Union Of India & Ors vs Vartak Labour Union

UNION OF INDIA & ORS. -- APPELLANTS

VERSUS

VARTAK LABOUR UNION -- RESPONDENT

J U D G M E N T

D.K. JAIN, J.:

1. Challenge in these appeals, by special leave, is to the judgments and

orders dated 27th March, 2001 and 22nd January, 2003 delivered by a

Division Bench of the Gauhati High Court at Guwahati in Writ Appeal

No. 548 of 1996 whereby it has directed appellant No.1 viz. Union of

India to regularize the services of the members of the respondent Union,

employed by the Border Roads Organization (for short the "BRO"), as

postulated in Office Memo No. Sectt. BRDB ID No. BRDB/04(90)/99-

GE-II dated 2nd February, 2001. Appellants No. 2 to 17 are the

functionaries of appellant No. 1.

1 2. Shorn of unnecessary details, the facts essential for adjudication of the

present appeals may be stated as follows:

The respondent is a registered trade union comprising of casual

workers employed by the BRO, in terms of paragraph 503 of the Border

Road Regulations (for short "the Regulations"), some of whom have been

working with the BRO for the last thirty years. In the year 1993, the

respondent filed a writ petition before the Gauhati High Court praying for

issuance of a writ, inter-alia, directing appellant No.1 to regularize the

services of the members of the respondent.

3. Vide judgment dated 27th August, 1996, the High Court allowed the writ

petition, and directed appellant No.1 to regularize the services of the

members of the respondent who have been in service for more than five

years, within six months of the date of order.

4. Being aggrieved, appellants filed a writ appeal before a Division Bench

of the Gauhati High Court. The Division Bench, while partly allowing

the appeal, modified the order of the Single Judge on the basis of a

circular dated 25th May, 1988 issued by one Brig. S.K. Mehta, D.D.G.

(P&V), for and on behalf of the Director General Border Roads, New

Delhi to all Chief Engineers for consideration of regularization of

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casually paid labourers employed by the BRO. The Division Bench held

that:

"There shall be a writ of mandamus issued to the appellant

herein with a direction to consider the case of these employees

who are working in the above Organization/Institution who

have put in more than 5 (five) years and above period of service

for the purpose of regularization of their service in the light of

the Circular referred to above keeping in view of the

requirements of Articles 14, 15 and 16 for the purpose of

maintaining the reservation Policy followed by the Govt. of

India.

In so far as the casual labourers working in the

organization/Institution are concerned, they shall continue to

work till they attain the eligibility coming within the purview of

the Circular for being considered."

5. At this juncture, it would be expedient and useful to extract relevant

portions of the said circular, which read as follows:

"REGULARISATION OF CASUALLY PAID LABOURERS

EMPLOYED IN BORDER ROADS ORGANIZATION-

CONSTITUTION OF BOARD OF OFFICERS TO EXAMINE

THE PROBLEMS.

1. Border Roads Organisation has been employing a large

number of Casual Labourers for the past 28 years. There have

been cases where Labour Unions have been formed though not

recognized by us, as also there have been demands for their

regularization. A large number of Court cases are also pending,

connected with this issue.

2. Ministry of Surface Transport (BRDB) has offered a Board

of Officers to examine various aspects. The terms of reference

of the Board are at appendix `A'.

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3. Before the Board examines the terms of reference as also

other connected aspects, certain data is required from the

Projects which is discussed in the succeeding paragraphs.

...........................................................................

.............................................................................

7. It may be appreciated that the recommendations of the Board

of Officers have far reaching consequences. Your views and

suggestions are, therefore should be deliberate and keeping in

view the long term implications of the suggestions made. CEs

are therefore, requested to kindly give personal thought to these

problems and make their recommendations accordingly.

8. We would expect your reply by 30 June 88 positively."

6. Being aggrieved by the directions of the Division Bench, the appellants

preferred an appeal, by special leave, before this Court. Vide order dated

19th February, 1999, this Court, while allowing the appeal and remanding

the matter back to the Division Bench, observed thus:

"It appears that there was some bona fide misunderstanding by

learned counsel who appeared before the Division Bench on

behalf of the appellants. Even that apart, the Circular dated

25.05.1988 on which reliance was placed requires a closer

scrutiny of the Division Bench of the High Court. This was

unfortunately not done because of the aforesaid

misunderstanding. Hence, without expressing any opinion on

the merits of the controversy between the parties, we deem it fit

in the interest of justice to allow this appeal and set aside the

order of the Division Bench."

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7. During the course of fresh hearing of the writ appeal before the Division

Bench, senior Central Government standing counsel appearing on behalf

of the appellants stated that pursuant to circular dated 25th May 1988, the

appellants had framed a scheme vide Office Memo No. Sectt. BRDB ID

No. BRDB/04(90)/99-GE-II dated 2nd February, 2001, for the welfare of

casually paid employees. Upon perusal of the scheme and recording the

satisfaction of the counsel appearing for the respondent-Union, the Court

observed that the scheme had been framed on a rational basis.

Accordingly, disposing of the writ appeal on the basis of the said office

memo, the Division Bench directed the appellants to implement the said

office memo dated 2nd February, 2001.

8. Still being aggrieved, the appellants preferred a review application before

the High Court. Vide the impugned order, the Division Bench declined to

entertain the said application.

9. Hence, the present appeals against the main judgment and the order in

review.

10.We have heard learned counsel for parties and perused the

documents/circulars referred to and relied upon by the High Court as also

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some office notings produced before us by learned counsel appearing for

the appellants.

11. Mr. Vivek Tankha, the learned Additional Solicitor General of India,

strenuously urged that the High Court committed serious error in law in

treating communication dated 2nd February 2001, as a final scheme

framed for regularization of the casual labourers engaged by BRO for a

maximum period of 6 months at a time. According to the learned

counsel, it is evident from communication dated 2nd February 2001, that

as on that date the Border Roads Development Board was still in the

process of collecting information from other departments of the Central

Government, particularly from the Railways for the purpose of

examining if any of such schemes could be adopted in the BRO. In

support of his stand that so far no scheme for absorption or regularization

of casual labourers had been devised, learned counsel placed before us

some correspondence exchanged between the Headquarters of the Border

Roads Development Board and the office of the Director General Border

Roads, which shows that in view of the guidelines issued by the DOPT, it

has not been possible to frame and implement any policy or scheme for

regularization of muster roll working in BRO. It was asserted that

circular dated 25th May 1988, on which emphasis is laid on behalf of the

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respondent, was merely a proposal which has been misconstrued by the

High Court as a scheme. It was urged that the proposals or suggestions

by the field officers in favour of the respondent Union did not result in

creating any enforceable right in their favour. Placing reliance on the

decision of this Court in Indian Drugs & Pharmaceuticals Ltd. Vs.

Workmen, Indian Drugs & Pharmaceuticals Ltd.1, learned counsel

submitted that formulation of any scheme for regularization being a

matter of policy, it is not within the domain of the court to direct

regularization of temporary appointees in the absence or dehors the

recruitment rules.

12. Per contra, Dr. K.S. Chauhan, in his written submissions, has submitted

that even if it is assumed that there is no approved proposal or scheme for

regularization of the casual labourers, on the touchstone of Articles 14,

16 and 21 of the Constitution of India, this Court is empowered to

examine whether the action of the appellants is not opposed to principles

of reasonableness evolved by this Court, as the casual labourers have

been working with BRO for the last twenty to thirty years. It is alleged

that the appellants are intentionally withholding the scheme dated 2nd

February 2001 and, therefore, an adverse inference must be drawn

1 (2007) 1 SCC 408

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against them. In support of his submission that there is clear

discrimination between the members of the Union and the General

Reserve Engineering Force (GREF), who have been declared to be

members of the Armed Forces in R. Viswan & Ors. Vs. Union of India

& Ors.2, it is pointed out that the members of the respondent Union are

facilitating the GREF in hard positions and dangerous locations in hilly

areas to perform their functions. It is thus, argued that the directions

issued by the High Court are fully justified and should be implemented.

13. We are of the opinion that there is force in the contentions urged on

behalf of the appellants and these must prevail. We are convinced that

the Division Bench has erroneously construed the Office memo dated 2nd

February, 2001 as an approved scheme for absorption and regularization

of the casual workers. It is manifest from a bare reading of the said

memo that it was merely in the nature of an inter-department

communication between the Border Roads Development Board

headquarters and its officials. We do not find any substance in the stand

of learned counsel for the respondent that the appellants are withholding

the approved scheme from this Court. This plea of the respondent that a

final scheme did come into existence on 2nd February 2001, stands belied

2 (1983) 3 SCC 401

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from the letter of the Border Roads Development Board dated 22nd July

2002. It would be useful to extract the relevant portion of the said letter,

which reads:

"In the year 1993, a Labour Welfare Scheme i.e. Scheme for

Grant of Temporary Status and Regularisation of Casual

Workers was formulated. Thus, when we approached DOPT

for approval to the scheme proposed by DGBP, they did not

support our proposal and advised us that if we felt that there are

sufficient grounds to formulate a separate scheme which is at

variance with the scheme of DOPT, we may approach the

Cabinet for approval of such scheme. The Secretariat delved

into the issue at length and came to the conclusion that there is

not sufficient justification for going to the Cabinet for approval

of a separate scheme. This decision has already been

communicated to the Dte GBR vide our letter

No.BRDB/04(129)/2000-GE.II dated 24th June, 2002."

14. It is trite that inter-departmental communications and notings in

departmental files do not have the sanction of law, creating a legally

enforceable right. In Sethi Auto Service Station & Anr. Vs. Delhi

Development Authority & Ors.3, a Division Bench of this Court, in

which one of us (D.K. Jain, J.) was a member has observed thus:

"Needless to add that internal notings are not meant for outside

exposure. Notings in the file culminate into an executable order,

affecting the rights of the parties, only when it reaches the final

decision-making authority in the department, gets his approval

and the final order is communicated to the person concerned."

3 (2009) 1 SCC 180

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15. Similar views are echoed in Jasbir Singh Chhabra & Ors. Vs. State of

Punjab & Ors.4. This Court has observed that:

"It must always be remembered that in a democratic polity like

ours, the functions of the Government are carried out by

different individuals at different levels. The issues and policy

matters which are required to be decided by the Government

are dealt with by several functionaries some of whom may

record notings on the files favouring a particular person or

group of persons. Someone may suggest a particular line of

action, which may not be conducive to public interest and

others may suggest adoption of a different mode in larger

public interest. However, the final decision is required to be

taken by the designated authority keeping in view the larger

public interest."

16. We are of the opinion that the respondent Union's claim for

regularization of its members merely because they have been working for

BRO for a considerable period of time cannot be granted in light of

several decisions of this Court, wherein it has been consistently held that

casual employment terminates when the same is discontinued, and

merely because a temporary or casual worker has been engaged beyond

the period of his employment, he would not be entitled to be absorbed in

regular service or made permanent, if the original appointment was not in

terms of the process envisaged by the relevant rules. (See: Secretary,

4 (2010) 4 SCC 192

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State of Karnataka & Ors. Vs. Umadevi (3) & Ors.5; Official Liquidator

Vs. Dayanand & Ors.6; State of Karnataka & Ors. Vs. Ganapathi

Chaya Nayak & Ors.7; Union of India & Anr. Vs. Kartick Chandra

Mondal & Anr.; Satya Prakash & Ors. Vs. State of Bihar & Ors.8 and

Rameshwar Dayal Vs. Indian Railway Construction Company Limited

& Ors.9.)

17. In Umadevi (3) (supra), a Constitution Bench of this Court had observed

that:

"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

5 (2006) 4 SCC 1

6 (2008) 10 SCC 1

7 (2010) 3 SCC 115

8 (2010) 4 SCC 179

9 (2010) 11 SCC 733

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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 were

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."

18. Explaining the dictum laid down in Umadevi (supra), a three judge

Bench in Official Liquidator (supra) has observed that:

"In State of Karnataka v. Umadevi (3), the Constitution Bench

again considered the question whether the State can frame

scheme for regularisation of the services of ad

hoc/temporary/daily wager appointed in violation of the

doctrine of equality or the one appointed with a clear stipulation

that such appointment will not confer any right on the appointee

to seek regularisation or absorption in the regular cadre and

whether the Court can issue mandamus for regularisation or

absorption of such appointee and answered the same in

negative."

19.In light of the settled legal position and on a conspectus of the factual

scenario noted above, the impugned directions by the High Court cannot

be sustained. These are set aside accordingly.

12 20. Before parting with the case, we are constrained to observe that the

conduct of the appellants in engaging casual workers for a period of less

than six months, and giving them artificial breaks so as to ensure that

they do not become eligible for permanent status, as evidenced from the

additional affidavit dated 23rd April, 2010 does not behove the Union of

India and its instrumentalities, which are supposed to be model

employers. With anguish, we extract the relevant paragraph of the said

affidavit:

"Relying upon the provisions contained in Paragraph 501 to

518 of the Regulation, it was contended that the casual

labourers are mustered on daily or monthly basis. If on monthly

rates, the period of engagement shall be for a minimum period

of six months. It is a fact that large number of casual labourers

have worked with Project Vartak for number of years but their

period of engagement at no stage has existed more than six

months at a time. Their services are terminated before

completion of six month and as per requirement they are

recruited afresh by publishing Part II order by Mustering Unit.

Due to the fact that they have not been in continuous

engagement for more than six months they do not get the status

of permanent employee and accordingly as per Paragraph 503

of the Regulation referred to above, the casual personnel are not

eligible for any other privileges for continued employment

under the Government."

(Emphasis supplied by us)

21.Therefore, in the facts and circumstances of the instant case, where

members of the respondent Union have been employed in terms of the

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Regulations and have been consistently engaged in service for the past

thirty to forty years, of course with short breaks, we feel, the Union of

India would consider enacting an appropriate regulation/scheme for

absorption and regularization of the services of the casual workers

engaged by BRO for execution of its on-going projects.

22.In the final analysis, the appeals are allowed, and the impugned

judgments and orders are set aside. However, in the circumstances of the

case, the parties are left to bear their own costs.

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(D.K. JAIN, J.)

............................................

(H.L. DATTU, J.)

NEW DELHI;

March 4, 2011.

ARS

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