(JUDGMENT of the Court was delivered by R.BANUMATHI.,J) This writ appeal arises out of an order in W.P.No.13095 of 1993 allowing writ petition directing the Appellant Corporation to regularize services of respondent from the date of his initial appointment.
2.Case of appellant is that he joined services of Appellant Corporation as Sweeper in the year 1996 on a monthly salary of Rs.400/- which was later increased to Rs.600/- per month. Further case of respondent is that he has been attending sweeping work and cleaning of furniture and attended work from 9am to 6pm daily and on holidays and Saturdays, worked up to 4pm and that he has completed more than 480 days within a period of 24 calendar months. By the proceedings dated 05.07.1993, Appellant Corporation invited tenders for awarding annual contract for House Keeping work at Madras Divisional Office.
3.The grievance of respondent is that after inviting tender, Appellant Corporation is trying to dispense with the service and offered the same work on contract basis to avoid regularisation of respondent's service and to deny other benefits, which is an unfair labour practice under
Section 6 and
10 of the Industrial Disputes Act. Alleging that termination of his service amounts to retrenchment under
Section 25(F) of the Industrial Disputes Act is illegal, respondent filed writ petition seeking for writ of certiorarified mandamus to quash the proceedings dated 05.7.1993 issuing tenders and to direct the Appellant Corporation to regularize his services as permanent employee.
4.Appellant Corporation resisted the writ petition contending that engagement of respondent cannot be construed as engagement as a worker and he cannot seek for regularisation. Appellant Corporation further averred that there is no scope for full time permanent employment for doing the work of cleaning the premises and that respondent was engaged only for dusting of windows for 2 3 hours daily and that he was only doing part time job, which cannot lead to permanent employment in the Corporation.
5.Referring to 1993-II-LLJ-931 [State of Haryana Vs. Piara Singh], learned Single Judge observed that respondent has been working in the Appellant Corporation for more than 14 years which gives rise to the presumption that there was need for a regular post. Pointing out that respondent has been working in the Corporation for more than 14 years, the learned Single Judge directed regularisation of the respondent along with back wages.
6.The learned senior counsel appearing for appellant submitted that the respondent was engaged only as a part time employee and was paid only for such part time work and he cannot seek for regularisation in a public sector undertaking. It was further submitted that learned Single Judge erred in granting relief to the respondent without going into the question that the House Keeping has been entrusted to an outside agency. The learned senior counsel has also drawn our attention to the directions issued by the Central Government in 1998 directing that all vacancies are to be conveyed to the Employment Exchange and vacancies should also be displayed on the Office Notice Boards. The learned counsel would further submit that for various establishments of Indian Oil Corporation, House Keeping is done only by outside Agency and such policy decision cannot be challenged.
7.The learned counsel for the respondent submitted that respondent's appointment is not covered by Umadevi's case and therefore decision of Umadevi and other cases would not apply to the respondent. It was further submitted that respondent being a Sweeper, which post does not require any regulation or rules and therefore, appointment of respondent cannot be termed as 'illegal appointment' and there is no impediment in granting regularisation.
8.Though respondent filed writ petition seeking for quashing of records pertaining to issuance of tender dated 05.07.1993, main relief sought for by respondent is for regularisation of his services. In paragraph 12 of writ petition, respondent alleged that termination of his service amounts to retrenchment under Section 25(F) of Industrial Dispute Act by not following the established procedure and therefore, termination is invalid in law. When respondent has alleged that his termination is in violation of Section 25(F) of Industrial Dispute Act, respondent proceeded on the footing that he is a workman within the meaning of
Section 2 (s) of Industrial Disputes Act. If that be so, relief sought for relates to enforcement of a right or an obligation created under the Act.
9.The question in regard to the jurisdiction of a Civil Court vis-a-vis adjudication of rights/obligations created by or under the 1947 Act came up for consideration in Premier Automobiles Ltd., v.Kamlekar Shantaram Wadke of Bombay and Others AIR 1976 SC 2238: (1976) 1 SCC 496: wherein following the dicta laid down in Wolverhampton New Waterworks Co. v. Hawkesford (1859) 6 CB (NS) 336: 28 LJ CP 242: 141 ER 486, law was laid down in the following terms:
"23. To sum up, the principles applicable to the jurisdiction of the civil Court in relation to an industrial dispute may be stated thus:
(1)If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Act the remedy lies only in the civil Court.
(2)If the dispute is an industrial dispute arising out of a right or liability under the general or common law and not under the Act, the jurisdiction of the civil Court is alternative, leaving it to the election of the suitor concerned to choose his remedy for the relief which is competent to be granted in a particular remedy.
(3)If the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suitor is to get an adjudication under the Act.
(4)If the right which is sought to be enforced is a right created under the Act such as Chapter V-A then the remedy of its enforcement is either
Section 33-C or the raising of an industrial dispute, as the case may be."
Reiterating the same principle in 2009-III-LLJ 177, Supreme Court has held as under:-
"21.A dispute arising in between an employer and employee may or may not be an industrial dispute. The dispute may be in relation to or arising out of a fundamental right of the employee, or his right under a Parliamentary Act and the Regulations framed thereunder, and/or a right arising under the provisions of the Industrial Disputes Act or the sister laws and may relate to same or similar rights or different rights, or even may be based on common law right or contractual right. The question in regard to the jurisdiction of the civil Court must, therefore, be addressed having regard to the fact as to which rights of obligations are sought to be enforced for the purpose of invoking or excluding the jurisdiction of a civil Court.
23.If an employee intends to enforce his constitutional rights or a right under a statutory Regulation, the civil Court will have the necessary jurisdiction to try a suit. If, however, he claims his right and corresponding obligations only in terms of the provisions of the Industrial Disputes Act or the sister laws so called, the civil Court will have none. In this view of the matter, in our considered opinion, it would not be correct to contend that only because the employee concerned is also a workman within the meaning of the provisions of the 1947 Act or the conditions of his service are otherwise governed by the Standing Order certified under the 1946 Act ipso facto the Civil Court will have no jurisdiction. This aspect of the matter has recently been considered by this Court in Rajasthan State Road Transport Corporation and Others v. Mohar Singh (2008) 5 SCC 542:2009-I-LLJ-149. The question as to whether the civil Court's jurisdiction is barred or not must be determined having regard to the fact of each case.
If the infringement of Standing Order or other provisions of the Industrial Disputes Act are alleged, the civil Court's jurisdiction may be held to be barred but if the suit is based on the violation of principles of common law or constitutional provisions or on other grounds, the civil Court's jurisdiction may not be held to be barred. If no right is claimed under a special statue in terms whereof the jurisdiction of the civil Court is bared, the civil Court will have jurisdiction.
Where the relationship between the parties as employer and employee is contractual, right to enforce the contract of service depending on personal violation of an employer, is prohibited in terms of
Section 14(1)(b) of the Specific Relief Act, 1963. It has, however, four exceptions, namely, (1) when an employee enjoys a status, i.e., his conditions of service are governed by the rules framed under the proviso appended to
Article 309 of the Constitution of India or a statute and would otherwise be governed by
Article 311(2) of the Constitution of India; (2) where the conditions of service are governed by statute or statutory Regulation and in the event mandatory provisions thereof have been breached; (3) when the service of the employee is otherwise protected by a statute; and (4) where a right is claimed under the Industrial Disputes Act or sister laws, termination of service having been effected in breach of the provisions thereof.
Appellant-Corporation is bound to comply with the mandatory provisions of the statute or the regulations framed under it. A subordinate legislation when validly framed becomes a part of the Act. It is also bound to follow the principles of natural justice. In the event it is found that the action on the part of State is violative of the constitutional provisions or the mandatory requirements of a statute or statutory rules, the civil Court would have the jurisdiction to direct reinstatement with full back wages.
In Praga Tools Corpn. v. C.A. Imanual AIR 1969 SC 1306: (1969) 1 SCC 585: 1969-II-LLJ-749, it was held:-
"6..... Therefore, the condition precedent for the issue of mandamus is that there is in one claiming it a legal right to the performance of a legal duty by one against whom it is sought. An order of mandamus is, in form, a command directed to a person, corporation or an inferior Tribunal requiring him or them to do a particular thing therein specified which appertains to his or their office and is in the nature of a public duty. It is, however, not necessary that the person or the authority on whom the statutory duty is imposed need be a public official or an official body. A mandamus can issue, for instance, to an official of a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorizing their undertakings. A mandamus would also lie against a company constituted by a statute for the purposes of fulfilling public responsibilities."
10.Grievance of respondent is that there is violation of
Section 25(F) which is a dispute, which would fall within the purview of Industrial Disputes Act. In view of efficacious alternative remedy available the writ petition is not maintainable.
11.The Hon'ble Supreme Court repeatedly taken the view that burden of proof lies upon a workman to show that he worked for 240 days in a given year. Burden gets discharged by adducing cogent evidence, oral or documentary. The factual dispute as to number of days for which respondent worked and nature of his employment cannot be determined in the writ petition and without exhausting the alternative remedy available and in our considered view the writ petition is not maintainable.
12.Even assuming that the writ petition is maintainable, the respondent is not entitled to the relief sought for. Previously, the Appellant Corporation used to engage part time sweepers in its Southern Regional Office including Chennai Divisional Office. when the Regional Office was shifted to Nungambakkam High Road, maintenance work of the building was handed over to the Contractor. In the year 1991, Appellant Corporation decided to entrust the upkeep/maintenance to contractors. In 1993, tender was invited to entrust the upkeep/maintenance work of the Chennai Divisional Office to a contractor. According to Appellant Corporation, at that time when tender was quoted, existing part time causal sweepers were also given an opportunity for participating in the tender proposal for awarding of the work on contract. The respondent / writ petitioner did not bid for the contract but is also said to have refused to work under the contractor. When Appellant Corporation has taken a policy decision to entrust the upkeep/maintenance work to contractors, it is not for the Court to determine whether a particular policy is fair. The Courts in exercise of their power of judicial review do not ordinarily interfere with the policy decisions unless proved to be unfair or malafide. When appellant Corporation has taken a policy decision to entrust the house keeping work to outside agency, the respondent cannot challenge the same.
13.Contending that appointment of respondent may not be irregular, the learned counsel placed reliance upon 1982 (1) SLR 864 L.Robert D' Souza Vs. The Executive Engineer, Southern Railway and another, which relates to termination of services of causal labourers employed by Railways. Holding that when service was terminated without notice, order of termination is bad, Supreme Court has held as under:-
"22.We would be guilty of turning a blind eye to a situation apart from being highly unethical, wholly contrary to constitutional philosophy of socio-ecnomic justice if we fail to point out that Rule 2501 which permits a man serving for 10,20, 30 years at a stretch without break being treated as daily rated servant, is thoroughly opposed to the notions of socio-economic justice. ........ Today, Railways have prospective plans spreading over decades. If one project is complete another has to be taken over. Railway administration had miles to go and promises to keep and this becomes clear from the fact that the appellant, a daily rated workman, continued to render continuous service for twenty years which would imply that there was work for daily rated workman everyday for twenty years at a stretch without break and yet his status did not improve and continued to be treated as daily rated casual labour whose service can be terminated at the whim and fancy of the local satraps. It is high time that these utterly unfairy provisions wholly denying socio-economic justice are properly modified and brought in conformity with the modern concept of justice and fairplay to the lowest and the lowliest in Railway administration.
The above decision arises out of a case where causal labour who has put in 20 years of continuos service in Railways was terminated without notice. The workman raised industrial dispute alleging violation of Section 25(F) of Industrial Dispute Act. In the said facts and circumstances, Supreme Court held that engaging daily rated servant for more than 20 years and terminating him without notice would amount to unfair labour practice. The above decision is not applicable to the case on hand where the respondent has not raised any industrial dispute. The learned counsel for the respondent contended that respondent being appointed as sweeper, which post does not require any regulation or rules and therefore, respondent's appointment may not be said to be an illegal appointment.
14.Placing reliance upon 2007 (1) SCC 575, [State of M.P and Others Vs. Lalit Kumar Verma], it was further contended that the Supreme Court had made a clear distinction between "irregular appointment" and "illegal appointment" and there is no impediment in directing regularisation of the services of an employee whose appointment is only irregular and not illegal. Making clear distinction between "irregular appointment" and "illegal appointment", Supreme Court in 2007 (1) SCC 575 has held as under:-
"12.The question which, thus, arises for consideration, would be: Is there any distinction between "irregular appointment" and "illegal appointment"? The distinction between the two terms is apparent. In the event the appointment is made in total disregard of the constitutional scheme as also the recruitment rules framed by the employer, which is "State" within the meaning of
Article 12 of the Constitution of India, the recruitment would be an illegal one; whereas there may be cases where, although, substantial compliance with the constitutional scheme as also the rules have been made, the appointment may be irregular in the sense that some provisions of some rules might not have been strictly adhered to."
In the said decision, appointment was not as per statutory rules and employee was in continuos work for more than 6 months , Supreme Court held that continuos work for more than 6 months on daily wages is not sufficient to entitle workman concerned to the status of permanent employee. The observations in Lalit Kumar Verma's case in paragraphs 15 and 17, is squarely applicable to the case on hand. Being appointed on temporary basis, respondent does not have any legal right to seek for regularisation.
15.Observing that causal labour / temporary employees / contractual employees do not have any right to regular or permanent public employment, the Constitution Bench of the Supreme Court in 2006 (4) SCC 1 [Secretary, State of Karnataka and others Vs. Umadevi (3) and others] has held as under:-
"47.When a person enters a temporary employment or gets engagement as a contractual or causal worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.
48.It was then contended that the rights of the employees thus appointed, under Articles 14 and 16 of the Constitution, are violated. It is stated that the State has treated the employees unfairly by employing them on less than minimum wages and extracting work from them for a pretty long period in comparison with those directly recruited who are getting more wages or salaries for doing similar work. The employees before us were engaged on daily wages in the department concerned on a wage that was made known to them. There is no case that the wage agreed upon was not being paid. Those who are working on daily wages formed a class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who are regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. The arguments based on Articles 14 and 16 of the Constitution are therefore overruled.
49.It is contended that the State action in not regularising the employees was not fair within the framework of the rule of law. The rule of law compels the State to make appointments as envisaged by the Constitution and in the manner we have indicated earlier. In most of these cases, no doubt, the employees had worked for some length of time but this has also been brought about by the pendency of proceedings in tribunals and courts initiated at the instance of employees. Moreover, accepting an argument of this nature would mean that the State would be permitted to perpetuate an illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by us, the people of India. It is therefore not possible to accept the argument that there must be a direction to make permanent all the persons employed on daily wages. When the court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution"
16.Holding that directions given by High Courts for creation of supernumerary posts are unsustainable in 2008 (10) SCC 1, Official Liquidator's Case, Supreme Court held as under:-
"50.It was neither the pleaded case of the respondents before the High Courts nor Shri Bhaskar P. Gupta and other learned counsel appearing on their behalf argued before this Court that their clients were lured into accepting employment as company-paid staff by the Official Liquidators by promising absorption in future against the sanctioned posts or that they were coerced by some authority to accept such employment. Therefore, they cannot be heard to complain of the violation of Articles 14 and 16 of the Constitution on the ground that even after having worked for more than one decade, they have not been absorbed in the regular cadres under the Government. In our opinion, after having applied for and accepted employment / engagement as company-paid staff with fixed tenure superimposed by a stipulation that they will have no right to continue in service or to be absorbed in the regular cadres, the respondents are estopped from seeking a direction for their absorption against the posts sanctioned by the Government of India and the High Courts committed a serious error in granting their prayer.
51.The argument of Shri.Bhaskar P. Gupta and other learned counsel appearing for the respondents and intervenors that the 1999 Scheme is arbitary and unreasonable and the same should be treated as having become redundant on account of abolition of posts meant for direct recruitment, which found favour with the High Courts, proceeds on the hypothesis that in the earlier round of litigation this Court, while endorsing the reasons and conclusions recorded by the Calcutta and Kerala High Courts issued direction for absorption of all members of the company-paid staff and the Government of India was bound to frame a scheme for that purpose. However, the very premise on which this argument is based is incorrect. Admittedly, appointment to the service comprising sanctioned posts is regulated by the rules framed under proviso to
Article 309 of the Constitution of India. The mode of recruitment and methodology of selection are prescribed under the rules. The absorption of the company-paid staff employed under Rule 308 of the 1959 Rules is not one of the prescribed modes of recruitment. Therefore, it is extremely doubtful whether the Government of India could, without amending the statutory rules, frame the 1978 Scheme for absorption of the company-paid staff in the regular cadres. However, as this Court has not only indirectly approved the 1978 Scheme, but also directed the Government of India to frame a new scheme, we do not consider it necessary to dilate further on the subject."
17.As pointed out earlier respondent was not engaged as against any sanctioned post of sweeper. Issuing direction for regularisation would amount to directing creation of post which is the prerogative of the executive. Court cannot arrogate to itself executive or legislative function and direct creation of posts.
19.Admittedly, there did not exist any sanctioned post. Respondent was not appointed against any vacancy ; nor appointed in permanent post, that he worked on daily wages alone would not entitle him to seek for regularisation. Following the decision rendered by the Constitution Bench of Supreme Court in Umadevi's case, the respondent is not having any legal right to seek for regularisation. The learned Single Judge was not correct in directing regularisation of services of respondent.
20.The learned counsel for the respondent further submitted that respondent is already 49 years old and that at this distant point of time he cannot seek for any employment and his case is to be considered on humanitarian grounds. As per the interim order of Court, respondent has been paid Rs.1500/- all these years.
21.Admittedly, house keeping/cleaning is now entrusted to an outside agency / contractor. When house keeping is out sourced to a contractor, there cannot be regularisation. Any such direction would amount to directing Appellant Corporation to create one post which has far reach financial implications.
22.While holding that the respondent is not entitled to the relief, we are to note the offer made by the Appellant Corporation. Appellant Corporation has made a suggestion that House keeping work has been entrusted to the contractor and that the contractor agreed to engage respondent as contract workman like any other contract workman. It was also suggested that the existence of the present and subsequent contractors will in no manner result in the cessation of engagement as contract workman and that continuous engagement with the contractor will enable respondent to get Rs.4,800/- for a month of 26 working days. The proposal was not accepted by the respondent.
23.Government of India has issued a circular dated 02.11.1998 directing the public sector establishments to notify all vacancies meant for recruitment to the post carrying scales of pay exceeding Rs.2500/- per month to be notified to the Employment Exchange and also that notices for such recruitment to be displayed on the office Notice Boards for wider publicity. When the Government issued direction to make recruitment through Employment Exchanges/Central Exchanges, regularisation of causal employees/part time employees cannot be a mode of appointment.
24.In the result, order of learned Single Judge in W.P.No.17437 of 2009 dated 09.12.2009 is set aside and this writ appeal is allowed. It is open to the respondent to accept the proposal of Appellant Corporation to be engaged by the contractor with whom house keeping work is entrusted. No costs. The amount so far paid to the respondent may not be recovered.