Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
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)
J U D G M E N T
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: 2019.07.02
16:10:26 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.
7
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.
8
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 and settled by the decision of this
res integra
Court in Union of India vs. Vartak Labour Union
(2) [(2011) 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 ( when we
Union of India supra)
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
(supra) but not beyond it. It is only in an
India
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
14