WA/808/2000 of ASSERVADHAM & 10 OTHERS Vs THE G.M.,INDIA AIRLINES LTD on 11 December 2002

:J U D G M E N T

P.SHANMUGAM, J.The subject matter of the appeal relates to question of regularizationof casual workers. The learned single Judge upheld the Scheme of therespondent for regularization. Not being satisfied, the workers have filedthe above writ appeals.

2. The appellants are working with the respondent Indian AirlinesLimited as Class IV Unskilled Casual Workers like, helpers, loaders, peons,etc. They are being engaged casually for a maximum period of ninety days at astretch in a year. According to the appellants, some of them have beenworking from 1977 onwards and though there were regular recruitment, theappellants' claims were ignored. By a Notification dated 04.06.1997, theIndian Airlines Limited called for applications from those who worked ascasual/part-time/contract basis for a maximum period of ninety days during aperiod of twelve consecutive months in the last three years for the Post ofHelpers. As many of the appellants are not qualified either with regard tothe age or educational qualifications etc., they claim that under Section 25-Hof the Industrial Disputes Act read with Rule 78 of the Industrial DisputesRules, they are entitled for re-employment and on that basis, they have filedwrit petitions seeking to quash the notification calling for the applicationsfor regular appointments and to direct the respondent to regularize theirservices. Pending the writ petitions, this Court, by order dated 23.12.1997,directed the respondent to frame a scheme and in pursuant to this order, theIndian Airlines Limited framed a Scheme dated 08.09.1999. In the finalhearing, the learned Judge upheld the Scheme and directed the appellants towork out their remedy under that Scheme. Not being satisfied, the above Writ

3. M/s. M.Sundar, P.V.S.Giridhar, K.P.Krishna Shetty, K.

Palanisamy, V.Prakash, K.M.Ramesh, K.Venkataramani, M.V.Muralidharan andFredric Castra appearing for the appellants made elaborate submissions on therights of their services to be regularized and as to how the Scheme is atvariance with the direction of the learned Judge and unworkable. Theirsubmissions are summarized as follows :

(i) In the light of continuous engagement of the appellants as casuals, the absorption and regularization in the respective post is notrecruitment. It is a de jury recognition accorded for their de factofunctioning for more than 240 days;

(ii) Absorption or regularization connotes all the casuals to work for more than 240 days to get themselves automatic empanelled for a permanentservice;

(iii) Any empanelment should be kept alive until all of them areabsorbed permanently;

(iv) Section 25-H of the Industrial Disputes Act directly confers right to the appellants under law and therefore, they have got a legal rightfor absorption;

(v) As their work is of a permanent nature, namely, handling of packages, cleaning, etc., subject to fluctuation in demand due to seasonaltraffic, the appellants are entitled to be considered for regularization;(vi) In this case, the respondents are consistently following unfairlabour practice of engagement for ninety days to the whimsical likes of therespondents;

(vii) The appellants are entitled to security of service. Their workinvolves security aspect of the aircraft, airport and citizens, and therefore,the appointment must be secured;

(viii) As per the order dated 23.12.1997, the Scheme has been prepared in reference to the casual workers from the year 1991. However, the directionto furnish the number of workmen who can be gainfully employed in the relevantdepartment in the year 1998 and also the number of casual labourers requiredin the department, if all the existing vacancies in the grade of helpers arefixed by making regular appointments thereto, are not complied with; and

(ix) The scheme prepared by the Indian Airlines Limited is at variance with the direction of this Court. The clauses in the Scheme regarding minimumeducational qualification and selection by a selection committee as perrecruitment and promotional rules and the reservation of 50% of the vacanciesonly are clearly arbitrary and unworkable;

(x) This Court has ample jurisdiction to modify the Scheme.

4. Mr.N.G.R. Prasad, learned senior counsel representing on behalf of the Management supported the order of the learned single Judge. Accordingto him, the learned single Judge has taken a pragmatic view. The appellantswho are unskilled casual workers, are engaged depending on the exigencies ofthe work required in order to maintain the customers' service with the leastinconvenience to the travelling public. Apart from this, there occurstemporary or seasonal additional work load. Besides, they have to take careof absenteeism and leave of regular employees in the cadre. The question of absorption of casual workers was pending without a satisfactory solution. Inother Stations, the Indian Airlines has formulated Schemes and they are upheldand are being followed. According to him, there is not much differencebetween the Scheme proposed at Madras and the Schemes operating at Bombay andCalcutta. He further submits that the respondentIndian Airlines Limited is acommercial Corporation and that they have to effectively compete with privateAirlines in the context of liberalized and globalization for their survival.They are no longer monopoly players. They have to keep in tune with theirfinancial and other considerations like the actual requirement,rationalization before creating Posts. In the absence of regular Posts, theappellants have no right. He also submits that they have to consider therecommendation for redeployment of Class IV employees and rationalization ofworkforce by the Committees constituted for that purpose and the PayCommission's recommendations. The regularization Scheme, if any, can befeasible only after taking all these things into consideration and with apragmatic approach. He submits that the Scheme as such is most beneficial tothe appellants and no interference is called for with the order of the learnedJudge. Any modification can only be for effective implementation of thescheme.

5. We have heard the rival submissions, gone through the records andconsidered the matter carefully.

6. Three main questions that arise for consideration in the writappeals are :

(i) whether the appellants have got a legal right for automaticregularization in service?

(ii) whether the respondents are resorting to unfair labour practice?and

(iii) whether the Scheme is workable?

7. It is an admitted fact that all the appellants have been working as casual workers for a maximum period of ninety days in a year. It is alsonot in dispute that casual workers have been engaged by the respondentthroughout the year in rotation. We need not go into the services of thoseappellants who have worked prior to 1991, as the list as such has beenprepared as per the direction of this Court from the year 1991 and the crucialyear of 1991 is not in controversy for the purpose of consideration. Besides,it is claimed that the attendance registers are not available prior to 1991.

8. It is stated that there were 2506 casual employees during the period from 1991 to 1997. Among them, there are persons who worked for oneday to 622 days, i.e., there are 27 persons worked for one day only and twopersons who worked for 622 days. For instance, the persons who worked from 31to 89 days are 635; between 90 to 179 days are 810; and between 180 to 269days are 442 and so on. But, it is not in dispute that none of them haveworked continuously for more than ninety days in a year and that they wereregular recruitment almost yearly, but the appellants were not able to getpermanent appointments either because of lack of qualification or that theywere not found suitable for the selection.

9. There are no details as to the nature of entry, terms of period of service, nature of employment, terms of termination in reference to each ofthe employees. Similarly, there are no particulars as to the need of therespective service department wise. While appellants argue that engagement ofcasual workers regularly even though appellants were given only 90 days' workfollows that there are permanent need, the management submits that the need isonly seasonal, and to meet the particular need but not of permanent nature.

10. After the insertion clauses (bb) to Section 2(oo) of the Industrial Disputes Act by Amending Act 49/1984 with effect from 18.08.1984excluding a contractual termination of service from the definition ofretrenchment, it would appear that it could never have been the intention ofthe legislature to make retrenchment synonymous with discharge simpliciter.

11. In Punjab Land Development and Reclamation Corporation Ltd. v.Presiding Officer, Labour Court ((1990) 3 Supreme Court Cases 682), theConstitution Bench of the Supreme Court, while considering the definition ofthe word 'retrenchment', has concluded as follows in paragraph 82 :-"82. Applying the above reasonings, principles and precedents to thedefinition in Section 2(oo) of the Act, we hold that 'retrenchment' meanstermination by the employer of the service of a workman for any reasonwhatsoever except those expressly excluded in the section."

According to the Supreme Court, even though there are apparent incongruitiesin the provisions of Sections 25F, 25G and 25H of the Act, there is room for aharmonious construction. Their Lordships have observed as follows :-"In our view, the principle of harmonious construction implies that ina case where there is genuine transfer of an undertaking or genuine closure ofan undertaking as contemplated under the above said sections, it would beinconsistent to read into the provision, a right given to the workmen 'deemedto be retrenched' as a right to claim reemployment, as provided under Section25H. In such cases, as specifically provided in the relevant sections, theworkman concerned would only be entitled to notice and compensation inaccordance with Section 25H."

Therefore, if there is termination of the service of a workman as a result ofthe non-renewal of the contract of employment, on the expiry of such contract,they cannot be treated as if they had been retrenched for the purpose ofre-employment under Section 25H of the Act. Hence, it cannot be stated thatthe appellants have got a legal right for automatic continuation of theirservice.

12. In none of the decisions referred to, the rights of casual workers who have been put in maximum of 80 days work in a year has beenconsidered for the purpose of absorption. In Workmen of American ExpressInternational Banking Corporation vs. Management of A.E.I.B. Corpn. (AIR1986 SUPREME COURT 458), the Supreme Court has dealt with a case of continuousservice for not less than one year and the actual employment of 240 days. InState of Haryana and others vs. Piara Singh and Others ((1992) 4 SupremeCourt Cases 118), the Supreme Court has dealt with a case of ad hoc employeeswho have been continuing in service for several years without being regularized. In Chief Conservator of Forests v. I.M.Kondhare (AIR 1996SUPREME COURT 2898), a case of 25 workmen who went to the Industrial Court, itwas found that they had been admittedly employed by the State for 5 to 6 yearsand in each year they had worked for period ranging from 100 to 330 days andthat there was unfair labour practice.

13. In Dharwad District P.W.D. Literate Daily Wage Employees'

Association v. State of Karnataka & Others (1991 (2) L.L.J. 318), theSupreme Court was concerned with 50,000 daily rated or monthly rated employeesworking for a period of 10 - 20 years without being regularized. In Jacob v.Kerala Water Authority (1991 (2) L.L.J. 65), the Supreme Court has consideredthe case of employees appointed temporarily under a statutory rule and whowere serving with the establishment for long spells with requisitequalification. The Supreme Court held in that case that since they haveworked in the posts for reasonably long spells, they are entitled forregularization of their service. In Hindustan Machine Tools vs. M.Rangareddy (2000 (6) Scale 614), the Supreme Court directed framing of aScheme for the casual workers who had been engaged for long period, subject tothe fulfillment of the conditions of eligibility qualification with relaxationof the age prescribed under the rules.

14. In G.B.Pant University of Agriculture & Technology v. State of U.P. ((2000) 7 Supreme Court Cases 109), as against the direction of theLabour Court to regularize 175 employees, the Supreme Court directed toregularize the services of the employees in terms of the award passed by theLabour Court.

15. In J & K Public Service Commission v. DR. Narinder Mohan ((1

994) 2 Supreme Court Cases 630), the Supreme Court has held that continuanceof service for some years would not entitle the ad hoc appointees toregularize.

16. In Central Welfare Board v. Anjali Bepari ((1996) 10 Supreme Court Cases 133), where the workers were appointed against casual vacancy fora long period of over three years, the Management was directed to evolve aScheme.

17. In State of U.P. and others v. Ajay Kumar ((1997) 4 Supreme

Court Cases 88), the Supreme Court held that there must exist a post andeither administrative instructions or statutory rules must be in operation toappoint a person to the post, and that daily-wage appointment will obviouslybe in relation to contingent establishment in which there cannot exist anypost and it continues so long as the work exists.

18. In H.K. Vidyarthi & Others. v. State of Bihar & Others (1998

II L.L.J. 29), it has been held that disengagement from service of temporaryemployees on daily wages cannot be construed as retrenchment.

19. From the above decisions, the following facts emerge :

(i) In most of the cases, temporary workers were engaged continuously for a long number of years;

(ii) The Industrial Courts have gone into the question of regularization and on facts, holding existence of continuous work, to claimunfair labour practice;

(iii) In the case of large number of casual workers, directions havebeen given for regularization by framing a Scheme;

(iv) The financial constraints and the practical and pragmatic view and effect of increasing the cadre strength are directed to be taken intoaccount;

(v) The absorption of casual workers would, in all cases, be subjectto the fulfillment of the condition of the eligibility with relaxation of theage prescribed under the Rules;

(iv) The general wholesale regularization without conditions shouldnot be made.

20. In Central Bank of India v. S.Satyam ((1996)5 Supreme Court Cases 419), the Supreme Court has dealt with a case of retrenched workmen, whohad been employed for short periods from 1974 to 1976. The writ petition hasbeen filed in the year 1982 and it was found that on the ground of latches,they were not entitled to the relief. Their Lordships held that the ordinarymeaning of the expression ' retrenched workmen' must relate to the widemeaning of 'retrenchment' given in Section 2(oo). It was further held thatthe definition under Section 2(oo) would apply in that case. On the facts ofthe case on hand, unless the matter is gone into by the Industrial Court, itmay not be possible to hold it as an unfair labour practice so as to claim thebenefit of Section 25H of the Act, ignoring the exclusion clause contained inSection 2(oo) - Exception (bb).

21. The contention raised is that the respondent is resorting tounfair labour practice in engaging casually the permanent vacancy. Accordingto the appellants, when the casual workers are being engaged right from 1979,there must be a permanent need and consequential regularization and thatfailure to regularize the casuals is unfair labour practice. The saidsubmission fails to take note of the fact that the respondent has beenadmittedly making regular appointments in the year 1983, 1984, 1986, 1988,1990, 1991, 1992, 1994 and 1997. It is not clear whether the appellantsapplied for the regular posts and as to why they did not agitate the failureto recruit them. It is therefore obvious that the appellants either did notsucceed in the selection or did not qualify for the selection. The contentionon behalf of the Indian Airlines is that they have to maintain casual workersto meet the need exigencies of the work, seasonal demand and additional workload, absenteeism, etc. They are prepared to consider regularization of thecasuals engaged from the year 1991 as per the Scheme. Therefore, assuming forthe sake of argument that the management have kept casuals from the year 1991,their present stand that they are prepared to go in for a Scheme, would onlyshow their readiness to absorb the casuals. On the facts of this case, wehave no materials to conclude that the respondents are resorting to unfairlabour practice.

22. Assuming that the appellants herein can be brought under the category of retrenched workmen, they have to work out their remedy as and when vacancies arise and recruitment takes place and preference being given tothose who have been retrenched employees. But the appellants are not preparedto subject themselves to go in for recruitment process, but what they seek isonly a regularization. Admittedly, the appellants were initially taken inwithout following the requirements for permanent service and by thatengagement, they won't acquire legal right to dispense with the eligibilityqualifications. In State of Haryana's case referred earlier (1993 (2) L.L.J.937), it has been held that just because in one case a direction was given toregularize employees who have put in one year of service as far as possibleand subject to their fulfilling the qualifications, it cannot be held that ineach and every case such a direction must follow irrespective of or and takinginto account the other relevant circumstances. The relief must be moulded ineach case having regard to the facts and circumstances of that case.

23. On the question whether the Scheme is workable, the Counsel forthe appellants took conflicting stands. Some of them claimed combinedseniority as prepared in the list should be followed and some of themsubmitted that preference to be given on the basis of number of days workedand the cut of date must be 04th June, 1997, the date of the earlierNotification. It is further submitted that the experience gained as per theinterim order should not come to the advantage or disadvantage of the otherappellants.

24. In Indian Airlines Ltd. v. samaresh Bhowmick ((1999) 6 Supreme

Court Cases 101), the Scheme of regularization of casual employment is upheld.The Scheme as proposed in that case was set out in paragraph No.6 as follows:-"6. The said Scheme for regularization of all casual employees isextracted below:- "1. All the casuals irrespective of the fact that their names wereborne on any panel or not will be treated on a par provided they have workedfor 90 days as casuals during the last three years.

2. Notification will be issued inviting applications from casual employees for the posts of Helpers in Commercial, Engineering, Stores, GroundSupport, Catering Canteens and Peons.

3. Age relaxation to the extent of casual employment will be given subject to a maximum age requirement of 40 years for General category, 43years for OBC and 45 years for SC and ST as on date of the order of the Court.

4. The candidates must fulfill the educational qualification of having passed 8th class from a recognized institution for the post of Helpersin Commercial, Engineering, Stores, Ground Support and Peons.

5. Selections will be made by duly constituted Selection Board as per the Recruitment and Promotion Rules of the Company.

6. Merit lists, category/cadrewise will be prepared and the selected candidates would be offered employment against the vacancies in order ofmerit.

7. While making appointments, the directives of the Government withregard to reservations will be adhered to.

8. Those who cannot be appointed due to non-availablity of regular vacancies would be given ex gratia payment calculated on the basis ofcompensation payable under Section 25-F of the Industrial Disputes Act, 1947.However, they will have no claim for re-employment as casuals or otherwise infuture.

9. The appointment of the above-mentioned empanelled casual employees, will be subject to their completing all the pre-employmentformalities and on being declared medically fit by the Medical Officer of theCompany.

10. This will be a one-time exercise only."

The Division Bench of the High Court had directed that the candidates selectedas per the Scheme should be considered for present as well future vacanciesand they should be regularized first. The Supreme Court while holding thatthe Scheme could not have been overlooked since the selections will have to bemade by duly constituted Selection Board as per the Recruitment and PromotionRules of the Company and the selection list cannot have operation for morethan a period of two years.

25. In the present case, the learned single Judge found that in viewof the various clauses of the Scheme, particularly, relaxation of age forcertain period keeping 50% of the vacancies for the post of Helpers(Commercial) exclusively for them and agreeing to pay compensation as perSection 25-F of the Industrial Disputes Act to those who do not getabsorption, the Scheme formulated has to be approved. The learned Judge alsotook note of the fact that when a large number of people were continued to beemployed on rotation basis and they had accepted their position for quite sometime, they cannot claim that all of them should be regularized and that ifsuch direction is issued, it will lead to an impossible state of affairs, whenthere are no permanent posts also. The learned Judge taking note of theKelkars Committee's report which has advised ban on recruitment and reductionin work force, observed that any regularization should take note of thesefacts and that regularization will depend on vacancy position andqualification. In our view, the learned Judge has taken into account both thefactual and legal positions and taking a pragmatic approach, upheld the Schemeformulated by the respondent. Hence, we do not find any grounds to interferewith the orders of the learned single Judge.

26. After considering the submissions on either side on the method prescribing the norms in the preparation of the list of casual workers fromthe year 1991, we are of the view that for the purpose of consideration, aworker should have put in a minimum of 90 days of service in a year from 1991.We find, it is not practical or rational to include even those workers whohave put in just a few days of work all these 10 years for the purpose ofconsideration. It is quite possible, as submitted, many of such persons wouldhave gone to different places or jobs and the unwieldy list would not bepracticable for preparation. Excepting this direction to modify the Scheme inthis respect, in all other respects, we uphold the Scheme and confirm thejudgment of learned single Judge. All these appeals are disposed ofaccordingly. No costs.

Index : YesInternet : Yes

1. The General Manager,Indian Airlines Ltd.,Airlines House,Chennai-600 027.

2. The Regional Director,Airlines House,Meenambakkam,Chennai-600 027.

3. The General Manager (Personnel),Indian Airlines Ltd.,Airlines House,Meenambakkam,Chennai-600 027.

4. The Director (Personnel),Indian Airlines,Indian Airlines House,New Delhi-110 001.

5. The Manager (Personal Services),Indian Airlines,Airlines House,Meenambakkam,Chennai-600 027.

6. The General Manager (Personnel),The Management of Indian Airlines Ltd.,Southern Region,Airlines House,Chennai-600 007.

7. The Director (Personnel),The Management of Indian Airlines Ltd.,New Delhi-110 001.

8. The Deputy General Manager,Indian Airlines Head Quarters,New Delhi-110 001.

9. The Station Manager,Indian Airlines,Trichy Road,Coimbatore-641 018.