@JUDGMENTTAG-ORDER
C.V. Ramulu, J.@mdashA short question that arises for consideration in this writ petition is as to whether the Petitioners are entitled for regularization of their services in the Respondent-APSRTC or not.
2. It appears, Petitioners four in number, were appointed as Cleaners/ Sweepers in the Respondent-Corporation and were initially attached to Gannavaram Depot in May 1989 and worked upto 30.6.1992. However, with effect from 1.7.1992, their services were terminated. Aggrieved by the same, they have filed I.D. No. 280 of 1992 and Batch before the Labour Court, Guntur u/s 2-A(2) of Industrial Disputes Act, 1947 seeking a direction to the Respondent Corporation to reinstate them into service with continuity of service, back wages and attendant benefits. The Labour Court, Guntur, by a common award dated 16.7.1997 directed the Respondent-Management to reinstate the Petitioners into service with continuity of service, back wages and all attendant benefits. Aggrieved thereby, Respondent-Management filed Writ Petition Nos. 32954 of 1997 and Batch before this Court, however, this Court by order dated 1.4.2003 dismissed the said writ petitions. Questioning the same, management carried the matter in appeal being Writ Appeal No. 131 of 2004 before this Court and the Division Bench also dismissed the writ appeal on 17.6.2004 while upholding the order of the learned Single Judge. Thus, the order made in I.D. No. 280 of 1992 and Batch dated 16.7.1997 has attained finality. However, when the Petitioners were not reinstated into service, they had filed E. Ps. before the Labour Court and ultimately, they were reinstated into service in November, 2004 and working as such since then.
3. The grievance of the Petitioners in these writ petitions is that though they were appointed in November, 1989 and the Labour Court passed award in their favour on 16.7.1997 directing the Respondents to reinstate them into service with continuity of service, back wages etc., which attained finality in writ appeal before this Court and having reinstated into service with effect from November 2004, their services are not regularized till date. In view of award passed in I.D. No. 280 of 1992 and Batch dated 16.7.1997 and in view of pendency of writ petitions and writ appeal and management obtained conditional order and complied with the provisions of Section 17-B of I.D. Act and after disposal of writ appeal, they were reinstated into service with effect from November, 2004, it must be deemed that they have been in continuous service of the Respondent-Management since 1989. Therefore, they have put in 21 years of long and continuous service and as such, they are entitled for regularization of their services and shall be put on regular timescale on par with their juniors.
4. The learned Counsel for Petitioner contended that the scheme of Industrial Disputes Act is to discourage adhocism, temporary and intermittent engaging of workers and the Andhra Pradesh State Road Transport Corporation is a statutory organization and is supposed to be a model employer in dealing with service conditions of its employees. In support of his case, the learned Counsel relied upon the decisions in Management of Andhra Scientific Co. Masulipatnam v. The Presiding Officer, Labour Court and Anr. 1971 (4) LAB I.C. 513 ,
5. The learned Counsel also drawn attention of the Court to Section 19 of Road Transport Corporation Act, 1950, Schedule-V read with Section 25T of I.D. Act and submitted that not regularizing the services of Petitioners amounts to unfair labour practice on the part of the management.
Section 19 of R.T.C. Act reads as under:
Powers of Corporation.--(1) Subject to the provisions of this Act, a Corporation shall have power--
(c) to provide for its employees suitable conditions of service including fair wages, establishment of provident fund, living accommodation, places for rest and recreation and other amenities;
Schedule-V (Section 2(ra)) of I.D. Act reads as under:
Unfair Labour Practices
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.
Section 25T - Prohibition of unfair labour practice
No employer or workman or a trade union, whether registered under the Trade Unions Act, 1926 (16 of 1926), or not, shall commit any unfair labour practice.
6. It is the contention of the learned Counsel for Petitioners that the Petitioners were not appointed by back door methods. Petitioners were engaged as casuals. May be, Petitioners were engaged as casuals, but they have put in more than 21 years of service as of today. Therefore, denial of permanent status to the Petitioners in the Respondent Corporation amounts to unfair labour practice.
7. Whereas it is the contention of the learned Counsel for Respondents Sri K. Satyanarayana Murthy, that merely Petitioners have put in 21 years of service as per the award passed by the Labour Court and the Labour Court found that there was employee and employer relationship and termination of services of Petitioners was contrary to the provisions of Section 25F of I.D. Act and that the Respondent-Management was directed to reinstate the Petitioners with continuity of service with full back wages, Petitioners are not automatically entitled for regularization of their services. In this regard, the learned Counsel for Respondents relied upon the judgments in Secretary,
8. In Secretary, State of Karnataka v. Umadevi (supra), at paragraphs 46 and 47, it was held as under:
46. Learned Senior Counsel for some of the Respondents argued that on the basis of the doctrine of legitimate expectation, the employees, especially of the Commercial Taxes Department, should be directed to be regularized since the decisions in Dharwad (supra), Piara Singh (supra), Jacob, and Gujarat Agricultural University and the like, have given rise to an expectation in them that their services would also be regularized. The doctrine can be invoked if the decisions of the Administrative Authority affect the person by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there have been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision-maker that they will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn (See Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service 1985 App. Cas. 374
47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.
9. In Hindustan Petroleum Corpn. Ltd. v. Ashok Ranghba Ambre (supra), at Paragraphs 14 and 21, it was held as under:
14. To us, however, the learned Counsel for the Appellant-Corporation is right in submitting that setting aside an action of termination of services being violative of Section 25F of the Act does not necessarily follow that the workman must be held entitled to the benefits claimed by him in the writ petition, namely, status of permanency and claim of regular pay scales and other benefits based on permanency. In our judgment, two things are distinct, different and operate in different areas. In Reference Proceedings, the question before the Industrial Tribunal as also before the High Court was whether termination of services of the workman was in consonance with law. Once it was held that there was breach of Section 25F 6f the Act, it necessarily followed that the order of termination was in violation of law and direction was required to be issued in the form of reinstatement of the workman. The said order was, therefore, confirmed by the High Court. But in our considered opinion, in the proceedings before the High Court under Article 226 of the Constitution as to permanency and other benefits on that basis, the writ Petitioner could not contend that since the action of termination of his services was held to be illegal and he was ordered to be reinstated by Industrial Tribunal and the said Award was confirmed by the High Court, ipso facto, he ought to be treated as permanent employee of the Corporation and must be held entitled to the benefits claimed in the writ petition. To that extent, therefore, the order passed by the High Court is not in consonance with law.
21. In the case on hand, according to the Appellant-Corporation, the workman was appointed on a purely ad hoc and temporary basis, without following due process of law. His name was never sponsored by the Employment Exchange nor an advertisement was issued for the purpose of filling the post to which the writ Petitioner was appointed. Cases of other similarly situated persons were not considered and the appointment was not legal and lawful. In industrial adjudication, an order of termination was quashed as it was not in accordance with law. But that did not mean that the workman had substantive right to hold the post. The High Court was, therefore, wrong in directing the Corporation to make the writ Petitioner permanent and to extend him all benefits on that basis from 1992. The said direction, therefore, has to go.
10. In Official Liquidator v. Dayanand (supra), at Paragraph 78, it was held as under:
78. We shall now advert to the question whether the Respondents can invoke the doctrine of legitimate expectation for supporting the impugned orders. This part of the Respondent''s claim is founded on their assertion that notwithstanding the contrary stipulation contained in the orders of appointment, they had expected that in view of the 1978 Scheme the Government will absorb them in the regular cadres on some future date and give benefit of the principle of equal pay for equal work. The argument of Shri Bhaskar P. Gupta and Ms. Jyoti Mendiratta is that the Respondents had joined as company paid staff with the hope that they will be absorbed in the Government service, but their hopes have been totally belied because instead of creating adequate number of posts for absorption of company paid staff in accordance with the 1999 Scheme, the Government has arbitrarily abolished large number of posts in direct recruitment quota and on that account, even those who have been adjudged suitable will never get absorbed in the regular cadres. In our opinion, there is no merit in this argument. The pleadings of the parties and records produced before the High Courts and this Court do not show that any competent authority of the Government of India had ever given any assurance much less made a promise to the Respondents that they will get absorbed against the sanctioned posts or that there will be no abolition of posts meant to be filled by direct recruitment. As a matter of fact, the Respondents joined as company paid staff knowing fully well that they were being employed as additional staff in connection with the liquidation proceedings and on the basis of sanction accorded by the concerned Court and further that they will have no right to seek absorption. They also knew that their employment will come to an end on the expiry of the tenure specified in the letter/order of appointment or on cessation of the liquidation proceedings. In this scenario, the doctrine of legitimate expectation cannot be invoked for sustaining the directions given by the High Courts for absorption of all company paid staff with consequential benefits or for nullifying the policy decision taken by the Government to gradually reduce the direct recruitment quota.
11. In A. Manjula Bhashini v. The Managing Director, A.P. Women''s Cooperative Finance Corporation Ltd (supra), at paragraph 8, it was held as under:
8. The part-time employees, who were not covered by G.O. dated 22.4.1994 also approached the Tribunal and High Court claiming regularisation of their services. By an interlocutory order dated 25.4.1997, the High Court directed that a scheme be framed for regularisation of their services. The State Government promptly implemented the High Court''s directive and issued G.O.(P) No. l 12 dated 23.7.1997 for regularization of part-time employees who had worked continuously for a minimum period of 10 years and were continuing on 25.11.1993 subject to the following conditions:
1. Absorption shall be against clear vacancies of posts considered necessary to be continued as per work-load excluding the vacancies already notified to the Andhra Pradesh Public Service Commission or as the case may be, the District Selection Committee.
2. The persons appointed should possess the qualifications prescribed as per rules in force as on the date from which his or her services have to be regularised.
3. The person should be within the age limit as on the date of appointment as part-time employee.
4. The Rule of Reservation wherever applicable will be followed and back-log will be set off against future vacancies.
5. The sponsoring of candidate from Employment Exchange is relaxed.
6. If there are two candidates, one part-time and the second one a full-time employee (Daily Wage employee) of any category or name and there exists only one vacancy, the senior most between the two in terms of continuous service already rendered prior to 25.11.1993 treating two years of part-time service as one year of full-time service, relative seniority will be calculated and regularization will be suggested for the senior among the two accordingly.
7. The regularization of services of full time employee already made in terms of G.O. Ms. No. 212, Finance & Planning (FW.PC.III) Department, dated 22.4.1994 will not be reopened for giving effect to the present order.
It is further stated that the services of no junior to the Petitioners were regularized as of today. Therefore, Petitioners are not entitled for regularization of their services in the Respondent Corporation.
I have given my earnest consideration to the respective submissions made by the learned Counsel on either side and perused the material made available on record.
12. In The Management of Andhra Scientific Co. Masulipatnam v. The Presiding Officer, Labour Court (supra), it was held that the effect of reinstatement which was ordered by the Labour Court, restores the employees to his former position and status setting aside the order of termination of his services as if it had never been passed and the employee gets the benefit of continuity of service. In the present case, since the benefit of continuity of service was extended by the Labour Court, it must be deemed that the Petitioners were in continuous service of Respondent-Corporation for more than 21 years.
13. In A.P.S.R.T.C. v. Eswara Dass (supra), the Division Bench of this Court held that it is a glaring case of unfair labour practice by an expected to be an ideal employer representing the State i.e. an instrumentality of the State which is duty bound, under the Constitution of India, to provide social justice, fair and humane conditions for working and not to evolve technicalities to evade its duties towards the citizens, enjoined by law and the Constitution. It was further held that Article 226 of the Constitution of India, as laid down by the Hon''ble Supreme Court, is meant for doing substantial justice and not to do injustice or to determine the technicalities and legalities of the findings on the objections. The learned Counsel further has drawn the attention of the Court to paragraph 2 of the said judgment, which reads as under:
The 1st Respondent was employed as far back as on 1.11.1987 as a sweeper and washerman for the purpose of cleaning the buses. The Appellants, for reasons best known to them, wanted to draw a curtain between the relationship of employer and employee by invoking and articulating the terminology of contract labour which is not applicable to the Appellants and which is, rather we may hasten to add, is prohibited. The 1st Respondent''s services were terminated orally on 16.8.1988 contrary to the provisions of the Industrial Disputes Act, 1947. The poor worker was forced to seek appropriate relief before the Labour Court by filing an industrial dispute. The worker, after fighting there mighty management for six years, secured the relief of reinstatement on 16.5.1994 through an award of the Labour Court. The management did not feel satisfied. The award was challenged which was rejected and finally the worker is reinstated on 6.11.1995. Still, the management was not satisfied and was not ready and willing to give the due of the worker
and submitted that this is a case where the Petitioners were appointed in May 1989 and worked upto 30.6.1992 and when their services were terminated on 1.7.1992, they raised an industrial dispute before the Labour Court and the Labour Court by a common award dated 16.7.1997 directed the Respondent-Management to reinstate the Petitioners into service with continuity of service, back wages and attendant benefits, which attained finality in Writ Appeal No. 131 of 2004 dated 17.6.2004 before this Court. In spite of that, when they were not reinstated into service, they filed E. Ps. before the Labour Court and ultimately, they were reinstated into service in November 2004 and working as such. This all would show the attitude of the management in dealing with service conditions of Petitioners, which is nothing but unfair labour practice.
14. The learned Counsel, while relying upon the judgment in E.P. Royappa v. State of Tamil Nadu (supra), stated that Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive, inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations. It would amount to mala fide exercise of power and that is hit by Articles 14 and 16. Mala fide exercise of power and arbitrariness are different lethal radiations emanating from the same vice: in fact the latter comprehends the former. Both are inhibited by Articles 14 and 16. In the case on hand, though services of many such similarly placed employees were regularized, the services of Petitioners were not regularized. Therefore, action of the Respondents in not regularizing the services of the Petitioners requires to be inhibited by Articles 14 and 16 of the Constitution.
15. In State of Karnataka v. L. Kesar (supra), the Apex Court held as under:
The object behind the direction in paragraph 53 of
The judgment relied upon by the learned Counsel for Respondents in Hindustan Petroleum Corpn. Ltd. v. Ashok Ranghba Ambre (supra), has no application to the case on hand. In the said case, the point that arose for consideration was simply because the termination of services of Petitioners therein was held to be bad and contrary to Section 25F of I.D. Act, whether they are entitled for regularization straight away or not, therefore it has no direct bearing on the facts of the present case. Further the ratio laid in the judgment in Official Liquidator v. Dayanand (supra), has no application to the facts of the case. In Manjula Bhashini''s case (supra), G.O. Ms. No. 212, Finance & Planning (FW .PC. III) Department, dated 22.4.1994 issued by Government was under consideration as to regularization of services and its applicability from a particular date etc. This also has no direct bearing on the case on hand.
16. By way of reply, the learned Counsel appearing for Petitioners Sri Pitchaiah, while relying on the judgment in Secretary, State of Karnataka and Ors. v. Umadevi (supra) Paragraph 53, wherein it was held:
One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in
stated that the above would make it clear that the cases of Petitioners who are employees of APSRTC in view of proclamation made in the awards passed by the Labour Court, which attained finality and in view of the fact that they have put in 21 years of service, they are entitled for regularization of their services. The learned Counsel further has drawn the attention of the Court to paragraph 4 of the writ affidavit, which reads as under:
I further submit that we have put in more than 17 years of service in the Respondent Organisation as Cleaners. I and other Petitioners are discharging the duties of cleaning the buses of the Respondents and helping the mechanics in carrying out repairing works and doing such other duties as directed by our superior officers such as Assistant Mechanical Foreman, Leading Hand, M.C. etc. As long as the Respondent Corporation runs buses the cleaning of buses, premises of Bus Depot is incidental to the main public transport activities of Respondent Corporation. The cleaning work is always there and it is perennial work as recorded by Labour Court, Guntur in the earlier round of litigation. Though cleaning work is perennial in nature, the Respondents who are supposed to be modal employers have unfortunately not taken any steps to regularize our services and continue us to employ as Shramic whereas we were earlier designated as cleaners. We are being paid very nominal wages. Employing us as cleaners or shramics for years together without conferring the status of permanent cleaners or shramics is unfair labour practice under Entry 10 of I of v. Schedule of Industrial Disputes Act, 1947 for which employer is liable to be prosecuted. I further submit that the duties discharged by us as cleaners or shramics are equal and identical to the duties of regular shramics or cleaners. The work turned out and responsibilities discharged by us are also identical with the work and responsibilities of permanent or regular cleaner/shramic. Having regard to the work done by us, the same is unskilled work. As such the action of the Respondents in singling us out and not giving the rights and benefits of regular workman is arbitrary and violative of Articles 14, 39(d) of Constitution of India as we are entitled for the same on par with regular shramics and cleaners.
17. Admittedly, Petitioners were not appointed by backdoor methods. They were appointed as casuals for cleaning and sweeping buses of the Corporation. When their services were terminated with effect from 1.7.1992, they raised I.D. No. 280 of 1992 and Batch before the Labour Court, Guntur u/s 2-A(2) of Industrial Disputes Act. A common award was passed in the I. Ds. on 16.7.1997 directing the Respondent-Management to reinstate the Petitioners into service with continuity of service, back wages and all attendant benefits. The same attained finality when the writ petition and writ appeal filed by the management were dismissed. Even at that stage, Petitioners were not reinstated into service, therefore they had to file E. Ps. before the Labour Court and ultimately, they were reinstated into service in the month of November, 2004 and working as such since then with the Corporation. From these facts, Petitioners-workmen cannot be blamed for not being in service between 1992 and 2004. However, the services of the Petitioners are to be treated as continuous and without any break. Thus, they have completed 21 years of continuous service with the Respondent-Corporation. It is also not out of place to mention that such similarly placed persons when approached this Court, their services were regularized. Once this is the position, as contended by the learned Counsel for Petitioners that the scheme of Industrial Disputes Act is to discourage ad hocism, temporary and intermittent engaging of workers by a statutory organization like APSRTC. Section 19 of R.T.C. Act provides for suitable service conditions for its employees including fair wages etc. May be, this is applicable only to regular employees who were appointed as per the recruitment regulations of Corporation, but Schedule-V (Section 2(ra)) of I.D. Act contemplates that 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 nothing but unfair labour practice. Further, Section 25T of the I.D. Act prohibits unfair labour practice by any employer or workman. A combined reading of these provisions would indicate that engaging the Petitioners for such a longtime as casuals is nothing but unfair labour practice. It is also not in dispute that between 2004 and 2010, atleast on two occasions, Government had accorded sanction for regularization of about 4000 employees into the service of Corporation. Even at that stage, the Respondents have not taken any move for regularizing services of the Petitioners. Further, it is unfortunate that still a stand is taken that there is no relationship of employees and employer between Petitioners and Respondent Corporation though such questions which were raised in the I. Ds. attained finality long ago and now Corporation cannot say that the Petitioners are not entitled for regularization of their services even though they were put in 21 years of service in the organization.
18. Both the Counsel have relied upon the decision in Secretary, State of Karnataka and Ors. v. Umadevi (supra). The learned Counsel for Petitioner relied upon paragraph 53 of the said judgment. Whereas the learned Counsel appearing for Respondents relied upon paragraphs 46 and 47 of the said judgment. Here it is a case of casual appointment and may not be through selection process. It can at best be said to be an irregular appointment, but not an illegal appointment. The sweeping and cleaning of buses is a perennial work attached to the main activity of the Corporation. Since the Petitioners have been treated as working continuously for more than 10 years, regularization of their services have to be considered in the light of the said judgment. During the years 2004 and 2010, more than 4000 posts were sanctioned by the Government for regularizing the services of temporary/contract employees working in the Corporation. The judgment rendered in Umadevi case further was explained in State of Karnataka v. L. Kesar (supra), wherein it is stated that the true effect of the direction at paragraph 53 of judgment in Umadevi case is that all persons who have worked for more than 10 years as on 10.4.2006 without the protection of any interim order of any Court or Tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularization. The continuation of Petitioners in the Corporation for the last more than 21 years itself can be construed that there are vacant posts available and the Petitioners are entitled for regularization of their services and to be put on regular timescale.
19. For all the above reasons, the Respondents are directed to regularize services of the Petitioners from the date when they have completed 10 years of service. However, they shall be put on timescale from 1.9.2010 with notional increments from the date of regularization. If there is any revision of timescales, the same shall also be extended notionally. Further, it is made clear that the Petitioners are not entitled for any arrears of increments and revised pay scales etc.
20. Accordingly, the writ petition is allowed and the contempt is closed. There shall be no order as to costs.
