JUDGMENT Dr. Maithli Sharan, J.
1. This special appeal is preferred against the order dated 16.7.1993 passed by teamed singhe Judge of this Court in Writ Petition No. 8024 of 1989, Ram Chandra Sharma u. Life Insurance Corporation of India and others. allowing the petition filed by the respondent.
2. The respondent filed the writ petition, praying for a writ of mandamus, commanding the appellants to regularise his services on the post of Care-taker by providing him a regular pay scale, allowances, bonus, other benefits, and conditions of service as are available to Class IV employees of the Corporation, with effect from 5.1.1977.
3. The grounds alleged in the writ petition were that the petitioner respondent had been continuously in service in the guest house of the Corporation with effect from 5.1.1977, his services were found to be satisfactory, and, thus, he had acquired the status of a regular employee of the Corporation by virtue of his continuous service for more than 240 days. It was averred that petitioner-respondent was entitled for his appointment on the post of Caretaker because the vacancy itself was of permanent nature. The petitioner averred that he never worked on contract basis as there was no executed contract or agreement but the appellants were illegally and falsely trying to show that he was appointed on contract basis. He also averred that he was discharging his duties for more than ten hours a day whereas the regular employees of the Corporation were required to do only eight hours job. According to him in the beginning he was paid only a meager salary of Rs. 120 per month from 5.1.1977, and Rs. 150 with effect from 24.4.1979 till filing of the petition which was a glaring example of exploitative attitude of the opposite parties and an extreme case of unfair labour policy being adopted by opposite parties. It was further averred by him that he had been discharging similar duties as were being discharged by the other Caretakers of the Corporation but they were being paid even more than ten times salary and allowances etc., along with other benefits and conditions of service. He averred that he was entitled to get the same salary, allowances and other benefits on the principle of equal pay for equal work under Article 14 of the Constitution of India. In the alternative, it was averred by the petitioner that even if he was appointed on contract basis, then also it was unconscionable and against public policy and was hit by Section 23 of the Indian Contract Act, 1872. Petitioner averred that on 1.6.1988, the Regional Manager had informed him that according to the Contract he was to be paid Rs. 150 per month, and later on Rs. 390 per month provided he signed another contract on judicial stamp, and he was required to work for eight hours per day. According to the petitioner his services were never on contract basis, as he was appointed temporarily, and wages were increased from time to time. Therefore, he requested for giving adequate wages which were being paid to other employees. He also sent letters to the Life Insurance Corporation and Employees Federation and requested the authorities concerned to regularise his services with effect from 5.1.1977. On the basis of the above averments the petitioner-respondent prayed for the relief's mentioned above.
4. The opposite parties-appellants filed counter-affidavit, denying that any assurance was given to the petitioner-respondent on behalf of Corporation and that his job was of part-time nature he was required to work only for 2 to 4 hours per day. It was averred that petitioner knew from the very start that his engagement was purely on contractual basis. It was further averred by the opposite parties-
appellants that the petitioner was engaged as a Contractor and he was running a "Pan-Cigarette" shop near the guest house. It was also averred by the appellant that there was no provision for regular post in Lucknow Division in the Life Insurance Corporation of India in Class IV cadre and the petitioner, therefore, could not be absorbed in any such post of the Corporation at Lucknow : he was not an employee of the Corporation as he was engaged purely on contractual basis. It was further averred that it was proposed to increase his wages from Rs. 150 to Rs. 390 per month. It was also averred that the petitioner was voluntarily working as a Care-taker on contractual basis, and that each guest house in different divisions was under control of the Divisional Manager who arranges the service of the Care-taker according to the situation obtaining locally and as such Care-takers at different places work on contractual basis.
5. The learned single Judge by the impugned order repelled the contentions raised by the opposite parties appellants and, allowing the petition, held that the petitioner-respondent was entitled to equal salary as well as other benefits, allowances and bonus, etc. which were being availed by regular Caretakers working in the Life Insurance Corporation of India in other Divisional Manager's Offices. It was further held that petitioner's case would also be considered for regularisation in accordance with the Circulars of the Corporation.
6. The impugned order passed by the learned single Judge was assailed here in this appeal on the ground that the respondent was not a part-time employee of the Life Insurance Corporation, and that his employment was simply on contractual basis, that he was running Tan-Cigarette' shop inside the Office of the Appellant and he used to only retain with him the key of the guest house which he used to give to the persons who came to the guest house of the Life Insurance Corporation. Thus, the respondent was neither part-time employee nor workman of the Life Insurance Corporation, and that there existed no relationship of master and servant between them. It has, therefore, been averred that the respondent was not entitled for any regularisation as the alleged post of Care-taker did not fall in the group which used to be part of the employment of the Corporation. On the basis of these averments it has been prayed that the impugned order passed by the learned single Judge was liable to be set aside.
7. It was vehemently argued by the learned counsel for the appellants that there was no relationship of master and servant between the respondent and the Corporation-appellant as the former was not appointed either as a part-time worker or otherwise, his services were simply taken for looking after the guest house as mentioned above, and therefore, the respondent was not at all entitled for claiming emoluments the care-takers were getting at other places of the Corporation, nor he was entitled for regularisation of his services in the Corporation.
8. Contrary to this, learned counsel appearing for the respondent has argued that the respondent was appointed as a Care-taker and his appointment was that of a part-time employee of the Corporation and there was no justification for the appellants to pay him Rs. 150 per month when his working hours were 8 to 10 per day. It has further been argued by the learned counsel for the respondent that even if the engagement of the petitioner was on a contractual basis, then also he should have been paid in accordance with the terms of the contract, and as the petitioner was forced to work for 8 to 10 hours per day on the paltry payment of Rs. 150 per month only, hence it would be assumed that he was being exploited and oppressed, and the contractual engagement was unconscionable.
9. On behalf of the appellant-Life Insurance Corporation, reliance was placed on the Life Insurance Corporation of India (Staff) Regulations, 1960. The regulations have been framed with the approval of the Central Government under Section 49(2)(b) and (bb) of the Life Insurance Corporation Act. 1956.
10. Regulations 4. 5, 7 and 8 have been referred to by the appellant ; more particularly. Regulation 8 which reads as follows :
"8. (1) Notwithstanding anything contained in these Regulations, a Managing Director. Executive Director (Personnel), a Zonal Manager or a Divisional Manager may employ staff in Classes III and IV on a temporary basis subject to such general or special directions as may be issued by the Chairman from time to time.
(2) No person appointed under sub-regulation (1) shall only by reason of such appointment be entitled to absorption in the service of the Corporation or claim preference for recruitment to any post."
According to Regulation 7 all recruitments and promotions shall be made against the vacancies in sanctioned posts. The argument advanced on behalf of the appellant was that there is no sanctioned post of Care-taker and any arrangement made under Regulation 8 (1) will not give any right of absorption under sub-regulation (2) of Regulation 8. Since no sanctioned post is available no mandamus can be issued. In this connection, two decisions, in AIR 1994 SC 1638 (para-4) and JT 1996 (6) SC 725 (para-2) have been relied upon to show that no regularisation would be permissible if no post is sanctioned. It has also been submitted that the only source of power to make recruitment on direct basis is derivable from Regulation 8 of the Staff Regulations which is controlled by sub-regulation (2).
11. Besides, certain citations were also given by the appellant's counsel for ihe contention that if there is no enforceable legal right, no mandamus can be issued. Reference is made to 1996 (9) SCC 309 ; 1996 (6) SCC 22 (paras 35 to 18) and 1986 (4) SCC 632 (para-34).
12. Learned counsel for the respondent has submitted that in view of the provisions contained under Section 10 of the Labour Contract Act. the appellant could not employ labour on contract and in that connection, he has placed reliance upon Annexure-CA-6 to the counter-affidavit filed in appeal which Is issued by the Central Office addressed to all Divisional Offices as sent by Executive Director (P). It is "dated September 12, 1990 and refers to an earlier circular dated 18th February. 1977 informing the concerned that the Central Government had issued a notification prohibiting employment of contract labour with effect from 1st March, 1977 for sweeping, cleaning, dusting and watching of the buildings. It further says that with effect from 1st March. 1977, no contract labour should be engaged for jobs specified in the first paragraph to the circular and the offices in which labour is engaged for sweeping, cleaning, dusting and watching of the buildings, all such existing contract labour (engaged through a contractor or agency) must be abolished before 31st December, 1990 and they may be replaced by regular employees part-time or full-time, as the case may be, in accordance with the existing rules. The concluding paragraph reads as quoted below :
"You are, therefore, requested to ensure that necessary action is taken at your end so that no labour for the jobs specified above is engaged through a Contractor or Agency on or after 31st December, 1990 in the offices under your control."
13. It is to be noted that Annexure CA-6 was issued in September. 1990 and the earlier circular, referred to, is of February, 1977. According to the own case of the petitioner-respondent, he was engaged prior to the Circular, namely, on 5.1.1977 by the Divisional Manager. Yet another thing which needs to be noticed is that the condition for doing away with the existing arrangement was in respect of the contract labour engaged through Contractor or agency. It is not the case of the petitioner-respondent that he was engaged through any agency or contractor. Therefore, Section 10 of the Labour Contract Act or Annexure-CA-6 to the Special Appeal would not be applicable.
14. Admittedly, the petitioner-respondent was engaged by the appellants for looking after the guest house at Lucknow and, thus, his appointment was virtually of a Caretaker. He was looking after the guest house for 8 to 10 hours a day. Thus, apparently enough, it could not be said that payment of Rs. 150 per month was in any way commensurate to the services rendered by him. We are, therefore, of the view that even if the engagement of the petitioner-respondent was on contractual basis, still the terms were wholly unconscionable, exploitative in nature, unfair and opposed to public policy and public good. Our view finds support from the view taken by Hon'ble the Apex Court in the case of Central Inland Wafer Transport Corporation Ltd. v. Brojo Nath Ganguly, 1986 (3) SCC 156 and Jacob v. Kerala Water Authority, 1991 (1) SCC 28. In the latter case, it was held that unorganized labour has no option except to work on any terms.
15. It is also admitted that the Care-takers employed at other places of the Corporation were being paid higher emoluments than what was being paid to the petitioner at Lucknow. This is positively a discriminatory treatment being given to the petitioner-respondent who was working for 8 to 10 hours per day. The appellants could not be allowed to perpetuate any inequality between Care-takers working in different guest houses. Thus, agreeing with the conclusions arrived at by the learned single Judge, we are also of the view that the petitioner-respondent is entitled to equal salary and other benefits, allowances and bonus etc, as are being availed by the Caretakers working in other Divisional Offices of the Life Insurance Corporation, and on this point appeal is dismissed.
16. So far as the case of regularisation of the service of the respondent is concerned in view of the Life Insurance Corporation of India (Staff) Regulations, 1960 and the relevant decisions of the Apex Court, cited supra, we are unable to agree with the learned single Judge that the appellants should consider his case for regularisation. Since the appointment or the engagement, whatever nomenclature we adopt, of the petitioner-respondent was purely on contractual basis, and that his appointment was not a regular appointment on part-time or full-time basis, hence he could not lay his claim for the regularisation of his services. Our view is fortified by the view taken by Hon'ble the Apex Court in Director. Institute of Management Development, U. P. v. Smt. Pushpa Srivastava. AIR 1992 SC 2070. Thus, on this point appeal is allowed-
17. Thus, in view of the above discussion, no mandamus can be issued for regularising the employment of the petitioner-respondent but looking to the fact that he has been rendering his services, under whatever conditions, for more than two decades continuously, it is expected that the appellant at its own end may consider for providing some security of job to the petitioner-respondent by sanctioning a post and making regular arrangement on the same.
18. Consequently, this appeal is partly allowed in the manner indicated above. No costs.