Common Prayer:- Writ Appeals have been filed under Section 15 of the Letter Patent Act, against the common order in W.P.Nos.21685 of 2016, 26218 of 2016 and 789 of 2017 dated 17.03.2017 passe dby His Lordship Justice M.M.Sundresh.
For Appellant : Mr.V.Prakash, Senior Counsel in all W.As for Mr.K.Sudalaikannu COMMON JUDGMENT (Judgment of the Court was delivered by G.Jayachandran.J.,) These three Writ Appeals arise out of the common judgment passed by a learned Single Judge of this Court. The grievance of the appellants in all the Writ Appeals are same. The appellants were employed under the first respondent company - AIR India Limited, as casual labourers to collect baggage from the passengers at the check-in-counter and to collect cargo at cargo section etc. They were given employment for 110 days and after artificial break-in-service, again they were engaged to work, to circumvent the rigour of Tamil Nadu Industrial Establishment Conferment & Permanent Status to Workmen Act.
2.When an industrial dispute was raised in I.D.Nos.22 & 34/1991 against illegal termination of 39 and 82 casual workers respectively and to decide, "Whether denial of continuous employment to 114 casual labourers is justifiable?". The Industrial Tribunal vide its award dated 15.05.1997 suggested the particulars of workmen regularised those who are awaiting regularisation and new persons engaged in the place of petitioner are not avilable. Hence, to avoid any hardship to those who are not parties to the proceedings it is better to evolve a scheme to fit in these workmen in the list of regularised workmen and it would be justifiable to regularise the services of 39 workmen concerned in I.D.No.22/1991 and 82 among the 114 workmen in I.D.No.39/1991.
3.It appears that subsequently on 07.06.1999, a settlement was arrived at between the Management and the Union and few of the casual labourers were given benefit while rest were not regulatised and when the same was challenged in a batch of writ petitions in W.P.Nos.15915, 15916, 16405 of 1999 etc., learned Single Judge dismsised it. On appeal, Division Bench of this Court in W.A.Nos.399 to 421 of 2000 dated 10.07.2007, following the judgment of the Hon'ble Apex Court rendered in Gujarat Agricultural University v. Rathod Labhu Bachar (2001 (3) SCC 574) directed the Management to frame a scheme, within a period of six weeks and absorb such employees under a Scheme in a phased manner. The Special Leave Petitions filed by the Management against the common judgment of the Division Bench were dismissed on 18.02.2014.
4.In the said circumstances, pursuant to the direction given in the batch of Writ Appeals in W.A.Nos.399 to 421/2001 dated 10.07.2001, the Management has formulated a Scheme and communicated the same to the workmen on 04.04.2014. The said Scheme was challenged in a batch of writ petitions in W.P.Nos.21685 and 26218 of 2016 etc., seeking certiorarified mandamus calling for the records of the respondents in MAA/SLP/804/207 and MAA/SLP/804/207 dated 04.04.2014 and quash the same and direct the respondents herein to frame a scheme for regularization to ensure a regular employment for the petitioners as permanent workers of the respondent Corporation in the jobs to which they were originally appointed.
5.The prime contention of the learned counsel for the Appellants is that the Scheme is not framed as per the judgment and order of the Supreme Court in S.L.P.Nos.24630 to 24672/2007. Except regularising 82 workers concerned as per award in I.D.Nos.22 and 39/1991, for others, the Management has failed to regularise their service which has lead to filing of batch of writ petitions in W.P.Nos.15915, 15916/1999 etc., batch cases and Writ Appeals in W.A.Nos.399 to 421 of 2001 and Special Leave Petitions in S.L.P.Nos.24630 to 24672 of 2007.
6.When the entire proceedings culminated to a point with direction to frame Scheme for permanent absorption, the socalled scheme framed only talk about the possibility of recruitment in further vacancies. While the work done by the appellants are permanent in nature it is now been entrusted to outside agencies and had rendered the scope of regularising and absorption a remote event. Therefore, the Management was asked to recall the scheme dated 04.04.2014 and to terminate the outside agencies and to frame a Scheme for regularisaton and permanent absorption in true sense.
7.The learned Single Judge after scrutinizing the details provided by the Management which was annexed to the counter affidavit filed by them has dismissed the writ petition as devoid of merits.
8.The Tribunal taking note of the fact that between engaging and disengaging the (39+83) workmen, the Management would have engaged many persons and regularised the service of some persons. Such particulars are not avialable and they are not parties in the Industrial Dispute, so to avoid any hardship it is better to evolve a Scheme to fit in those workmen in the list of regularised workmen. Pursuant to this, the Management has formulated the Scheme for absorption in the following terms:
"1)
2)
3)As such, as and when the Company (i.e., Air India Ltd., the parent body which remans after hiving-off Engineering and Ground Handling activities to Air India Engineering Services Ltd., and Air India Air Transport Services Ltd respectively) recruits to permanent appointment in the post of unskilled category viz., Helpers in e/w Grade 1 now in Asst. Level III in various Departments for the State of Tamil Nadu, a Notification will be issued inviting applications from not only open market but also from the (i) 214 petitioners-ex casual workers in erstwhile Air India Ltd., Chennai (ii) daily rated casual workers covered under the Scheme framed by e/w Indian Airlines Limted, Chennai and (iii) the existing Daily Rated Casual workers in erstwhile Air India Ltd., Chennai who have put in atleast 90 days in a year during the last three years.
4)All the casual daily rated employees who have worke on casual daily rated basis at Chennai since 1984 in erstwhile Air India Ltd., Chennai will be treated on par.
5)The casual daily rated employees shall meet the eligibility criteria including educational qualification prescribed for the post in the cadre of unskilled categories Asst. Level III (formers Commercial Asst.III). Such casual daily rated employees shall however be given age relaxation to the extent of casual employment subject to a maximum age of 40 years for General category, 43 years for OBC category and 45 for SC/ST categories as on the datd of the notification.
6)A maximum of 50% of the vacancies notified shall be filled from the applicants belonging to the pool of persons mentioned in Clause 3 and 4 above i.e., The post pool of casuals comprising persons described in Clause 3 and 4 above will be offered appointment on a 1:1 basis i.e., one permanent vacancy to a candidate from the casual workmen and one for a candidate from open market.
.................."
9.The Scheme as framed has taken note of the direction of the Court, the requirement of workforce, person eligible for absorption and the manner the appellants could be absorbed. The learned counsel for the appellants would only point out that the manner in which the Scheme drafted appears to be for fresh recruitment and not for absorption or regularisation. Absorption of a persons who have served as casual workers for certain period spreading over several years, cannot be an automatic affair or matter of right. It all depends upon the requirement. It is seen from the record that the Management has already absorbed 39 + 83 persons in compliance of the Tribunal award. From among the appellants, when requirement arise, they will be considered for absorption. Court can't trust upon the Management to absorb workers more than they require. It is not the appellants' case, the Management is recruiting persons directly without absorbing the appellants in 1:1 ratio as per Scheme. The case of the appellants is that by outsourcing method, the Management has made the Scheme redundant. If Management decides to outsource some of its needs, it is a policy decision of the Management which cannot be interfered by the Court. Likewise, when the terms of the Scheme fairly provides opportunity for absorption whenever new recruitment arise, the appellants cannot expect terms of the Scheme should be for automatic regulations or absorption, which was never the intention of the Court while passing the order in the earlier round of litigation.
10.In fact, when some of the writ petitioners filed Contempt Petitions in Cont.P.Nos.643, 644 & 1221 to 1238 of 2015 alleging that the Management has disobeyed the High Court order, this Court while dismissing the Contempt Petitions has held as under :-
"3. The learned Senior counsel appearing for the petitioner submitted that the scheme framed by the respondent Management is not in conformity with the letter and spirit of the award of the Industrial Tribunal nor the judgment of the Division Bench dated 10.07.2007. It is further submitted that instead of making the petitioners permanent workmen by framing a scheme for regularisation, the respondents have outsourced the persons for the same job and in the alleged scheme, the respondents have required the petitioners to await future vacancies and this conduct of the respondent is not bonafide and is in wilful violation of the orders of this Court and therefore, the respondents have to be punished.
4. We may point out at this juncture that a few of the petitioners, who were also parties to the order of the Division Bench, dated 10.07.2007, had filed Cont. Petition Nos.816, 1186 & 1187 of 2015 alleging disobedience and we heard the matter in detail and it was pointed out that if the workmen are aggrieved by the scheme framed by the Management, then it is but appropriate for them to challenge the scheme framed or avail other remedies available to them..........."
11.The learned Single Judge pointing out that earlier, when two separate entities namely, AIR India Limited and Indian Airlines merged into one, similar Scheme was framed for absorbing casual workers and its validity was upheld by the Apex Court. Therefore, there is no need to testify the terms of the Scheme again and again when the facts are similar.
12.In the light of the above discussions, the Court holds that the appellants herein cannot try to get a back door entry into service of the respondent establishment without satisfying the terms of the Scheme. The terms of the Scheme is neither arbitrary nor unreasonable. Therefore, the well considered judgment of the learned Single Judge does not warrants any interference.
13.In the result, the Writ appeals are dismissed thereby confirming the impugned common order passed by the learned Single Judge. No costs. Consequently, connected miscellaneous petitions are closed.
(H.G.R.J.,) & (G.J.J.,) 28.07.2017 Index: Yes Speaking order/non speaking order jbm To 1 The Management Of Air India Ltd Air India Lines House No.113 Guruthwara Raka Bunch Road New Delhi 2 The Generatl Manager (Personnel) Southern Region Air India Limited Air India Unity Complex GST Road Pallavaram Cantonment Chennai-600 043 3 Air India Air Transport Services Limited A Wholly Owned Subsidiary of Air India Limited Air India Unity Complex Pallavaram Cantonment Chennai-43 HULUVADI G.RAMESH.J., AND G.JAYACHANDRAN.J., jbm Writ Appeal Nos.815 to 817 of 2017 28.07.2017