UNION OF INDIA & ORS. versus ALL INDIA TRADE UNION CONGRESS & ORS. on 15 March 2019

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SUPREME COURT REPORTS[2019] 5 S.C.R. 444

[2019] 5 S.C.R.

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UNION OF INDIA & ORS.

v.

ALL INDIA TRADE UNION CONGRESS & ORS.

(Civil Appeal No.3146 of 2019)

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MARCH 15, 2019

[ABHAY MANOHAR SAPRE AND

DINESH MAHESHWARI, JJ.]

Service Law – Regularisation of services of the casual paidClabourers – Claim for – Respondent Nos.1 & 2-Trade Unions filedwrit petition against the appellant-Union of India claiming a relieffor regularisation of the casual workers, who were working in aproject undertaken by Border Roads Organisation (BRO) forconstruction of roads – Single Judge of the High Court allowed theDwrit petition – Division Bench of the High Court affirmed the decisionof the Single Judge and issued further a writ of mandamus bydirecting the appellant to frame a scheme to provide specific facilitiesto the workers enumerated in the directions – On appeal, held:High Court did not examine the case in the light of the law laiddown by the Supreme Court in the case of Union of India v. VartakELabour Union (2) – High Court failed to see that it was not thefunction of the courts to frame any scheme but it is sole prerogativeof the Government to do it – Appellant has now framed a welfarescheme for all such casual workers – Therefore, impugned order ofthe High Court set aside.

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Allowing the appeal, the Court

HELD: 1. Keeping in view the law laid down by this Courtin the case of Union of India v. Vartak Labour Union (2) and thenexamining the facts of the case at hand, this Court finds that theGfacts of the case at hand and the one which were subject matterin the case of Union of India are identical in all respects exceptthat name of the Trade Union of workers and place of working inboth the cases are different, which is hardly of any significance.The High Court should have, therefore, examined the case in H

the light of the law laid down by this Court in the case of Union ofIndia rather than to evolve its own separate scheme. The HighCourt failed to see that it is not the function of the Courts toframe any Scheme but it is the sole prerogative of the Governmentto do it. [Paras 14, 15 and 16] [450-F-H]

2. All that the High Court, in exercise of its extraordinarypower under Article 226 of the Constitution, can do is to directthe Government to consider for framing an appropriate Schemehaving regard to the facts and circumstances of any case whichthis Court did in the case of Union of India but not beyond it. Itis only in an exceptional case where the Court considers it properto issue appropriate mandatory directions it may do so but nototherwise. [Para 17] [451-A-B]

3. It is not in dispute that the appellant-Union of India hasnow framed a welfare scheme for all such casual workers. Thesalient features of the welfare scheme and the benefits which arebeing extended to all such casual workers are set out in Para 14(i) to (xii) of the petition. [Para 18] [451-B-C]

Union of India v. Vartak Labour Union (2) (2011) 4SCC 200 : [2011] 4 SCR 509 – relied on.

Case Law Reference

[2011] 4 SCR 509

relied on Para 12

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3146of 2019.

From the Judgment and Order dated 05.12.2016 of the High Courtof Uttarakhand at Nainital in Special Appeal No. 485 of 2015

Ajit K. Sinha, Sr. Adv., Shekhar Vyas, Ms. Rukhmini Bobde, ArvindKumar Sharma (for Mukesh Kumar Maroria), Advs. for the Appellants.

Colin Gonsalves, Sr. Adv., Ravindra S. Garia, Ms. Olivia B.,Shashank Singh, Advs. for the Respondents.

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AThe Judgment of the Court was delivered byABHAY MANOHAR SAPRE, J. 1. Leave granted.

2. This appeal is filed against the final judgment and order dated05.12.2016 passed by the High Court of Uttarakhand at Nainital in S.A.No.485 of 2015 whereby the High Court dismissed the appeal filed byBthe appellants herein and issued directions to them in the nature ofmandamus by framing a scheme itself for its implementation to regularizethe services of the Casual Paid Labourers and granted them the benefitssimilar to those of the regular employees under all the Labour Laws.

3. A few facts need mention hereinbelow for the disposal of thisCappeal, which involves a short point.

4. The appellants herein are the respondents and respondentsherein are the writ petitioners of the writ petition filed in the High Courtout of which this appeal arises.

D5. All India Trade Union Congress(respondent No.1) is a registeredTrade Union, GREF Mazoor Kalyan Sangthan(respondent No.2) is alsoa Trade Union, which is affiliated to respondent No.1 and respondentNo.3 is one of the casual workers in Border Road Organization.Respondent Nos.1 & 2- Trade Unions consist of members who arecasual workers working in different organizations. There is anEorganization called “Border Roads Organization” (for short, “BRO”).This organization functions under the Border Roads Wing, Ministry ofDefence and General Reserve Engineering Forces (GREF).

6. Respondents-Trade Unions filed a writ petition in the High Courtof Uttarakhand at Nainital against the appellants claiming a relief forFregularization of the casual workers, who according to the respondents(writ petitioners) were working for a considerable long period in oneproject undertaken by the BRO in the State of Uttarakhand forconstruction of roads for going to pilgrimage of Char Dham Yatra. Itwas the case of the writ petitioners that these workers though workingfor number of years for the Union of India and rendering their services,Gbut they were neither being regularized in the Government set up as aGovernment employee and nor were being paid regular salary/perks/facilities which were being paid to Government employees and nor theywere being provided with any protection which was available to anyGovernment employee. In substance and in effect, the respondents H

(writ petitioners) claimed that all the casual workers, who were workingin the project in question should be regularized in Government Service.

7. The appellant-Union of India opposed the claim of therespondents(writ petitioners). The Single Judge by order dated 11.03.2015allowed the writ petition and directed the appellant-UOI to regularizethe services of the workers. The appellants felt aggrieved and filedintra court appeal before the Division Bench of the High Court. Byimpugned order, the Division Bench dismissed the appeal with costs ofRs.50,000/- and while affirming the order of the Single Judge modified itand issued further a writ of mandamus by directing the appellant-Unionof India to frame a scheme to provide specific facilities to the workersenumerated in the directions. The directions contained in para 24 of theimpugned order reads as under:

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

A. Union of India is directed to frame a Scheme within aperiod of three months from today positively toregularize the services of the members of respondentFederations who have worked for more than five years’continuously in BRO and GREF. The Union of Indiashall take into consideration the various schemesalready 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 ofrespondents Federations the minimum of the pay scalebeing paid to the corresponding regular Group ‘D’employee, including D.A., H.R.A. and C.C.A. Themembers of respondent Federation shall also beentitled to regular increments, as applicable to Group‘D’ employees. They shall also be entitled to leave onpro-rata basis at the rate of one day for every ten daysof work. The female members of the Federations areheld entitled to maternity leave at par with regularGroup ‘D’ employees.

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AC. Union of India is directed to implement all the labourlaws i.e. EPF, Gratuity Act, Bonus Act, WorkmenCompensation Act qua the members of respondentFederations.

D. Communications dated 7.4.2011, 9.4.2011 andB18.4.2011, issued by the Union of India, are declaredultra vires the Constitution and are quashed and setaside.

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

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

DG. The Union of India is directed to provide the membersof respondent Federation pre-fabricated houses witha separate bathroom. The rooms should be airy andwell-lit. The houses should be provided with sufficientfuel to make them warm during severe winterconditions.E

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

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

J. The Union of India is directed that all the causallabourers who receive injuries, while discharging theduties in harsh conditions in border areas, should betreated in Military Hospitals free-of-cost. The UnionGof India is also directed that the casual labourers fromthe camping site of construction should be transportedin buses and not in open trucks.”

8. It is against this order, the appellant (Union of India) have feltaggrieved and filed the present appeal by way of special leave in thisHCourt.

9. So, the short question, which arises for consideration, is whetherthe High Court (Single Judge and Division Bench) was justified in allowingthe respondents’ writ petition and was justified in issuing the directionsafter framing a Scheme itself in the nature of mandamus against theappellant-UOI to frame a scheme for providing specific kinds of facilities/benefits to the casual workers working in BRO in the State of Uttarakhandin construction activities.

10. Heard Mr. Ajit K. Sinha, learned senior counsel for theappellants and Mr. Colin Gonsalves, learned senior counsel for therespondents.

11. Having heard the learned counsel for the parties and on perusalof the record of the case, we are inclined to allow the appeal and whilesetting aside the impugned order dismiss the writ petition filed by therespondents.

12. It may not be necessary to elaborately deal with the issuesarising in the case because we are of the view that the issue involved inthis appeal is no longer res integra and settled by the decision of thisCourt in Union of Indiavs. Vartak Labour Union (2)[(2011) 4 SCC200].

13. That was also a case where the Union of workers namely“Vartak Labour Union” had claimed a relief of regularization of theservices of the casual workers who were working in BRO for aconsiderable period in construction activities undertaken by BRO in theState of Assam. The Union of workers, therefore, filed a writ petitionagainst the Union of India in the Gauhati High Court. The High Courtallowed the writ petition and directed the Union of India to regularize theservices of all such casual workers. The Union of India felt aggrievedand filed special leave to appeal in this Court against the judgment of theGauhati High Court. This Court allowed the appeal and set aside theorder of the Gauhati High Court with the following observations:

“17. We are of the opinion that the respondent Union’s claimfor regularisation of its members merely because they havebeen working for the BRO for a considerable period of timecannot be granted in light of several decisions of this Court,wherein it has been consistently held that casualemployment terminates when the same is discontinued, and AB

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merely because a temporary or casual worker has beenengaged beyond the period of his employment, he wouldnot be entitled to be absorbed in regular service or madepermanent, if the original appointment was not in terms ofthe process envisaged by the relevant rules. [See State ofKarnataka v. Umadevi (3); Official Liquidator v. Dayanand;State of Karnataka v. Ganapathi Chaya Nayak; Union of Indiav. Kartick Chandra Mondal; Satya Prakash v. State of Biharand Rameshwar Dayal v. Indian Railway Construction Co.Ltd.]

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22. Therefore, in the facts and circumstances of the instantCcase, where members of the respondent Union have beenemployed in terms of the Regulations and have beenconsistently engaged in service for the past thirty to fortyyears, of course with short breaks, we feel, the Union ofIndia would consider enacting an appropriate regulation/Dscheme for absorption and regularisation of the services ofthe casual workers engaged by the BRO for execution ofits ongoing projects.

23. In the final analysis, the appeals are allowed, and theimpugned judgments and orders are set aside. However,Ein the circumstances of the case, the parties are left to beartheir own costs.”

14. Keeping in view the law laid down by this Court in the case ofUnion of India (supra) when we examine the facts of the case athand, we find that the facts of the case at hand and the one which wereFsubject matter in the case of Union of India (supra) are identical in allrespects except that name of the Trade Union of workers and place ofworking in both the cases are different, which is hardly of any significance.

15. The High Court, in our view, should have, therefore, examinedthe case in the light of the law laid down by this Court in the case ofGUnion 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 theCourts to frame any Scheme but it is the sole prerogative of theGovernment to do it.

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17. All that the High Court, in exercise of its extraordinary powerunder Article 226 of the Constitution, can do is to direct the Governmentto consider for framing an appropriate Scheme having regard to thefacts and circumstances of any case which this Court did in the case ofUnion of India(supra) but not beyond it. It is only in an exceptionalcase where the Court considers it proper to issue appropriate mandatorydirections it may do so but not otherwise.

18. It is not in dispute that the appellant-Union of India has nowframed a welfare scheme for all such casual workers. The salient featuresof the welfare scheme and the benefits which are being extended to allsuch casual workers are set out in Para 14 (i) to (xii) of the petition. (seepage M to R of SLP paper book)

19. Learned counsel for the respondents by placing reliance on ascheme(Annexure R-2) contended that it is this scheme which shouldhave been implemented. We find no merit in this submission. Thisissue, 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 agreewith the reasoning and the conclusion arrived at by the High Court in theimpugned order.

21. As a consequence, the appeal succeeds and is accordinglyallowed. The impugned order is set aside and as a result thereof, thewrit petition filed by the respondents is dismissed.

Ankit Gyan

Appeal allowed.

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