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Malabar Cement Ltd. Vs. Secretary, Mcl Labour Union - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Case NumberW.P. (C) No. 35098 of 2005
Judge
Reported in2006(2)KLT965
ActsKerala Public Service Commission (Additional Functions as Respects Certain Corporations and Companies) Act, 1970; Industrial Dispute Act, 1947 - Sections 10; M.P. Development Authority Services (Officers and Servants) Recruitment Rules, 1987 ; Contitution of India - Articles 12, 14, 16 and 226; Madhya Pardesh Industrial Employment Act, 1961; Contract Labour Regulation and Abolition Act, 1970 - Sections 10, 10(1), 25F and 28; Companies Act
AppellantMalabar Cement Ltd.
RespondentSecretary, Mcl Labour Union
Appellant Advocate C.P. Sudhakara Prasad Sr. Adv. and; Mary Benjamin, Adv.
Respondent Advocate P.K. Suresh Kumar,; V. Chitambaresh,; T.C. Suresh Menon
Cases ReferredBharat Bank Ltd. v. Employees of Bharat Bank Ltd.
Excerpt:
- - the educational qualification was prescribed as sslc or equivalent or upto pre degree besides any other criteria like physical fitness and age elements. 17.i am of the view that prescription of qualification, necessity and method of recruitment, minimum eligibility standards and the like are the prerogatives of the employer. the initiative, as well as the right were wrested from the workmen by the management to themselves. we are also informed that the question raised by persons like the petitioners is already under adjudication in various tribunals. p5 will be given to persons like the petitioners. this is clearly inapplicable to the question in this case. it is the courts which are prohibited from trying the issue which was directly and substantially in issue in the earlier.....k.m. joseph, j.1. since common questions arose in these cases, they are being disposed of by a common judgment.2. the petitioner company in w.p.(c) no. 35098/05 challenges ext.pio award passed by the industrial tribunal in so far as it has reserved 75 per cent of the vacancies of casual labour pool workers (for short clp workers) and also for having fixed the inter se seniority guidelines. the company also seeks a declaration that the workmen concerned are not entitled to any relief awarded by the fourth respondent in ext. pio award, and that the fourth respondent is not competent to fix any ratio for appointment, or lay down any guidelines for fixing inter se seniority. a further declaration is sought that the petitioner is entitled to fill up the vacancies of mazdoors from the open.....
Judgment:

K.M. Joseph, J.

1. Since common questions arose in these cases, they are being disposed of by a common Judgment.

2. The petitioner Company in W.P.(C) No. 35098/05 challenges Ext.PIO Award passed by the Industrial Tribunal in so far as it has reserved 75 per cent of the vacancies of Casual Labour Pool Workers (for short CLP Workers) and also for having fixed the inter se seniority guidelines. The Company also seeks a declaration that the workmen concerned are not entitled to any relief awarded by the fourth respondent in Ext. PIO Award, and that the fourth respondent is not competent to fix any ratio for appointment, or lay down any guidelines for fixing inter se seniority. A further declaration is sought that the petitioner is entitled to fill up the vacancies of Mazdoors from the open market. Petitioners in W.P. (C) Nos. 70/06,2164/06 and 371/06 are the workers and the Union. They also challenge the Award to the extent that the Tribunal has restricted regularisation of CLP Workers to 75 per cent of the existing vacancies of Mazdoors and prescribed a minimum academic qualification of a pass in the Vth Standard for such regularisation. A declaration is also sought that service of all the available CLP workers included in the order of reference are liable to be regularised in the existing vacancies of Mazdoors in the Malabar Cement Ltd. irrespective of their academic qualifications. In W.P. (C) No. 371/06, there is a further prayer that the Tribunal be directed to decide the matter afresh after taking evidence in the light of the Judgment of the Supreme Court in SAIL's case : (2001)IILLJ1087SC . The petitioners in W.P.(C) No. 1026/06 are persons who participated in an interview pursuant to the notification issued by the Company in regard to the post of Mazdoor Grade. They seek a direction to the first respondent, Managing Director of the Company to fill up 25 per cent of the existing vacancies in the Company by direct recruitment from open market as per the Award and a prayer is also sought for publishing the rank list of direct recruitment candidates for appointment in the Company as Mazdoors. A direction is also sought not to appoint any one to the post of Mazdoor until 25 per cent of the posts are filled up by direct recruitment.

Facts

3. M/s. Malabar Cement Ltd. which is the petitioner in W.P. (C) No. 35098/05 is a Company fully owned by the Government of Kerala (hereinafter referred to as 'the Company'). The Award arises out of an industrial dispute which was referred by the Government of Kerala for adjudication. The issue that was referred was the denial of permanency of employment to 134 casual labour workers whose names were mentioned in the reference order. I shall refer to the pleadings and Exhibits in W.P(C) No. 35098/05 which I take as the leading case. A challenge had been laid by the CLP workers against the move of the Company to fill up the posts of Mazdoor by direct recruitment. The educational qualification was prescribed as SSLC or equivalent or upto Pre Degree besides any other criteria like physical fitness and age elements. The workers contended that the vacancies notified should not be filled up by direct recruitment, but they should be filled up by absorbing them on the basis of seniority. By Ext.Pl Judgment a learned Single Judge of this Court, who heard a batch of Writ Petitions, did not find merit in their contentions, finding that the decision to resort to direct recruitment from the open market was neither illegal, nor arbitrary. The learned Judge found that the claim of the workmen for regularisation of casual labourers automatically on the basis of seniority has not obtained legal recognition. By Ext.P2 Judgment, a Division Bench of this Court confirmed Ext.Pl Judgment. By Ext.P4, the Tribunal passed an Award directing regularisation of the services of CLP workers who had worked not less than 2000 days prior to 1.11.2000. They were to be designated as permanent labour pool workers barring those who had passed away. This Award came to be quashed by Ext. PS Judgment. This Court, therein directed the Tribunal to consider the matter afresh after hearing all the parties concerned and giving an opportunity to them to submit their pleadings with fresh pleadings and to give evidence and decide the matter in accordance with law. This Court also observed that 'In view of the fact that I propose to remit the matter back to the Tribunal for a fresh consideration, I feel that when the Tribunal reconsiders the matter, it shall consider the claim of the employees for regularisation against the post of Mazdoors. In view of the fact that the matter has been left open by the Division Bench, it is my view that the finding of the learned Single Judge in Ext. P7 that the employees are not entitled to regularisation should not weigh with the Tribunal which decides the question in accordance with law.'

4. A question had arisen as to whether the post of Mazdoor would fall within the purview of the Kerala Public Service Commission, in view of the Kerala Public Service Commission (Additional Functions as Respects Certain Corporations and Companies) Act, 1970 read with the Consultation Rules. A Division Bench of this Court proceeded to hold that the post of Mazdoor would not fall within the purview of the Kerala Public Service Commission. The Division Bench in Ext.P6 Judgment took note of the fact that the claim of the workers was pending consideration before the Industrial Tribunal and directed the Company not to fill up the posts of Mazdoors till the final adjudication is made by the Tribunal on their request for regularisation. The Court proceeded to make it clear that it had not expressed any opinion with regard to the merits of their case, since the matter is pending consideration before the Tribunal. No doubt, it also observed that it would be appropriate for the Company to frame some scheme for their absorption so that they could also be considered for appointment to the post of Mazdoor, if they satisfy the job requirement. By Ext.P7 Judgment, in appeal filed by the Company against Ext.P5 Judgment, the Division Bench held as follows:

The petitioner is the appellant before us in this Writ Appeal which has been filed against the impugned judgment dated 8.8.2005 passed in OP. No. 5311 of 2003 whereby the learned Single Judge remanded the matter to the Tribunal for a fresh consideration.

2. The appellant's only grievance in this appeal is in regard to the following observation appearing in para 4 of the judgment:

In view of the fact that the matter has been left open by the Division Bench, it is my view that the finding of the learned Single Judge in Ext.P7 that the employees are not entitled to regularisation should not weigh with the Tribunal which decides the question in accordance with law.3. On due consideration of the submissions of the learned Counsel for the parties, we vacate the above observation of the learned Single Judge contained in para4 of the judgment and direct that the Tribunal while deciding the matter afresh shall be bound by the judgment dated 23.3.2001 passed by the Division Bench in Writ Appeal No. 1262 of 2001 affirming the judgment of the learned Single Judge in O.P. No. 26233 of 2000.

5. The matter was carried before the Apex Court. Ext.P8 is the Order. It reads as follows:

Heard counsel for the parties.

The High Court has only stated the obvious namely, that the Tribunal is bound by the judgment of the High Court. Counsel for the petitioner states that if the impugned order is not set aside or modified, then the Tribunal is not required to consider the case of the petitioner at all. The argument is misconceived. The only effect of the order is that the Tribunal will take into account all relevant considerations, including the decisions of the High Court which have a bearing on the subject and decide the matter in accordance with law.

The Special Leave Petition is dismissed.

It is thereafter that the impugned Award has been passed. By the impugned Award, the Tribunal directed as follows:

37. Having considered all the relevant points in the light of various judgments of the Hon'ble High Court in the Writ Petitions and Writ Appeals between the parties and also other decisions of the Supreme Court on regularisation of casual workers and the materials produced before this Tribunal, the'management is directed to regularise the services of the CLP workers whose names figured in the reference order and who are still alive, subject to the following conditions :

a) The management shall prepare a seniority list of CLP workers concerned in this dispute who satisfy the minimum physical standards prescribed by the management in the recent notification for recruitment of Mazdoors from open market and who have passed Vth Standard.

b) 75% of the existing vacancies of Mazdoors shall be reserved for absorption of the eligible CLP workers from the above seniority list.

c) If the above 75% is found inadequate for accommodating all the CLP workers from the seniority list, the future vacancies of Mazdoors shall also be reserved at the same rate for the regularisation of remaining CLP workers.

d) There shall be appropriate percentage of communal reservation within the above 75% as per the orders/notifications issued by the State Government for communal reservation in the public sector undertakings or in Government Service or in terms of the norms in this regard adopted by the Kerala Public Service Commission.

e) Having regard to the services already rendered by the CLP workers who are regularised against the post of Mazdoors, they shall be treated as seniors to the direct recruitees.

f) The management shall comply with the above directions within 45 days from the date of publication/pronouncing this award.

6. The issue of regularisation of the workers apparently was raised as early as in 1988. A reference to Ext. W1 Minutes of Discussions dated 7.11.1988 referred to by the Tribunal is as follows:

1. The casual labour pool workers in the first two batches, ie. 118 workers are considered for regular jobs. It is seen that 14 of them are having very low attendance, ie. less than 275 days during the period of 1.1.1987 to31.10.1988.

2. It was decided not to consider these 14 workers at present for providing regular jobs. Their attendance for the next six months will be watched and if they meet with the average attendance of the group of the remaining workers in the pool, they will be considered for providing regular jobs at that time.

3. Out of the remaining 104 workers, 12 will be considered for the post of Mazdoors. For this, the following will be the priority of consideration:

a) the workers yet to be appointed from the rank list prepared earlier for appointment as Mazdoors.

b) those who had met with accident and not physically fit to perform the loading and unloading operations.

c) SC/ST workers.

d) those who have the required educational qualification as per the agreement dated 1.6.1987.

Initially, they will be engaged as Casual Mazdoors pending approval of the Board of Directors, with respect to the relaxation of age, educational qualifications, etc.

4. The remaining 92 workers will be provided for regular work in the packing house in two shifts of 46 each. Out of this 46, 18 are meant for trucks loading inclusive of bag shifting and 28 for wagon loading inclusive of bag shifting and opening and closing of wagon doors. The same group of workers will do the weight/No, of bags adjustments, if required in the trucks/wagons. If there is no work in the Packing House due to any reason, then the workers will be directed to attend the other unskilled jobs including raw material unloading.

5. If they are directed for unloading of raw materials each one will have to unload one truck load of material irrespective of the weight/contents.

6. As for work load, Unions agreed to implement Cl. No. 1 and 2 of settlement dated 1.6.87 (ie., 400 tonnes by truck and 300 tonnes by wagon per shift).

7. The 92 workmen so engaged in the Packing House will continue to be on daily wages till such time the Government approval is obtained for regularising them as loading and unloading workers.

8. The 118 workers mentioned above will give to the Personnel Department the irbiodata and copies of Certificates to prove educational qualification, age, caste etc. on or before 19.11.88.

9. Interview will be conducted before 26.11.1988 and the new system of work as mentioned in the earlier paragraphs will commence from 1.12.1988.

10. The remaining workers in the Pool will continue to attend the duties on rotation basis as hitherto done.

11 The workmen will call off their strike with effect from 6.00 P.M. on7.11.1988andresume work immediately.

12. This agreement is complimentary to the Settlement of 1.6.1987 and not in any way abrogative of the same.

Contentions

7. It is submitted on behalf of the Company by Shri C.P. Sudhakara Prasad, learned senior counsel that the Tribunal was bound by Ext. Pl Judgment as confirmed by Ext.P2. Reference was made to the following paragraph in Ext. Pl Judgment:

17.I am of the view that prescription of qualification, necessity and method of recruitment, minimum eligibility standards and the like are the prerogatives of the employer. Normally, a third party including the court may not enforce its decision or views upon them, unless there are compelling circumstances. It was perhaps understanding this difficulty, Mr. Gopakumaran Nair had attempted to rely on the minutes of settlement (Ext.P5 in OP No. 26233/2000). But, it is also cannot come to their help, when we examine the circumstances which the said proceedings attempted to remedy and the persons who were to be benefitted. The minutes exclusively referred to the first two batches of casual labourers, and no one else. The pleadings show that all the persons whom it intended to cover have been regularised. There were casual employees brought in later point of time, and highlighted in the Original Petition from 1985 to 1990. The appointment orders, Exts. Pl to P4, show that expressly the right of regularisation was not to be recognised. There was no settlement in absolute terms, offering to grant regularisation to any of them. Ext.R3(a) in OPNo. 18581/2000, perhaps if developed at appropriate time might have helped the cause of rest of the casual labourers. Clause 4 thereof referred to appointments as Mazdoors to casual labour pool workers in the proportion of 4:10. But, it was subject to decision of the Board. The initiative, as well as the right were wrested from the workmen by the management to themselves. And it is to be noticed that Ext. Rl...an improvement upon the above - it was relegated to background as a whole sale appointment was agreed to the earmarked casuals. The presence of Ext.R3(a) has practically gone unnoticed, and therefore arguments were not developed on it. Apart from the above, there is nothing to show that the casuals engaged had any right for automatic rights to get regularised. Of course, there is an industrial dispute pending, as ID. No. 101/2000. The rights for engagement, appointment or confirmation could be examined in such proceedings, depending on the materials that are supplied to the Tribunal. There were no rights flowing from Ext.P5 to petitioners and hence there was no violation thereof, and the claims on that premises are without force. A demand for selecting personnel for regular posting without insisting about education, age, health or suitability, and only on the seniority of engagement will violate principles of equality enshrined under Articles 14 and 16 of the Constitution of India. It is never advisable to follow such a course. The relief of regularisation prayed for cannot therefore be granted. That the casuals had benefit of ESI, PF, bonus etc. also lead to nowhere, as the statutes ensure that persons employed and connected with employment of an establishment are to be mandatorily given such benefits.

The learned senior counsel also invited my attention to the finding of the learned Single Judge that 'the sum total of my finding is that the recruitment is not liable to be decried for any of the reasons urged in the group of petitions'. Thereafter, he referred me to the following paragraph in Ext.P2 Judgment of the Division Bench.

4. We find no infirmity in the reasoning of the learned single Judge that the Company is entitled to lay down qualifications for the post of mazdoors. Necessity for laying down such qualifications has also been enumerated in the counter affidavit. If proper qualifications are not laid down at the initial stage, the Company would find it difficult to give them promotion to higher posts. We notice there were many persons in the casual employees pool in the Company who are not having SSLC qualification. If the Company is directed to absorb all those loading and unloading workers as mazdoors that will considerably affect the efficiency of the company when the question of promotion comes up for consideration. We are also informed that the question raised by persons like the petitioners is already under adjudication in various Tribunals. We make it clear we are not expressing any opinion with those matters. At the same time, we find no infirmity in the steps taken by the Company to recruit persons in accordance with Ext.P 12. We also make it clear that the terms and conditions in Ext.P5 would be strictly followed by the Company and whatever benefits given to them on the basis of Ext.P5 will be given to persons like the petitioners.

Ext.P7 Judgment of the Division Bench, which I have already extracted, is emphasised. Paragraphs 18 and 21 of the Judgment of the learned Single Judge in Ext. Pl are also referred to. The contention of the learned senior counsel is that it is in the domain of the employer to determine the qualifications to be fixed in relation to its employees. Considerations of efficiency cannot be lightly brushed aside. He would rely on the following decisions:

1) State of Maharashtra v. Chandrabhan and Ors. AIR 1983 SC 803

2) Ashok Kumar and Anr. v. Chairman, Banking Service Recruitment Board and Anr. : (1996)ILLJ1103SC

3) S. Nagarajan v. District Collector, Salem and Ors. 1997 (1) SLR 525.

4) Gangadharan Nair v. State of Kerala and Ors. 1984 KLT 75

I would also here mention the decisions on which reliance is placed by Smt. Mary Benjamin, learned Counsel appearing on behalf of the Company in the Writ Petition filed by the workers. They are:

1) Haryana State Electricity Board v. Suresh 2000 (2) KLT SN 60 Case No. 66

2) Kerala State Civil Supplies Corporation v. Labour Court 2002 (2) KLT SN 113 Case No. 138.

3) Karunakaran v. Chief Commercial Supdt. 1988 (1) KLT SN 14 Case No. 28.

4) 1980 KLTSN 45 Case No. 99

5) Co-operative Sugars Ltd. v. Palghat District Progressive Sugar Workers Union 1997 (2) KLTSN 4 Case No. 3.

6) Lal Chand v. Additional District Judge 1997 (2) KLT SN 8 Case No. 6

8. The Company would contend that the finding rendered in Ext.P2 confirming Ext. Pl Judgment in relation to the prescription of qualification is to be treated as final, in view of Ext.P7 Judgment rendering impermissible the diluting of the educational standard from a pass in VIIIth Standard to a pass in the Vth Standard by the Industrial Tribunal in the impugned Award. It is contended that regularisation cannot be ordered in relation to the workers as they were daily wage earners. They cannot be said to hold any post, it is contended. The concept of regularisation, it is contended, is alien in relation to persons who do not hold a post. It is contended that the mere fact that there is a reference by the Government to the Tribunal could not clothe the Tribunal with the jurisdiction to grant the relief of regularisation when otherwise in law and on facts, it is impermissible. The Tribunal in the instant case, it is contended, has not borne in mind the principles applicable. It is contended that there were no materials for the Tribunal to have arrived at Ext.PIO decision. Exception is taken to reserve 75 per cent of the vacancies for CLP workers and also having fixed inter se guidelines.

9. In the decision in Sasikumar v. Secretary to Government 2000 (3) KLT 120, a Division Bench of this Court held that the petitioner therein who was employed on daily wage basis was not entitled to the benefit of the Government Order granting certain rights to physically handicapped provisional employees. This is clearly inapplicable to the question in this case. In the decision in Allahabad Bank v. Shri Prem Singh : (1997)ILLJ46SC , the Court found that the relationship between the parties was being contractual and as such respondent was given employment for one day at a time with the issuance of successive letters, the term of the contract was that the services stood terminated at the end of the day. The Court proceeded to hold that the Tribunal erred in holding that the respondent shall be deemed to have continued in service from 16.6.1977. In the decision in State of Haryana and Anr. v. Tilak Raj and Ors. : (2003)IIILLJ487SC , the Court was dealing with a contention based on the doctrine of equal pay for equal work. Therein, the Court held as follows:

A scale of pay is attached to a definite post and in case of a daily-wager, he holds no posts. The respondent workers cannot be held to hold any posts to claim even any comparison with the regular and permanent staff for any or all purposes including a claim for equal pay and allowances. To claim a relief on the basis of equality, it is for the claimants to substantiate a clear-cut basis of equivalence and a resultant hostile discrimination before becoming eligible to claim rights on a par with the other group vis-a-vis an alleged discrimination. No material was placed before the High Court as to the nature of the duties for either categories and it is not possible to hold that the principle of 'equal pay for equal work' is as abstract one.

The decision was rendered in an Appeal carried against the Judgment of the High Court delivered in Writ Petitions wherein they sought regularisation and payment of same salary as paid to regular workers. The High Court had directed that the petitioners would be entitled to the minimum of the pay scale with Dearness Allowance alone. This is not a case of an Industrial Court directing regularisation. In Pondicherry Khadi & Village Industries Board v. P. Kulothangan and Anr. : (2003)IIILLJ1153SC the Court was dealing with the principles of res judicata. The Court found that since the High Court was competent to adjudicate upon the dispute and done so by a reasoned order on merits, the Labour Court was incompetent to entertain the dispute. That was a case where the respondent was appointed as an Instructor on a temporary basis by the appellant. He filed a Writ Petition in which he claimed that he was wrongfully refused employment. The substantial prayer was for a direction to regularise his service. The Writ Petition and the Writ Appeal were dismissed, and it was found that the respondent was neither entitled to regularisation, nor to reinstatement as his appointment was a temporary one. It is thereafter that the respondent raised a dispute under the Industrial Disputes Act, 1947 challenging the termination of his service, and the Labour Court directed reinstatement in service with full back wages and other attendant benefits. It was therein that the Court has held as follows:

11. The principle of res judicata operates on the court. It is the courts which are prohibited from trying the issue which was directly and substantially in issue in the earlier proceedings between the same parties, provided the court trying the subsequent proceeding is satisfied that the earlier court was competent to dispose of the earlier proceedings and that the matter had been heard and finally decided by such court. Here, the parties to the Writ Petition filed by the respondent in the Madras High Court and the industrial dispute were the same. The cause of action in both was the refusal of the appellant to allow the respondent to rejoin service. The Madras High Court was competent to decide the issue which it did with a reasoned order on merits and after a contested hearing. This was not a case where the earlier proceedings had been disposed of on any technical ground as was the case in Workmen v. Board of Trustees of the Cochin Port Trust and Pujari Bal v. Madan Gopal. The 'lesser relief of reinstatement which was the subject matter of the industrial dispute had already been claimed by the respondent in the Writ Petition. This was refused by the High Court. The correctness of the decision in the writ proceedings has not been challenged by the respondent. The decision was, therefore, final. Having got an adverse order in the Writ Petition, it was not open to the respondent to reagitate the issue before the Labour Court and the Labour Court was incompetent to entertain the dispute raised by the respondent and redecide the matter in the face of the earlier decision of the High Court in the writ proceedings.

The decision turned on the facts as already referred to. In Mahendra L. Jain and Ors. v. Indore Development Authority and Ors. : (2005)ILLJ578SC , the appellants were Sub Engineers appointed on daily wage basis under a Project executed by the respondent Development Authority. There was no sanctioned post and appointment orders were not issued. The appointments were not in compliance with the requirements of the Act and the Rules. A dispute was raised by the appellants, as their services were not regularised. It was referred to the Labour Court which had proceeded to pass an Award in favour of the appellants. In the Judgment, the Court held as follows:

The statute, rules and regulations framed by the State govern the terms and conditions of service of the employees of the respondent. The terms and conditions of service contained in the M.P. Nagar Tatha Grama Ni vesh Adhiniyam, 1973 and the M.P. Development Authority Services (Officers and Servants) Recruitment Rules, 1987 are not in derogation of the provisions contained in the Schedule appended to the Madhya Pradesh Industrial Employment (Standing Orders) Act, 1961.

In the above case, the posts were not sanctioned and no appointment orders were issued. The condition prescribed for the appointment was not complied with. It was found to be ab initio void and violative of Articles 14 and 16 of the Constitution of India. The Court also held as follows:

The question, therefore, which arises for consideration is as to whether they could lay a valid claim for regularisation of their services. The answer thereto must be rendered in the negative. Regularisation cannot be claimed as a matter of right. An illegal appointment cannot be legalised by taking recourse to regularisation. What can be regularised is an irregularity and not an illegality. The constitutional scheme which the country has adopted does not contemplate any back-door appointment. A State before offering public service to a person must comply with the constitutional requirements of Articles 14 and 16 of the Constitution. All actions of the State must conform to the constitutional requirements. A daily wager in the absence of a statutory provision in this behalf would not be entitled to regularisation. See State of U.P. v. Ajay Kumar and Jawaharlal Nehru Krishi Vishwa Vidyalaya v. Bal Kishan Soni.

In Vinodant T. and Ors. v. University of Calicut and Ors. : [2002]3SCR530 the Court was dealing with the case of daily wagers staking a claim for regularisation against duly selected candidates and without regard to the reservation rules. The facts were as follows:

Pursuant to a notification issued on 1.11.1991 inviting applications for preparation of a panel for appointment as Assistants Grade II in the respondent University, the Appellants were selected after a written test and interview. The rank list was prepared on 25.10.1995. It was a stopgap arrangement pending regular recruitment. The Syndicate took a decision on26.11.1997 limiting the validity of the rank list prepared in 1995 to two years and cancelled that list. The appellants uasuccessfully challenged that decision before the High Court. However, at the instance of the respondent University, the High Court permitted it to engage purely on daily-wage basis 40 to 50 Assistants on work-need basis. Pursuant to that order the appellants were appointed on daily-wage basis. By an interim order, the Supreme Court directed the status quo to be maintained. Before the Supreme Court, the appellants relied on a resolution allegedly passed by the Syndicate on 10.5.1986 fixing the validity of rank lists for all future selections, at three years. The appellants contended that the respondents were bound to appoint them to vacancies which had arisen within that period. In the alternative they urged that since they had been serving continuously for the last several years, they should be regularised in service. The respondent University opposed the appeals and gave its reasons for cancelling the rank list. It added that the appellants had no right to insist on regular appointments merely because they formed part of the rank list. The respondents also submitted that in any event the appellants could not claim regularisation because they had worked temporarily as daily-wages.

The Appeals were dismissed. In Kerala State Civil Supplies Corporation v. Labour Court (2002 (2) KLT SN 113 Case No. 138, the Court was dealing with the case of an Award by the Labour Court directing reinstatement and a declaration of continuity of service. The Court proceeded to hold as follows:

A person can be said to be appointed to a post only if such appointment is made in accordance with the recruitment rules and such person alone becomes a member of the service. A person engaged on daily wages is not appointed in service as per the recruitment rules and hence not entitled for declaration for reinstatement and continuity of service. In view of the above legal position, it cannot be said that a finding on illegal retrenchment should automatically follow reinstatement with continuity of service. That depends on the facts and circumstances in each case.

There were statutory rules which would be violated. In H.K. Vidyarthi v. State of Bihar (1997 (2) KLT SN10 Case No. 8, the Apex Court held that every Department of the Government cannot be treated as an 'industry' and when appointments are regulated by statutory rules, the concept of 'industry' to that extent, stands excluded. The Court proceeded to hold as follows:

The petitioners were not appointed to the posts in accordance with the rules but were engaged on the basis of need of the work. They are temporary employees working on daily wages. Their disengagement from service cannot be construed to be a retrenchment under the Industrial Disputes Act. The concept of retrenchment therefore cannot be stretched to such an extent as to cover these employees. Since the petitioners are only daily-wage employees and have no right to the posts, their disengagement is not arbitrary. Petition dismissed.

That was not a case where the Court was dealing with the question of regularisation. Also that was a case of the appointments being regulated by statutory rules. In Ashok Kumar and Ors. v. Chairman, Banking Service Recruitment Board and Ors. : (1996)ILLJ1103SC , the Court held as follows:

Articles 14 and 16 of the Constitution enshrine fundamental right to every citizen to claim consideration for appointment to a post under the State. Therefore, appointment of the persons kept in the waiting list by the respective Recruitment Boards to the vacancies that had arisen subsequently without notifying them for recruitment is unconstitutional.

The question arose in the context of requisition made by the State Bank of India for recruitment to 960 vacancies. The High Power Committee had made certain recommendations including a direction to adjust the candidates whose names found place in the wait list prepared by the Recruitment Board. It was in the said context that the Court dealt with the matter. In State of Maharashtra v. Chandrabhan : (1983)IILLJ256SC , the Court was dealing with the Bombay Civil Service Rules and it was in that context that the Court has held as follows:

Public employment opportunity is national wealth in which all citizens are equally entitled to share and no class of people can monopolise public employment in the guise of 'efficiency' or other ground, but the right to equal opportunity to public employment cannot be treated as a new form of private property with its attribute of competitive exploitation.

The question that arose was the validity of the rule which provided for payment of subsistence allowance at the rate of Re. 1/- per month to a Government servant who was convicted by a competent court and his appeal was pending. In Madhyamik Siksha Parishad, U.P. v. Anil Kumar Mishra and Ors. etc. : (1994)IILLJ977SC , the Education Board engaged persons on ad hoc assignment and posts were not sanctioned. The Court held that the workers were not entitled to regularisation. The Court held as follows:

4. We are unable to uphold the order of the High Court. There were no sanctioned posts in existence to which they could be said to have been appointed. The assignment was an ad hoc one which anticipatedly spent itself out. It is difficult to envisage for them, the status of workmen on the analogy of the provisions of Industrial Disputes Act, 1947, importing the incidents of completion of 240 days' work. The legal consequences that flow from work for that duration under the Industrial Disputes Act, 1947 are entirely different from what, by way of implication, is attributed to the present situation by way of analogy. The completion of 240 days' work does not, under that law import the right to regularisation. It merely imposes certain obligations on the employer at the time of termination of the service. It is not appropriate to import and apply that analogy, in an extended or enlarged form here.

6. The appellant-Parishad has offered to consider the cases of these 27 respondents, who were writ petitioners before the High Court, for purposes of recruitment to the post of Lower Division Clerks as and when vacancies arise and steps for filling up of those posts are taken up by the appellant. The appellant submits that if the respondents make appropriate applications at the appropriate time of filling up of the vacancies and if they possess the requisite minimum qualifications for the posts and if they were not beyond the prescribed maximum age limit as on the date on which utilization of their services commenced in the year 1986, their cases would be duly considered, affording to them preference in the recruitment other conditions being equal subject to the reservations - policy. Appellant also requires registration of the respondents with the employment exchanges. For purposes of the age limit, their respective age as at the time of commencement of their earlier casual employment would be reckoned.

7. This concession is placed on record and the orders of the High Court under appeal are set aside. The appeals are disposed of accordingly. No costs.

It arose out of a Writ Petition and it was not a case of a Labour Court dealing with the question of regularisation. In Karunakaran v. Chief Commercial Supdt. 1988 (1) KLT SN 14 Case No. 28 a Division Bench of this Court held that after notification is issued under Section 10 of the Contract Labour (Regulation & Abolition) Act, 1970, the displaced persons do not get any statutory right for absorption in regular service of their employment. In Pankaj Gupta and Ors. v. State of J. & K. and Ors. : (2004)IIILLJ1081SC , the appellants were Class IV employees in the State of Jammu & Kashmir. They were working as Orderlies and Process Servers, etc. Their appointments were challenged by the respondents on various premises including that there was no advertisement calling for applications. The High Court allowed the Writ Petition. The Apex Court held that these posts were not notified by the Government, the names were recommended by the Members of the Legislative Council and Assembly and no evidence of any criterion approved by the Government or any rules of recruitment were shown to have been followed. The appointments were found to be illegal. The Court held as follows:

5. The appellants' counsel lastly pointed out that all these appellants have been working since the last several years and many of them have already crossed the maximum age fixed for entry to Government service, hence they may be regularised.

6. No person illegally appointed or appointed without following the procedure prescribed under the law, is entitled to claim that he should be continued in service. In this situation, we see no reason to interfere with the impugned order. The appointees have no right to regularisation in the service because of the erroneous procedure adopted by the authority concerned in appointing such persons.

In 1980 KLT S.N. 45 Case No. 99, a Division Bench held that the scope of the reference was limited to the issue raised before it and it did not cover any question relating to seniority of the persons. In Co-operative Sugars Ltd. v. Palghat District Progressive Sugar Workers Union 1997 (2) KLT SN 4 Case No. 3, a Division Bench took the view that unless an industrial dispute exists legally and the same is duly referred, a tribunal will not have the jurisdiction to adjudicate and decide the same. The Court proceeded to hold that the mere fact that a reference is made may not confer a tribunal jurisdiction to adjudicate and decide the matter. The Court also held that the tribunal may have to decide the question of jurisdiction, if a dispute is raised that no industrial dispute was in existence to be referred or that the industrial dispute referred was duly settled already. I do not think that the said principle can have any application to the facts of this case. In Ajith v. State of Kerala : 2005(2)KLT814 , a learned Single Judge of this Court was dealing with a Writ Petition under Article 226 by persons who were engaged as hatchery workers under the Matsyafed. The claim was for regularisation of service. The Court directed the Secretary, Department of Fisheries to consider whether the request for regularisation is justified. The learned Single Judge proceeded to hold as follows:

13. It has to be noticed that the claim of the petitioners is that they were in employment from 1993 onwards. This is not controverted. The second respondent is an Authority, although a Co-operative Society, and the manner and method in which the petitioners were inducted and continued would reveal that these were not casual engagements. Change in the method of recruitment had been brought about only in the year 1995 and if we go by the claims of the petitioners, they will be entitled to the benefit of Chapter V-A of the Industrial Disputes Act. The issue of regularisation stems from this background and it may not be equitable to drive them to a Tribunal, and start proceedings de novo. Arbitrariness in the matter of employment as well as termination, are to be avoided, as far as possible. It is also necessary to be noticed that there is a distinction drawn between the engagement of persons before 25.4.1995 and thereafter. Simultaneously, I cannot also ignore the submission of the learned Counsel for the Federation that the engagement of the petitioners was for projects and perhaps it may not be possible for them to continue indefinitely. It will be illogical to place a burden on any establishment without understanding the possible benefit and the impact as a hefty salary bill definitely affect its health, and ultimately its usefulness to the Society.

10. Per contra, the decisions in Hindustan Machine Tools and Ors. v. M. Rangareddy and Ors. : (2001)ILLJ596SC & Workmen of British India Corporation Ltd. v. British India Corporation Ltd. (1965) 2 LLJ 12 at Page 433 were relied, on behalf of the workers by Shri P. Ramakrishnan. In the H.M.T.'s case supra, the Apex Court was dealing with a case where the High Court in a Writ Petition, directing the Public Sector Company to evolve a scheme for absorbing the petitioners who have completed more than five years of continuous service, among other directions. The Apex Court relying on the earlier decisions of the Court and Articles 38(1), 39(e) and 43 found that the direction need not be interfered with. No doubt, the Court proceeded to hold that the absorption of casual workers will be subject to the fulfilment of the conditions of eligibility qualification with relaxation of the age prescribed under the Rules. In F.A.C.T. Ltd. v. General Secretary 1987 (2) KLT SN 57 Case No. 84, a learned Single Judge of this Court has held as follows:

Jurisdiction of the Tribunal in industrial disputes is limited to the points specifically referred for its adjudication and to matters incidental thereto and the Tribunal cannot go beyond the terms of reference made to it. The Labour Court can go into such of those matters which are arising out of the main dispute only.

Shri P. Ramakrishnan also relied on the decision in Regional Manager, State Bank of India v. Raja Ram : (2005)ILLJ12SC . The Court held as follows:

The Fifth Schedule to the Act contains a list of unfair labour practices which have been classified under two heads, namely, (i) on the part of the employer and trade unions of employers, and (ii) on the part of the workmen and trade unions of workmen. The principle that we have referred to earlier finds place in item 10 of Part I under which

to employ workmen as '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 workmen

is an unfair labour practice. In other words, before an action can be termed as an unfair labour practice it would be necessary for the Labour Court to come to a conclusion that the badlis, casuals and temporary workmen had been continued for years as badlis, casuals or temporary workmen, with the object of depriving them of the status and privileges of permanent workmen. To this has been added the judicial gloss that artificial breaks in the service of such workmen would not allow the employer to avoid a charge of unfair labour practice. However, it is the continuity of service of workmen over a period of years which is frowned upon. Besides, it needs to be emphasised that for the practice to amount to unfair labour practice it must be found that the workman had been retained on a casual or temporary basis with the object of depriving the workman of the status and privileges of a permanent workman. There is no such finding in this case.

11. Shri V. Chitambaresh relied on the following decisions:

1) Steel Authority of India Ltd. and Ors. v. National Union Waterfront Workers and Ors. : (2001)IILLJ1087SC .

2) Rourkela Shramik Sangh v. Steel Authority of India Ltd. and Anr. : (2003)ILLJ849SC

3) Ram Singh v. Union Territory, Chandigarh : (2004)1SCC126 .

4) Ahmedabad Municipal Corporation v. Virendra Kumar Javanthibhai Patel : (1997)IILLJ765SC .

In Ahmedabad Municipal Corporation v. Virendra Kumar Jayanthibhai Patel : (1997)IILLJ765SC , the Apex Court held as follows:

High Courts under Article 226 of the Constitution are entitled to issue directions, writs and orders for correcting the record of the inferior courts or the tribunal. It is true that the High Court while exercising its jurisdiction under Article 226, cannot convert itself into a court of appeal and assess the sufficiency or adequacy of the evidence in support of the finding of fact reached by the competent courts or the tribunals, but this does not debar the High Court from its power to enquire whether there is any evidence in support of a finding recorded by the inferior court or tribunal. There is a difference between a finding based on sufficiency or adequacy of evidence and a finding based on no evidence. If the finding of fact recorded by the tribunal is based on no evidence, such a finding would suffer from error of law apparent on the face of record.

In S.K. Maini v. Carona Sahu Company Ltd. and Ors. : (1994)IILLJ1153SC , which is also relied on by Shri v. Chitambaresh, the Court took note of the fact that the Labour Court wrongfully found the employee to be a workman and granted him relief. The Court found that the finding of the Labour Court being the very foundation of its jurisdiction, the relief granted by the High Court was only to be upheld. The Court took note of the principle that the determinative factor is the main duties of the employee concerned, and not some work incidentally done. In Arkal Govind Raj Rao v. Ciba Geigy of India Ltd., Bombay : (1985)IILLJ401SC , the Court held as follows:

Where an employee has multifarious duties and a question is raised whether he is a workman or someone other than a workman, the test that court must employ in order to determine the question is what was the primary, basic or dominant nature of duties for which the person whose status is under enquiry was employed. If he is incidentally asked to do some other work, may not necessarily be in tune with the basic duties, these additional duties cannot change the character and status of the person concerned. When primary or basic duties of a person are shown to be clerical but some stray assignments are made to create confusion, the gloss has to be removed to peruse the reality. A few extra duties would hardly be relevant to determine his status. The words like managerial or supervisory have to be understood in their proper connotation and their mere use should not detract from the truth.

He relied on the decisions to contend that there is no basis for the Tribunal to find that only those who had passed the Vth Standard are to be regularised. In Ram Singh and Ors. v. Union Territory, Chandigarh and Ors. : (2004)1SCC126 relied on by Shri v. Chitambresh, the appellant contract employees were employed for various jobs, claimed relief of regularisation of their services under the Engineering Department of the Chandigarh Administration. The claim was rejected by the CAT and the dismissal was confirmed by the Supreme Court. Therein, the Court proceeded to hold as follows:.In that event, it may be held that an independent contractor is created or is operating as a subterfuge and the employee will be regarded as the servant of the principal employer. Whether a particular relationship between employer and employee is genuine or a camouflage through the mode of a contractor, is essentially a question of fact to be determined on the basis of the features of the relationship, the written terms of employment, if any, and the actual nature of the enployment. The actual nature of relationship concerning a particular employment being essentially a question of fact, it has to be raised and proved before an industrial adjudicator.

In Rourkela Shramik Sangh v. Steel Authority of India Ltd. and Anr. : (2003)ILLJ849SC relied on by Shri v. Chitambaresh, a claim was raised by the workers of Rourkela Steel Plants in a Writ Petition before the Supreme Court that they are entitled to the same pay as is paid to the regular employees and are to be treated as such. The Court instead of relegating the parties to the Industrial Tribunal, issued certain directions providing for their absorption, in the decision in R.K. Panda case : [1994]3SCR1034 . A question arose whether the High Court would not fall within the term 'Authority' and the remedy of the appellant lies in seeking a reference under Section 10 of the Industrial Disputes Act, in the light of any dispute which arose, in regard to the number of years they have worked. This was found to be a disputed question of fact to be resolved by the Tribunal.

12. Shri M. Pathros Mathai relied on the decisions in A. Umarani v. Registrar, Co-operative Societies : (2004)IIILLJ780SC , Krishan Yadav v. State of Haryana : (1995)IILLJ77SC , and State of U.P. v. Neeraj Awasthi and Ors. : (2006)ILLJ721SC . Shri Ramesh Babu placed reliance on the following decisions:

A. Umarani v. Registrar, Co-op. Societies : (2004)IIILLJ780SC , State of Maharashtra and Anr. v. R.S. Bhonde and Ors. : (2005)IIILLJ517SC , Manager, Reserve Bank of India v. S. Mani : (2005)IILLJ258SC and Mahendra L. Jain v. Indore Development Authority : (2005)ILLJ578SC . I have already referred to the decision in Mahendra L. Jain v. Indore Development Authority : (2005)ILLJ578SC . In A. Umarani v. Registrar, Co-operative Societies and Ors. : (2004)IIILLJ780SC relied on Shri M. Pathros Mathai and Shri S. Ramesh Babu, the Court was considering a case of appointment to Cooperative Societies and Land Development Bank constituted and registered in the State of Tamil Nadu. Statutory rules were framed. Large number of employees were appointed without notifying the vacancies to the Employment Exchange and without following the other mandatory provisions of the Act and the Rules. Government issued orders seeking to regularise the appointments. The Court proceeded to hold as follows:

An appointment made in violation of the mandatory provisions of the statute and in particular, ignoring the minimum educational qualification and other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularisation. Appointments cannot be made on political considerations and in violation of the Government directions for reduction of establishment expenditure or a prohibition on the filling up of vacant posts or creating new posts including regularisation of daily-waged employees. Those who come by back door should go through that door.

The Court also held as follows:

Regularisation is not and cannot be the mode of recruitment by any 'State' within the meaning of Article 12 of the Constitution of India or any body or authority governed by a statutory Act or the Rules framed thereunder. Regularisation furthermore cannot give permanence to an employee whose services are ad hoc in nature.

This was not a case of an Award by the Industrial Tribunal. In Manager Reserve Bank of India, Bangalore v. S. Mani and Ors. : (2005)IILLJ258SC , the respondents were Ticca Mazdoors working under the Reserve Bank of India. They were intermittently appointed. They were not engaged every day or continuously. Two waiting lists were maintained by the Bank. They figured in the list of persons to be engaged as Ticca Mazdoors. They produced Certificates in an interview which, on verification, were found to be forged. They were acquitted in a criminal case. They submitted fresh Certificates and requested to re-employ them. Their request was rejected and on a reference, the tribunal found that the termination being in violation of Section 25-F, they were found entitled to reinstatement as per the Rules and Conditions with full back wages. The Division Bench interfered with back wages and modified the same. The Court proceeded to hold that 240 days of continuous service will not by itself give rise to a claim for permanence and even if a direction for reinstatement, for non-compliance of Section 25-F is given, they would be reinstated only as Ticca Mazdoors and they did not have a right to get regular work. In State of Maharashtra and Anr. v. R.S. Bhonde and Ors. : (2005)IIILLJ517SC , the Industrial Court held that there was unfair labour practice and directed the University and the College to make the complainants permanent subject to the approval of the State Government. The Court held as follows:

7. Additionally, as observed by this Court in Mahatma Phule Agricultural University v. Nasik Zilla Sheth Kamgar Union : (2001)IILLJ809SC , the status of permanency cannot be granted when there is no post. Again in Gram Sevak Prashikshan Kendra v. Workmen : (2001)IILLJ809SC , it was held that mere continuance every year of seasonal work obviously during the period when the work was available does not constitute a permanent status unless there exists post and regularisation is done.

There is no case that there are no posts available in the facts of this case. There is no violation of any Statute as such. In State of U.P. v. Neeraj Awasthi and Ors. : (2006)ILLJ721SC , the Apex Court was concerned with the jurisdiction of the High Court to issue a direction for framing a scheme for regularisation of the employees of the U. P. Agricultural Produce Market Board. The Board was established under a Statute. The appointments of different classes of employees were to be made by the Board and the Officers as the case may be, in terms of the provisions of the Regulations which provided for detailed procedure for appointment and the terms and conditions therefor. The High Court had given a direction to frame a scheme for regularisation of the employees. It was in such circumstances that the Apex Court proceeded to consider the matter. I do not think that the said decision can have any application to the facts of this case.

13. In Steel Authority of India Ltd. and Ors. v. National Union Waterfront Workers and Ors. : (2001)IILLJ1087SC , the Apex Court elaborately considered the issue in a case which had arisen under the Contract Labour (Regulation & Demolition) Act, 1970. The workers placed reliance on the following paragraphs:

125(6): If the contract is found to be genuine and prohibition notification under Section 10(1) of the CLRA Act in respect of the establishment concerned has been issued by the appropriate Government, prohibiting employment of contract labour in any process, operation or other work of any establishment and where in such process, operation or other work of the establishment the principal employer intends to employ regular workmen, he shall give preference to the erstwhile contract labour, if otherwise found suitable and, if necessary, by relaxing the condition as to maximum age appropriately, taking into consideration the age of the workers at the time of their initial employment by the contractor and also relaxing the condition as to academic qualifications other than technical qualifications.

126. We have used the expression 'industrial adjudicator' by design as determination of the questions aforementioned requires enquiry into disputed questions of facts which cannot conveniently be made by High Courts in exercise of jurisdiction under Article 226 of the Constitution. Therefore, in such cases the appropriate authority to go into those issues will be the Industrial Tribunal/Court whose determination will be amenable to judicial review.

In other words, the contention is that in appropriate cases it is open to the Industrial Tribunal to relax the requirement as to qualification. It is pointed out that the qualification in this case is academic qualification. The contention of the Unions and workers is that having regard to the nature of the job, the Tribunal should have in fact found that all the workers are eligible to be regularised and this is a fit case where the Tribunal ought to have found that even those workers who did not even pass the Vth Standard are eligible to be regularised.

Findings:

14. As regards the first contention of behalf of the Company that the matter is res judicata, I do not find merit in the said contention. The contention is premised on Ext.P2 Judgment confirming Ext. Pl Judgment. It is the contention that this Court having found that prescription of the qualification is legal, it is not open to the Tribunal to go behind it. I am not inclined to accept the said contention. It is no doubt true that the learned Single Judge who delivered Ext. Pl Judgment did hold that prescription of qualification, inter alia, is the prerogative of the employer. I feel that this was a finding rendered in the context of the proceeding which was before it. Admittedly, the proceeding was one under Article 226. It is to be noted that the learned Single Judge did take note of the industrial dispute pending as I.D. No. 101/00 which is the old number of the Industrial Dispute No. 57/05 which was considered and decision rendered as per Ext.PIO Award. The learned Single Judge in fact proceeded to hold that there was nothing to show that the casuals had any automatic right for regularisation. The learned Single Judge observed that the rights for engagement, appointment or confirmation could be examined in the Industrial Dispute. It was thereafter that the Court held that the relief of regularisation cannot be granted. In Ext.P2 Judgment, the Court held as follows:

4. We find no infirmity in the reasoning of the learned single Judge that the Company is entitled to lay down qualifications for the post of mazdoors. Necessity for laying down such qualifications has also been enumerated in the counter affidavit. If proper qualifications are not laid down at the initial stage the Company would find it difficult to give them promotion to higher posts. We notice there were many persons in the casual employees pool in the Company who are not having SSLC qualification. If the Company is directed to absorb all those loading and unloading workers as mazdoors that will considerably affect the efficiency of the company when the question of promotion comes up for consideration. We are also informed that the question raised by the persons like the petitioners is already under adjudication in various tribunals. We make it clear that we are not expressing any opinion on those matters

Thereafter, the Court said:

At the same time, the Court finds no infirmity in the steps taken by the Company to recruit persons in accordance with Ext.P12.

In such circumstances, I feel that the plea of res judicata in regard to the finding rendered by the High Court in proceedings under Article 226 pertaining to the possession of qualifications, cannot be accepted. It is to be noted that in Ext.P7 Judgment of the Division Bench, the Division Bench in appeal carried against Ext. P5 Judgment, directed that the Tribunal shall be bound by Ext.P2 Judgment affirming Ext.P1 Judgment. In Ext.P8, the Apex Court explained the effect of Ext.P7 Judgment as meaning that the Tribunal will take into account all relevant considerations including the decisions of the High Court which have a bearing on the subject and decide the matter in accordance with law. The power of the Industrial Tribunal extends to creating new rights. The Division Bench in Ext.P2 has not restrained the power of the Tribunal in dealing with the question of regularisation. Also if the decision of the Apex Court in SAIL's case is extended to relax the rigour of general educational qualifications, that is, if that power was available to the Tribunal, I feel that the findings rendered by the learned Single Judge in Ext.P2 affirming Ext. Pl Judgment could not have stood in the way of the Tribunal in directing that persons who have passed the Vth Standard should be regularised.

15. It is to be noted that the Company is one registered under the Companies Act. It is not a statutory Corporation. There is no case that recruitment to the post in question is one governed by any statutory rules or regulations. A perusal of Ext.PIO Award would show that the Tribunal has noted that the management has no case that, the workers entered into the service through back door. Nor, is there any case that these workers are unsuitable for the various works for which they are now engaged. They have been working for periods ranging from 10 to 15 years. There is no challenge to the aforesaid finding of the Tribunal. The evidence of WW1 and WW2 was relied on to find that though given benefits admissible to regular employees, they are denied the status of permanent workers. No doubt, the Tribunal has found that the workers are employed on daily wages. Clause 10 of Fifth Schedule of the Industrial Disputes Act provides as follows:

10. To employ workmen as '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 workmen.

16. It is to be noted that industrial adjudication is not adjudication according to strict law of master and servant, but unlike commercial adjudication, it may involve extension of an existing agreement or making up a new one as long as it is within the scope of the reference (See Ludwig Teller - Labour Disputes & Collective Bargaining Vol. I). The said view was approved by the Federal Court of India in Western India Automobile Association v. Industrial Tribunal 1949 LLJ 245 at 256 Federal Court, wherein Mahajan J. held as follows:

Adjudication does not in our opinion, mean adjudication according to strict law of master and servant. The award of the Tribunal may contain provisions for settlement of a dispute which no Court could order if it was bound by ordinary law but the Tribunal is not fettered in any way by these limitations.

The view taken by the Federal Court was referred to by the Apex Court in Bharat Bank Ltd. v. Employees of Bharat Bank Ltd. 1951 LLJ 921 at 948 SC. The Court held as follows:

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.

17. The question that was referred to the tribunal was a question relating to the grant of permanence to the workers. In such circumstances, the power available to the Industrial Tribunal cannot be said to be the same as the power available to the Court under Article 226 of the Constitution. In other words, the question when examined by a Court under Article 226 can in one sense be said to fall in a narrow campass when compared to the width of the power available to the tribunal. In such circumstances. I do not think that there is merit in the contention of the Company that the tribunal ought not have directed regularisation of those employees who have worked for long years.

18. I am not impressed by the contention raised by the petitioners, workers and Unions to challenge the Award on the ground that even the prescription of Vth Standard for being regularised is not sustainable. While it may be open to the Tribunal to hold in a particular case that prescription of a particular qualification may be relaxed, it may not be in the province of this Court acting under Article 226 to sit in appeal over the same and to further direct that the qualifications prescribed by the management should be totally done away with. That would be an indirect method of doing what would be directly impermissible, and may not square with the reasoning and finding in Ext.P2 affirming Ext. Pl. The contention of Shri Thampan Thomas based on the report of the Sub Committee for Scheduled Casts & Scheduled Tribes, I feel, cannot advance his case. It cannot bind the Tribunal. It may be true, as he contends, that persons were appointed by the Company earlier irrespective of qualification. But, what is in focus in this proceeding, is not to be decided on the basis of past practice as such.

19. Learned Counsel appearing for the workers/Unions complained against the award for permitting direct recruitment to the extent of twentyfive per cent. Equally, the learned Counsel for the Company impugns the fixation of 75 per cent in favour of the workers to be regularised. It is to be noted that in Ext.PIO Award, it is stated as follows:

As per the promotion policy award dated 29.8.1987 that has been accepted by the management, the minimum relaxed qualification for promotion of Mazdoors is only Vth Standard. I therefore do not find any merit in the contention of the management that the CLP workers do not possess the minimum prescribed qualification and they cannot be regularised to the post of Mazdoor.

In doing so, the tribunal has drawn support from the decision in SAIL's case which has already been referred to. The Company raised two objections. Firstly, it is contended that the decision in SAIL's case may not strictly apply as the Supreme Court in that case was dealing with a case covered by the Contractor Labour Abolition Act. It is further contended that in view of the efflux of time and change of policy, the management decided to enhance the qualification. It is submitted that if persons with Vth Standard are allowed to be appointed, when the question of promotion arises, appointing the persons who have passed Vth Standard only would be an obstacle in filling up the higher posts. The further complaint of the Company is regarding the fixation of inter se seniority between the recruits and the regularised workers.

20. The Tribunal has, no doubt, proceeded on the basis of a promotion policy award dated 29.8.1987 which was accepted by the management as per which the minimum relaxed qualification for promotion of Mazdoor is pass in the Vth Standard. It may be true that the Company has later on changed its policy in regard to qualification. But none-the-less, the view taken by the Tribunal also is a possible one. Taking note of the nature of the job, it cannot be open for me in proceedings under Article 226 of the Constitution to sit in appeal over the relaxation of qualification. A balance has been struck by the Tribunal between two extreme views and the view of the Tribunal, I feel, tends to promote justice. There will also be direct recruits among the Mazdoors who will be qualified for promotion to higher categories. The interest of the Company cannot be said to be jeopardised. In fact, I find that there is no pleading as such in the Writ Petition in these matters.

21. The direction in Ext. Pl is that a seniority list will be prepared and persons will be regularised from out of the said list provided they have passed Vth Standard cannot be faulted. However, it is submitted that the reservation of 75 per cent of the vacancies of the casual workers may not be justified. It is pointed out that if on the basis of the criteria declared by the Tribunal, all the persons are regularised, and they do not constitute 75 per cent, the Company would be forced to keep the vacancies idle. The question that was referred to the Tribunal related to the issue of denial of permanency to 134 casual workers. The Tribunal had the power to decide the question whether the denial of permanency is correct and legal. It could also deal with things which arose incidently, so that the Award could effectively deal with the question arising out of the reference and effectuate the award also. It is apparently in this context that the Tribunal has proceeded to direct reservation of 75 per cent of the existing vacancies for the casual labourers. This was intended to see that the casual labourers who are directed to be regularised are accommodated at the earliest. The only modification that is called for is this: If the total number of CLP workers on the basis of the seniority list who satisfy the criteria indicated in Clause (a) at paragraph 37 of Ext. PIO is less than 75 per cent of the total number of vacancies, then there is no necessity to still reserve 75 per cent of the vacancies. In other words, if after regularising all the eligible employees, regularisation of all the eligible employees does not result in filling up of 75 per cent of the vacancies, it is open to the Company to fill it up in accordance with law by direct recruitment. The further modification which, I feel, is called for, is in regard to Clause (e) of the conditions. I do not think that the question relating to seniority is one which fell within the ambit of the jurisdiction of the Tribunal having regard to the terms of reference. The question as to whether the Mazdoors should be treated as seniors to the direct recruits was clearly beyond the scope of the reference. Accordingly, Ext. PIO shall stand quashed to the extent of the said condition being imposed. Except as stated above, Ext. PIO Award is sustained. Accordingly W.P (C) No. 35098/05 is partly allowed as above. W.P. (C) Nos. 70/06, 371/06 and 2164/06 are dismissed.

22. Having regard to the prayers in W.P. (C) No. 1026/06, 1 do not think that the petitioners are entitled to get any of the reliefs sought for. Accordingly W.P.(C) No. 1026/06 also is dismissed.


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