1999 passed by the learned Central Government Industrial Tribunal, Calcutta, in Reference No. 6 of 1998, was assailed in the writ petition being W.P. No. 1786 (W) of 2000, since beer dismissed by the learned single Judge by an order dated June 17, 2001 declining to interfere with the award on the grounds recorded therein, has since been challenged in this appeal.
The Appellants' Submission:
2. A reference was made with regard to the action of the management in not regularizing the 540 Muster Roll Workers and denying them equal pay for equal work and other facilities, which the regular workmen were enjoying. This was sought to be defended by Mr. Kalyan Bandopadhyay, the learned senior counsel, appearing on behalf of the Farakka Barrage Project on two-fold grounds First that no industrial dispute could be maintained against the management of Farakka Barrage Project since the management discharged sovereign function in the distribution or sharing of water of the Ganges pursuant to a treaty between the Government of India and that with the Republic of Bangladesh. The second ground is on merit having several limbs. (1) According to Mr. Bandopadhyay, there is no scope for regularisation of a Muster Roll Employee in a Government establishment except through the Recruitment Rules or the Regularisation Scheme applicable to the establishment. (2) In case it is held, alternatively he contended, that it is an industry and not an establishment discharging sovereign function, in that event, the employees would be workmen and cannot claim more than what is permissible under the Industrial Law as provided in Chapter-V of the Industrial Disputes Act, 1947 onwards. (3) He next contended that in a recent decision in A. Umarani v. Registrar, Co-operative Societies and Ors. : (2004)IIILLJ780SC the Apex Court has deprecated all kinds of recruitment or regularisation de hors the Recruitment or Regularisation Rules even if any employee continues for a long period of time having entered through backdoor. (4) Next he contended that the Farakka Barrage Project, being a Project which is supposed to come to an end any day cannot be an establishment in which the concept of regularisation could be pushed through as was held in Managing Director, U.P. Land Development Corporation and Anr. v. Amar Singh and Ors. 2003-III-LLJ-220 (SC). (5) Assailing the decision of the learned single Judge, he contended that even the ratio decided in State of Haryana and Ors. v. Piara Singh and Ors. AIR : (1993)IILLJ937SC does not support the view taken by the learned single Judge based thereon. Relying on the Scheme, being the Casual Labourers (Grant of Temporary Status and Regularisation) Scheme of Government of India of 1993, Mr. Bandopadhyay contended that the employees having accepted their status in accordance with the Scheme framed in 1993, they cannot pray for better benefits than those conferred under the Scheme, particularly, in view of the limitation of the Court in the absence of its jurisdiction to direct creation of post or sanction or accord approval for regular post and thus the award is without jurisdiction since it is not in conformity with the Scheme.
The Respondents' Submission:
3. Mr. Bikash Ranjan Bhattacharya, the learned senior counsel, appearing on behalf of the respondent/workmen, on the other hand, supported the decision on the ground that (1) there was no sovereign function discharged by the management of the Farakka Barrage Project in implementing or executing the treaty between the Government of India and that of the Republic of Bangladesh which was entered into between the two States long after the establishment of the Barrage Project and the employment of the workmen, inasmuch as when the treaty would not change the character of the Project. (2) According to him, the Project being an industry in view of Section 2(s) of the 1947 Act defining workmen, there cannot be any distinction in order to entitle a workman to get the benefits of equal pay for equal work and other facilities available to another workman on the ground that he is a casual worker or a Muster Roll Worker. There is no scope of regularisation within the Scheme of the Industrial Disputes Act, 1947. It is only the characteristics of the workman if satisfies and a person comes within the definition of workman defined in Section 2(s) read with the V Schedule, Clause (10) of the Industrial Disputes Act, 1947, he is entitled to all the benefits available under the 1947 Act. (3) The decision relied upon by Mr. Bandopadhyay are all related to the employment in the Government Undertaking or the statutory organizations, it has nothing to do with industries and industrial workmen. The right of a workman is not dependent on any Scheme or Rules or otherwise except as recognized by the Industrial Disputes Act, 1947. (4) Relying on the award and the order of the learned single Judge, he points out that the facts are more or less admitted and the finding of facts has not been challenged as perverse. On the admitted facts unless there is glaring illegality in the order of the learned Tribunal or that of the learned single Judge, the Appeal Court is not supposed to interfere with. According to him, there is nothing, which could persuade this Court to deviate from the finding of the learned single Judge and the learned Tribunal on the basis of the established facts as has been found by the learned single Judge and the learned Tribunal concurrently.
Farakka Barrage/Appellant, if discharges sovereign function:
4. After having heard the learned counsel for the parties, so far as the sovereign function of the Project is concerned, we do not see that in the implementation or the execution of the function for sharing of the Water of the Ganges under a treaty, the Barrage Project would be discharging any sovereign function: Sovereign function is confined, as rightly held by both the learned single Judge and the learned Tribunal, to certain administrative functions and taking policy decisions. The decision of entering into or the conclusion of the treaty for sharing the water of the Ganges may be a part of the sovereign function. But after the treaty is entered into or concluded and it is implemented through the Farakka Barrage Project by regulating the discharge of water in the manner so as to conform to the treaty according to the policy decided and the data provided would not amount to the discharge of sovereign function. We need not elaborate this point beyond this and we concur with the finding of the learned Tribunal and that of the learned single Judge. We do not want to burden our decision by referring to the decisions relied upon by the learned single Judge and the learned Tribunal respectively.
5. On the ground of merit, let the matter be listed tomorrow as 'for Orders'.
Soumitra Pal, J.
I agree.
March 8, 2005
Muster Roll Workmen : Regularisation:
Per D.K. Seth, J.
6. If we accept the proposition advanced by Mr. Bandopadhyay that the workmen defined under Section 2(s) of the 1947 Act is entitled only to the benefits provided under the 1947 Act alone and cannot claim the benefit of regularisation, in that event, as rightly contended by Mr. Bhattacharya, in such a case then, there will be no distinction between the workmen and workmen. Inasmuch as whether he is permanent or temporary, he would be entitled to all the benefits available to a workman. Therefore, there cannot be any distinction between a temporary and permanent workman in the matter of wages and other service benefits. In that event, all the provisions of all Industrial Legislations under which the service of a workman under the 1947 Act is governed would become applicable, and he would be entitled to the benefits available under the Employees' Provident Funds and Miscellaneous Provisions Act, 1952; Employees' State Insurance Act; Payment of Gratuity Act and Payment of Bonus Act and such other provisions as would be applicable to the industrial workmen. Therefore, whether he is regularized or not, he would be entitled to all the benefits on the principle of equal pay for equal work, the application whereof cannot be excluded in respect of Industrial Undertakings. At the same time, this appears to be further supported by the Fifth Schedule Clause (10), which forbids unfair labour practice as defined in Section 2(ra). Clause (10) prescribes that employment of casuals or temporaries and to continue them as such for years, with the object of depriving them of privileges of permanent workmen is unfair labour practice, which cannot be followed and are prohibited.
7. The proposition is well settled that the Court cannot direct creation of post or direct filling up of vacancy de hors the recruitment rules. But at the same time, a Court cannot overlook the provisions of the Industrial Disputes Act and remain indifferent when unfair labour practice followed over a long period of time, particularly, in cases where such a position is followed for over 20 years and also in a case where on the finding of fact, the learned Tribunal had found that the vacancy position had since not been disclosed in order to satisfy the learned Tribunal that there was no vacancy in which they could be absorbed or regularized. Since concurrently found by the learned single Judge in the writ petition challenging the award, the concurrent finding of fact cannot be interfered with by the Appeal Court when it is supported by the materials on record. Admittedly, no materials were produced to show the vacancy position right from 1987.
8. Even if we accept the proposition of Mr. Bandopadhyay that the question of regularisation and the decisions relied upon by the learned single Judge are all related to statutory workers not Industrial Undertakings, even then we cannot close our eyes and overlook that the principle of unfair labour practice is being followed over a long period of time. It appears from the materials that the authorities were unable to dispense with the service of the employees and their employment was indispensable. Thus, when these workmen were being employed, the State, as model employer, cannot avoid its responsibility contemplated under Article 46 of the Constitution of India to prevent the workmen from being exploited in the form of denial of equal pay for equal work enshrined under Article 39(d) of the Constitution because of their status and position of being in the receiving end.
9. However, even if it is accepted that the service of the workmen cannot be regularised in the absence of vacancy and that the Court cannot direct creation of post and even then there is no bar in directing payment of equal pay for equal work and prevent the employer from following unfair labour practice in contravention of Clause (10) of the Fifth Schedule of the 1947 Act. In case it is not possible to create post and regularize their service against any vacancy, in that event, the employer shall make available all the service benefits available to a regular workman including the benefits of all the attending retirement benefits, namely Pension, Gratuity, Provident Fund and all other benefits available to a regular employee.
10. The decision in A. Umarani v. Registrar, Co-operative Societies and Ors. (supra), relied upon by Mr. Bandopadhyay, deals with the question of recruitment de hors the rules and the Court's jurisdiction to direct regularisation. There is no doubt about the proposition laid down in A. Umarani (supra). However, this was sought to be distinguished by Mr. Bhattacharya that all these decisions related to statutory establishments which are not to Industrial Undertakings. We need not express any opinion with regard thereto. We may not direct the department to regularize the Muster Roll Workers de hors the rules, but there is no ground for denying the benefit of the principles of equal pay for equal work to the groups of workmen with temporary status for over 20 years and whose services are indispensable. Therefore, having regard to the facts and circumstances of the case and the modification of the order as proposed herein, we do not think that the decision of A. Umarani (supra) will stare on the face of this decision. The decision in Piara Singh (supra), which was sought to be distinguished and relied upon by Mr. Bandopadhyay, also does not stand in the way in a case where the facts are so distinguishable. It is not a question of corruption or violation of the rules. On the other hand, it is an established practice followed by the Project by making recruitment of Muster Roll Employees through Employment Exchange. To support this view, we may echo the clarion call of the Apex Court in Piara Singh (supra) 1993-II-LLJ-937 at pp. 956 & 957.
'41. This is not a case, we must reiterate, where the Governments have failed to take any steps for regularisation of their ad hoc employees working over the years. Every few years they have been issuing order providing for regularisation. In such a case, there is no occasion for the Court to issue any directions for regularizing such employees, more particularly when none of the conditions prescribed in the said orders can be said to be either unreasonable, arbitrary or discriminatory. The Court cannot obviously help those who cannot get regularized under these orders for their failure to satisfy the conditions prescribed therein. Issuing general declaration of indulgence is no part of our jurisdiction. In case of such persons, we can only observe that it is for the respective Governments to consider the feasibility of giving them appropriate relief, particularly in cases where persons have been continuing over a long number of years, and were eligible and qualified on the date of their ad hoc appointment and further whose record of service is satisfactory.
XXX XXX XXX
44. 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.
XXX XXX XXX
49. 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 the rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State.
50. 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 regularized he should be placed immediately below the last regularly appointed employee in that category, class or service, as the case may be.
51. So far as the work-charged employees and casual labour are concerned, the effort must be to regularize 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 spell -- say two or three years -- a presumption may arise that there is regular need for his services. In such a situation, it becomes obligatory for the authority concerned to examine the feasibility of his regularisation. While doing so, the authorities ought to adopt a positive approach coupled with an empathy for the person. As has been repeatedly stressed b> 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 April 6, 1990 referred to hereinbefore) both in relation to work-charged employees as well as-casual labour.
xxx xxx xxx'
11. Mr. Bandopadhyay had also relied upon a decision in Managing Director, U. P. Land Development Corporation and Anr. v. Amar Singh and Ors. (supra) in order to contend when there is a scheme, no one car claim any benefit de hors the scheme. A person working in the project does not get any vested right to appointment after the project comes to an end and there is no necessity of employment of such employees. This decision does not help us in the present context, since admittedly, the management had taken a stand that the employment of the employees are indispensable and they have been working for over 20 long years now almost over 25 years.
12. Thus, in this case even if we may not direct regularisation in view of the limitation emanating from the decisions operating in the field, still we cannot but hold that in view of the provisions contained in the 1947 Act, these workmen cannot be distinguished in the matter of service benefit available to regular workmen in the absence of any distinction on the principle of equal pay for equal work, the Muster Roll Workers having temporary status continued for over 25 years, having regard to the peculiar facts of this case, being indispensable and rendering satisfactory work, cannot be denied the same benefits.
Whether the Tribunal travelled beyond the scope of reference:
13. Question was raised that the learned Tribunal, while passing the award, had travelled beyond the scope of reference. We do not find anything to show that the award exceeded the scope of the reference. The reference was in respect of the regularisation and the consequence thereof. Therefore, we cannot persuade ourselves to hold that the reference was exceeded by the learned Tribunal.
Conclusion:
14. Therefore, having regard to the facts and circumstances of the case, we do not think that the learned Tribunal or the learned single Judge had committed any error in granting the relief. However, we would like to modify the award only to the extent modifying the order of the learned single Judge that instead of using the word 'regularisation', we would prefer to direct the Management of the Farakka Barrage Project to give all the benefits available to a permanent workman including superannuation benefits as received by them under the terms of agreement having regard to the relevant scale in which the workmen are employed to the workmen/respondents.
Order:
15. With this modification the award and the order of the learned single Judge are hereby affirmed. The appeal is, thus, disposed of. This benefit will be available to the workmen employed in the project at the time of making reference and the benefits would be available from the date of the award. The workmen would be entitled to notional benefits of the service without claiming any arrear of salary or other service benefits prior to the date of the award. However, these workmen shall be entitled to superannuation benefits for the entire length of service as Muster Roll workmen as are available to regular workmen of same category or status. We direct that this order shall be implemented within a period of 6 (six) months.
16. Urgent xerox certified copy of this order, if applied for, be given to the parties on priority basis.
Soumitra Pal, J. - 17. I agree.