Temporary workers who approach the Supreme
Court find its attitude has changed in recent years.
One of the recurring themes in Supreme Court judgements in the past
months has been the right of casual workers to regularisation or
permanency. Both government undertakings and private managements resist
the claims of these workers, variously described as temporary, daily
rated, casual or ad hoc. In some of the cases, individual workers have
fought their cases from the labour court up to the Supreme Court for
more than two decades. The high courts and the labour courts tend to
pass orders in the workers’ favour. The Supreme Court also used to
follow this trend in the past. But in recent times, the tide seems to
have changed against such workers.
In almost all recent judgements of the Supreme Court, it has set aside
the orders in favour of the workers. The latest such judgement is
Hindustan Petroleum Corporation vs Ashok Ambre. The company had engaged
Ashok as an “unskilled workman” at its refinery in Mumbai way back in
1984. After three years, he moved the Bombay high court praying that he
be declared as a permanent employee of the company and be granted all
benefits with 18 per cent interest. The corporation retaliated by
stopping him from engaging in any work. This led to an industrial
dispute. The tribunal ruled that though he was a daily wage employee,
as he had worked for long, his oral termination amounted to
retrenchment and, therefore, he was entitled to reinstatement with back
wages. The high court went further and asked the company to make him a
permanent employee. Therefore, the company moved the Supreme Court. It
overturned the orders of the courts below, stating that he was purely
an ad hoc worker and his appointment was made without following the due
process of law. However, the court asked the company to consider his
case sympathetically as he had worked for it for more than two decades.
The case of Bihar Caustic & Chemicals Ltd vs Kripa Pandey is
another case in which the worker fought all the way up to the Supreme
Court for his dismissal from a factory in 1984. The company argued that
he was employed by a labour contractor and all relationship stopped
after the construction work was completed more than two decades ago.
However, the labour court held that the termination was illegal and the
worker was entitled to reinstatement with back wages from 1985. The
Patna High Court confirmed the order. The company appealed to the
Supreme Court. Meanwhile, he had retired after reinstatement. So the
court stated that the company need to pay only 50 per cent of the back
wages.
The Supreme Court took a definitive stand on such cases in the
constitution bench decision in State of Karnataka vs Umadevi (2006). It
was emphasised that daily wage earners could not make a backdoor entry
by demanding regularisation. The creation and abolition of posts and
regularisation are purely executive functions. The Umadevi judgement is
now frequently quoted to upset the decisions of the labour courts and
the high courts which have been merciful in recent times.
However, this binding constitution bench judgement has been overstepped
by the Supreme Court itself in a recent judgement. In UPSEB vs Pooran,
some 34 daily wage workers of the Co-operative Electric Supply Society
prayed for regularisation by the board as it had taken over the
society. The Allahabad High Court directed the board to do so. It moved
the Supreme Court only to find that the Supreme Court was not in favour
of the management for the first time in many months. The judgement
said: “The workers have put in about 22 years’ service and it will
surely not be reasonable if their claim for regularisation is denied
even after such a long period of service.”
The judges justified this departure from the rules set earlier by
adopting an argumentative device normally used by lawyers when they are
faced with a binding precedent. Though lawyers revere precedents to the
point of ancestor worship, when they have to win an argument, they
distinguish the precedent from the present case on facts. The two-judge
bench of the Supreme Court adopted this tactic in the present
electricity board case. It said that the Umadevi judgement, though
delivered by a constitution bench, should not be applied by courts
“mechanically, as if it were a Euclid’s formula without seeing the
facts of a particular case.” A little difference in facts or even one
additional fact may make a lot of difference in the precedential value
of a decision. Here, then, is a crack in the wall set up by the Supreme
Court itself against casual workers.
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