Full Judgment Text
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PETITIONER:
INDER PAL YADAV AND ORS. ETC.
Vs.
RESPONDENT:
UNION OF INDIA AND ORS ETC.
DATE OF JUDGMENT18/04/1985
BENCH:
DESAI, D.A.
BENCH:
DESAI, D.A.
MISRA RANGNATH
CITATION:
1985 SCR (3) 837 1985 SCC (2) 648
1985 SCALE (1)703
ACT:
Constitution of India, Art 41 and 42-Right to work-
Casual labour employed on project for a number of years-
Services of casual labour terminated on completion of
Project-Scheme framed subsequently for casual labour-
Validity of-Guidelines or implementation of Scheme- S.25 G,
I.D. Act and Art. 14 of the Constitution
HEADNOTE:
The petitioner-workmen styled as ’Project Casual
Labour’ in these writ petitions and special leave petitions
contended that even though they had put in continuous
service for years, their services were terminated on the
ground that the project on which they were employed has been
wound up on its completion and their services were no more
needed. After the conclusion of the hearing in some of the
matters, the Railway Ministry framed a scheme to find a just
and humane solution affecting the livelihood of the
petitioner It provided that casual labour employed on
projects may be treated as temporary on completion of 360
days of continuous employment.
Disposing of the petitions,
^
HELD: 1. (i) By and large the scheme certainly is an
improvement on the present situation though not wholly
satisfactory. However the Railway being the biggest employer
and having regard to the nature of its work, it would have
to engage casual labour and therefore, as a preliminary step
towards realisation of the ideal enshrined in Articles 41
and 42, this Court proposes to put its stamp of approval on
the scheme with one major variation which is herein set out.
[841D]
1. (ii) The scheme envisages that it would be
applicable to casual labour on projects who were In service
as on January 1, 1984. The choice of this date does not
commend, for it is likely to introduce an invidious
distinction between similarly situated persons and expose
some workmen to arbitrary discrimination flowing from
fortuitous court’s order, since, in some matters, the court
granted interim stay before the workmen could be retrenched
while some other were not so fortunate. Those in respect of
when the Court granted interim relief by stay suspension of
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the order of retrenchment, they would be treated in service
on l. l. 1981 while others who fail to obtain interim rel
if though similarly situated
838
would be pushed down in the implementation of the scheme.
Therefore, those who could not come to the Court need not be
at a comparative disadvantage to those who rushed in here.
If they are otherwise similarly situated, they are entitled
to similar treatment. Keeping in view all the aspects of the
matter, the Court modifies part 5.1 (a) (i) of the scheme by
modifying the date from 1.1.1984 to 1.1. 1981. With this
modification and consequent rescheduling in absorption from
that date onward, the scheme framed by Railway Ministry is
accepted and a direction is given that it must be
implemented by re-casting the stages consistent with the
change in the date as herein directed. [841E-G; 842B-C]
(2) To avoid violation of Art. 14, the scientific and
equitable way of implementing the scheme is for the Railway
administration to prepare, a list of project casual labour
with reference to each division OF each railway and then
start absorbing those with the longest service. If in the
process any adjustments are necessary, the same must be
done. In giving this direction, the court is considerably
influenced by the statutory recognition of the principle of
last come first go or to reverse it first come last go as
enunciated in s.25G of the Industrial Disputes Act, 1947.
[842D-F]
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petitions Nos. 147, 320-69,
459, 4335 4434/85 etc.
(Under Article 32 of the Constitution).
For the Appearing Parties: B. Datta RishiKesh M.K. Rama
murti MA. Krishnamurty. Anis Suhrawardy M S. Gujaral S.C.
Maheshwari PP Singh C. V. Subba Rao R.N. Poddar C.P. Pardey
V.R Verma R P. Singh Indira Sawhney S.C. Patel Harbans
Singh G.N. Chowdhary Narinder R D. Uradhyay PK. Jain K.R.
Nagaraja Shakil Ahmed Syed NS. Das Bahl K R.P. Pillai
D.Goburdhan C. Malhotra SN. Chowdhary V.K. Pandit Manoj
Saxena Madan, Sharma G.S. Narayan Ms. Halida Khatoon K K
Gupta C. Agarwala h. Satish Ms. A. Subhashini Sambandam and
Pillai P.N. Gupta Mrs. Jayashree Wad and Raju Ramachandran.
The Judgment of the Court was delivered by
DESAI,J. Articles 41 and 42 of the Constitution
notwithstanding, there are certain grey areas where the rule
of hire and fire, a legacy of laissez-faire even in
Government employment still rules the roost. Casual labour
employed on projects also known as ’projects casual labour’
is one such segment of employment where one may serve for
years and remain a daily rated worker without a weekly off,
without any security of service, without the protection of
equal pay for equal work. In short at the sweet will and
mercy of the local
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satraps. Even the formidable railwaymen’s unions least cared
for these helpless and hapless workmen. Suddenly a torrent
of writ petitions and petitions for special leave awakened
this Court to the plight of these workmen. In quick
succession, 48 writ petitions and 32 petitions for special
leave flooded this Court. In each writ petition / S.L.P.,
the grievance was that even though the workmen styled as
’project casual labour’ had put in continuous service for
years on end to wit ranging from 1974 till 1983, yet their
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services were terminated with impunity under the specious
plea that the project on which they were employed has been
wound np on its completion and their services were no more
needed. No one is unaware of the fact that Railway Ministry
has a perspective plan spreading over years say decades and
projects are waiting in queue for execution and year these
workmen were shunted out (to use a cliche from the railway
vocabulary) without any chance of being re-employed. Some of
them rushed to the court and obtained interim relief. Some
were not so fortunate. At one stage some of these petitions
were set down for final hearing and the judgment was
reserved. When some other similar matters came up, Mr. K.G.
Bhagat, the then learned Additional Solicitor General,
requested the Court not to render the judgment because he
would take up the matter with the Railway Ministry to find a
just and humane solution affecting the livelihood of these
unfortunate workmen. As the future of lakhs of workmen going
under the label of casual project labour was likely to be
affected, we repeatedly adjourned these matters to enable
the Railway Ministry to work out a scientific scheme.
Railway Ministry framed a Scheme and circulated the
same amongst others to all the General Managers of Indian
Railways including production units as per its circular No.
E(NG)II/84/CL/41 dated June 1, 1984. In the Scheme it was
stated that all the General Managers were directed to
implement the decision of the Railway Ministry by the target
dates It was further stated that a detailed letter regarding
group 5 1(ii) would follow. Such a letter was issued on June
25, 1984. Thereafter, these matters were set out for
examining the fairness and justness of the Scheme and
whether the Court would be in a position to dispose of these
petitions in view of the Scheme. That is how these matters
came up before us.
The relevant portions of the Scheme read as under:
840
"5.1. As a result of such deliberations, the
Ministry of Railways have now decided in principle that
casual labour employed on project (also known as
’project casual labour’) may be treated as temporary on
completion of 360 days of continuous employment. The
Ministry have decided further as under:
(a) These orders will cover:
(i) Casual labour on projects who are in service as on
1.1.84; and
(ii) Casual labour on projects who, though not In
service on 1.1.84, had been in service on Railways
earlier and had already completed the above prescribed
period (360 days) of continuous employment or will
complete the said prescribed period of continuous
employment on re-engagement in future. (A detailed
letter regarding this group follows).
(b) The decision should be implemented in phases
according to the schedule given below:
Length of service Date from which Date by which (i.e.
(i.e.continuous may be treated decision should
employment). as temporary be implemented
(i) Those who have 1.1.1984 31.12.1984 completed
five yearsof service as on 1.1.84
(ii) Those who have 1.1.1985 31.12.1985
completed three years
but less than five
years of service as on 1.1.1984
(iii) Those who have 1.1.1986 31.12.1986 ted 360
days but less
than three years of
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service on 1.1.1984
841
(iv) Those who complete 1.1.1987 or
31.3.1987
360 days after the date on which
1.1.1984 360 days are
completed which ever
is later.
5.2. The Ministry would like to clarify here that
casual
labour on projects who have completed 180 days of continuous
employment would continue to be entitled to the benefits now
admissible to them (so long as they fulfil the conditions in
this regard) till they become due for the benefits mentioned
in the preceding sub-paragraph."
By and large the scheme certainly is an improvement on
the present situation though not wholly satisfactory.
However, the railway being the biggest employer and having
regard to the nature of its work, it would have to engage
casual labour and therefore, as a preliminary step towards
realisation of the ideal enshrined in Articles 41 and 42, we
propose to put our stamp of approval on the scheme with one
major variation which we proceed to herein set out.
The Scheme envisages that it would be applicable to
casual labour on projects who were in service as on January
1, 1984. The choice of this date does not commend to us, for
it is likely to introduce an invidious distinction between
similarly situated persons and expose some workmen to
arbitrary discrimination flowing from fortuitous court’s
order. To illustrate, in some matters, the court granted
interim stay before the workmen could be retrenched while
some other were not so fortunate. Those in respect of whom
the court granted interim relief be stay/suspension of the
order of retrenchment, they would be treated in service on
1.1.1984 while others who fail to obtain interim relief
though similarly situated would be pushed down in the
implementation of the Scheme. There is another area where
discrimination is likely to rear its ugly head. These
workmen come from the lowest grade of railway service. They
can ill afford to rush to court. Their Federations have
hardly been of any assistance. They had individually to
collect money and rush to court which in case of some may be
beyond their reach. Therefore, some of the retrenched
workmen failed to knock
842
at the doors of the court of justice because these doors do
not open unless huge expenses are incurred. Choice in such a
situation, even without crystal gazing is between incurring
expenses for a litigation with uncertain outcome and hunger
from day to day. It is a Hobson’s choice. Therefore, those
who could not come to the court need not be at a comparative
disadvantage to those who rushed in here. If they are
otherwise similarly situated, they are entitled to similar
treatment if not by anyone else at the hands of this Court.
Burdened by all these relevant considerations and keeping in
view all the aspects of the matter, we would modify part 5.1
(a) (i) by modifying the date from 1.1.1984 to 1.1.1981.
With this modification and consequent rescheduling in
absorption from that date onward, the Scheme framed by
Railway Ministry is accepted and a direction is given that
it must be implemented by re-casting the stages consistent
with the change in the date as herein directed.
To avoid violation of Art. 14, the scientific and
equitable way if implementing the scheme is for the Railway
administration to prepare, a list of project casual labour
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with reference to each division of each railway and then
start absorbing those with the longest service. If in the
process any adjustments are necessary, the same must be
done. In giving this direction, we are considerably
influenced by the statutory recognition of a principle well
known in industrial jurisprudence that the men with longest
service shall have priority over those who have joined later
on. In other words, the principle of last come first go or
to reverse it first come last go as enunciated in Sec. 25G
of the Industrial Disputes Act, 1947 has been accepted. We
direct accordingly.
All these writ petitions and special leave petitions
shall stand disposed of consistent with the scheme as
modified by this judgment and the directions herein given.
The scheme as would stand modified by the directions here in
given forms part of this judgment and a copy of it shall be
annexed to this judgment.
Learned counsel Shri Anis Suhrawardy has put in the
maximum labour in making a very useful compilation. He must
have spent days and months! The compilation helped us the
most
843
in dealing with the writ petitions and the special leave
petitions and in ascertaining the proper principle. Such a
compilation ought to have been prepared by the Railway
administration. Therefore, we direct the Union of India to
pay Rs. 5,000 as and by way of costs to Shri Anis
Suhrawardy, advocate, Supreme Court.
M.L.A. Petitions dismissed.
844