Union Of India vs All India Trade Union Congress

CIVIL APPEAL No.3146 OF 2019 (Arising out of S.L.P.(C) No.17667 of 2017)

Union of India & Ors. ….Appellant(s)

VERSUS

All India Trade Union Congress & Ors. ….Respondent(s)

JUDGMENT

Abhay Manohar Sapre, J.

1. Leave granted.

2. This appeal is filed against the final judgment

and order dated 05.12.2016 passed by the High

Court of Uttarakhand at Nainital in S.A. No.485 of Signature Not Verified

2015 whereby the High Court dismissed the appeal Digitally signed by ASHOK RAJ SINGH Date: 2019.03.15 17:52:23 IST Reason:

filed by the appellants herein and issued directions

1 to them in the nature of mandamus by framing a

scheme itself for its implementation to regularize

the services of the Casual Paid Labourers and

granted them the benefits similar to those of the

regular employees under all the Labour Laws.

3. A few facts need mention hereinbelow for the

disposal of this appeal, which involves a short point.

4. The appellants herein are the respondents and

respondents herein are the writ petitioners of the

writ petition filed in the High Court out of which

this appeal arises.

5. All India Trade Union Congress(respondent

No.1) is a registered Trade Union, GREF Mazoor

Kalyan Sangthan(respondent No.2) is also a Trade

Union, which is affiliated to respondent No.1 and

respondent No.3 is one of the casual workers in

Border Road Organization. Respondent Nos.1 & 2­

Trade Unions consist of members who are casual

2 workers working in different organizations. There is

an organization called “Border Roads Organization”

(for short, “BRO”). This organization functions

under the Border Roads Wing, Ministry of Defence

and General Reserve Engineering Forces (GREF).

6. Respondents­Trade Unions filed a writ petition

in the High Court of Uttarakhand at Nainital against

the appellants claiming a relief for regularization of

the casual workers, who according to the

respondents (writ petitioners) were working for a

considerable long period in one project undertaken

by the BRO in the State of Uttarakhand for

construction of roads for going to pilgrimage of Char

Dham Yatra. It was the case of the writ petitioners

that these workers though working for number of

years for the Union of India and rendering their

services, but they were neither being regularized in

the Government set up as a Government employee

3 and nor were being paid regular

salary/perks/facilities which were being paid to

Government employees and nor they were being

provided with any protection which was available to

any Government employee. In substance and in

effect, the respondents (writ petitioners) claimed

that all the casual workers, who were working in the

project in question should be regularized in

Government Service.

7. The appellant­Union of India opposed the

claim of the respondents(writ petitioners). The

Single Judge by order dated 11.03.2015 allowed the

writ petition and directed the appellant­UOI to

regularize the services of the workers. The

appellants felt aggrieved and filed intra court appeal

before the Division Bench of the High Court. By

impugned order, the Division Bench dismissed the

appeal with costs of Rs.50,000/­ and while

4 affirming the order of the Single Judge modified it

and issued further a writ of mandamus by directing

the appellant­Union of India to frame a scheme to

provide specific facilities to the workers enumerated

in the directions. The directions contained in para

24 of the impugned order reads as under:

“24. Accordingly, there is no merit in this appeal and the same is dismissed with the costs quantified as Rs. 50,000/­ (Rupees fifty thousand only). Judgment rendered by learned Single Judge is affirmed and following mandatory directions are issued to the Union of India:

A. Union of India is directed to frame a Scheme within a period of three months from today positively to regularize the services of the members of respondent Federations who have worked for more than five years’ continuously in BRO and GREF. The Union of India shall take into consideration the various schemes already framed by the Department of Personnel & Training from time to time while framing fresh scheme.

B. Union of India is directed to pay the members of respondents Federations the minimum of the pay scale being paid to the corresponding regular Group

5 ‘D’ employee, including D.A., H.R.A. and C.C.A. The members of respondent Federation shall also be entitled to regular increments, as applicable to Group ‘D’ employees. They shall also be entitled to leave on pro­rata basis at the rate of one day for every ten days of work. The female members of the Federations are held entitled to maternity leave at par with regular Group ‘D’ employees.

C. Union of India is directed to implement all the labour laws i.e. EPF, Gratuity Act, Bonus Act, Workmen Compensation Act qua the members of respondent Federations.

D. Communications dated 7.4.2011, 9.4.2011 and 18.4.2011, issued by the Union of India, are declared ultra vires the Constitution and are quashed and set aside.

E. The Union of India is directed to give temporary status to the workmen/casual labourers who have worked for more than 240 days continuously in the block of 12 calendar months.

F. The Union of India is directed to provide warm clothes to the casual labourers deployed in the border areas since they have to work in very low temperatures.

6 G. The Union of India is directed to provide the members of respondent Federation pre­fabricated houses with a separate bathroom. The rooms should be airy and well­lit. The houses should be provided with sufficient fuel to make them warm during severe winter conditions.

H. The Union of India is also directed to open Creches in the areas where more than 20 families are deployed.

I. The respondents are directed not to retrench the services of the workmen, who have completed more than 240 days without following the due process of law.

J. The Union of India is directed that all the causal labourers who receive injuries, while discharging the duties in harsh conditions in border areas, should be treated in Military Hospitals free­of­cost. The Union of India is also directed that the casual labourers from the camping site of construction should be transported in buses and not in open trucks.”

8. It is against this order, the appellant (Union of

India) have felt aggrieved and filed the present

appeal by way of special leave in this Court.

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9. So, the short question, which arises for

consideration, is whether the High Court (Single

Judge and Division Bench) was justified in allowing

the respondents’ writ petition and was justified in

issuing the directions after framing a Scheme itself

in the nature of mandamus against the appellant­

UOI to frame a scheme for providing specific kinds

of facilities/benefits to the casual workers working

in BRO in the State of Uttarakhand in construction

activities.

10. Heard Mr. Ajit K. Sinha, learned senior

counsel for the appellants and Mr. Colin Gonsalves,

learned senior counsel for the respondents.

11. Having heard the learned counsel for the

parties and on perusal of the record of the case, we

are inclined to allow the appeal and while setting

aside the impugned order dismiss the writ petition

filed by the respondents.

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12. It may not be necessary to elaborately deal

with the issues arising in the case because we are of

the view that the issue involved in this appeal is no

longer res integra and settled by the decision of this

Court in Union of India vs. Vartak Labour Union

(2) [(2014) 4 SCC 200].

13. That was also a case where the Union of

workers namely “Vartak Labour Union” had claimed

a relief of regularization of the services of the casual

workers who were working in BRO for a

considerable period in construction activities

undertaken by BRO in the State of Assam. The

Union of workers, therefore, filed a writ petition

against the Union of India in the Gauhati High

Court. The High Court allowed the writ petition and

directed the Union of India to regularize the services

of all such casual workers. The Union of India felt

aggrieved and filed special leave to appeal in this

9 Court against the judgment of the Gauhati High

Court. This Court allowed the appeal and set aside

the order of the Gauhati High Court with the

following observations:

“17. We are of the opinion that the respondent Union’s claim for regularisation of its members merely because they have been working for the 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 State of Karnataka v. Umadevi (3); Official Liquidator v. Dayanand; State of Karnataka v. Ganapathi Chaya Nayak; Union of India v. Kartick Chandra Mondal; Satya Prakash v. State of Bihar and Rameshwar Dayal v. Indian Railway Construction Co. Ltd.]

22. Therefore, in the facts and circumstances of the instant case, where members of the respondent Union have been employed in terms of the Regulations and have been consistently engaged in service for the past thirty to forty years, of course with short

10 breaks, we feel, the Union of India would consider enacting an appropriate regulation/scheme for absorption and regularisation of the services of the casual workers engaged by the BRO for execution of its ongoing projects.

23. 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.”

14. Keeping in view the law laid down by this

Court in the case of Union of India (supra) when we

examine the facts of the case at hand, we find that

the facts of the case at hand and the one which

were subject matter in the case of Union of India

(supra) are identical in all respects except that

name of the Trade Union of workers and place of

working in both the cases are different, which is

hardly of any significance.

15. The High Court, in our view, should have,

therefore, examined the case in the light of the law

11 laid down by this Court in the case of Union of

India (supra) rather than to evolve its own separate

scheme.

16. The High Court failed to see that it is not the

function of the Courts to frame any Scheme but it is

the sole prerogative of the Government to do it.

17. All that the High Court, in exercise of its

extraordinary power under Article 226 of the

Constitution, can do is to direct the Government to

consider for framing an appropriate Scheme having

regard to the facts and circumstances of any case

which this Court did in the case of Union of

India(supra) but not beyond it. It is only in an

exceptional case where the Court considers it

proper to issue appropriate mandatory directions it

may do so but not otherwise.

18. It is not in dispute that the appellant­Union of

India has now framed a welfare scheme for all such

12 casual workers. The salient features of the welfare

scheme and the benefits which are being extended

to all such casual workers are set out in Para 14 (i)

to (xii) of the petition. (see page M to R of SLP paper

book)

19. Learned counsel for the respondents by

placing reliance on a scheme(Annexure R­2)

contended that it is this scheme which should have

been implemented. We find no merit in this

submission. This issue, we find, was already

considered in the case of Union of India (supra)

and rejected.

20. In the light of the foregoing discussion, we are

unable to agree with the reasoning and the

conclusion arrived at by the High Court in the

impugned order.

21. As a consequence, the appeal succeeds and is

accordingly allowed. The impugned order is set

13 aside and as a result thereof, the writ petition filed

by the respondents is dismissed.

.………...................................J. [ABHAY MANOHAR SAPRE]

…...……..................................J. [DINESH MAHESHWARI] New Delhi;

March 15, 2019

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