Case: Union Of India &amp; Others  Vs. Vartak Labour Union (2)

2. Shorn of unnecessary details, the facts essential for adjudication of the present appeals may be stated as follows:The respondent is a registered trade union comprising of casual workers employed by the BRO, in terms of paragraph 503 of the Border Road Regulations (for short "the Regulations"), some of whom have been working with the BRO for the last thirty years. In the year 1993, the respondent filed a writ petition before the Gauhati High Court praying for issuance of a writ, inter-alia, directing appellant No.1 to regularize the services of the members of the respondent3. Vide judgment dated 27th August, 1996, the High Court allowed the writ petition, and directed appellant No.1 to regularize the services of the members of the respondent who have been in service for more than five years, within six months of the date of order4. Being aggrieved, appellants filed a writ appeal before a Division Bench of the Gauhati High Court. The Division Bench, while partly allowing the appeal, modified the order of the Single Judge on the basis of a circular dated 25th May, 1988 issued by one Brig. S.K. Mehta, D.D.G. (P&V), for and on behalf of the Director General Border Roads, New Delhi to all Chief Engineers for consideration of regularization of casually paid labourers employed by the BRO. The Division Bench held that:"There shall be a writ of mandamus issued to the appellant herein with a direction to consider the case of these employees who are working in the above Organization/Institution who have put in more than 5 (five) years and above period of service for the purpose of regularization of their service in the light of the Circular referred to above keeping in view of the requirements of Articles 14, 15 and 16 for the purpose of maintaining the reservation Policy followed by the Govt. of IndiaIn so far as the casual labourers working in the organization/Institution are concerned, they shall continue to work till they attain the eligibility coming within the purview of the Circular for being considered."5. At this juncture, it would be expedient and useful to extract relevant portions of the said circular, which read as follows:"REGULARISATION OF CASUALLY PAID LABOURERSEMPLOYED IN BORDER ROADS ORGANIZATION-CONSTITUTION OF BOARD OF OFFICERS TO EXAMINE1. Border Roads Organisation has been employing a large number of Casual Labourers for the past 28 years. There have been cases where Labour Unions have been formed though not recognized by us, as also there have been demands for their regularization. A large number of Court cases are also pending, connected with this issue2. Ministry of Surface Transport (BRDB) has offered a Board of Officers to examine various aspects. The terms of reference of the Board are at appendix `A3. Before the Board examines the terms of reference as also other connected aspects, certain data is required from the Projects which is discussed in the succeeding paragraphs...................................................................................................................................... 7. It may be appreciated that the recommendations of the Board of Officers have far reaching consequences. Your views and suggestions are, therefore should be deliberate and keeping in view the long term implications of the suggestions made. CEs are therefore, requested to kindly give personal thought to these problems and make their recommendations accordingly8. We would expect your reply by 30 June 88 positively."6. Being aggrieved by the directions of the Division Bench, the appellants preferred an appeal, by special leave, before this Court. Vide order dated 19th February, 1999, this Court, while allowing the appeal and remanding the matter back to the Division Bench, observed thus:"It appears that there was some bona fide misunderstanding by learned counsel who appeared before the Division Bench on behalf of the appellants. Even that apart, the Circular dated 25.05.1988 on which reliance was placed requires a closer scrutiny of the Division Bench of the High Court. This was unfortunately not done because of the aforesaid misunderstanding. Hence, without expressing any opinion on the merits of the controversy between the parties, we deem it fit in the interest of justice to allow this appeal and set aside the order of the Division Bench."7. During the course of fresh hearing of the writ appeal before the Division Bench, senior Central Government standing counsel appearing on behalf of the appellants stated that pursuant to circular dated 25th May 1988, the appellants had framed a scheme vide Office Memo No. Sectt. BRDB ID No. BRDB/04(90)/99-GE-II dated 2nd February, 2001, for the welfare of casually paid employees. Upon perusal of the scheme and recording the satisfaction of the counsel appearing for the respondent-Union, the Court observed that the scheme had been framed on a rational basis. Accordingly, disposing of the writ appeal on the basis of the said office memo, the Division Bench directed the appellants to implement the said office memo dated 2nd February, 20018. Still being aggrieved, the appellants preferred a review application before the High Court. Vide the impugned order, the Division Bench declined to entertain the said application9. Hence, the present appeals against the main judgment and the order in review

Reasoning: 13. We are of the opinion that there is force in the contentions urged on behalf of the appellants and these must prevail. We are convinced that the Division Bench has erroneously construed the Office memo dated 2nd February, 2001 as an approved scheme for absorption and regularization of the casual workers. It is manifest from a bare reading of the said memo that it was merely in the nature of an inter-department communication between the Border Roads Development Board headquarters and its officials. We do not find any substance in the stand of learned counsel for the respondent that the appellants are withholding the approved scheme from this Court. This plea of the respondent that a final scheme did come into existence on 2nd February 2001, stands belied from the letter of the Border Roads Development Board dated 22nd July 200216. We are of the opinion that the respondent Unions claim for regularization of its members merely because they have been working for BRO for a considerable period of time cannot be granted in light of several decisions of this Court, wherein it has been consistently held that casual employment terminates when the same is discontinued, and merely because a temporary or casual worker has been engaged beyond the period of his employment, he would not be entitled to be absorbed in regular service or made permanent, if the original appointment was not in terms of the process envisaged by the relevant rules19. In light of the settled legal position and on a conspectus of the factual scenario noted above, the impugned directions by the High Court cannot be sustained. These are set aside accordingly20. Before parting with the case, we are constrained to observe that the conduct of the appellants in engaging casual workers for a period of less than six months, and giving them artificial breaks so as to ensure that they do not become eligible for permanent status, as evidenced from the additional affidavit dated 23rd April, 2010 does not behove the Union of India and its instrumentalities, which are supposed to be model employers21. Therefore, in the facts and circumstances of the instant case, where members of the respondent Union have been employed in terms of the Regulations and have been consistently engaged in service for the past thirty to forty years, of course with short breaks, we feel, the Union of India would consider enacting an appropriate regulation/scheme for absorption and regularization of the services of the casual workers engaged by BRO for execution of its on-going projects.