TaxTMI 
TaxTMI 
2001 (1) TMI 1029
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....sted in the scheduled annexed be made permanent, as from the day, when they complete 240 days service, and if in affirmative, whether they are entitled to all the benefits at par with the permanent employees, and be paid arrears." Before entering into the issues in this case it is necessary to give certain essential facts in order to appreciate the controversies. 4. The appellant is an educational institution fully aided by the State Government and is engaged in the educational activities in agriculture and allied sciences and humanity and is also prosecuting research in agriculture and other allied science. It performs its duties and functions under the statutory provisions and in doing so it engages daily rated labourers for various activities. According to the appellant these labourers are being paid their wages as per the minimum wages fixed by the State Government from time to time under the Minimum Wages Act. They were engaged due to exigencies of work, without considering relevant factors about their educational qualification, age limit and other relevant requirements for the purpose of regular appointment under the Recruitment Rules. There are different agricultural r....
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....) arises out of LPA No. 808 of 1998 wherein the respondents representing the daily rated workers of Junagadh Jilla Majdoor Sangh. 7. Learned Single Judge relying on the decision of this Court in Daily Rated Casual Labour Employed under P & T Department Vs. Union of India & Ors., 1988 (1) SCC 122, a case of daily rated casual workers of the P & T Department, directed the appellant to submit a scheme for conferring permanent status to the respondents. At this stage, when the question of framing a scheme, came to the fore, before the Single Judge, learned counsel for the appellant submitted then that such a scheme of giving permanent status to these workers could not be confined to these workmen as large number of such workmen are involved, disputes about which are pending for adjudication in the various labour courts. It was suggested, it would be fair and just, instead of making multiple scheme in each such pending matters, be permitted to frame a comprehensive scheme to cover all pending litigations. The appellant specifically denies any such statement being given by the counsel for the appellant. The submission is, this fact was challenged even before the bench of Letters Paten....
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....from 1.1.2000 and shall be put in the time scale of pay applicable to the corresponding lowest grade in the University subject to the following terms and conditions: (a) The daily rated employees shall be eligible and must possess the prescribed qualifications for the post at the time of their appointment on daily rated basis. (b) Daily-wager employees shall be regularised in a phased manner to the extent of available regular sanctioned posts/vacancies on the date of regularisation and on the basis of seniority-cum-suitability including physical fitness. (c) The work and conduct of such employees should have been of over all good category and satisfactory and no disciplinary proceedings are pending against them. (d) The regularisation will be against the posts/ vacancies of the relevant categories only. 2. Daily workers, whether skilled semi- skilled or unskilled, who have completed 10 years of continuous service with a minimum of 240 days in each calendar year as on 31.12.1999 but could not be regularised shall be treated as monthly rated employees w.e.f. 1.1.2000 in the fixed pay without allowances as per the following formula: Prep....
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....(1) LLJ 1223 to prime facie reach a conclusion about the unfair labour practice in depriving the workmen of their status of permanency and privileges attached thereto. " 12. It further records that the Tribunal has not adverted to some of the questions which implicitly arises in any industrial dispute concerning grant of permanent status. It records that no opportunity was given to the employer after reaching this conclusion of giving workmen permanent status hence these issues require investigation. Thus it set aside the finding of the Tribunal to make all workmen permanent w.e.f. the date they complete 10 years on or before 1st January, 1993 and directed it to decide this question afresh through a scheme. But the direction to make payment to such workmen at the minimum pay scale of similarly situated workmen on permanent basis remained unaffected. This direction was confirmed by the Division Bench of the High Court. 12A. Learned senior counsel, Mr. Rajeev Dhawan appearing for the appellant submits, that the scheme as proposed has been thoroughly scrutinised, examined taking into consideration the interests of the workers within the permissible limit of the availability of f....
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..... In fact by the time this industrial dispute was referred, respondent- workers completed 5 years of their continuous service and when arguments were concluded they completed 10 years of their continuous service. Both, the Tribunal and the learned Single Judge found the existence of permanent nature work requiring them to be regularised. 15. Respondents objection to Item No.1 of the proposed aforesaid scheme which requires completion of 10 years prior to 31st December, 1999 for regularisation is that it is dehors the interest of the workers, specially when some of the workers are working from 1973 onwards. Thus this cut off date for regularisation requires a re-look. With reference to Item No.1(a), the objection is, that the University had failed to produce any evidence to show any qualification for the posts on which they are to be absorbed. The recruitment rules which have been placed for the first time before this Court do lay down some qualifications but their experience of working for such a long time itself should be sufficient for their eligibility. With reference to Item (1)(b) and 1(d) the objection is, there should not be any phased regularisation, when work has been t....
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....well settled, if work is taken by the employer continuously from daily wage workers for a long number of years without considering their regularisation for its financially gain as against employees legitimately claim, has been held by this Court repeatedly as an unfair labour practice. In fact, taking work, from daily wage worker or ad hoc appointee is always viewed to be only for a short period or as a stop gap arrangement, but we find new culture is growing to continue with it for a long time, either for financial gain or for controlling its workers more effectively with sword of damocles hanging over their heads or to continue with favourved one in the cases of ad hoc employee withstaling competent and legitimate climants. Thus we have no hesitation to denounce this practice. If the work is of such a nature, which has to be taken continuously and in any case when this pattern become apparent, when they continue to work for year after year, only option to the employer is to regularise them. Financial viability no doubt is one of the considerations but then such enterprise or institution should not spread its arms longer than its means. The consequent corollary is, where work is t....
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...." 18. What emerges is, all the respondent workmen are eligible for absorption on the facts of this case subject to any eligible qualification under the rule if any. Though no recruitment rules were filed in the proceedings either before the Tribunal or in the High Court but while proposing the scheme a copy of the recruitment rules for various cadres have been placed before us on behalf of the appellant University. This gives in column no.1 the serial no., in column no.2 the name of the post, in column no.3 the pay scale, in column no.4 the age limit and in column no.5 the qualification. Serial no.10 deals with Peon and Class IV servants, serial no.13 deals with Operator-cum- Mechanic, serial no.14 deals with Chowkidar, serial no.25 deals with Plumber and serial no.33 deals with Carpenter. This shows that recruitment rules did have these posts in its ambit about which we are concerned, yet no posts were created. This proposed creation of post is churned out only after this long battle by the workmen as against the appellant. It was not expected from the institutions like the present appellant, especially when it is fully funded by the State Government that this process of absorp....
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.... of its dominant position, and compel any worker to work even as a casual labourer on starvation wages. It may be that the casual labourer has agreed to work on such low wages. " 20. State of Haryana and Ors. vs. Piara Singh and Ors. 1992 (4) SCC 118. This was a case of ad hoc/temporary government employees. This Court held, those eligible and qualified and continuing in service satisfactorily for a long period have right to be considered for regularisation. Long continuing in service gives rise to a presumption about the need for a regular post. In such cases government should consider feasibility of regularisation having regard to the particular circumstances with a positive approach and empathy for the concerned person. 21. In Surinder Singh and Anr. Vs. Engineer-in-Chief, C.P.W.D. and Ors. 1986 (1) SCC 639, this Court holds entitlement of equal pay for equal work for the daily wage workers of C.P.W.D. to the wages equal to the regular and permanent employees employed to do identical work. Mool Raj Upadhyaya Vs. State of H.P. and Ors. 1994 Supp (2) SCC 316, was a case of regularisation based on the claim for equal pay for equal work of daily wages of Class III and Class IV....
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....r their regularisation. As we have said, which we are keeping in mind that financial constraint is also to be kept in mind when any scheme is framed at a particular time. 23. In Dharwad Distt. P.W.D. literate daily wage employees Association and Ors. Vs. State of Karnataka and Ors. 1990 (2) SCC 396 this Court held: "Though the scheme so finalised is not the ideal one but it is the obligation of the court to individualise justice to suit a given situation in a set of facts that are placed before it. Under the scheme of the Constitution the purse remains in the hands of the executive. The legislature of the State controls the Consolidated Fund out of which the expenditure to be incurred, in giving effect to the scheme, will have to be met. The flow into the Consolidated Fund depends upon the policy of taxation depending perhaps on the capacity of the payer. Therefore, unduly burdening the State for implementing the constitutional obligation forthwith would create problems which the State may not be able to handle. Therefore, the directions have been made with judicious restraint. " 24. To the similar effect, namely, involvement of financial burden is also a relevant co....
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.... appropriate to disqualify them on this ground for their absorption, hence Clause 1(a) need modification to this effect. 27. In Bhagwati Prasad Vs. Delhi State Mineral Development Corporation 1990 (1) SCC 361, this Court observed: The main controversy centres round the question whether some petitioners are possessed of the requisite qualifications to hold the posts so as to entitle them to be confirmed in the respective posts held by them. The indisputable facts are that the petitioners were appointed between the period 1983 and 1986 ever since, they have been working and have gained sufficient experience in the actual discharge of duties attached to the posts held by them. Practical experience would always aid the person to effectively discharge the duties and it is sure guide to assess the suitability. The initial minimum educational qualification prescribed for the different posts is undoubtedly a factor to be reckoned with, but it is so at the time of the initial entry into the service. Once the appointments were made as daily rated workers and they were allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in th....
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....3 of all those who have completed ten years of service as per Tribunal order, the payment towards arrears would be to the tune of 15 crores. Since in the proposed scheme, absorption is from 1st January, 2001, the State has already gained much more than this arrears of more than 15 crores. In this light and in the absence of details being placed before us, we are leaving the extent of creation of the posts on the State Government. We hope and trust, the Government who is the guardian of the people and is obliged under Article 38 of the Constitution, to secure a social order for the promotions of welfare of the people, to eliminate inequalities in status, will endeavour to give maximum posts even at the first stage of absorption, and do the same in the same spirit for creating additional posts after enquiry as we are indicating hereunder. It is necessary that the State Government to set up an enquiry to find what further number of additional posts are required for regularising such other daily rated workers, and after assessing it, to create such additional posts for their absorption. This exercise should be done by the State Government within a period of six months. The submission o....