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1999 Supreme(Cal) 95
High Court Of Calcutta
Satyabrata Sinha, S. N. Bhattacharjee
CALCUTTA TRAMWAYS CO.(1978) LTD. - Appellant
Versus
RAMESH AND 17 ORS. - Respondent
M. A. T. 3765 Of 1998
Decided On : 03/10/1999
ABU SULTAN, DEBABRATA KARAN, MILAN CHANDRA BHATTACHARJI
Regularisation or absorption is not a mode of recruitment and that an appointment to a permanent service must be made either in terms of the Recruitment Rules or by transfer or by promotion.
Headnote:
APPOINTMENT - REGULARISATION - SANCTIONED POSTS - RECRUITMENT RULES - TEMPORARY WORKERS - ABSORPTION - PUBLIC SERVICE COMMISSION - PERMANENT APPOINTMENT - INDUSTRIAL DISPUTES ACT - MINIMUM WAGES ACT - ARTICLES 14, 16, 23, 39(D) OF THE CONSTITUTION OF INDIA - CONTRACT LABOUR (REGULATION AND ABOLITION) ACT - SUMMARY DISMISSAL - SOCIAL JUSTICE - FACTUAL DISPUTE - BURDEN OF PROOF - SUMMARY DISMISSAL - BACK DOOR APPOINTMENTS - TEMPORARY APPOINTMENTS - PERMANENT APPOINTMENTS - MANDAMUS - WRIT JURISDICTION - LABOUR LAW - INDUSTRIAL LAW - EMPLOYMENT LAW - ADMINISTRATIVE LAW - CONSTITUTIONAL LAW:
Fact of the Case:
The respondents, who were engaged as temporary workers by the appellant company for a period of 89 days, filed writ petitions seeking a writ of mandamus directing the appellants to absorb them in permanent service. The appellants contended that the appointments were made on a temporary basis and that there were no sanctioned posts or recruitment rules for permanent appointments. The learned Single Judge of the Calcutta High Court allowed the writ petitions and directed the appellants to absorb the respondents in permanent service.
Finding of the Court:
The Calcutta High Court, in allowing the writ petitions, held that social justice demanded that the respondents be permanently absorbed in service. The Court relied on the decisions of the Supreme Court in Ratanlal and Ors. v. State of Haryana and Sm. Bhagwati Prasad v. Delhi State Mineral Development Corporation.
Issues: 1. Whether the respondents were entitled to be permanently absorbed in service despite the absence of sanctioned posts and recruitment rules? 2. Whether the learned Single Judge erred in directing the appellants to absorb the respondents in permanent service?
Ratio Decidendi: 1. The High Court held that regularisation or absorption is not a mode of recruitment and that an appointment to a permanent service must be made either in terms of the Recruitment Rules or by transfer or by promotion. 2. The High Court further held that mere prolonged or continuous service does not ripen into a regular service to claim permanent or substantive status. 3. The High Court also held that the respondents could not be permitted to be appointed through back door and then claim a permanency in services. 4. The High Court further held that the writ Court cannot convert itself into an industrial Court and that the respondents' remedy, if any, lay in raising an industrial dispute.
Final Decision: The Calcutta High Court allowed the appeals and set aside the judgment of the learned Single Judge. The Court held that the respondents were not entitled to be permanently absorbed in service and that the learned Single Judge had erred in directing the appellants to do so.
( 1 ) THESE two appeals are directed against a common judgment dated June 24, 1998 passed by the learned Single Judge of this Court in two writ applications filed by the respondents herein claiming, inter alia, issuance of a writ of mandamus directing the appellants herein to absorb them in permanent service
( 2 ) THERE were 15 petitions in C. O. No. 8686 (W) of 1992 and 13 petitioners in C. O. No. 9998 (W) of 1992. They filed writ applications, inter alia claiming that they although were working in a job which is perennial in nature, they were engaged for work for 89 days, whereafter their services used to be terminated for 15 to 20 days. The writ petitioners have contended that they had been working for 14 to 21 years with the appellant company. Such statements have been made in annexure 'a' to the writ application.
( 3 ) THE writ petitioners have themselves annexed to the writ applications various documents to show that they had been employed temporarily for a period of 89 days and as soon as the said date expired, their services had been discharged. Except certain documents of their discharge from service, the writ petitioners had not annexed their appointment letters as also any other document justifying the correctness of the statements made in annexure 'a' to the writ application. The appellants on the other hand clearly stated:" (a) Writ petition is not maintainable in as much as the writ petitioners were not engaged in terms of Recruitment Rules and there were no such sanctioned posts they were engaged on no work no pay basis for required period and they have never performed any job anywhere permanently, they were engaged for a particular period after completion of such particular job within such particular period, they were discharged. The discharge was never challenged by them. There is no permanent work to be done by engaging permanent employees, the construction work requiring job are entrusted to the contractors being appointed pursuant to public tender. Instance has been given by the writ petitioners in respect of M/s. D. N. Basu Roy who was entrusted with the job at Bipin Behari Ganguly Street, the said job was entrusted on public advertisement. Different litigations have cropped up with the company with regard to settlement of claim of such contractors and the suit and other connected matter are also pending in the Hon'ble Court. (b) That the claim if any raised by the writ petitioners fall within the original side jurisdiction of the Hon'ble Court, as such the instant application in appellate side is not maintainable in law. (c) That joint writ petition is also not maintainable inasmuch as the writ petitioners were engaged for a specific period to do specific job for a period of 89 days and they were engaged in different periods namely 1990, 1991, 1975, 1976, 1988, 1986, 1982, 1981, 1980 and writ petition as framed is not maintainable. (d) Writ petitioners are guilty of laches and delay and they have come before the Hon'ble Court after long delay and on delay ground above writ petition is liable to be dismissed. (e) That petitioners had no right to absorption and there were no sanctioned posts and they were not recruited according to Recruitment Rules and they were appointed on no work no pay basis for specific job, for specific time. (f) They were never engaged as nominees nor excepting one, there was any document for such nomination and nominee system has been abolished from the company since 1991 and there is no appointment in the company on nomination basis. The writ petitioners have not produced any documents that they were even nominated by father and such nomination was accepted by the company excepting one. One writ petitioner cannot be clubbed with other. Moreover such nomination has not been accepted and acted upon by the company. However the same is not subject matter of the writ petition. (g) Joint writ petition of different persons engaged in different years in respect of d
