IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20/02/2004 CORAM THE HONOURABLE Mr. JUSTICE P.D.DINAKARAN Writ Petition No.15668 of 2001 National General Employees' Union Central Cattle Breeding Farm Branch, Alamathi, Chennai-52, rep. by its General Secretary, Mr.P.Thomas Rathinam. .. Petitioner -vs- 1. The Director, Central Cattle Breeding Farm, Alamathi, Chennai-52. 2. The Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court, Sashtri Bhavan, Chennai-600006. 3. Union of India, rep. by its Secretary, Ministry of Agriculture, Dept. of Animal Husbandry and Dairying, Krishna Bhavan, New Delhi. ..R3 impleaded as 3rd respondent as per order of the Court dt.8.7.2003 in W.P.No.15668/01. .. Respondents Prayer: Petition filed under Article 226 of the Constitution of India for the issuance of a writ of Certiorari as stated therein. For Petitioner : Mr.Vijay Narayanan for M/s.M.Gnanasekar For Respondents : Mr.S.M.Deenadayalan, A.C.G.S.C.-R1 & 3. :O R D E R The petitioner union, representing 30 employees, who are working as casual labourers in the first respondent-Management, raised an industrial dispute before the second respondent Tribunal in I.D.No.57 of 20 01, pursuant to a reference by the third respondent Union of India to adjudicate on the following issue: "Whether the demand of National General Employees Union, Central Cattle Breeding Farm Branch for regularisation of 30 casual workmen listed in the annexure is justified ? If not, to what relief the workmen are entitled?" 1.2. The core contention made on behalf of the petitioner-Union is that the right of these casual labourers for regularisation already got confirmed and concluded by an order dated 5.6.1989 of the Central Administrative Tribunal, Madras Bench (for brevity 'the CAT'), in Original Application No.184 of 1988 wherein, admittedly, the first respondent-Management is a party. In the said O.A.No.184 of 1988, the petitioner-Union herein sought for regularisation of the service of 9 4 casual labourers, whose names were furnished therein, with effect from 6.3.1985 on their completion of 240 days in twelve calendar months as required in law. 1.3. It is also not in dispute that the first respondent-Management as well as the third respondent- Ministry of Agriculture, Government of India, who is also a party in the said O.A., undertook to complete the review of appointment of casual workers within the prescribed time limit of six months and to send a proposal to regularise all casual labourers, who had rendered service for more than 240 days in twelve calendar months, so that their services could be regularised. 1.4. In view of the stand taken by respondents 1 and 3 in the said O.A., the CAT, by order dated 5.6.1989, observing that the first respondent had already initiated action for regularisation of eligible casual labourers on the basis of the guidelines issued by the Government of India, directed the first respondent-Management to pay equal pay for equal work on par with regular (Group D) employees with effect from 07.06.1988. 1.5. In spite of the said undertaking given before the CAT by respondents 1 and 3, the first respondent-Management failed to regularise 3 0 casual labourers, who had completed 240 days of service in twelve calendar months in the first respondent-Management, which necessitated the petitioner-Union to raise the said industrial dispute viz., I.D.No.57 of 2001 against the first respondent-Management before the second respondent Tribunal. 1.6. However, the first respondent-Management contended that they would regularise the service of the said 30 employees as and when the vacancies arise and accepting the same, the second respondentTribunal, dismissed the said I.D., by an award dated 8.8.2001. 1.7. Hence, the petitioner-Union has filed the above writ petition seeking a writ of Certiorari to call for the concerned records relating to the Award dated 8.8.2001 in Industrial Dispute No.57 of 2 001 ( Tamil Nadu State Industrial Tribunal I.D.No.73 of 2000) from the file of the second respondent and quash the same. 2.1. Mr.Vijay Narayan, learned counsel appearing for the petitioner-Union, assailing the impugned award dated 8.8.2001 passed by the second respondent-Tribunal, contends that:- (i) the undertaking made by the first respondent-Management before the CAT, which was also recorded in the order dated 5.6.1989 by the CAT, is unconditional and the same is binding on them; and (ii) the said 30 casual labourers are entitled for regularisation as a matter of their statutory right on completion of their 240 days of continuous service in twelve calendar months. 2.2. In this regard, Mr.Vijay Narayan, learned counsel appearing for the petitioner, relied upon the following decisions of the Apex Court as well as the CAT:- (i) Surender Singh v. Engineer in Chief, CPWD, reported in 1986 (1) SCC 639; (ii) Bhagwati Prasad v. Delhi State Mineral Development Corporation, reported in (1990) 1 SCC 361; (iii) Dharwad P.W.D. EMPL. ASSN. v. State of Karnataka, reported in (1990) 2 SCC 396; (iv) State of Haryana & Others v. Piara Singh & Others, reported in 1993(II)LLJ 937; (v) State of Haryana v. Surinder Kumar, reported in 1997(7) SCC 633 ; (vi) Daily Rated Casual Labour v. Union of India, reported in (1998) 1 SCC 122; (vii) Raj Narain Prasad v. State of U.P., reported in (1998) 8 SCC 4 73; (viii) V.Ramesh v. Union of India, reported in 2000 (1) AISLJ; and (ix) Gujarat Agricultural University v. Rathod Labhu Bachar, reported in 2001 SOL Case No.036. 2.3.1. In any event, as there arose about 38 regular vacancies between 22.2.1991 and 1.1.2004, either due to superannuation or voluntary retirement or death of the permanent staff in the first respondentManagement, the said 30 casual labourers are entitled to be regularised without any objection. 2.3.2. Mr.Vijay Narayan, learned counsel appearing for the petitioner, furnished the following details with respect to the vacancies that arose due to superannuation/voluntary retirement/death of the permanent employees:- Details showing the dates of superannuation/ VRS/Death of the employees: Sl.No. Name of the Designation Date of super- Details person annuation/VRS/ Death ------------------------------------------------------------ 1 P.Paramasivam Milker/Attendant 22.02.91 Death 2 K.Srinivasan Tractor Cleaner 31.05.91 Death 3 P.Arumugam Agriculture Attendant 23.03.92 Death 4 B.V.Subramani Chowkidar 28.02.93 Retired 5. T.S.Krishnan Chowkidar 06.11.93 Death 6. P.Muthuraj Agriculture Attendant 27.11.93 Death 7. M.Sarasammal Agriculture Attendant 15.01.95 Death 8. N.Veeraswamy Safariwala 30.06.95 Retired 9. N.Ranmganathan Milker/Attendant 05.10.95 Death 10. V.Mohan Agriculture Attendant 18.03.96 Death 11. G.Nellakandan Chowkidar 25.04.96 Death 12. G.Kanniappan Chowkidar 26.05.96 Death 13. A.Munuswamy Chowkidar 30.06.96 Retired 14. P.Subramani Agriculture Attendant 05.08.96 Death 15. P.Karunaharan Milker/Attendant 06.11.96 Death 16. C.Sekar Agriculture Attendant 23.06.97 Death 17. K.Durai Milker/Attendant 08.07.97 Death 18. Nataraja Poosari Agriculture Attendant .. Death 19. C.Selvaraj Cultivation Belder 03.07.98 Death 20. D.Baskar Cultivation Belder 14.06.98 Death 21. K,.Duraiswamy Chowkidar 12.05.99 Retired 22. J.Kuppan Milker/Attendant 08.01.99 Death 23. K.Masilamani Cultivation Belder 20.11.99 Death 24. S.Nagammal Agriculture Attendant 30.11.99 Retired 25. A.K.Kamalammal Agriculture Attendant 30.11.99 Retired 26. A.K.Kamalammal Agriculture Attendant 30.11.99 Retired 27. R.Amirthammal Agriculture Attendant 29.02.00 VRS 28. T.Rathinam Agriculture Attendant 18.04.01 Death 29. V.Ranganathan Milker/Attendant 14.05.01 VRS 30. E.Selvaraj Agriculture Attendant 30.07.03 Death 31. E.Narayanaswamy Peon 02.01.03 Death 32. P.Munusamy Agriculture Attendant 28.02.03 Retired 33. K.R.Kasi Agriculture Attendant 30.04.03 Retired 34. M.Chinnaswamy Cultivation Belder 29.09.03 Death 35. Dhanapal Milker/Attendant 25.11.03 VRS 36. K.Muniammal Cultivation Belder 30.11.03 Retired 37. R.Devendiran Agriculture Mate 12.12.03 Death 38. K.Devadoss Mali 01.01.04 Death ------------------------------------------------------------ 3. Mr.S.M.Deenadayalan, learned Additional Central Government Standing Counsel appearing for respondents 1 and 3, reiterated the stand taken by the first respondent-Management before the second respondentTribunal to the effect that these 30 casual labourers would be regularised only as and when the vacancies arise in Group-D service. 4. I have given careful consideration to the submissions of both sides. 5.1. It is settled law that the principle of equal pay for equal work is not an abstract doctrine and denial of equal pay for equal work is violative of Articles 14 and 39(d) of Constitution of India, vide Kishori Mohan Lal Bakshi v. Union of India, reported in AIR 1962 SC 1 139, followed in Surinder Singh v. Engineer-in-Chief, CPWD, reported in 1986 (1) SCC 639. 5.2. Refusal to regularise the service of the employees without increments from the date of their entitlement on completion of 240 days of service in twelve calendar months is again a violation of Articles 14, 16, 38(2), 39(d) and 32 of the Constitution of India and also violative of Article 7 of International Covenant on Economic, Social and Cultural Rights, vide Daily Rated Casual Labour v. Union of India, reported in (1998) 1 SCC 122, wherein the Supreme Court had held thus; " ... The State cannot therefore deny at least the minimum pay in the pay scales of regularly employed workmen even though the Government may not be compelled to extend the benefits enjoyed by the regularly recruited employees. Such denial amounts to exploitation of labour. The Government cannot take advantage of its dominant position, and compel any worker to work even as a casual labourer on starvation wages. It may be that the casual labourer has agreed to work on such low wages. But he does so because he has no other choice. It is poverty that has driven him to that stage. The Government should be a model employer.. ...It is needless to observe that India is a socialist republic. It implies the existence of certain important obligations which the State has to discharge. The right to work, the right to free choice of employment, the right to just and favourable conditions of work, the right to protection against unemployment, the right of everyone who works to just and favourable remuneration ensuring a decent living for himself and his family, the right of everyone without discrimination of any kind to equal pay for equal work, the right to rest, leisure, reasonable limitation on working hours and periodic holidays with pay, the right to form trade unions and the right to join trade unions of one's choice and the right to security of work are some of the rights which have to be ensured by appropriate legislative and executive measures. It is true that all these rights cannot be extended simultaneously. But they do indicate the socialist goal. The decree of achievement in this direction depends upon the economic resources, willingness of the people to produce and more than all the existence of industrial peace throughout the country. ..." 5.3. The Apex Court, again, in Bhagwati Prasad v. Delhi State Mineral Development Corporation, reported in (1990)1 SCC 361, held that any artificial break in service of the daily rated workers would amount to deprivation of their benefits of continuity of service and that any break of more than three months to be excluded in computation of the three years period and the regularisation to be made by phases in accordance with seniority. 5.4. The Apex Court in Dharwad P.W.D. Employees Association v. State of Karnataka, reported in (1990) 2 SCC 396, while dealing with the equal pay for equal work and providing security for service for regularising the casual employment within a period, held that the said philosophy is not that of the Court but is ingrained in the Constitution as one of the basic aspects. 5.5. The Apex Court in State of Haryana & Others v. Piara Singh & Others, reported in 1993 (II) LLJ 937, while dealing with the rights relating to regularisation, held that there can be no rule of thumb in such matters. Relief must be moulded in each case having regard to all the relevant facts and circumstances of that case. It cannot be a mechanical act but a judicious one. 5.6. It is true that the Court does exercise its restrain where facts are such where extent of creation of post creates financial disability vide Gujarat Agricultural University v. Rathod Labhu Bechar, reported in 2001 SOL Case No.036. But, once there are materials before the second respondent-Tribunal herein to show that the impugned casual labourers have entered 240 days of continuous service in twelve calendar months in the first respondent-Management and their service is still availed by the first respondent-Management all these years, that itself is evident about their existence, the service of the 30 casual labourers of the petitioner-Union is indispensable and therefore, the want of vacancy does not arise in the matter of regularisation of the said 30 casual labourers. In that event, such regularisation should be made within a reasonable time, as held by the Apex Court time and again. 5.7. Concededly, neither the counter affidavit filed by the first respondent nor the third respondent deals with the undertaking made on behalf of respondents 1 and 3 before the CAT, which was recorded in the order dated 5.6.1989 in O.A.No.184/88 by the CAT; nor there is any convincing explanation by the learned Additional Central Government Standing Counsel appearing on behalf of respondents 1 and 3 as to the non-compliance of the undertaking made on behalf of respondents 1 and 3 before the CAT, which was recorded in the order dated 5.6.1989; nor it is the case of respondents 1 and 3 that the right of the casual labourers, who had completed 240 days of continuous service in twelve calendar months in the first respondent-Management, is further subject to the availability of the posts and vacancies. None of the decisions relied upon by the learned counsel for the petitioner is either distinguished or contended as not applicable to the case of the said 30 casual labourers. In any event, there is absolutely no explanation for non-filling up of vacancies, which were caused due to superannuation/voluntary retirement/death of 38 permanent employees as referred to above. 5.8. On the other hand, concededly, the first respondentManagement gave an undertaking to regularise the casual labourers before the CAT almost 15 years ago and the same was also recorded by the CAT in the order dated 5.6.1989. But, still the first respondentManagement contends that the said 30 casual labourers of the petitioner-Union could not be regularised for want of vacancies even though the 38 vacancies arose due to superannuation/voluntary retirement/death of the permanent employees and therefore, the submission made by Mr.S.M. Deenadayalan, learned counsel appearing for the first and third respondents, was so artificial and contrary to the materials available on record. The second respondent-Tribunal has not taken into account the ratio laid down by the Apex Court in the matter of regularisation of the casual labourers referred to above and has ignored the undertaking made on behalf of the first respondent-Management before the CAT, which was also recorded in the order dated 5.6.l989 by the CAT. 5.9. For all these reasons, I am inclined to allow the writ petition as prayed for, by quashing the impugned award dated 8.8.2001 passed by the second respondent-Tribunal and directing the first respondent-Management to pass appropriate orders, regularising the service of 30 casual labourers of the petitioner-Union with effect from the date of raising the industrial dispute before the competent authority, within a period of thirty days from the date of receipt of copy of this order and giving them the benefit of continuity of service for the purpose of terminal/retirement benefits from the date of completion of their 240 days service in twelve calendar months in the first respondent-Management. The writ petition is allowed with costs of Rs.5,000/-. Index : Yes Internet: Yes ATR To, 1. The Director, Central Cattle Breeding Farm, Alamathi, Chennai-52. 2. The Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court, Sashtri Bhavan, Chennai-600006. 3. The Secretary, Ministry of Agriculture, Dept. of Animal Husbandry and Dairying, Union of India, Krishna Bhavan, New Delhi. 