JNDER PAL YADAV AND ORS. ETC.

UNION OF INDIA AND ORS ETC •

. April 18, 1985

(D. A. DESAI AND RANGANATH MISRA, JJ.J

Constitution of India, Ari. 41 and 42-Right to work-Casual labour employed on project for a number of , years-Services of casral labour terminated on completion of Project-Scheme framed subsequently for casual labour- Validity of-Guidelines for implementation of Scheme-S.25_G, I.D. Act and Art. 14 of the Constitution.

The petitionerl-work1nen styled as 'Project Casual Labour' in these writ petitions and special lc'lve petitions contened that even though they had put in continuous service for years, their services were terminated on the ground that the project on which they were en1ployed has been wound up on its completion and their services 1,1, ere no more needeJ. After the conclusion of the hearing in some of the matters, the Railway Ministry framed a scheme to find a just and humane solution affecting the livelihood of the petitionser. It provided that casual labour employed on projects may be treated as temporary on completion of 360 days of continuous employment.

Disposing of the petitions,

HELD: 1. (i) By and large the scheme cer'tainly is an improvement on the present situation though not wholly satisfactory. Hov.:ever the Railv.:_ay being the biggest employer and hav.ing regard to the nature of its work, it would have to engage casual labour and therefore, as a prelimir.ary step towards realisation of the ideal enshrined in Articles 41 and 42, this Court proposes to put its stamp of approval on the sch'eme with one major variation which is herein set out.

[•41D]

1. (ii) The scheme envisages that it would be applicable to casual labour on projects who were 10 service as on January I, 1984. The choice of this date does not commend, for it is likely to introduce an inviduous, distinction between similarly situated p:!ron~ and e:ii:pose some workm-!n to arbitrary discrimination flowing From fortuitous court's ord:!r. since, in som~ m1tters, the court granted interim stay before the workrn:n could be retrenched while som~ other were not so fortu'l lte. Those in respect of wh.Jm the court granted interim relief by stay/ suspension of the order of retrenchment, they woul.1 b>! treated in service on

l. 1. (984 While others who fail to obtain interim relief though similarly situ<\tecl

would be pushed down in the implementation of the scheme. Therefore. those who could not come to the Court need not be at a comparative disadvantage to those who ru-shed in here. If they are otherwise similarly situated, they are entitled to similar treatment. Keeping in view all the aspects of the matter, the Courfmodifies part 5.1 (a) (i) of the scheme by modifying the date from l.1.1984 to 1. I. 1981. With thic; modification and consequent rescheduling in absorption from that date onward, the scheme framed by Railway Ministry is accepted and a direction h given thlt it must be implemented by re-casting the stages consistent with the change in the date as herein directed. [841E-G; 842B-C]

(2) To avoid vioation of Art. 14, the scientific and equitable way of implementing the scheme is for the Railway administration to prepare, a 1ist of project casual labour with reference to each division of each railway and then start absorbing those with the longest s"rvice. If in the process any adjustments are necessary, the same muH be done. 1'1 giving this direction, the Court is con siderably influenced by the statutory reognition of the principle of last come first go or to reverse it first come last go as enunciated in s.250 of the Industrial Disputes Act, 1947. (8420-F]

ORIGINAL JURlSD!CtlON: Writ Petitions Nos. 147, 320-69, 459, 4335-4434/85 etc. (Under Article 32 of the Constitution).

For the Appearing Parties : B. Datta, Rishi Kesh. M.K. Rama murli MA. Krishnamurty. Anis Suhrawardy, M.S.

Gu}aral, S.C.

Maheshwari, PP .. Singh, C. V. Subba Rao, R.lj. Poddar,

C.P.

Pard!y V.K. Verin r, R. P. Singh, lnlira Sawhney, S.C. Pale!, Habans Singh, G.N. C!rowdhary,

G.S.

Narinder, RD. Upadhyay, P.K.

Jain, K.R. Nagaraja, Shakil Ahnud Syed, NS. Das Bahl, KR.P.

Pillai, D.Goburdhan, C. Ma/!rotro, SN. Chowdhary, V.K. Panditn, Manoj Saxena, Madan Sharma, G.S. Narayan, Ms. Halida Khatoon,

K.K.

Gupta, E.C.

Agarwa!a, R. Salish, Ms.

A. Subhashini, Sambandam and Pillai, P.N. Gupta, Mrs.

J.i)"as!rree Wad and Raju Ramac!randran.

The Judgment of the Court was delivered by

G DEsAI, J. Articles 41 and 42 of the Constitution notwithstanding, there aro certain grey areas where the rule of hire and fire, a legacy of laissez-faire, even in Government employment still rules the roost. Casual labour employed on projects also known as 'projects casual labour' is one such segment of employment where one may serve for years and remain a daily rated worker without a weekly off, without any security of service, without the protection of equal ll pay for equal work. In short at the sweet will and mercy of the local

iNDERPAL v. UNION (Desai, J.) 839

satraps. Even the formidable railwaymen's unions least cared for A these helpless and hapless workmen. Suddenly a torrent of writ petitions and petitions for special leave awakened this Court to the plight of these workmen. In quick succession, 48 writ petitions and 32 petitions for special leave flooded this Court. In each writ petition/ S.L.P., the grievance was that even though the workmen styled as 'project casual labour' had put in continuous .service for years on end B to wit ranging from 1974 till 1983, yet their services were terminated with impunity under the specious plea that the project on which they were employed has been wound up on its completion and their services were no more needed. No one is unaware of the fact that Railway Ministry has a perspective plan spreading over years say decades and projects are waiting in queue for execution and yet these workmen were shunted out (to use a cliche from the raih; ay vocabu Jary) without any chance of being re-employed. Some of them rushed to the court and o.btained interim relief. Some were not so' fortunate, At one stage some of these petitions were set down for final hearing and 'the judgment was reserved. When some other similar matters came up, Mr. K.G. Bhagat, the then learned Additional Solicitor General, requested the Court not to render the judgment because he would take up the matter with the Railway Ministry to find a just and humane solution affecting the livelihood of these unfortunate workmen. As the future of Iakhs of workmen going under the label of casual project labour was likely to be affected, we repeatedly adjourned these matters to enable the Railway Ministry to work out a scientific scheme.

Railway Ministry framed a Scheme and circulated the same amongst others to all the General Managers of Indian Railways including production units as per its circular No. E(NG)II/84/CL/41 dated June 1, 1984. In the Scheme it was stated that all the General Managers were directed to implement the decision of the Railway Ministry by the target dates. It was further stated . that a detailed letter regarding group 5. l(ii) would follow. Such a letter was issued on June 25, 1984. Thereafter, these matters were set out for examining the fairness and justness of the Scheme and whether the Court would be in a position to dispose of these petitions in view of the Scheme. That is how these matters came up before us.

The relevant por.tions of the Scheme read as 1mder:

"5.1. As a result of such deliberations, the Ministry of Railways have now decided in principle that casuai labour employed on projects (also known as 'project casual labour') may be treated as temporary on completion of 360 days of continuous employment. The Ministry have decided further as under :

(a) These orders will cover :

(i) Casual labour on projects who are in service as on 1.1.84 ; and

(ii) Casual labour on projects who, though not ill. service ·

on I. !.84, had been in service on Railways earlier and had already completed the above prescribed period (360 days) of continuous employment or will complete the said prescribed period of continuous empfoyment

on re-engagement in future. (A detailed letter regarding this group follows).

(b) The decision should be implemented in phases according to the schedule given below:

Length of service (i.e. continuous employment).

Date from which Date by which may be treated deciSion should as temporary

(i) Those who have completed five years of service as on 1.1.84

(ii) Those who have completed three years but less than five years of service as on 1.1.1984

(iii) Those who have completed 360 days but less than three years of service on J.!.1984

1.1.1984

1.1.1985

1.1.198~

be implemented

31.12.1984

31.12.1985

31.12.1986

INDERPALV. UNION (Desai, J.)

(iv) Those who complete

360 days after 1.1.1984

I.1.1987 or the date on which

360 days are completed whichever is later.

31.3.1987

5.2. The Ministry would like to clarify here that casual Jabour on projects who have completed 180 days of continuous employment would continue to b' entitled to the benefits now admissible to them (so long as they fulfil the conditions in this regard) till they become due for the benefits mentioned in the preceding sub-paragraph."

By and large the scheme certainly is an improvement on the present situation though not wholly satisfactory. However, the Railway being the biggest employer and having regard to the riature of its work, it would have to engage casual labour and therefore, as a preliminary step towards realisation of the ideal enshrined in Articles 41 and 42, we propose to put our stamp of approval on the scheme with one major variation which we proceed to herein set out.

The Scheme envisages that it would be applicable to casual Jabour on projects who were in service as on January I, 1984. The choice of this date does not commend to us, for it is likely to intr9duce an invidious distinction between similarly situated persons and expose some workmen to arbitrary discrimination llowing from fortuitous 'court's order. To illustrate, in some matters, the court granted interim stay before the workmen could be retrenched while some other were not so fortunate. Those in respect of whom the court granted interim relief be stay/suspension of the order of retrenchment, they would be treated in service on l.1.1984 while others who fail to obtain interim relief though similarly situated would be pushed down in the implementation of the Scheme.

There is another area where discrimination is likely to rear its ngly head. These workmen come from the lowest grade of railway service. They can ill afford to rush to court. Their Federations have hardly been of any assistance. They had individually to collect money and rush to court which in case of some may be beyond their reach. Therefore, some of the retrenched workmen failed to knock

at the doors of the court of justice because these doors do not open unless huge expenses are incurred. Choice in such a situation, even without crystal gazing is between incurring expenses for a litigation with uncertain outcome and hunger from day to day. ff is a Robson's choice. Therefore, those who could not come to the court need not / be at a comparative disadvantage to those who rushed in here. If they B are otherwise similarly situated, they are entitled to similar treatment

if not by anyone else at the bands of this Court. Burdened by all these relevant considerations and keeping in view all the aspects of the matter, we would modify part 5.1 (a) (i) by modifying the date from 1.1.1984 to 1.1.1981. With this modification ahd consequent rescheduling in absorption from that date onward, the Scheme framed by Railway Ministry is accepted and a direction is given that it must be implemented by re-casting the stages consistent with the change in the date as herein directed.

To avoid violation of Art. 14, the scientific and equitable way if implementing the scheme is for the Railway ada; iinistration to prepare, a list of project casual labour with reference to each division of each railway and then start absorbing those with the longest service. If in the process any adjustments are necessary, the same must be done. In giving this direction, we are considerably influenced by the statutory recognition of a principle well known in industrial jurisprudence that the men with longest service shall have prioriity over those who have joined later on. In other wor4s, the principle of last come first go or to reverse it first ccime last go as enunciated in Sec. 250 of the Industrial Disputes Act, 1947 has been acceptd. We direct accordingly.

All these writ petitions and special leave petitions shall stand disposed of consistent with the scheme as modified by this judgment and the directions herein given.

The scheme as wonld stand modified by the directions herein given forms part of thiq judgment and a copy of it shll be annexed to this judgment.

Learned counsel Shri Anis Suhrawardy has put in the maximum labour in making a very useful compilation. He must have spent days and mon1hs1 The compilation helped 11s the most

lNDERPAL v. UNION (Desai,}.)

in dealing with the writ petitions and the special leave petitions and A in ascertaining the proper principle. Such a compilation ought to have been prepared by the Railway administration. Therefore, we direct the Union of India to pay Rs. 5,000 as and by way of costs to Shri Anis Suhrawardy, advocate, Supreme Court.

M.L.A.

Petitions dismissed.