The Division Bench of the High Court of J&K and Ladakh comprising of Justice Ali Mohammad Magrey and Justice Mohd. Akram Chowdhary has observed that in order to acquire ‘temporary’ status, the casual labourer should have been in employment as on the date of commencement of the Scheme and have also rendered a continuous service of at least one year.
The appellants had filed a writ petition before the Single Bench of the High Court challenging the Award passed by the Tribunal-cum-Labour Court-II Chandigarh whereby the appellants herein were directed to grant temporary status to the respondents herein i.e., Members of the Causal Labour Employees Association, Radio Kashmir, Srinagar. The said writ Court had dismissed the petition which gave rise to the instant appeal.
-The members of the respondent – Casual Labour Employees Association, Radio Kashmir, Srinagar were engaged by the appellant as casual labourers in Radio Kashmir, Srinagar, on contract basis from time to time since 1991.
-They raised an industrial dispute before the Regional Labour Commissioner(C), Jammu, regarding regularization of their services. The dispute ended into failure on 31.10.2015.
-Consequently, the Regional Labour Commissioner, Jammu, somewhere around 18.12.2015, made a Report on Failure of Conciliation to Ministry of Labour, Government of India, New Delhi, for necessary action.
-The Central Government/Government of India, Ministry of Labour, in turn, made a Reference of the said dispute, specified in the Schedule appended thereto, for adjudication to the Central Government Industrial Tribunal-cum-Labour Court No.2, Chandigarh, (hereafter, the Tribunal) with direction that the Tribunal shall give its award within a period of three months. The Schedule of the order read as under:
“Whether the action of the management of Radio Kashmir, Srinagar representing through its Chief Executive Officer in not regularizing the services of 37 casual workers of Radio Kashmir Srinagar w.e.f. the date of their joining in the department is legal and justified? If not, to what relief these workmen are entitled and from which date?”
The Tribunal answered the Reference and made the direction as quoted hereunder:
“Thus, the reference is answered holding that the act of the respondent-management in not regularizing the services of 37 casual workers is not illegal and unjustified. However, the present workers are entitled to get temporary status as was given to other workers.
The respondent-management is directed to grant temporary status within one month of the publication of the award and the workmen shall get the temporary status from the date of conferring of the said status on them by the respondent- management and be entitled for all the benefits as available to the workmen who were granted temporary status as per Casual Labourers (Grant of Temporary Status and Regularization) Scheme of Govt. of India, 1993.”
The appellants herein challenged the aforesaid Award dated 18.09.2017 passed by the Tribunal in writ petition, OWP No.429/2018, principally, on the ground that the Award had been passed in violation of the 1993 Scheme, and that the directions given by the Tribunal to grant temporary status to the respondents herein were not in conformity with the law laid down by the Supreme Court in its various judgments.
The Court take into consideration the fundamental question involved in the case i.e., whether the 1993 Scheme was and could, at all, be made applicable to the respondent herein?
The Court noted that the members of the respondent Association/Union knew and were convinced that the 1993 Scheme was not applicable to them; therefore, they had sought a direction in their petition before the High Court/CAT for framing a similar Scheme for their regularization.
The Court observed:Paragraph 14 of the Instant Judgment
“14. The Award made by the Tribunal, in clear, unambiguous and specific terms holds, firstly, that the 1993 Scheme was not in force; and secondly, that the act of the management in not regularising the services of the 37 casual workers was not illegal and unjustified. Holding and recording so, the Reference would stand completely answered and the Tribunal would not have the jurisdiction to proceed with the second part of the Reference. Yet the Tribunal has proceeded to direct the appellants herein to grant temporary status to the respondent/claimants. Such direction, apart from being without jurisdiction on the part of the Tribunal, not supported by the Scheme, is contrary to the finding recorded by the Tribunal itself that theScheme was not in force. So, the Award passed by the Tribunal and the directions contained therein are contradictory in terms. It cannot, therefore, be said that the Award was made by the Tribunal and upheld by the learned Writ Court in the peculiar fact situation of the case; it is rather unsupported by the peculiar fact situation of the case.”
The Court while analysing the purport of the Scheme of 1993 made the following observations:
“15. So, it was clearly mentioned that the Scheme was applicable to the identified casual labourers who were in employment on the date of issue of the Scheme. In fact, the issue is not res integra, inasmuch as it has long since been held by the Supreme Court in Union of India v. Mohan Pal, cited at the Bar and relied upon by Mr. Rattanpuri, learned counsel for the appellants, that the conferment of temporary status was to be given to the casual labourers who were in employment as on the date of commencement of the Scheme. Paras 5 and 6 of the judgment for ready reference are quoted hereunder:
“Para 5. The first question is to be decided on the basis of the interpretation of clause 4 of the Scheme. As already noticed, the Scheme came into effect from 1-9-1993. Clause 4(1) of the Scheme reads as follows:
‘temporary status.– (1) ‘temporary’ status would be conferred on all casual labourers who are in employment on the date of issue of this OM and who have rendered a continuous service of at least one year, which means that they must have been engaged for a period of at least 240 days (206 days in the case of offices observing 5 days’ week).
“Para 6. Clause 4 of the Scheme is very clear that the conferment of ‘temporary’ status is to be given to the casual labourers who were in employment as on the date of commencement of the Scheme. Some of the Central Administrative Tribunals took the view that this is an ongoing scheme and as and when casual labourers complete 240 days of work in a year or 206 days (in case of offices observing 5 days a week), they are entitled to get ‘temporary’ status. We do not think that clause 4 of the Scheme envisages it as an ongoing scheme. In order to acquire ‘temporary’ status, the casual labourer should have been in employment as on the date of commencement of the Scheme and he should have also rendered a continuous service of at least one year which means that he should have been engaged for a period of at least 240 days in a year or 206 days in case of offices observing 5 days a week. From clause 4 of the Scheme, it does not appear to be a general guideline to be applied for the purpose of giving ‘temporary’ status to all the casual workers, as and when they complete one year’s continuous service. Of course, it is up to the Union Government to formulate any scheme as and when it is found necessary that the casual labourers are to be given ‘temporary’ status and later they are to be absorbed in Group ‘D’ posts.”
16. So, the judgment of the Supreme Court on the point is crystal clear that the Scheme was applicable to those of the casual labourers who were in employment on the date of its issue and, most importantly, secondly, who had put in a service of at least 240 days after engagement or 206 days (in case of offices observing 5 days a week) in a year prior to the date of issue of the Scheme. So the question of grant of temporary status on a casual worker engaged after the relevant date would not arise, the Court observedParagraph 16 of the Instant Judgment
The Court, while holding that the learned Single Judge has fallen into a grave legal error in dismissing the writ petition filed by the appellants, observed
“that no amount of views, opinions, philosophical discourses imported from speeches and writings of foreigners can override the basic spirit, object, applicability of a law, rule or scheme and the eligibility clause prescribed therein nor can the same confer jurisdiction on a Tribunal or a Court, including the learned Writ Court, or help in stretching the same beyond what is expressly provided by law. Even the discretion vested in the Court under Article 226 of the Constitution of India is not unlimited.”
The Court referred to the judgment in Anurag Kumar Singh v State of Uttrakhand, (2016) 9 SCC 426, wherein the Supreme Court observed that Courts cannot give any direction contrary to the Statute or Rules made thereunder in exercise of judicial discretion. The Supreme Court in the said judgment has quoted with approval from the ‘Judicial Discretion (1989)’ by Aharon Barak, that “discretion assumes the freedom to choose among several lawful alternatives. Therefore, discretion does not exist when there is, but one lawful option”.
“In that view of the matter, there was no discretion left with the learned Writ Court under Article 226 of the Constitution to grant a relief in favour of the respondents herein to which they were not entitled under the 1993 Scheme or which was not the import of the Reference made to the Tribunal. Similarly, no amount of vehemence in an argument can help in stretching a law, rule or Scheme beyond a period or cut off date expressly stated therein and/or alter the eligibility criteria prescribed therein.”, the Court observed
The Court while allowing the present LPA as well as the writ petition, OWP no.429/2018, filed by the appellants held that the impugned Award of the Tribunal and the judgment of the learned Writ Court are set aside, except to the extent indicated in para 21 hereinabove concerning M/S Nazir Ahmad Rather, A&G, shown to have been engaged in 7/1991, and Mohd. Rafiq Baba, Music Section, shown to have been engaged in 4/1992. The appellants will consider the cases of these two workers and if they are found to be fulfilling all the eligibility criteria under the 1993 Scheme, they shall be granted the temporary status and other benefits retrospectively from the date persons similarly placed were granted such benefit(s).
Director General, All India Radio & anr. vs Casual Labour Employees Association, Radio Kashmir, Srinagar.
LPAOW No.03/2019 (LPA No.07/2019)
CM Nos.484/2019 & 4323/2019
Coram: Justice Ali Mohammad Magrey and Justice Mohd. Akram Chowdhary.
Mr. S. N. Ratanpuri, Advocate, appeared for the appellants.
Mr. R. A. Jan, Sr. Advocate, with Mr. Aswad Attar, Advocate, appeared for the respondents.
Date of Judgment: 24.02.2022
Judgments Referred in the Case
Mukand Ltd. v. Mukand Staff & Officers Asn., (2004) 10 SCC 460.
Bharat Singh v State of Haryana, (1988) 4 SCC 534, [para 13]
Calcutta Port Shramik Union v Calcutta River Transport Association, AIR 1988 SC 2168, [para 10]
Sadhu Ram v Delhi Transport Corporation, AIR 1984 SC 1467, [paras 3, 4 & 5]
Bhuvnesh Kumar Dwivedi v Hindalco Industries Ltd., (2014) 11 SCC 85, [para 22]
General Manager, ONGC v ONGC Contractual Workers Union, (2008) 12 SCC 275, [para 15]
State of Karnataka v M. L. Kesari, 2010(9) SCC 247, [para 21].