C.W.P. No.8240 of 2008 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.8240 of 2008 Date of Decision.22.03.2010 Dalbir Singh and others ......Petitioners Versus Pepsu Road Transport Corporation, Patiala through its Managing Director and another ....Respondents Present: Mr. B.S. Walia, Advocate and Mr. O.P. Sharda, Advocate for the petitioners. Mr. Balwinder Singh, Advocate for respondent No.1 and 2. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the Reporters or not ? Yes 3.Whether the judgment should be reported in the Digest?Yes -.- K. KANNAN J.(ORAL) I. Claim to regularization under relevant Regulations 1. The petitioners, who number 52 persons, seek for a mandamus for directing the respondents to confirm the services and put them on regular scales on the lines of the Punjab Civil Services Rules, Volume I, Part I. The basis of the claim for the petitioners is that they had all been recruited after a public advertisement issued for the purpose and appointed as Drivers in the respondent-Corporation in 2001 on various dates. The petitioners claim that the Corporation employees are driven through Pepsu Road Transport C.W.P. No.8240 of 2008 -2- Corporation (Conditions of Appointment & Service Regulations) 1981. II. The categories of employees under Regulations 2. The petitioners would claim that the Regulations contemplated various stages of appointment and various categories of employment. Referring to the definition clauses, the petitioners would contend that a casual employee is defined under Rule 2(d) as an employee “who is employed for work of a casual nature.” Clause 2(m) defines a permanent employee as an employee “who has been engaged on permanent basis against a permanent post and confirmed after completion of probationary period as fixed under Regulation 9.” Yet another clause of relevance to us is Rule 2(o), which defines a probationer as under: “Probationer is an employee who is provisionally employed to fill a vacancy in a permanent post and has not been confirmed as permanent in accordance with these standing orders. Ordinarily, the period of probation shall be six month at a time, at the discretion of the management if the management considers it necessary in any case to further adjudge the work and merits of an employee. The maximum probation period shall, however, in no case, extend beyond one year.” C.W.P. No.8240 of 2008 -3- Clause 2(q) defines a temporary workman as a "workman who has been engaged for a work, which is of an essentially temporary nature, provided that if such an employee is employed continuously for six month or more he shall be deemed to be a probationer." The contention of the petitioner is that all the petitioners had been appointed as temporary workmen, who on the completion of six months' time were entitled to be treated as probationers and the maximum probation period, which could not extend beyond a period of one year, they were entitled to be deemed as confirmed in their appointment on the day when they completed the maximum period of probation. Clause 10 of the Regulation read as follows: "Whenever during the period of probtaion or extended period of probtation an employee is found fit for confirmation, he may be confirmed in the post for which he is found fit by the appointing authority. In case an employee continues in service beyond the period of probation or extended period of probtation and no orders have been passsed confirming him or terminating his post or reversion to his substantive post, he shall be deemed to have been confirmed automatically on the expirty of probation period or extended period probtation as the case may be." C.W.P. No.8240 of 2008 -4- The petitioners, therefore, would urge that they have graduated to such status as confirmed employees and they are bound to be granted the regular scales of pay applicable to confirmed employees. III. Contention of respondent: Inapplicability of regulations to employees appointed on contract 3. The contention in defence by learned counsel appearing for the Corporation is that the Regulations themselves are not applicable to them but the petitioners were, however, governed by specific terms and conditions regarding the appointment of Drivers and Conductors on contractual basis which began in the year 2001 when as per Clause 7, it was specifically provided that they will not stake any claim for regularisation. Clause 7 reads as follows: “The appointed Drivers and Conductors will not stake any claim for regularization of their services on the basis of having served the corporation on contract basis. However, regularisation of services of Drivers and Conductors whose performance is found to be satisfactory can be considered at the appropriate time in accordance with the policies framed by the Corporation.” IV. Respondent's contention (continued) : Clauses in terms of employment that deny scope for regularization 4. The learned counsel would also contend that at the C.W.P. No.8240 of 2008 -5- time when the appointment orders were issued, each one of them had given affidavits in the manner provided under the terms and an agreement had been entered between the respective workmen and the management when under Clause 6 of the agreement it was provided that the employee shall not have any right against PRTC or any depot thereof and Clause 8 had virtually removed any scope for a claim to regularization. The learned counsel would refer to Clause 8, which is reproduced as under: "That the first party shall neither have any right nor claim regularization of his services merely on the ground that he has served the PRTC, for the contract period. For appointment as Driver/Conductor on regular basis the first party will have to compete with others as and when the Corporation decides to fill the post on regular basis." 5. The contention, therefore, was that the petitioners themselves had known that they were all being appointed on contract for specific period, which was vulnerable to extinguishment at any time and all the petitioners had given an undertaking that they will not claim any regularization. According to him, this clause will disable the petitioners from claiming regularization. C.W.P. No.8240 of 2008 -6- V. Finding : Employment cannot be de hors the Regulations nor contrary to them 6. The clause in the agreement or in the term of contract describing the employees brought to service only for a contract period liable for termination at the whims of the management and that the petitioners will have to treat their own service conditions as so fragile that they cannot even stake a claim to regularization as provided by the Regulations themselves could only be taken as what has come to be recognized in industrial jurisprudence as Henry VIII Clause. There cannot be any contract of employment de hors the Regulations nor could they be inconsistent with Regulations. The law of regularization itself has undergone a metamorphosis from creation of temporary posts, to judicial interventions by direction for super-numerary posts, to a situation when the Hon'ble Supreme Court had to intervene emphatically through a Constitution Bench in Secretary, State of Karnataka Vs. Uma Devi and others (2006) 4 SCC 1 and that was made subject to an exception was carved out in Poonam Chandra Pandey Vs. U.P. State Electricity Board (2007) 11 SCC 92, still later when the dispensation in Uma Devi was brought to centre stage by a three member bench in Official Liquidator Vs. Daya Nand (2008) 10 SCC 1, over- ruling Poonam Chandra Pandey till it seems it has come a C.W.P. No.8240 of 2008 -7- full circle when in Harjinder Singh Vs. Punjab Warehousing Corporation decided on 05.02.2010 where the Hon'ble Supreme Court has noticed how the WTO regime and the globalization has brought the status of the workmen to such a situation where there is only room for despondency and a management policy distanced from rectitude and fairplay. 7. That a statutory corporation could plead that the workmen, who were appointed initially on a contract, would after 9 years be treated as persons, who could be thrown out at their whims is a dangerous proposition, that has to be discarded with contempt that it deserves. If there are Regulations, they ought to regulate their own conduct as they would require the workmen to be governed by. The Regulation of the year 1981 definitely admits of a status of a temporary workman whose employment in the nature of things must be understood as such employment which is essentially of temporary nature. The wheels of the Corporation cannot move an inch if the Drivers and Conductors do not work. Not merely figuritively, but actually so. It would again be extraordinary for the Corporation to assume that Drivers, who were employed in the year 2001 and whose services are continued till date are persons who are engaged in work essentially of temporary nature. If they had secured from the workmen affidavits of undertaking that they would not stake C.W.P. No.8240 of 2008 -8- the claim for regularization, they could not stonewall their legitimate claims against their own regulations. 8. Regulations gave a public face to the Corporation. The countenance that the Corporation wants to present to the public is one of fairness. Consequently, the Regulations provide for a smooth transition, spiralling up gradually to higher employment status, viz that even if persons, who had been engaged essentially in a temporary post shall be deemed to be a probationer, if he had continued for six months. The underlying theme is that a person, who had continued beyond a period of six months cannot be merely kept on tenterhooks and he would be entitled to obtain to a higher status. The probationer status is again a stage where the Regulations set an outer time frame. As we have seen, by reproduction of the Clause that maximum period of probation cannot be beyond a period of one year. The effect of retention of service of a person on probation for a period in excess of one year shall be one of permanence and confirmation, as the definition itself reveals. Therefore, the petitioners who have been employed temporarily on a contract for a particular period have, by their own continuance in employment, obtained definitely to a status of regular employees which the Regulations provide for. I reject the contention made on behalf of the Corporation that the Regulations do not apply to them and that the whole C.W.P. No.8240 of 2008 -9- Regulations will be eclipsed by a fragile clause in a letter of undertaking that the workmen shall not claim a right of regularization; nor could such a right be fettered by terms and conditions contrary to Regulations. 9. The cases of the Hon'ble Supreme Court that have come about, which I have outlined above, underscore the need for judicial restraint against grant of regularization even in violation of the recruitment rules. On the other hand, what is advocated on behalf of the Corporation is antithetical to their own recruitment rules. In this case, the recruitment rules that are set through Regulations are flouted by the Corporation and perforce, the Court as to interfere to ensure that an authoritarian approach of the Administration is quelled in godspeed. VI. Present dispensation 10. The petitioners are entitled to the declaration of the status that on the completion of their first period of six months, they became probationers and after a completion of one year, they were deemed to be permanent. In effect from the respective dates of employment after completion of 18 months, each one of the workmen is entitled to be treated as permanent and put on a scale appropriate to the status as permanent employee. By such a process, I shall not visit the C.W.P. No.8240 of 2008 -10- Corporation with any financial obligation for the past, but the exercise of fixing the scales in the manner which I have referred to by the treatment of the petitioners' status as permament employees, shall begin within a period of six weeks from the date of receipt of the copy of the order and the payment of salaries shall be made in future on such a reckoning. 11. The initial scale on the deemed date of confirmation shall on the basis of Regulation 14, which reads as under: "The initial pay of the emplyee shall be fixed in accordance with the provisions of the Punjab Civil Services Rules, Vol. I Part I, which have been adopted as such and made applicable to that extent. Pay scales shall be on the pattern of the State Government." The financial implication that is denied to the petitioner shall be only with reference to the past benefit which would have accrued by treating them as permanent. However, the proper reckoning of the confirmation and the scales, which they are entitled to shall be counted for the purpose of all future benefits including retiral benefits. The claim that the petitioners had made in the writ petition, which had been rejected by the decision of the Corporation under Annexure P- 10 and impugned in the writ petition, is quashed C.W.P. No.8240 of 2008 -11- 12. The writ petition is allowed with costs assessed at Rs.10,000/-. (K. KANNAN) JUDGE March 22, 2010 Pankaj*