2002 JTR(SC) 572
2002 AIR(SC) 2001 ; 2002 AIR(SCW) 2040 ; 2002 4 AWC 2652 ; 2002 2 BBCJ(SC) 195 ; 2002 101 FJR 359 ; 2002 94 FLR 92 ; 2002 2 JLJR(SC) 238 ; 2002 Supp1 JT 312 ; 2002 LIC 1694 ; 2002 2 LLJ 558 ; 2002 3 LLN 10 ; 2002 3 PLJR(SC) 63 ; 2002 4 Scale 216 ; 2002 4 SCC 573 ; 2002 SCC(L&S) 577 ; 2002 3 SCR 613 ; 2002 2 SCT 1053 ; 2002 KHC 1245 ; 2002 3 Supreme 602
2002(3) Supreme 602
SUPREME COURT OF INDIA
(From Delhi High Court)
D.P. Mohapatra and K.G. Balakrishnan, JJ.
Union of India & Ors. -Appellants
versus
Mohan Pal etc. etc. -Respondents
Civil Appeal No. 3168 of 2002
(Arising out of SLP (C) No. 2224/2000)
With
C.A. Nos. 3182, 3179, 3176-3178 and 3169 of 2002, 3181/2002
(Arising out of SLP (C) Nos. 13024/2001, 1563/2001, 17174-17176/2000, 2151/2000 and 326/2001)
And
Civil Appeal Nos. 3170-71 of 2002
(Arising out of SLP (C) Nos. 6738-6739/2000)
With
C.A. Nos. 3172-3173 & 3174-3175 of 2002 and 3180/2002
(Arising out of SLP (C) Nos. 6740-41 and 6742-43/2000 and 970/2001)
Decided on 29-4-2002
Counsel for the Parties :
For the Appearing Parties : Mukul Rohtagi, Additional Solicitor General, B.A. Mohanti, Sr. Advocate, S. Wasim A. Qadri, C. Radhakrishnan, Ajay Sharma, B.V. Balaram Das, Mrs. Rekha Pandey, Mrs. Varuna Bhandari, D.S. Mehra, T.C. Sharma, P. Parmeswaran, Ms. Kavita Wadia, Ms. Pratibha, M. Singh, Advocate for Maninder Singh, Ashok K. Srivastava, P. Parmeswaran, B.K. Prasad, C.S. Ashri, Vijay Kumar, Yatinder Sharma, Prashant Kumar, Ajay Majithia, Y.P. Dhingra, K.B. Sounder Rajan, R.K. Gupta, K.K. Gupta, Mrs. K. Sarada Devi, Mrs. Rani Chhabra, Advocates.
IMPORTANT POINT
That Scheme of 1.9.1993 by Deptt. of Personnel and Training of the Govt. of India is not an ongoing scheme and the temporary status can be conferred on the casual labourers under the scheme only when two conditions incorporated in cl. 4 of scheme are fulfilled. But those who have already been given temporary status on the assumption that it is an ongoing scheme shall not be stripped of the temporary status pursuant to said decision of Apex Court.
Act Referred :CASUAL LABOURERS STATUS AND SCHEME : Cl.3, Cl.4
(A) The Scheme framed by the Department of Personnel and Training under the authority of the Casual Labourrs Status and Scheme (Clauses 3 and 4) governs the grant of temporary status to casual workers in central ministries and departments, explicitly excluding Railways and Telecommunications. It envisages conferment of temporary status and certain associated benefits such as pro-rata wages, leave, and incremental parity with Group D employees, while expressly reserving the right to dispense with services on one months notice under Clause 7. The Schemes applicability is limited to casual labourers in employment on the date of its commencement and who have rendered continuous service of at least 240 days in a year (206 days in a five-day week), and it operates as a one-time programme rather than an ongoing route for subsequent regularization. Any extension of these provisions to cases falling outside these parameters must be tested against the Schemes terms and the principles of statutory interpretation.
(B) Temporary status under the Scheme is a distinct, limited benefit that does not amount to permanentization; it carries specific rights and benefits but allows termination by notice, subject to reasonable construction to avoid arbitrariness. The conferment is confined to those who were in employment at the Schemes commencement and completed one year of continuous service. Courts will intervene only where termination is mala fide or violates the Schemes object, and earlier orders of tribunals or courts granting status or quashing termination are not disturbed in subsequent appeals where facts remain unchanged.
Facts of the case:
The Union of India and the Lt. Governor of Andaman & Nicobar Islands were challenged on orders conferring temporary status on casual labourers under the 1993 Scheme. The dispute concerned whether the Scheme was ongoing (entitling any casual labourer completing 240 days in a year to temporary status) and whether such labourers could be removed under Clause 7 as ordinary casual workers. The Scheme defined eligibility based on status as on the commencement date and one year of continuous service, with specific benefits and a one-month termination clause.
Findings of Court:
The Scheme is a one-time programme for those in employment on its commencement date who have completed one year (240 or 206 days) of continuous service. Clause 7 permits termination by one months notice, but the Schemes object requires that such power not be exercised arbitrarily where sufficient work exists and the labourer has not been removed capriciously. Those already granted temporary status on the assumption of an ongoing Scheme will not be stripped of it. No interference is warranted where earlier forums have held termination to be based on extraneous grounds.
Issues:
Whether the 1993 Scheme is an ongoing programme entitling casual labourers to temporary status as and when they complete 240 days in a year, and whether temporary status labourers can be dispensed with under Clause 7 as ordinary casual labourers.
Ratio Decidendi:
Clause 4 of the Scheme limits temporary status to casual labourers in employment at the Schemes commencement who have rendered continuous service of at least one year (240 or 206 days). The Scheme is not an ongoing framework for subsequent regularization. Clause 7 permits termination by notice, but the Schemes object and the principle against arbitrariness require that this power not be exercised whimsically where sufficient work continues and there is no misconduct.
Result:
The appeals are disposed of, confirming that the 1993 Scheme is a one-time programme for eligible labourers on the date of commencement, that temporary status carries corresponding rights and notice-based termination, and that earlier orders upholding such status or quashing termination remain undisturbed.
(A) The Scheme framed by the Department of Personnel and Training under the authority of the Casual Labourrs Status and Scheme (Clauses 3 and 4) governs the grant of temporary status to casual workers in central ministries and departments, explicitly excluding Railways and Telecommunications. It envisages conferment of temporary status and certain associated benefits such as pro-rata wages, leave, and incremental parity with Group D employees, while expressly reserving the right to dispense with services on one months notice under Clause 7. The Schemes applicability is limited to casual labourers in employment on the date of its commencement and who have rendered continuous service of at least 240 days in a year (206 days in a five-day week), and it operates as a one-time programme rather than an ongoing route for subsequent regularization. Any extension of these provisions to cases falling outside these parameters must be tested against the Schemes terms and the principles of statutory interpretation.
(B) Temporary status under the Scheme is a distinct, limited benefit that does not amount to permanentization; it carries specific rights and benefits but allows termination by notice, subject to reasonable construction to avoid arbitrariness. The conferment is confined to those who were in employment at the Schemes commencement and completed one year of continuous service. Courts will intervene only where termination is mala fide or violates the Schemes object, and earlier orders of tribunals or courts granting status or quashing termination are not disturbed in subsequent appeals where facts remain unchanged.
Facts of the case:
The Union of India and the Lt. Governor of Andaman & Nicobar Islands were challenged on orders conferring temporary status on casual labourers under the 1993 Scheme. The dispute concerned whether the Scheme was ongoing (entitling any casual labourer completing 240 days in a year to temporary status) and whether such labourers could be removed under Clause 7 as ordinary casual workers. The Scheme defined eligibility based on status as on the commencement date and one year of continuous service, with specific benefits and a one-month termination clause.
Findings of Court:
The Scheme is a one-time programme for those in employment on its commencement date who have completed one year (240 or 206 days) of continuous service. Clause 7 permits termination by one months notice, but the Schemes object requires that such power not be exercised arbitrarily where sufficient work exists and the labourer has not been removed capriciously. Those already granted temporary status on the assumption of an ongoing Scheme will not be stripped of it. No interference is warranted where earlier forums have held termination to be based on extraneous grounds.
Issues:
Whether the 1993 Scheme is an ongoing programme entitling casual labourers to temporary status as and when they complete 240 days in a year, and whether temporary status labourers can be dispensed with under Clause 7 as ordinary casual labourers.
Ratio Decidendi:
Clause 4 of the Scheme limits temporary status to casual labourers in employment at the Schemes commencement who have rendered continuous service of at least one year (240 or 206 days). The Scheme is not an ongoing framework for subsequent regularization. Clause 7 permits termination by notice, but the Schemes object and the principle against arbitrariness require that this power not be exercised whimsically where sufficient work continues and there is no misconduct.
Result:
The appeals are disposed of, confirming that the 1993 Scheme is a one-time programme for eligible labourers on the date of commencement, that temporary status carries corresponding rights and notice-based termination, and that earlier orders upholding such status or quashing termination remain undisturbed.
JUDGMENT
K.G. Balakrishnan, J.-Leave granted.
2. In all these appeals, common questions of law arise for consideration and hence they are being disposed of by a common Judgment. In one set of appeals, the Union of India is the appellant and in another set of appeals, Lt. Governor (Andaman & Nicobar Islands) is the appellant. The matter relates to the grant of temporary status to the casual workers working in some of the departments of the appellants. The Department of Personnel and Training of the Government of India formulated a scheme for the grant of temporary status and regularisation of the services of casual labourers working in the various departments under the Government of India. The Scheme came into effect from 1.9.1993. Clause 3 of the Scheme stated that it would apply to all casual labourers in employment of the Ministries/Departments of Government of India of their attached and subordinating officers, and that this Scheme may not apply to Railways and Telecommunications Departments. The Scheme envisaged conferring of Temporary status on all casual labourers who had worked for at least 240 days in a year (206 days in the case of offices observing 5 days a week). The main features of the Scheme are as follows :-
(1) Conferment of temporary status on casual labourers would not involve any change in their duties and responsibilities and the engagement will be on daily rates of pay on need basis.
(2) The casual labourers who acquire temporary status will not, however, be brought on to the permanent establishment unless they are selected through regular selection process for Group D posts.
(3) The wages and wage rate will be fixed at the minimum of the pay scale for a corresponding regular Group D official including D.A. H.R.A. and any other welfare measures.
(4) Benefits of increments at the same rate applicable to a Group D employee would be taken into account for calculating pro rata basis and the leave entitlement would also be on a pro rata basis, viz., one day for every 10 days of work.
(5) Maternity leave to lady casual labourer would be permissible on par with Group D employees.
(6) It is also made clear that 50% of the service rendered under the temporary status would be counted for the purpose of retirement benefits after regularisation.
(7) After rendering three years continuous service after conferment of temporary status, the casual labourers would be treated on par with temporary Group D employees for the purpose of contribution to General Provident Fund, and they would also be eligible for the grant of Festival Advance, Flood Advance on the same conditions as are applicable to Temporary Group D employees.
(8) They would be entitled to Productivity Linked Bonus/Ad hoc Bonus only at the rates applicable to casual labourers.
3. It was made clear that apart from these benefits, that may accrue to the employees on conferment of temporary status, the casual workers working in the Industrial Establishment may be entitled to any additional benefits that may be admissible to them under the provisions of the Industrial Disputes Act. Clause 7 specifically states that despite the conferment of temporary status, the services of a casual labourer may be dispensed with by giving a notice of one month in writing and the casual labourer with temporary status can also quit service by giving a written notice of one month. The wages for the notice period will be payable only for the days on which such casual worker is engaged on work. While filling up the vacancies in group D post, some preference is given to the casual labourers who have been conferred temporary status. Two out of every three vacancies in Group D cadres in respective offices where the casual labourers have been working would be filled up as per extant Recruitment Rules and in accordance with the instructions issued by the Department of Personnel and Training, from amongst casual workers with temporary status
4. In these appeals, the question that arises for consideration is whether the conferment of temporary status is a one time programme as per the Scheme or is this an ongoing Scheme to be followed by the Department and whether the casual labourers are to be given temporary status as and when they complete 240 days of work in a year (206 days for the offices observing 5 days a week). Another question that came up for consideration is whether the services of casual labourers who had been given temporary status could be dispensed with as per clause 7 as if they were regular casual labourers.
5. The first question is to be decided on the basis of the interpretation of clause 4 of the Scheme. As already noticed, the scheme came into effect from 1.9.1993. Clause 4(1) of the Scheme reads as follows :-
Temporary status.-(1) temporary status would be conferred on all casual labourers who are in employment on the date of issue of this OM and who have rendered a continuous service of at least one year, which means that they must have been engaged for a period of at least 240 days (206 days in the case of offices observing 5 days week)."
6. Clause 4 of the Scheme is very clear that the conferment of temporary status is to be given to the casual labourers who were in employment as on the date of commencement of the Scheme. Some of the Central Administrative Tribunals took the view that this is an ongoing Scheme and as and when casual labourers complete 240 days of work in a year or 206 days (in case of offices observing 5 days a week), they are entitled to get temporary status. We do not think that clause 4 of the Scheme envisages it as an ongoing Scheme. In order to acquire temporary status, the casual labourer should have been in employment as on the date of commencement of the Scheme and he should have also rendered a continuous service of at least one year which means that he should have been engaged for a period of at least 240 days in a year or 206 days in case of offices observing 5 days a week. From clause 4 of the Scheme, it does not appear to be a general guidelines to be applied for the purpose of giving temporary status to all the casual workers, as and when they complete one year s continuous service. Of course, it is up to the Union Government to formulate any scheme as and when it is found necessary that the casual labourers are to be given temporary status and later they are to be absorbed in Group D posts.
7. The second question that arises for consideration is whether the casual labourers who have been given temporary status can be removed from service by giving notice as per clause 7 of the Scheme. It is true that by conferment of temporary status, the casual labourers acquire certain rights. Their daily rates of wages will be on the pro rata basis of salary and allowances payable to the employees working under the Group D posts. They are also eligible for the casual and other kinds of leave. On completion of 3 years continuous service after conferment of temporary status, they would be admitted to the General Provident Fund. They are entitled to get Festival Advance and Flood Advance and other welfare measures applicable to the Group D employees. Clause 7 of the Scheme makes it clear that despite the conferment of temporary status, the services of a casual labourer may be dispensed with by giving one month notice in writing. This clause would certainly give the employer the right to terminate the services of casual labourers who have been given temporary status.
8. The Division Bench of Calcutta High Court in Writ Petition (CT) No. 86/99 (T. Rajakili & Ors. v. Union of India & Ors., etc. etc.) held that Clause 7 must be read in a manner in which it does not render it unconstitutional. The employers cannot at their whims dispense with the services of the casual labourers who have acquired temporary status. The entire object of 1993 Scheme was to regularise all casual workers. To allow such uncanalised power of termination would also defeat the object of the Scheme. Dispensing with the services of a casual labourer under clause 7 in our view, could be for mis-conduct etc.
9. Having regard to the general scheme of 1993, we are also of the view that the casual labourers who acquire temporary status cannot be removed merely on the whims and fancies of the employer. If there is sufficient work and other casual labourers are still to be employed by the employer for carrying out the work, the casual labourers who have acquired temporary status shall not be removed from service as per clause 7 of the Scheme. If there is serious misconduct or violation of service rules, it would be open to the employer to dispense with the services of a casual labourer who had acquired to temporary status.
10. In Civil Appeals Nos. 3170-71, 3172-73, 3174-75 and 3180/2002 arising out of SLP (Civil) No. 6738-6739/2000, SLP (Civil) Nos. 6740-41 and 6742-43/2000 and SLP (Civil) No. 970/2001, the Division Bench of the High Court of Calcutta held that the termination of the services of the employees was not legal and was based on various extraneous grounds. We do not propose to interfere with the same.
11. In Civil Appeals Nos. 3168, 3182, 3179, 3176-78, 3169 of 2002 arising out of SLP (Civil) No. 2224/2000, SLP (Civil) No. 13024/2001, SLP (Civil) No. 1563/2001, SLP (Civil) No. 17174-17176/2000, SLP (Civil) No. 2151/2000, the respondents have been given temporary status, even though, they did not specifically fulfil the condition in clause 4 of the Scheme. Some of them were engaged by the Department even after the commencement of the Scheme. But these casual labourers had also rendered service for more than one year and they were not given temporary status pursuant to the directions issued by the Court. We do not propose to interfere with the same at this distance of time. However, we make it clear that the Scheme of 1.9.1993 is not an ongoing Scheme and the temporary status can be conferred on the casual labourers under that Scheme only on fulfilling the conditions incorporated in Clause 4 of the Scheme, namely, they should have been casual labourers in employment as on the date of the commencement of the Scheme and they should have rendered continuous service of at least one year, i.e., at least 240 days in a year or 206 days (in case of offices having 5 days a week). We also make it clear that those who have already been given temporary status on the assumption that it is an ongoing Scheme shall not be stripped of the temporary status pursuant to our decision.
12. The appeals are disposed of accordingly.
(N.K.R.) Appeals disposed of accordingly.
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Parallel Citations of other Journals :
Union of India & Ors. v. Mohan Pal etc. etc., 2002(3) Supreme 602 : (2002) 4 SCC 573 : 2002 (Supp. 1) JT 312 : 2002(2) LLJ 558 : 2002 (94) FLR 92 : 2002(2) ATJ 215 : 2002(1) SCSLJ 464 : 2002 SCC (L&S) 577 : 2002 LIC 1694 : 2002(3) LLN 10 : 2002 (101) FJR 359 : AIR 2002 SC 2001
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