Continuation of Workmen in Temporary Capacity for Years amounts to Unfair Labour Practice [Case Law]

Industrial Disputes Act, 1947 - Continuation of the workmen in temporary / contractual capacity for years together despite availability of vacant posts was aimed at depriving them of the status and privileges of the permanent workmen and, therefore, would clearly amount to unfair labour practice. 

HIGH COURT OF JAMMU AND KASHMIR

AT JAMMU

Coram: Hon’ble Mr. Justice Ramalingam Sudhakar, Chief Justice(Acting) & Hon’ble Mr. Justice Sanjeev Kumar, Judge

Date of Judgment:16.04.2018

LPAOW No.96/2013, MP No.116/2013 LPAOW No.95/2013 MP No.115/2013 LPAOW No.97/2013, MP No.117/2013 LPAOW No.98/2013, MP No.118/2013 LPAOW No.99/2013, MP No.119/2013 LPAOW No.100/2013, MP No.120/2013 LPAOW No.101/2013, MP No.121/2013 LPAOW No.102/2013, MP No.122/2013 LPAOW No.103/2013, MP No.123/2013 LPAOW No.104/2013, MP No.124/2013 LPAOW No.105/2013, MP No.125/2013 LPAOW No.106/2013, MP No.126/2013 LPAOW No.107/2013, MP No.127/2013 LPAOW No.108/2013, MP No.128/2013 LPAOW No.109/2013, MP No.129/2013

1. J&K Bank Limited v. Central Govt. Industrial Tribunal and others 2. J&K Bank Limited v. Central Govt. Industrial Tribunal and anr. 3. J&K Bank Limited v. Central Govt. Industrial Tribunal and anr. 4. J&K Bank Limited v. Central Govt. Industrial Tribunal and anr. 5. J&K Bank Limited v. Central Govt. Industrial Tribunal and anr. 6. J&K Bank Limited v. Central Govt. Industrial Tribunal and anr. 7. J&K Bank Limited v. Central Govt. Industrial Tribunal and anr. 8. J&K Bank Limited v. Central Govt. Industrial Tribunal and anr. 9. J&K Bank Limited v. Central Govt. Industrial Tribunal and anr. 10. J&K Bank Limited v. Central Govt. Industrial Tribunal and anr. 11. J&K Bank Limited v. Central Govt. Industrial Tribunal and anr. 12. J&K Bank Limited v. Central Govt. Industrial Tribunal and anr. 13. J&K Bank Limited v. Central Govt. Industrial Tribunal and anr. 14. J&K Bank Limited v. Central Govt. Industrial Tribunal and anr. 15. J&K Bank Limited v. Central Govt. Industrial Tribunal and anr.

For the Appellant(s) : Mr. Javed Iqbal, Advocate with Mr. Abhinav Jamwal, Advocate. For the Respondent(s) : Mr. P.N.Raina, Sr. Advocate with Mr. J.A.Hamal, Advocate. i/ Whether to be reported in : Yes Digest/Journal ii/ Whether to be reported in : Yes/No Press/Media 

Sanjeev Kumar-J 

1. In this batch of appeals filed by the Jammu & Kashmir Bank Limited, a common judgment of a learned Single Judge dated 27.09.2013 passed in a bunch of writ petitions has been called in question. Since identical questions of law and fact are involved in these appeals, as such, all appeals are disposed of by this common judgment. 

2. An advertence to the factual antecedents leading up to the filing of these appeals would be advantageous to appreciate the controversy involved in proper perspective. 

3. The respondents-workmen were engaged by the appellant-Bank as Armed Guards-cum-Night Watchmen on temporary basis on consolidated charges of Rs.2,000/- per month by order dated 04.04.2000 in almost all cases initially for a period of two months, somewhere in the year 2000. On completion of initial period of two months, their engagement appears to have been extended from time to time. However, in the year 2001, the engagement of the respondents-workmen which was initially made on temporary basis was converted into contractual subject to new terms and conditions. This contractual appointment made in the year 2001 was for a period of two years and later on extended from time to time for over a decade or more. There is, thus, no dispute that the respondents-workmen have been in continuous service of the appellant-Bank from the year 2000-2001 and had, thus, rendered continuous service of more than five years when the proceedings came to be instituted before the Central Government, Industrial Tribunal-Labour Court (hereinafter to be referred to as “the Tribunal” for short).

4. The respondents-workmen who had served for almost five years, apprehending that their services would be terminated by the appellant-Bank by treating their engagement as contractual approached the competent forum for redressal of their grievance. In the aforesaid background and on the basis of their continuous service, the respondent-workmen staked their claim for regularization. Having failed to evoke any response from the appellant-Bank, the respondents-workmen approached the Central Government for reference of the industrial dispute regarding their regularization against substantive posts of Armed Guards in the Bank. The Central Government accepted the plea of the respondents-workmen and vide its order dated 01.08.2005 referred the industrial dispute for adjudication to the Tribunal. The dispute which was referred to the Tribunal for adjudication would read thus:- 

“Whether the action of management of J&K Bank Ltd; represented through Chairman, J&K Bank Ltd; in not regularizing the services of Shri Swaran Singh, Armed Guard w.e.f. 4.4.2000 is legal and justified? If not; what relief workman is entitled to and from which date? 

5. We have reproduced the reference order made in favour of Sh. Swaran Singh. Identical references were made by the Central Government in the cases of other workmen as well. 

6. Before the Tribunal, the workmen substantiated their claim to regularization on the basis of following grounds:- 

a) In View of Shastri’s award of 1953 as modified from time to time by several Bipartite settlements to which the appellant-bank was a party, the appellant-bank could have made the temporary appointments for limited period only, if such work was essentially of temporary nature or there was a temporary increase in work of a permanent nature or in a temporary vacancy caused by the absence of a permanent workmen (para 20.7 Bipartite settlement dated 19.10.1996).

b) Since they had been appointed against clear vacant posts and had been continued for years was sufficiently indicative of the fact that the work being performed by the respondents-workmen was of perennial nature and, therefore, they were entitled to the protections as envisaged under Section 25B of the Industrial Disputes Act, 1947 (hereinafter referred to as “the Act”). 

c) The act of the appellant-Bank in appointing the respondent-workmen in temporary/contractual capacity in violation of Shastri’s award and the Bipartite settlements was tantamount to unfair labour practice as defined under Section 2(ra) of the Act attracting penal action as envisaged under Section 29 of the Act. 

7. A bare reading of the claim petition filed by the respondents-workmen before the Tribunal would make it abundantly clear that the respondents-workmen had sought regularization of their services on the basis of their continuous officiation as armed guards against the substantive vacancies. The respondent-workmen relied upon Shastri’s Award and Bipartite agreements to bolster their claim and the plea of the unfair labour practice indulged in by the appellant-Bank, was specifically raised, though, slightly in different context. The respondent-workmen had also very specifically pleaded in their claim petitions that their initial engagement in the appellant-bank was made after the appellant-Bank called for applications and made recruitment through a selection committee constituted by the appellant-Bank. Specific reference is made to the terms of appointment to the post of armed guards and the conditions imposed together with eligibility criteria. The respondents emphasized that the tenor of the appointment order itself is self explanatory to the effect that regular vacancy of armed guards was to be filled up and in the interregnum the temporary appointments are made which thereafter were changed to one of contractual appointment for defeating the rights of the respondents. The appointment order in one case reads as follows:- 

“As approved the below noted persons may be engaged as Armed Guards purely on temporary basis on consolidated charges of Rs.2000/- P.M. for a period of 02 months to be deployed at Bank’s New Zonal Headquarter, Rail Head Complex, Jammu till final selection is made for appointment of armed Guards. 

01/ Mr. Ashok Kuamr S/o Sh. Hans Raj Sharma R/O Vill. Patti, Teh. Samba 

02/ Mr. Pawan Kumar S/o Sh. Ram Saran R/O Ashok Nagar, Satwari, Jammu 

03/ Mr. Swaran Singh S/o Sh. Chajju Singh R/O VOP: Smailpur, Jammu. 

04/ Mr. Balkar Singh S/O Sh. Barkat Singh R/O Chak Mohdyar, R.S.Pura. 

Yours faithfully, 

Sd/- 

Asst. General Manager 

(Per. & Branches)” 

8. The claim of the respondent-workmen was contested by the appellant-Bank, both on law and facts. Beside others, the appellant-Bank specifically took the objection of jurisdiction. It was claimed by the appellant-Bank that the matter with regard to regularization of the respondents-workmen did not fall within the purview of the Act, as such, the Tribunal lacked jurisdiction to try and adjudicate the dispute referred to it by the Central Government. On facts, the appellant-Bank denied that they were bound by the provisions of Shastri award or the Bipartite settlements entered into between Indian Banks Association on one part and the Workmen’s Union on the other part. It was claimed that the appellant is a banking company and its affairs were regulated by its own Articles and Memorandum of Association. It was also denied by the appellant-Bank that the job for which the respondents-workmen were engaged was of perennial nature and that the respondents-workmen were ever engaged against any substantive vacancy.

9. The parties were permitted to lead their evidence to substantiate their claim and counter claims. Ultimately the Tribunal passed in as many as 15 different awards in favour of different workman separately on 12.09.2008, holding the respondents-workmen entitled to regularization of their services. Accordingly, the Tribunal directed the management of the appellant-bank to frame policy for regularization of the services of the respondents-workmen and providing further that in case of appellant-Bank’s failure to do so within a period of three months from the date of the award, the respondents-workmen would be deemed to have been regularized in service on the posts they had been working from the date of their engagements. 

10. Aggrieved, the appellant-Bank challenged all the fifteen awards by filing in as many as 16 writ petitions. Before the Writ Court also, similar pleas were taken by the appellant-bank to assail the awards of the Tribunal. The plea that the Tribunal had no jurisdiction to adjudicate upon the dispute referred to it by the Central Government appears to have been vehemently urged before the Writ Court also. Relying upon the judgment of the Supreme Court in the case of Uma Devi and others v. Secretary State of Karnataka and others; (2006) 4 SCC 1, the appellant-Bank also urged that since the respondents-workmen had not been engaged against any substantive vacancy, as such, there could not have been any direction for their regularization. None of the contentions raised on behalf of the appellant-Bank appears to have found favour with the Writ Court, which vide a common judgment dated 27.09.2013, impugned in these appeals, dismissed all the petitions filed by the appellant-Bank. This is how, the appellant-Bank is before us in these appeals. 

11. Having heard the learned counsel for both sides, we find that following questions, broadly, fall for consideration in these appeals:- 

I) Whether the Tribunal had the jurisdiction to entertain and adjudicate upon the dispute pertaining to the regularization of the respondents-workmen referred to it by the Central Government? 

II) Whether the Tribunal was correct in law and fact to direct the appellant-Bank to frame a scheme of regularization of respondents-workmen within a period of three months and providing further that in case of failure of the appellant-bank to do so, the respondents-workmen would be deemed to have been regularized? 

12. Associated with the aforesaid questions are some allied questions which too need determination by this Court in these proceedings. 

Question No.(I) 

13. The learned counsel for the appellant-Bank has assailed the jurisdiction of the Tribunal to adjudicate upon the dispute referred to it by the Central Government primarily on the plea that in terms of Section 7A read with Section 10(a)(d) of the Act, the Tribunal can only adjudicate upon the disputes which are enumerated in the Second Schedule and the Third Schedule of the Act. Referring to the aforesaid Schedules, the learned counsel for the appellant-Bank would urge that the matter with regard to the regularization of a workman engaged in temporary and contractual capacity is not provided either in the Second Schedule or in the Third Schedule. He would, therefore, submit that the dispute raised by the respondents-workmen and referred to the Tribunal by the Central government is not referable to both the aforesaid Schedules and, therefore, not amenable to the jurisdiction of the Tribunal. He would, however, urge that the plea of jurisdiction was specifically taken before the Tribunal as well as the Writ Court but the same has remained unattended and unanswered. It is further contended that the plea of jurisdiction, once raised specifically before the Tribunal, was required to be mandatorily adjudicated upon and decided by the Tribunal, reference of the dispute by the Central Government notwithstanding. Elaborating his submissions, learned counsel for the appellant-Bank would urge that the Central Government by making reference under Section 10 of the Act which is essentially an administrative function of the Central Government, cannot confer jurisdiction on the Tribunal which it would, otherwise, lack.

14. The contentions urged on behalf of the appellant-bank were vehemently contested by the learned counsel appearing for the respondents-workmen. Mr. P.N.Raina, learned senior counsel, ably assisted by Mr. J.A.Hamal, would urge that the plea of jurisdiction raised by the appellant-Bank is not available to it, more so, when neither the order of reference has been challenged by the appellant-bank nor the Central Government which has made the reference has been arrayed as party in any of the proceedings. Reliance in this regard is placed by the respondents on a judgment of Supreme Court rendered in the case of Delhi Cloth and General Mills Co. Ltd. v. The Workmen and others; AIR 1967 SC 469. 

15. The plea urged by the learned counsel for the appellant-bank that the dispute adjudicated upon by the Tribunal was alien to the provisions of the Act and, therefore, not amenable to the jurisdiction of the Tribunal is also refuted by the respondents-workmen by referring to the different provisions of the Act including Section 7, 7A and the Clauses in the Schedule Second and third of the Act. 

16. We are persuaded to agree with the submission of the learned counsel for the Bank that reference by the Central Government of the industrial dispute for adjudication of the dispute to the Labour Court or the Tribunal is an administrative function and, therefore, the same cannot be construed to confer jurisdiction on the Labour Court or the Tribunal, as the case may be, which such Forum, otherwise, lacks. The decision of the Supreme Court in the case of Delhi Cloth and General Mills Co. Ltd.’s case (supra) was rendered in different set of facts and circumstances and is, therefore, clearly distinguishable. As is held in the aforesaid case, the Tribunal may not be permitted to go into the question that the foundation of the dispute, subject matter of reference, was non-existent and that the true dispute was something else, but it would always be competent for the Tribunal to rule on its jurisdiction to entertain a particular nature of dispute, more so, when such plea is specifically raised before it.

17. From the perusal of award passed by the Tribunal it is apparent that this plea, though raised by the appellant-Bank, has not been gone into by the Tribunal. The Writ Court, however, has considered the aforesaid issue and concluded that by adjudicating upon the dispute referred to it, the Tribunal has not enlarged the scope of its jurisdiction. The issue though raised has been dealt with by the Writ Court but not in the manner urged by the learned counsel for the appellant-Bank. There is not much discussion much less a coherent debate on the issue which, urges learned counsel for the appellant-Bank, to plead that it has not been dealt with in proper perspective by the Writ Court. 

18. During the course of arguments, learned counsel for the appellant-Bank also suggested that the dispute being a mixed question of fact and law could only be adjudicated by the Tribunal and, therefore, the matter deserves to be remanded back to the Tribunal. 

19. We have given thoughtful consideration to this aspect of the matter as well. In view of the available material on record and the fact that the plea has been to some extent dealt by the Writ Court, it would be in the interest of justice to consider the submissions made on behalf of the appellant-Bank and adjudicate the same in these proceedings without putting the respondents-workmen to the agony of re-trial of the dispute. 

20. It is in this background, the plea of jurisdiction raised on behalf of the appellant-bank has been considered in the light of the rival contentions urged by the learned counsel appearing for the parties. As urged vehemently before us, the determination of this question depends upon interpretation of various provisions of the Act. Before we embark upon the aforesaid exercise, it would be necessary to keep in mind that the Industrial Dispute Act is a social welfare legislation and its provisions are required to be interpreted in keeping with the goals set out in the preamble of the Constitution and the provisions contained in Part-IV of the Constitution of India. The opening words of the preamble of the Constitution of India which are relevant for our purposes read thus:- 

“WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens: 

JUSTICE social, economic and political; 

……………………………” 

21. It is true that a preamble cannot override the statute but nonetheless it is a key to interpret and understand its various provisions. The preamble to our Constitution which explains its ideals and objectives casts upon the State an obligation to secure to all its citizens social, economic and political justice and the goals which State is enjoined to achieve have been set out in Part-IV of the Constitution styled as “Directive Principles of State Policy”. Article 38 enjoins the State to strive for promoting welfare of the people by securing and protecting, as effectively as it may, a social order in which justice, social, economic and political shall inform all the institutions of the national life. Article 43 and 43-A mandate an obligation on the State to endeavour to secure to all workers a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities. 

22. Article 43-A goes to the extent of setting out goal before the State to secure the participation of the workers in the management of undertakings, establishments or other organizations engaged in any industry. The Directive Principles set out in Part-IV of the Constitution may not be justiciable but are the goals which State is obliged to achieve by its affirmative action including by bringing out appropriate legislations. 

23. In consonance with the aforesaid constitutional philosophy are the observations made by the Supreme Court in paragraph No.31 of the judgment rendered in the case of Harjinder Singh v. Punjab State Warehousing Corporation; (2010) 3 SCC 192, which are as under:-

“31.It need no emphasis that if a man is deprived of his livelihood, he is deprived of all his fundamental and constitutional rights and for him the goal of social and economic justice, equality of status and of opportunity, the freedoms enshrined in the Constitution remain illusory. Therefore, the approach of the courts must be compatible with the constitutional philosophy of which the Directive Principles of State Policy constitute an integral part and justice due to the workman should not be denied by entertaining the specious and untenable grounds put forward by the employer - public or private.” 

24. Taking cue from the observations of the Supreme Court made in the aforesaid case and in the light of constitutional philosophy embodied in the Directive Principles of State Policy, we have made a humble effort to interpret the various provisions of the Act debated before us by both the parties keeping in mind that the provisions of Social Welfare legislation like the Industrial Dispute Act, 1947 are required to be interpreted in such a way as to further the statutory goal and not to frustrate it. 

25. The Act has been promulgated essentially for the investigation and settlement of industrial disputes, as is apparent from a bare reading of its preamble. The axis of the jurisdiction of the Labour Court or the Tribunal, as the case may be, is the existence of industrial dispute and its valid reference by the appropriate Government. It is not disputed before us that the reference in the instant case has been made by the Central Government which is appropriate government for the purpose. The industrial dispute which can be made subject matter of reference by the appropriate government is the one defined in Section 2(k) of the Act, which for facility of reference is reproduced hereunder:- 

“2(k) “industrial dispute” means any dispute or difference between employers and employees, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, or any person;”

26. From a reading of Sectin 2(k), it is clear that any dispute or difference between the employer and the workmen which is connected with the employment or non-employment or terms of employment or with the condition of labour, of any person, is an “industrial dispute”, as defined in the Sub Section (k) of Section 2 of the Act. Therefore, the dispute with regard to the regularization of the workmen whether or not tenable under the terms of employment is an industrial dispute. It is also a dispute which pertains essentially to the condition of labour. Whether the engagement of the respondents-workmen on temporary/contractual basis by payment of paltry emoluments despite the fact that the work assigned to them was of perennial nature, would be permissible and a valid condition of labour or is an unfair labour practice would also fall within the ambit of the term “industrial dispute”. 

27. To be fair to the learned counsel for the appellant-Bank, he has not disputed that the nature of the dispute referred to the Tribunal for adjudication is an industrial dispute but submits that the same does not fall in any of the entry enumerated in the Second Schedule and Third Schedule of the Act. 

28. Be that as it may, once we hold that the dispute raised in these proceedings by the workmen is an industrial dispute, it only needs to be determined as to whether this dispute is capable of being referred to the Tribunal and whether the Tribunal has the jurisdiction to adjudicate upon it? 

29. Section 7A of the Act clearly provides that the appropriate Government can refer an industrial dispute to the Industrial Tribunal for adjudication relating to any matter, whether specified in the Second Schedule or the Third Schedule. However, Section 7 mandates that the appropriate Government would refer to the Labour Court for adjudication only such industrial disputes as relate to the matters specified in the Second Schedule. For betting understanding, it would be appropriate to set out the provisions of Section 7 and 7A of the Act, which read thus:- 

“7. Labour Courts.- (1) The appropriate Government may, by notification in the Official Gazette, constitute one or more Labour Courts for the adjudication of industrial disputes relating to any matter specified in the Second Schedule and for performing such other functions as may be assigned to them under this Act. 

(2) A Labour Court shall consist of one person only to be appointed by the appropriate Government. (3) A person shall not be qualified for appointment as the presiding officer of a Labour Court, unless-

(a) he is, or has been, a Judge of a High Court; or 

(b) he has, for a period of not less than three years, been a District Judge or an Additional District Judge; or 

[*****] 

(d) he has held any judicial office in India for not less than seven years; or 

(e) he has been the presiding officer of a Labour Court constituted under any Provincial Act or State Act for not less than five years.” 

“7A. Tribunals.- (1) The appropriate Government may, by notification in the Official Gazette, constitute one or more Industrial Tribunals for the adjudication of industrial disputes relating to any matter, whether specified in the Second Schedule or the Third Schedule 5*[and for performing such other functions as may be assigned to them under this Act]. 

(2) A Tribunal shall consist of one person only to be appointed by the appropriate Government. 

(3) A person shall not be qualified for appointment as the presiding officer of a Tribunal unless— 

(a) he is, or has been, a Judge of a High Court; or 

[(aa) he has, for a period of not less than three years, been a District Judge or an Additional District Judge; 

[*******] 

(4) The appropriate Government may, if it so thinks fit, appoint two persons as assessors to advise the Tribunal in the proceeding before it.” 

30. A conjoint reading of the aforesaid Sections would reveal that the aforesaid two sections have been enacted primarily for the purpose of conferring jurisdiction by allocating and distributing different matters for adjudication between the Labour Court and the Tribunal. In terms of Section 7A, the jurisdiction to adjudicate an industrial dispute relating to the matters specified in the Third Schedule is exclusively vested with the Tribunal and to the complete exclusion of the Labour Court whereas the Labour Court under Section 7 of the Act would adjudicate upon the disputes relating to the matters specified in the Second Schedule. 

31. With a view to further understand the issue, it would be necessary to reproduce the Second Schedule as well as the Third Schedule of the Act, which is as under:- 

“THE SECOND SCHEDULE

1. The propriety or legality of an order passed by an employer under the standing orders;

2. The application and interpretation of standing orders;

3. Discharge or dismissal of workmen including reinstatement of, or grant of relief to, workmen wrongfully dismissed;

4. Withdrawal of any customary concession or privilege;

5. Illegality or otherwise of a strike or lock-out; and

6. All matters other than those specified in the Third Schedule.”

 THE THIRD SCHEDULE

1. Wages, including the period and mode of payment;

2. Compensatory and other allowances;

3. Hours of work and rest intervals;

4. Leave with wages and holidays;

5. Bonus, profit sharing, provident fund and gratuity;

6. Shift working otherwise than in accordance with standing orders;

7. Classification by grades;

8. Rules of discipline;

9. Rationalisation;

10. Retrenchment of workmen and closure of establishment; and

11. Any other matter that may be prescribed.”

32. In the Second Schedule which has reference to Section 7 of the Act, different types of industrial disputes which are referable to the Labour Court have been enumerated. However, in terms of Entry-6, the Labour Court has been conferred jurisdiction to adjudicate all matters (of course industrial disputes) other than those specified in the Third Schedule. This only excludes the jurisdiction of the Labour Courts viz-a-viz the matters enumerated in the Third Schedule. Except the matters provided in the Third Schedule, the Labour Court will have jurisdiction to deal with, try and decide all industrial disputes. Similarly, in terms of Section 7A of the Act, the Tribunal would be well within its jurisdiction to decide all matters enumerated in the Second Schedule as well as the Third Schedule. The Entry-6 of the Second Schedule would also be relevant for appreciating the jurisdiction of the Tribunal. The Tribunal, in addition to having jurisdiction with regard to the matters provided in the Third Schedule, shall also be competent to adjudicate upon all other industrial disputes including those specified in the Second Schedule. This is the plain interpretation of the various provisions of the Industrial Dispute Act, referred to above. 

33. Understood thus, the dispute relating to the regularization of the respondents-workmen which was subject matter of reference before the Tribunal was nothing but an industrial dispute amenable to the jurisdiction of the Tribunal and the contrary argument is totally illogical and wholly untenable.

34. The view aforesaid which we have taken also finds support from the judgments of the Supreme Court in the case of Hari Nandan Prasad and another v. Employer I/R to Management of Food Corporation of India and another; (2014) 7 SCC 190 and Oil and natural Gas Corporation Limited v. Petroleum Coal Labour Union and Others; (2015) 6 SCC 494 relied upon by the learned counsel for the respondents-workmen. Before the aforesaid judgments, the Supreme Court came to confront with an argument similar to the one raised before us by the learned counsel for the appellant-Bank with regard to the effect and implications of the Constitution Bench decision of the Supreme Court in the case of Umadevi (3) (supra). In the case of Maharashtra SRTC v. Casteribe Rajya Parivahan Karmchari Sangathana; (2009) 8 SCC 556, the issue before the Supreme Court was with regard to the jurisdiction of the industrial Court to give status, wages and all other benefits of permanency to the workmen who had been serving for years as cleaners in the Corporation in the temporary capacity. Relying upon Umadevi (3), a plea was raised on behalf of the Corporation that granting of permanent status to the casual workers/daily wagers was not sustainable in law. Repelling the aforesaid argument, the Supreme Court in paragraph No.32 and 33 observed as under:-

“32. The power given to the Industrial and Labour Courts under Section 30 is very wide and the affirmative action mentioned therein is inclusive and not exhaustive. Employing badlis, casuals or temporaries and to continue them as such for years , with the object of depriving them of the status and privileges of permanent employees is an unfair labour practice on the part of the employer under item 6 of Schedule IV. Once such unfair labour practice on the part of the employer is established in the complaint, the Industrial and Labour Courts are empowered to issue preventive as well as positive direction to an erring employer.

33. The provisions of MRTU & PULP Act and the powers of Industrial and Labour Courts provided therein were not at all under consideration in the case of Umadevi1. As a matter of fact, the issue like the present one pertaining to unfair labour practice was not at all referred, considered or decided in Umadevi1. Unfair labour practice on the part of the employer in engaging employees as badlies, casuals or temporaries and to continue them as such for years with the object of depriving them of the status and privileges of permanent employees as provided in item 6 of Schedule IV and the power of Industrial and Labour Courts under Section 30 of the Act did not fall for adjudication or consideration before the Constitution Bench” 

35. Undoubtedly, the provisions of Section 30 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practice Act, 1971 (MRTU and PULP Act) were also taken into consideration by the Supreme Court. It is here, learned counsel for the appellant-bank tried to draw distinction and impress upon us to treat the said judgment distinguishable on facts. 

36. The contention of the learned counsel for the appellant-Bank could have possibly weighed with us if the subsequent judgment rendered by the Supreme Court in the case of Hari Nandan Prasad (supra) wherein the issue as to whether the Labour Court/Tribunal has the jurisdiction to order regularization of a workman was considered in the context of provisions of the Act had not been brought to our notice. It may be relevant to note that in the aforementioned case reference to the Central Government Industrial Tribunal was of the disputes including the right of Hari Nandan Prasad, ex casual workman, for regularization of his services. The exact terms of reference in the case of Hari Nandan Prasad (supra) was in the following manner:- 

“Whether the action of the management of Food Corporation of India, in retrenching Shri Hari Nandan Prasad, ex casual workman, in contravention of Section 25-F of the ID Act, 1947 and denying reinstatement with full back wages and regularization of his service is legal and justified? If not to what relief is the workman concerned entitled?” 

37. From the perusal of above, it is manifest that the dispute referred to the Tribunal in the case in hand is similar to the dispute which had fallen for consideration before the Supreme Court in Hari Nandan Prasad’s case (supra). The Supreme Court while relying upon its earlier judgment in the case of Maharastra SRTC (supra) and being alive to the fact that the aforesaid judgment had been passed, inter alia, by relying upon the provisions of Section 30 of MRTU and PULP Act,1971, in paragraph Nos. 35 to 49 of the judgment, observed thus:- 

“35. We are conscious of the fact that the aforesaid judgment is rendered under MRTP and PULP Act and the specific provisions of that Act were considered to ascertain the powers conferred upon the Industrial Tribunal/Labour Court by the said Act. At the same time, it also hardly needs to be emphasized the powers of the industrial adjudicator under the Industrial Disputes Act are equally wide. The Act deals with industrial disputes, provides for conciliation, adjudication and settlements, and regulates the rights of the parties and the enforcement of the awards and settlements. Thus, by empowering the adjudicator authorities under the Act, to give reliefs such as a reinstatement of wrongfully dismissed or discharged workmen, which may not be permissible in common law or justified under the terms of the contract between the employer and such workmen, the legislature has attempted to frustrate the unfair labour practices and secure the policy of collective bargaining as a road to industrial peace. 

36. In the language of Krishna Iyer, J:

The Industrial Disputes Act is a benign measure, which seeks to pre-empt industrial tensions, provide for the mechanics of dispute- resolutions and set up the necessary infrastructure, so that the energies of the partners in production may not be dissipated in counter-productive battles and the assurance of industrial justice may create a climate of goodwill.” (Life Insurance Corpn. Of India v. D.J.Bahadur 1980 Lab IC 1218, 1226(SC), per Krishna Iyer,J.).

In order to achieve the aforesaid objectives, the Labour Courts/Industrial Tribunals are given wide powers not only to enforce the rights but even to create new rights, with the underlying objective to achieve social justice. Way back in the year 1950 i.e. immediately after the enactment of Industrial Disputes Act, in one of its first and celebrated judgment in the case of Bharat Bank Ltd. V. Employees of Bharat Bank Ltd. [1950] LLJ 921,948-49 (SC) this aspect was highlighted by the Court observing as under: 

“In settling the disputes between the employers and the workmen, the function of the tribunal is not confined to administration of justice in accordance with law. It can confer rights and privileges on either party which it considers reasonable and proper, though they may not be within the terms of any existing agreement. It has not merely to interpret or give effect to the contractual rights and obligations of the parties. It can create new rights and obligations between them which it considers essential for keeping industrial peace.”

37. At the same time, the aforesaid sweeping power conferred upon the Tribunal is not unbridled and is circumscribed by this Court in the case of New Maneckchowk Spinning & Weaving Co.Ltd.v. Textile Labour Association [1961] 1 LLJ 521,526 (SC) in the following words: 

“This, however, does not mean that an industrial court can do anything and everything when dealing with an industrial dispute. This power is conditioned by the subject matter with which it is dealing and also by the existing industrial law and it would not be open to it while dealing with a particular matter before it to overlook the industrial law relating to the matter as laid down by the legislature or by this Court.” 

38. It is, thus, this fine balancing which is required to be achieved while adjudicating a particular dispute, keeping in mind that the industrial disputes are settled by industrial adjudication on principle of fair play and justice.

39. On harmonious reading of the two judgments discussed in detail above, we are of the opinion that when there are posts available, in the absence of any unfair labour practice the Labour Court would not give direction for regularization only because a worker has continued as daily wage worker/adhoc/temporary worker for number of years. Further, if there are no posts available, such a direction for regularization would be impermissible. In the aforesaid circumstances giving of direction to regularize such a person, only on the basis of number of years put in by such a worker as daily wager etc. may amount to backdoor entry into the service which is an anathema to Art.14 of the Constitution. Further, such a direction would not be given when the concerned worker does not meet the eligibility requirement of the post in question as per the Recruitment Rules. However, wherever it is found that similarly situated workmen are regularized by the employer itself under some scheme or otherwise and the workmen in question who have approached Industrial/Labour Court are at par with them, direction of regularization in such cases may be legally justified, otherwise, non-regularization of the left over workers itself would amount to invidious discrimination qua them in such cases and would be violative of Art.14 of the Constitution. Thus, the Industrial adjudicator would be achieving the equality by upholding Art. 14, rather than violating this constitutional provision. 

40. The aforesaid examples are only illustrated. It would depend on the facts of each case as to whether order of regularization is necessitated to advance justice or it has to be denied if giving of such a direction infringes upon the employer’s rights 

41. In the aforesaid backdrop, we revert the facts of the present case. The grievance of the appellants was that under the Scheme contained in Circular dated 6.5.1997 many similarly placed workmen have been regularized and, therefore, they were also entitled to this benefit. It is argued that those who had rendered 240 days service were regularized as per the provision in that Scheme/Circular dated 6.5.1987.

42. On consideration of the cases before us we find that appellant No.1 was not in service on the date when Scheme was promulgated i.e. as on 6.5.1987 as his services were dispensed with 4 years before that Circular saw the light of the day. Therefore, in our view, the relief of monetary compensation in lieu of reinstatement would be more appropriate in his case and the conclusion in the impugned judgment qua him is unassailable, though for the difficult reasons (as recorded by us above) than those advanced by the High Court. 

43. However, in so far as appellant No.2 is concerned, he was engaged on 5.9.1986 and continued till 15.9.1990 when his services were terminated. He even raised the Industrial dispute immediately thereafter. Thus, when the Circular dated 5.9.1987 was issued, he was in service and within few months of the issuing of that Circular he had completed 240 days of service. Non-regularization of appellant No.2, while giving the benefit of that Circular dated 6.5.1987 to other similar situated employees and regularizing them would, therefore, be clearly discriminatory. On these facts, the CGIT rightly held that he was entitled to the benefit of scheme contained in Circular dated 6.5.1987. The Division Bench in the impugned judgment has failed to notice this pertinent and material fact which turns the scales in favour of appellant No.2. High Court committed error in reversing the direction given by the CGIT, which was rightly affirmed by the learned Single Judge as well, to reinstate appellant No.2 with 50% back wages and to regularize him in service. He was entitled to get his case considered in terms of that Circular. Had it been done, probably he would have been regularized. Instead, his services were wrongly and illegally terminated in the year 1990. 

44. As an upshot of the aforesaid discussion, we allow these appeals partly. While dismissing the appeal qua appellant No.1, the same is accepted in so far as appellant No.2 is concerned. In his case, the judgment of the Division Bench is set aside and the award of the CGIT is restored. There shall, however, be no order as to costs.”

38. The same view was reiterated by the Supreme Court in the subsequent judgments in the cases of Ajaypal Singh versus Haryana Warehousing Corporation; (2015) 6 SCC 321 and ONGC Limited’s case (supra). From a bare reading of the aforesaid judgments and the principles of law laid down therein, it is abundantly clear that the powers of the Tribunal created under the Act are very wide in amplitude and would be available for adjudication of all types of industrial disputes including the unfair labour practice, if any, indulged in by the employer but at the same time it would not be fair to say that the Industrial Tribunal can do anything and everything when dealing with such disputes. Needles to point out that to employ workmen as badlis, casual or temporary and to continue them as such for years with an object of depriving them of the status and privilege of permanent workmen is one of the unfair labour practices enlisted in the Fifth Schedule of the Act. 

39. After going through the aforesaid case law cited before us and considering the beneficial provisions of the Act, following principles of law applicable to the issue relating to the regularization of the workmen are deductible:- 

i) Employing the workman in temporary capacity and to continue him/them as such for years with the object of depriving him of status and privileges of permanent workman is unfair labour practice as defined in Section 2(ra) of the Act reads with Entry 10 of the Fifth Schedule. 

ii) That unfair labour practice complained of by a workman would fall within the ambit of industrial dispute as defined under Section 2(k) of the Act. 

iii) The Industrial Tribunal has the jurisdiction and competence to adjudicate upon all disputes which are enumerated in the Second Schedule and the Third Schedule of the Act and the dispute raised by the workman claiming right of regularization is the one comprehended under Entry-6 of the Second Schedule. 

iv) The power of the Industrial Court/Tribunal can not extend to do anything and everything while dealing with an industrial dispute and the direction for regularization of service of a workman is subject to following conditions:-

a) Unfair Labour Practice has been established;

b) The Workmen had been working continuously against the substantive posts against which they could be ordered to be regularized;

c) The workmen, otherwise, fulfill the eligibility qualification to hold the post;

d) If it is found that the similarly situated workmen have been regularized by the employer itself, the same would be the reason enough to direct the employer to regularize the service of the workmen who have approached the Labour Court/Tribunal.

40. Apart from the aforesaid conditions, there could be other reasons where the management may be justified in not regularizing the workmen or that it would not be in the interest of justice to order such regularization by the Labour Court/Tribunal. 

41. When we examine the instant case in the backdrop of aforesaid legal position, we find that indisputably the respondents-workmen were engaged pursuant to a proper selection process conducted by the appellant-Bank after inviting applications for the purpose. In other words, entry of the respondents-workmen in the appellant-Bank is not by way of backdoor appointment. It is also not in dispute that the respondents-workmen, though, appointed initially for a period of two months had been allowed to continue by issuing orders from time to time. It is immaterial whether they have been permitted to continue as temporary or contractual. The mere fact that they were continued beyond initial period of two months for years together speaks volume about the perennial nature of work for which the respondents-workmen were engaged. Stipulation in the order of their appointment indicating, inter alia, that the temporary appointment of the respondent-workmen was till the final selection is made for appointment of the Armed Guards would go a long way to substantiate the plea of the respondent-workmen that they were engaged against available vacant posts which at the time of engagement of the respondents-workmen were proposed to be filled up by way of regular selection. It is also not questionable that no regular selection was resorted to and instead the respondents-workmen were allowed to continue on payment of Rs.2000/- per month or so, a sum which, by no stretch of reasoning, could be commensurate with the nature of job they were enjoined to perform.

42. That apart, the Labour Court has, on facts, found the plea of the respondents-workmen that they were engaged against the available vacant posts substantiated and this finding of fact has been affirmed by the Writ Court. The appellant-Bank has also not been able to demonstrate by reference to any evidence or record that the engagement of the respondents-workmen was against non-existent posts. We do not see any reason much less any justification to interfere with the aforesaid finding of fact. Needless to say that the writ jurisdiction of the Court cannot be invoked to assail the findings of fact. As rightly said, the High Court in its writ jurisdiction does not act as a Court of appeal. There is nothing brought on record to show that the findings of fact recorded by the Tribunal and affirmed by the Writ Court are patently illegal or suffer from any perversity. 

43. It may not be out of place to mention that the appellant-Bank being a private entity, incorporated under the Companies Act, is not supposed to follow any procedure statutorily laid for creation of posts which may also require financial concurrence as is the case with the Government and the public sector undertakings. The Appellant-Bank being repository of all powers including laying down the service conditions of its employees can very well order regularization of its workers and simultaneously create the posts therefor. 

44. For all these reasons, the plea of the appellant-Bank that the engagement of the respondents-workmen was against no post and, therefore, no direction for their regularization could have been issued is devoid of any merit and, therefore, rejected.

45. The question as to whether the respondents-workmen meet other eligibility conditions has been rightly left to be determined by the appellant-bank when it comes up with a scheme of regularization, as directed by the Tribunal. This, however, does not mean that while framing policy for regularization as directed by the Tribunal, the appellant-Bank can lay down new conditions of eligibility so as to knock down the claim of respondents-workmen rather it would be guided by such terms and conditions subject to which the similarly situated persons, prior to the engagement of respondents-workmen have been regularized as also the conditions imposed on the respondents when they were engaged based on the bank’s required parameters.

Question No.(II)

46. In view of what has been held by us while answering the question No.1, there is hardly any necessity to answer question No.(II), for, the answer to question No.(II) lies in our answer to question No.(I). 

47. We find no reason or justification to find fault with the directions issued by the Tribunal to give effect to the regularization of the respondents-workmen. More so, when we have unequivocally held that continuation of the respondents-workmen in temporary/contractual capacity for years together despite availability of vacant posts was aimed at depriving them of the status and privileges of the permanent workmen and, therefore, would clearly amount to unfair labour practice. We, therefore, find that the directions contained in the operative portion of the order of the Tribunal were the right directions called for in the facts and circumstances of the case and Writ Court committed no error in dismissing the writ petition. 

48. For all these reasons, we do not find any merit in these appeals and the same are, therefore, dismissed. Let the appellant-Bank implement the award of the Tribunal forthwith and in any case within a period of three months from the date of this judgment, failing which the consequences as envisaged in the award of the Tribunal shall follow. There shall be no order to costs.