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1986 Supreme(HP) 42
High Court Of Himachal Pradesh
P.D.DESAI,R.S.THAKUR
PREM CHAND - Appellant
Versus
STATE OF H.P - Respondent
Civil Writ Petition No. 512 of 1986
Decided On : 08/19/1986
For the appellant(s) :Sh. K. D. Sood, Advocate. For the respondent(s):Sh P. N. Nag, Advocate General.
The employment of workmen as casuals or temporaries for years with the object of depriving them of the status and privileges of permanent workmen is an unfair labour practice under the Industrial Disputes Act, 1947, and such workmen are entitled to the same salary and allowances as regular employees for the work of equal value.
Headnote:
INDUSTRIAL DISPUTES ACT, 1947 - SECTION 2(J), 2(G), 2(RA), 25-T, 25-U - H.P. GOVERNMENT FOREST PRINTING PRESS - EMPLOYMENT OF WORKMEN AS CASUALS OR TEMPORARIES FOR YEARS - UNFAIR LABOUR PRACTICE - REGULARISATION OF SERVICES - EQUAL PAY FOR EQUAL WORK - PAYMENT OF SALARY AND ALLOWANCES FOR ARTIFICIAL BREAKS.
Fact of the Case:
Petitioners, employed as casual workers on daily wages in the Himachal Pradesh Government Forest Printing Press, filed a petition seeking regularisation of their services, payment of the same salary and allowances as regular employees, and condonation of artificial breaks given to them at regular intervals.
Finding of the Court:
The court held that the employment of workmen as casuals or temporaries for years with the object of depriving them of the status and privileges of permanent workmen is an unfair labour practice under the Industrial Disputes Act, 1947. The court also held that the petitioners were entitled to the same salary and allowances as regular employees for the work of equal value and that the artificial breaks given to them were illegal.
Issues: 1. Whether the employment of workmen as casuals or temporaries for years is an unfair labour practice under the Industrial Disputes Act, 1947? 2. Whether the petitioners are entitled to the same salary and allowances as regular employees for the work of equal value? 3. Whether the artificial breaks given to the petitioners were illegal?
Ratio Decidendi: 1. The court relied on the definition of 'industry' in section 2(j) of the Industrial Disputes Act, 1947, which includes any service carried on by or under the authority of any department of the Central Government or a State Government. The court also relied on the definition of 'employer' in section 2(g) of the Act, which includes the head of the department in relation to an industry carried on by or under the authority of any department of the Central Government or a State Government. 2. The court relied on the principle of 'equal pay for equal work' enshrined in Article 14 of the Constitution of India and the Directive Principles of State Policy. The court also relied on the decisions of the Supreme Court in Rattan Lal and others v. The State of Haryana and others, L, Robert DSouza v. The Executive Engineer, Southern Railway and another, Dhirendra Chameli and another v. State of U. P., and Surinder Singh and another v. Engineer-in-Chief, C. P. W. D. and others. 3. The court held that the artificial breaks given to the petitioners were illegal as they were given with the object of depriving them of the status and privileges of permanent workmen.
Final Decision: The court directed the State Government to review the case and to place on the record of the case a fresh decision arrived at in accordance with law and in light of the observations made by the court. The court also directed that the practice of giving artificial or fictional breaks to the petitioners and persons similarly situate be forthwith discontinued and such breaks, if any, administered in the past be condoned. The petitioners were directed to be paid the salary and allowances, if any, for all the days covered by such artificial or fictional breaks from the dates of their initial appointment.
P. D, Desai, J.—The affidavit-in-reply filed in the present case makes a curious reading. It is strange to find the State Government, which is committed to the goal of a Welfare State, coming forward with assertions of the nature therein made in defence to claims ^advanced by the petitioners which, prima facie, appear to be just, legitimate and lawful. The posture adopted in the affidavit betrays a total lack of commitment to the Constitutional philosophy of socio-economic justice enshrined in the Preamble of the Constitution as well as in the Directive Principles of State Policy enunciated in Part IV thereof and also a blisseul ignorance of the principles of equality and rationality embodied in Articles 14 and 16 of the Constitution. It also conveniently omits to take note of the Jaw laid down by the Supreme Court in a series of cases and of the decisions rendered and orders made by this Court in numerous cases in which the State was a party and which are presumed to be within its knowledge. One could have contemplated a die-hard private employer coming forward with such a plea in defence but not the State, which has always to function as a model and as an enlightened employer. Such defences ill-come from the mouth of the State and the Court legitimately expects that it will not have to countenance a defence of this nature in any similar case in future. The responsibility really lies on the shoulders of those whose duty it is to advice the State in legal matters to ensure that no defence is taken which is not in consonance with the Constitutional provisions as well as with the law declared by this Court and by the highest court in the country.
2. In Rattan Lal and others v. The State of Haryana and others, (1985) 4 SCC 43, the policy of giving ad hoc appointments for defined periods and renewing them after a fictional break year after year was deprecated as "pernicious" and as leading to a breach of Articles 14 and 16 of the Constitution since it unnecessarily subjected the employees" to an arbitrary hiring and firing policy. It was observed that such a situation could not be permitted to last any longer. The State was, therefore, directed to take immediate steps to fill up the vacancies in a regular manner in accordance with law and to allow the existing ad hoc teachers to continue to hold the posts till regular appointment took place. A further direction was issued to consider sympathetically the question of relaxing the qualification of maximum age prescribed for appointment to the posts in the case of those ad hoc teachers who had been victims of such system and also to consider the regularisation of those who had under the extant rules become entitled to such benefit. The State was asked to pay to them the salary and allowances for the period of Summer Vacation (the period of fictional breaks) alongwith other benefits such as maternity or medical leave etc., as long as they held office under the Courts order.
3. In L, Robert DSouza v. The Executive Engineer, Southern Railway and another, AIR 1982 SC 854, the Supreme Court pronounced way back in 1982 in the context of casual labour employed in the construction projects of the railways that it was "highly unethical, contrary to the constitutional philosphy of Socio-economic justice" to continue to treat such workmen serving for 10, 20 and 30 years at a stretch without break as daily-rated workmen and observed that it was high time that the railway authorities remedied "the utterly unfair" situation "wholly denying socio-economic justice" and brought its employment policy "in conformity with the modern concept of justice and fair play to the lowest and the lowliest".
4. In Dhirendra Chameli and another v. State of U. P., (1986) I SCC 637, the question was whether a number of persons, who were engaged as casual workers on daily wage basis and who were doing the same work as was being performed by the regular employees, were entitled to the same salary and allowances as
