Shakti Sankar Dey and anr. Vs. Union of India (Uoi) and ors. - Court Judgment

Soumitra Sen, J.

1. This writ application has been filed by two petitioners. Both the petitioners were engaged on diverse dates as casual workers in the capacity of Security Strappers. The Air India Limited had engaged a Contractor, namely, M/s. General Security Information Services for supply of certain casual labourers and the petitioner was supplied to the Air India by the said Contractor to work as a casual labour.

2. The basic contention of the petitioners is that they have been engaged as a Security Strapper with Air India with effect from 23rd of December, 1991 and has been in continuous service for over 240 days without any break. Therefore, they are entitled to be absorbed in the permanent employment of Air India.

3. The petitioners have also contended that the work carried out by them is perennial in nature and therefore in accordance with the established legal principles they are entitled to be absorbed in the Air India as a permanent staff.

4. It was also submitted that all benefits including medical benefits were given to the petitioners by the Air India. Therefore, it should be presumed that they were treated as a regular employee of Air India.

5. The further contention of the petitioners is that some other contractual workers who were working as sweepers and/or cleaners have been absorbed by regularizing their service pursuant to a conciliation proceeding held before the Assistant Labour Commissioner.

6. Apprehending termination the petitioners have filed in the instant application. It is contended that the Air India was going to terminate their service in spite of an industrial dispute being raised by the Union with regard to the demand of employees of the contractor.

7. On behalf of the respondents it was submitted that this writ application was not maintainable as because an industrial dispute is still pending. It was submitted that as a matter of policy the Air India was trying to prohibit employment of contract labour for the purpose of strapping of baggage. It is also submitted that there is no permanent vacancy in the said category and as per the present policy and the financial position and the company is such that no fresh recruitment is being made. It was further submitted that by reason of a Government Circular issued by the concerned Ministry, the Security Personnel to be employed at the Airports should be through the Director General of Resettlement and in view of a uniform policy and also by reason of an order passed by the Kerala High Court the Air India was under an obligation to engage Security Personnel through the said Director General of Resettlement from ex-servicemen.

8. It was submitted that the petitioners were not engaged by the Air India Limited but was engaged by the contractors and was merely working in Air India as a casual worker on no work no pay basis. Therefore, the petitioners do not have any subsisting right to claim permanency.

9. It was also submitted that the application was moved on the basis of a misrepresentation of fact inasmuch as the petitioners were actually terminated from the service before filing of the application. But the petitioners deliberately avoided service of the letter of termination and in spite of having knowledge that they were terminated from service has sought to move this Court allegedly on the basis of an apprehension of termination of service.

10. It was further submitted on behalf of the respondents that the petitioners were retrenched in accordance with the established principle of law under the Industrial Disputes Act, 1947 and all amounts due and payable in terms of the relevant provisions of the said Act have been duly paid to the petitioners.

11. It was further submitted that the conciliation proceeding was pending at the time when the said application was moved. Therefore, the writ application should not be entertained.

12. The respondents have also submitted that the petitioners were working as a casual labour supplied by the Contractors whose contract with the Air India had come to an end. It was submitted that the work of Security Strappers which was undertaken by the Contractor, namely M/s. General Security Information Services under whom the petitioners working are not prohibited under the Contract Labour (Rehabilitation and Abolition) Act, 1970, as such there was no obligation on the part of the Air India either to absorb or regularize the petitioners after the contract had come to an end. The respondents have further contended that recruitment of staff of the Air India are required to be done under regular recruitment procedure and there are large numbers of other employees who are waiting in the queue to be regularized and therefore, the petitioners cannot seek to get any special benefit by filing the instant application. It is submitted that the medical and other facilities are required to be provided by the Contract Labourers under the Contract Labour (Rehabilitation and Abolition) Act, 1970 and providing of such facilities as required under statute does not create any right in favour of the petitioners for being absorbed in a permanent post with the Air India.

13. From the documents annexed to the writ petitioner it is clear that the petitioners were appointed by the Contractor as a casual employee purely on no work no pay basis. It is also on record that the Air India was trying to abolish the contract labourers discharged duties as Security Personnel and was to appoint such labourers from ex-servicemen.

14. In course of submissions various issues have been raised on behalf of both the parties. Various decisions have also been cited on behalf of the parties. The petitioners were all along contending that they were under direct employment of the Air India Limited though as a casual worker and in support thereof it was contended that apart from the usual benefits like medical benefits etc. that were given to them they were also given Identity Cards by the Air India. But no document has been produced neither my attention has been drawn to any such document that the petitioners were employed by the Air India. The issuance of Identity Cards is for obvious reasons. No personnel engaged in any work within the Airport premises can move about without proper identification. This is done for security reasons and as a normal practice and procedure followed in every Airports. Therefore, merely by issuing an Identity Card in favour of the petitioners does not mean that the petitioners were employed by the Air India directly. From the chart given in the petition indicating the number of days that the petitioners have worked, it is clear that between 1996-97 and 1998 both the petitioners did not work for the entire year. The respondents have sought to rely upon under Section 2(00), Sub-clause (bb) of the Industrial Disputes Act, 1947. However, the Air India has submitted that retrenchment of the petitioners have been done in accordance with the provisions of Section 25(f). Section 2(00)(bb) is a definition of retrenchment. Section 25(f) lays down the condition under which a workman can be retrenched. It is nobody's case that the Air India has not followed the procedures established in law neither the same is under challenge before me. On behalf of the petitioners the following decisions have been relied upon :

1) AIR 1960 SC 610 (State of Bombay v. Hospital Mazdoor Sahha)

2) AIR 1997 Cal 308 [Jenson and Nicholson (India) Ltd. and Ors. v. Union of India and Ors.]

3) 2003 (6) SCC 469 (State of W.B. and Ors. v. Pantha Chatterjee and Ors.)

15. In the decision of State of Bombay (supra) the Hon'ble Supreme Court was concerned with regard to compliance of the mandatory provisions of Section 25(f) of the Industrial Disputes Act. It was held that unless the conditions contained under Section 25(f) is complied with retrenchment made in terms of the said section is not valid. The Supreme Court was also pleased to hold that Section 25(i) does not cover recovery of moneys payable under Section 25(f). In the instant case, it is not in dispute that the Air India has complied with all the provisions of the Section 25(f). Therefore, the retrenchment itself cannot be held to be invalid.

16. The decision of Jenson and Nicholson (supra) was relied upon for the proposition that once a Court has heard the parties extensively on merit, the point with regard to alternative remedy should not be raised. The facts and circumstances of the instant case are quite different from the facts of the case, which were under consideration before the Division Bench in the case of Jenson and Nicholson. In the case in hand the conciliation proceeding was admittedly pending at the time when the writ application was filed. Though the petitioners have sought to contend that this writ application was filed on the apprehension of termination, but in fact the services were actually terminated even before the writ application was filed. Therefore, in my opinion, the ratio of the decision of Jenson and Nicholson (supra) does not apply in the facts and circumstances of this case.

17. The decision of State of West Bengal v. Pantha Chatterjee (supra) was cited for the proposition that the employees performing their duties under the same situation and circumstances for a long time is entitled to a parity in the matter of privileges and mandatory benefits. In the said case Part-time Border Wing Home Guards (BWHG) filed a writ application before this Court alleging discrimination. It was submitted that they were performing the same duties as the BSF personnel and therefore they should not be treated as volunteers. In the said case the BWHG personnel were engaged continuously for more than 10 to 15 years of the job of patrolling the borders and were equally placed with other staff doing similar duties and therefore under those circumstances the Hon'ble Supreme Court was pleased to hold that they were entitled to a parity in privileges and mandatory benefits with other regular employees doing similar nature of job. The Hon'ble Supreme Court considered the principle of equal work for equal pay between two sets of employees discharging similar responsibilities under similar working conditions. The facts of the case before the Hon'ble Supreme Court and the facts of the case in hand are entirely different. The petitioners are not seeking parity with regard to monitory and other privileges with other similarly placed employees doing performing similar duties. The petitioners are seeking absorption in a permanent post. Therefore, the case of State of West Bengal v. Pantha Chatterjee has no application in the facts and circumstances of the instant case.

18. On behalf of the respondents the following decisions were cited :

1) 1995 (2) CLJ 127, Thakur Majhi and Anr. v. Eastern Coalfields and Ors.

2) 1995 Lab IC 1433, Tapas Mondal and Ors. v. Eastern Coalfields and Ors.

3) 1998 (2) CLJ 109, Eastern Coalfields v. Gopal Chandra Mondal and Ors.

4) 1998 (6) SCC 549, Scooters India and Ors. v. Vijai E.V. Eldred

5) 1991 (2) CHN 451, Anupam Ghosh v. Union of India and Ors.

6) 1992 (1) CLJ 319, Indian Association for the Cultivation of Science, Jadavpur and Ors. v. Ashoke Kumar Roy and Ors.

7) 1997 (1) CLR 538, Sarama Das and Ors. v. Superintendent, Durgapur Sub-Divisional Hospital and Ors.

19. The decision of Thakur Majhi (supra) has been relied upon for the proposition that the remedy available under the Industrial Disputes Act is more efficacious and exercise of authority under Article 226 is not a proper remedy. It has been held in the said case that the Industrial Disputes Act, 1947 is a self-contained Code. The rights of a workman arise under the said Act, which provides for forums for adjudication of disputes between the employer and the employee. An illegal termination can be competently challenged before the Tribunal.

20. The decision of Tapas Mondal (supra) and Eastern Coalfields (supra) have been relied upon for the same proposition as above and also for the proposition that the Writ Court cannot be converted into an Industrial Court.

21. The decision of Anupam Ghosh (supra) and Indian Association for Cultivation (supra) have been relied upon for the proposition that the contract of service is purely personal in nature and were in private law domain and therefore it cannot be enforced under Article 226 of the Constitution of India. The issue that Air India is not an authority within the meaning of Article 12 of the Constitution has not been seriously argued on behalf of the Air India. In order to decide whether a party respondent is a State within the meaning of Article 12 of the Constitution of India or not various factors are required to be considered. The extent of control by the Government over such respondent and the nature of functions and/or activities carried on by such a respondent are major factors to be considered while deciding the said question. In the instant case, this question has not been raised by either of the parties. However, with regard to the question that the contract of service is purely personal in nature, in my opinion, if an authority is an authority within the meaning of Article 12 of the Constitution then an illegal termination in violation of provisions of law can be challenged in an application under Article 226 of the Constitution.

22. The decision of Sarama Das & Ors. (supra) has been relied upon for the proposition that merely because a person worked for more than 240 days it does not create any legal right in favour of a person to be absorbed permanently and that mere prolonged or continuous service does not ripen into a claim for permanent and/or substantive status. In the instant case, the Air India have submitted that a policy has been framed to engage persons from the ex-servicemen in carrying out various duties of security personnel within the Airport premises. It was also submitted that there are recruitment procedures, which are required to be followed in case of every employment. It was also further submitted that there are a large number of casual workers who are still waiting in the queue who are to be regularized in accordance with the established practice and/or procedures.

23. Therefore, under these circumstances, I am of the opinion that the petitioners by working as a Security Strapper with the Air India have not acquired any right in their favour to claim permanency. Moreover, admittedly the conciliation proceeding was still pending adjudication at the time when the writ application was filed.

24. Considering all the facts and circumstances and considering all the materials on record, I am of the opinion that this application has no merit and the same is accordingly dismissed. There will be no order as to costs. In that view of the matter CAN application being No. 7129 of 1999 is also disposed of.