GUJARAT MAZDOOR SABHA V. THE INCOME TAX DEPARTMENT

SCA/4643/2019

AI Insights

The case revolves around the Gujarat Mazdoor Sabha, a registered trade union, representing 145 workmen engaged in various capacities within the Income Tax Department, who challenged their non-regularization and the contractual employment system imposed by the department. The petition sought to declare these workmen as permanent employees entitled to the same benefits as regular employees, citing unfair labor practices and violation of the principle of 'equal pay for equal work'. The Income Tax Department, however, defended its position by asserting that these workers were never direct employees but were engaged through contractors, and thus, did not qualify for regularization under the existing legal framework. The court's decision to dismiss the petition was based on procedural grounds, highlighting the need for such disputes to be resolved through the appropriate legal and administrative channels rather than through writ jurisdiction.

• Counselvise Citation: [2019] 140 COUNSELVISE.COM (IT) 762346 (HC-GUJARAT)
• Appeal Type: Others
• Pronouncement Date: 17-12-2019
• Assessment Year: misc
• Other Referred Cases: General Manager, Oil and Natural Gas Commission, Silchar vs. Oil and Natural Gas Commission Contractual Workers Union, Narendra Kumar Tiwari and Others vs. State of Jharkhand and Others, Biswa Nath Saha and Others vs. Union of India and Others, Akalakunnam Village Service Cooperative Bank Limited vs. Binu N. and Others, Chennai Port Trust vs. Chennai Port Trust Industrial Employees Canteen Workers Welfare Association and Others, Workmen of the Food Corporation of India vs. Food Corporation of India, Daily Rated Casual Labour Employed under P&T Department through Bhartiya Dak Tar Mazoor Manch vs. Union of India and others, U.P. Income Tax Department Contingent Paid Staff Welfare Association vs. Union of India and Others, Mamta Nand Kishor vs. Government of NCT, R.K.Panda and Others vs. Steel Authority of India and Others, Bangalore Water Supply & Sewerage Board vs. A. Rajappa and Others
• Laws Referred To: Article 226 of the Constitution of India, Industrial Disputes Act, 1947
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: MAUNA BHATT
• Assessee Lawyers: HARSH RAVAL; AMRESH PATEL
• Keywords: Equal pay for equal work; Regularization; Temporary Status; Trade union; Workmen; Contract System
• Section: 9(a)

Judgement Text

"C/SCA/4643/2019 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 4643 of 2019 FOR APPROVAL AND SIGNATURE: HONOURABLE MS JUSTICE SONIA GOKANI ========================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ? NO ========================================================== GUJARAT MAZDOOR SABHA Versus THE INCOME TAX DEPARTMENT ========================================================== Appearance: HARSH K RAVAL(9068) for the Petitioner(s) No. 1,2 MR AMRESH N PATEL(2277) for the Petitioner(s) No. 1,2 MRS MAUNA M BHATT(174) for the Respondent(s) No. 1 NOTICE SERVED BY DS(5) for the Respondent(s) No. 2 ========================================================== CORAM: HONOURABLE MS JUSTICE SONIA GOKANI Date : 17/12/2019 ORAL JUDGMENT 1. By way of present petition preferred under Article 226 of the Constitution of India, the petitioner – Gujarat Mazdoor Sabha, a Registered Trade Union having membership of workmen in different industries in the State of Gujarat, is before this Court seeking to challenge the legality and validity of the Page 1 of 47 C/SCA/4643/2019 JUDGMENT action of the respondent no.1 who refused to allow the workmen to perform the duties from 05.02.2019 with the following prayers:- “(A) This Hon'ble Court may be pleased to direct the respondent No. 1 to absorb all the concerned workmen engaged with the respondent no.1 and declare them as direct and regular/permanent workmen of the Respondent No.1 and shall be paid the same pay scale, allowances, other allowances benefits, up-gradation, promotion, pay fixation, PF, Pension, Gratuity, Superannuation benefits etc. as per paid and has been paid to the regular and permanent workers/employees of the Group 'C' Posts of Respondent No.1 from their respective date of joining in their services i.e. with retrospective effect and interest at the rate of 12% per annum be paid on this payable arrears till the date of actual payment. (B) This Hon'ble Court may be pleased to direct the respondents to keep service conditions of all the concerned workmen uncharged and they shall be allowed to perform their regular duties and work and be paid regularly their wages allowances and other benefits as admissible to them and there shall not be any charge in their service condition which affects prejudicially and adversely to them. (C) This Hon'ble Court may be pleased to declare Contract system created by the Respondent No. 1 is the bogus, artificial and bogus paper arrangement of payment through contractor which is completely illegal, unconstitutional, discriminatory, unjust, improper, and unreasonable and payment system created by the Respondent No.1 is illegal and void- ab-initio. During the pendency and final disposal of the present petition, the Hon'ble Court be pleased to grant following interim-reliefs; (D) The petitioner prayers this Hon'ble Court be pleased to direct the respondent No.1 to take all Page 2 of 47 C/SCA/4643/2019 JUDGMENT workmen on their duty, previous work, place and direct them to pay their regular wages. (E) This Hon'ble Court may be pleased to direct respondent No. 1 to engage the concerned workmen (Anne-A) in case of replacement of new contractor without prejudice to their right to treat them as direct employees of the respondent no.1 and their right of regularization. (F) This Hon'ble Court may be pleased to direct respondent No. 1 to pay regular wages in the minimum pay scale of Rs. 5200-20800 along with Dearness allowance and other allowances of the pay scale. (G) The Hon'ble Court may be pleased to award the cost of this petition. (H) This Hon'ble Court may be pleased to grant any other and further reliefs that may be deemed fit and proper in the interest of justice. ” 2. The facts in the capsulized form leading to the present petition are as follows:- 2.1. It is the case of the petitioner - Union that there are 145 workmen who continued to be engaged in Group-D post which is now reclassified as Group-C post in the Income Tax Department. There are about 47 workmen working from the year 2002 up to 2019, nearly 63 workmen working from the year 2009, 30 workmen working from the year 2014 onwards and 5 workmen working from the year 2017 and continued to work up to 2019. There was continuous and perennial nature of work in Group-C and those workmen continued to perform duties akin to the Page 3 of 47 C/SCA/4643/2019 JUDGMENT duties of newly introduced post of Multitasking Staff ('MTS' hereinafter) of Group-C post. The nature of their work and their responsibilities have been specified at paragraph 3 of the petition which are not being reproduced at this stage. Suffice to note that these people continued to work on the basis of the directions issued time and again and the responsibilities defined for the work performance. 2.2. It is their grievance that more than 270 workmen were appointed directly by the respondent no.1 who were paid regular wages by the voucher system and those workmen continued to be paid directly by respondent no.1. 2.3. It is further submitted that the permanent workmen who are working on the post of peons along with other workmen were also promoted time to time to the post of Notice Server and were paid the salary and other consequential benefits and allowances. This was done by the respondent no.1 and the workmen of the petitioner - Union continued to perform the similar nature of work, however, they are neither being paid the regular pay nor have they been regularized by the respondent no.1. They have been also denied the salary and unfair labour practice has continued. Page 4 of 47 C/SCA/4643/2019 JUDGMENT 2.4. It is further averred by the petitioner that in the year 2009, the contract system was unilaterally introduced without giving any notice under Section 9(A) of the Industrial Disputes Act, 1947 ('ID Act' hereinafter) and those workmen who were working regularly from the year 2000 in the Income Tax Department, by creating the paper arrangement through the contractors, without the consent of the workmen and without issuance of notice under Section 9(A), have been made to work under the contractor. This according to the petitioner – Union has been evasive policy, only with a view not to give benefit to the workmen, this arrangement had been worked out. 2.5. It is further the say of the petitioner that in the year 2009, the contract namely Het Chint Hospitalities Private Limited was introduced as a contractor which continued from the year 2009 to 2012. Thereafter, another contractor was given the work namely Nirav Enterprise who worked for about a period from 2012 to 2016. Although, the contractors went on changing, but, the workmen of the petitioner continued to perform their duties under the directions of the concerned department of the respondent no.1. The work of these workmen was given by the officers of the respondent no.1 and they were reporting directly to the officer concerned without any role and interference of the Page 5 of 47 C/SCA/4643/2019 JUDGMENT contractors or its employees. It is reiteratively averred that the contract system was nothing but a paper arrangement only to deny the regular pay scale and other regularization benefits as made available to the permanent Group-D and Group-C post employees. 2.6. It is further the say of the petitioner that on 16.02.2016, the respondent no.2 – Rajdeep Enterprise replaced previous contractor Nirav Enterprise and all workmen had continue in the employment without any break in service. Initially there were 270 workmen, some of whose services came to be terminated and the total number of workmen continued to work is 145. It is lamented by the petitioner – Union that this was nothing but an act to deprive the workmen of right to 'equal pay for equal work'. 2.7. On 15.12.2018, according to the petitioner, the supervisor of the contractor orally instructed, in an arranged meeting at River Front that all workmen will be relieved from their services and work from 31.12.2018. The petitioner – Union went on strike against proposed action of removal of the workmen from 31.12.2018 and demanded to treat them as direct and regular employees of the respondent no.1. 2.8. The said representation has been rejected on the ground of Page 6 of 47 C/SCA/4643/2019 JUDGMENT public tranquility issue and the protest on the foot-path of Aykar Bhavan, Ashram Road was denied. 2.9. The Gujarat Contract Kamdar Union – an unregistered union of workmen had filed Special Criminal Application No. 26 of 2019 challenging the order of rejecting the application seeking permission to agitate and carry out the strike at foot-path. On 09.01.2019, five workmen were permitted to meet the Principal Chief Commissioner of respondent no.1 in their representative capacity. This meeting did not yield any fruitful result. 2.10. It is the say of the petitioner that they withdrew the strike and gave a report to the respondent no.1 and 2 to permit them to resume the work. All 145 workmen have not been allowed to resume the work which they were performing before the action of strike. The work being of perennial nature, the contractors continued to work and till the new contractor replaces the present contractor, he has continued to carry on the duties as a contractor. 2.11. It is the grievance, however, of the petitioner that on 23.01.2019, the respondent no.1 invited fresh tenders for hiring new unskilled men-power for miscellaneous work / contingent staff of approximately 90 personnel and two supervisors. This is Page 7 of 47 C/SCA/4643/2019 JUDGMENT indicative of the fact that respondent no.1 is in need of the workers for the work. The conduct of the respondent no.1, according to the petitioner is reflective of the fact that it is adopting the unjust and unfair practices. It is also contrary to the fundamental principles of the Constitution of India. 2.12. It is further averred that as per Casual Labourers (Grant of Temporary Status and Regularization) Scheme of Government of India, 1993 scheme, temporary status would be conferred on all casual labourers who are in employment on the date of issuance of scheme and who have rendered at least one year's service and those who had completed at least 240 days, the scheme would have an applicability of granting temporary status without any reference to the creation/ availability of the regular Grade-D posts. 2.13. This is a matter of engagement of casual employees in the Central Government Office. The respondent being the Central Government Department, this scheme would have a direct applicability in case of said respondents and the workmen being the direct beneficiaries of the scheme, the same will govern them. It is further the say of the petitioner that the MTS staff as well as the Group-D employees since perform the identical nature of work, non-grant of benefit of the scheme would violate Page 8 of 47 C/SCA/4643/2019 JUDGMENT Article 14 of the Constitution. 2.14. It is further the say of the petitioner that as per the Office Memorandum of Ministry of Personnel, Public Grievance and Pension (Department of Personnel and Training) dated 09.10.2015, the interviews for Group-D posts have been discontinued. They are reclassified as Group-C post and the respondent has not treated the petitioner as their employees and has eventually exploited the workmen. 2.15. A communication had been addressed on 03.04.2009 to the office of Chief Commissioner of Income Tax for regularization of daily wagers who are duly qualified in terms of Statutory Recruitment Rules for the post and who have worked for 10 years and more so, on duly sanctioned posts. 2.16. On 23.10.2018 one circular was issued by the Directorate of Income Tax, Human Resource Development Central Board of Direct Taxes. The circular was for granting benefit of 7th Pay Commission to the casual labourers. The Group-D posts are since reclassified, the present petitioner also shall need to be given the benefit of 7th Pay Commission. 2.17. In short, it is the say of the petitioners that the respondent no.1 being the State and the work of the respondent no.1 being Page 9 of 47 C/SCA/4643/2019 JUDGMENT continuous and perennial in nature, it requires permanent and regular staff. The work of respondent no.1 being crucial for the nation, for the benefit of economy of the country, the respondent cannot act arbitrarily against the present petitioner. The concept of 'equal pay for equal work' also have been denied as they have continued to work for number of years. 3. This has been replied to at length by the respondent, on issuance of notice, denying all averments except the issuance of tender notice on 07.02.2019. 3.1. An affidavit in reply filed by the Joint Commissioner of Income Tax defining the respondent no.1 as a Central Government Department under the Union of India and performing the sovereign function of collection of tax, and submitted that the department is not an “industry” within the meaning of Section 2(J) of the ID Act and therefore, the averments in relation to the provisions of ID Act would have no consequence. 3.2. According to the respondent, the allegations of the petitioner – Union that members of the petitioner union are appointed by the respondent no.2 contractor and the same is a bogus system to evade the legal requirement is incorrect. It is Page 10 of 47 C/SCA/4643/2019 JUDGMENT empathetically urged that the recruitment of Group 'C' and 'D' posts are governed by the Recruitment Rules. The respondent department is also not permitted to appoint anyone without following the due procedure and that is the work of the Staff Selection Committee. It has further denied that there exists any employer employee relationship between the petitioner and respondent no.1. The allegation of bogus paper work for denying the rights of the workmen and introduce the contract system has been empathetically refuted. 3.3. According to the respondent, it has invited sealed bids from registered firms/ agencies for hiring manpower for miscellaneous work at all offices of the Income Tax Department, Ahmedabad by publishing tenders. The contract for providing by outsourcing, manpower was awarded by respondent no.1 to Rajdeep Enterprise from 10.02.2016. It clearly mentioned that there is no master servant relationship or employer employee relationship between the respondent and the manpower provided by the contractor. The persons who are engaged shall not and cannot claim for engagement or employment or absorption with the department. It is emphasized that the contractor is the outsourcing manpower provider and there is no contract directly with any of the persons he chooses to hire. The engagement of Page 11 of 47 C/SCA/4643/2019 JUDGMENT the employer is purely between the person concerned and the contractor, the department does not figure anywhere in their relationship. 3.4. It is the say of the respondent that the petitioner since indulged in an illegal act by going on the strike to fulfill their demand which is started on 18.12.2018 and continued till 24.12.2018, with the help of the police authorities, they have removed the workmen who were demonstrating against the department. 3.5. The Special Criminal Application No. 26 of 2019 filed by the unregistered union was disposed of after giving them the opportunity of hearing as directed by the Court and they were given to understand that without following the due procedure of law, they cannot be called the employees of the respondent. They were never given any temporary status or any kind of status by the department. 4. An additional affidavit is also filed by the Joint Commissioner, where also, this had been denied and reliance is placed on the various authorities to substantiate the application. 5. This Court has, in detailed, heard learned advocate Mr. Amrish Patel appearing for Mr. Harsh Raval who has fervently Page 12 of 47 C/SCA/4643/2019 JUDGMENT urged before this Court that many of the petitioners have been hired directly by the Income Tax Department from the year 2000 and it is only in the year 2009 for the first time they have introduced contract system. He has further urged that the claim is against the department which has adopted the unfair practices which is impermissible under the Labour Laws. Those who had been chosen by the Income Tax Department and were continued to work, were compelled to continue under the contract. He further has urged that the jurisdiction of the Central Administrative Tribunal would not be there since they are not directly engaged. He also has urged that Group-D posts which have been converted into Group-C posts have specific responsibilities and liabilities and the same have continued to be performed by the workmen of the petitioner union. 5.1. According to learned advocate Mr. Patel, the Central Government Department cannot be permitted to adopt such practices which are not accepted by the law. All the persons have been deployed for many years and the work had been continued and all of a sudden without any notice, their working conditions have been changed. 5.2. The contractor has also chosen not to file reply as a part of strategy. The right to work so far as workmen are concerned, has Page 13 of 47 C/SCA/4643/2019 JUDGMENT continued and yet their services came to be terminated. According to him, there are sufficient evidences to indicate that the petitioner – Union is directly working under the department and not under the contractor. It is only after they adjudicated their right to be continued and regularized, the contractor has discontinued their work at the behest of the Income Tax Department. He has further argued that, even if, one time settlement brought in the year 1993 is offered, the same can be considered as these petitioners have continued to work under the contractor and their services have been terminated. He has pointed out from some of the documentary evidences that those who had been engaged from the year 2000 have been hired by the department. 5.3. He has further urged that even if there is a delayed challenge according to the Court, the fact remains that the petitioners continued to discharge their duties from the year 2000 and also after 2009 and for the first time, when they raised the demand for regularization, their services came to be terminated. He emphasized that the Income Tax Department is the principal employer and would have the responsibility so far as the present petitioners are concerned. He has sought to rely on the following authorities to support his case:- Page 14 of 47 C/SCA/4643/2019 JUDGMENT (a) General Manager, Oil and Natural Gas Commission, Silchar vs. Oil and Natural Gas Commission Contractual Workers Union, reported in (2008) 12 SCC 275. (b) Narendra Kumar Tiwari and Others vs. State of Jharkhand and Others, reported in (2018) 8 SCC 238. (c) Biswa Nath Saha and Others vs. Union of India and Others, reported in (1998) 5 SCC 304. (d) Akalakunnam Village Service Cooperative Bank Limited vs. Binu N. and Others, reported in (2014) 9 SCC 294. (e) Chennai Port Trust vs. Chennai Port Trust Industrial Employees Canteen Workers Welfare Association and Others, reported in (2018) 6 SCC 202. (f) Workmen of the Food Corporation of India vs. Food Corporation of India, reported in (1985) 2 SCC 136. (g) Daily Rated Casual Labour Employed under P&T Department through Bhartiya Dak Tar Mazoor Manch vs. Union of India and others, reported in (1988) 1 SCC 122. (h) U.P. Income Tax Department Contingent Paid Staff Welfare Association vs. Union of India and Others, reported in 1987(Supp) SCC 658. (i) Mamta Nand Kishor vs. Government of NCT, rendered in OA No. 980 of 2014 CAT Delhi. (j) R.K.Panda and Others vs. Steel Authority of India and Page 15 of 47 C/SCA/4643/2019 JUDGMENT Others, reported in (1994) 5 SCC 304. (k) Bangalore Water Supply & Sewerage Board vs. A. Rajappa and Others, reported in (1978) 2 SCC 213. 6. Learned advocate Ms. Mauna Bhatt appearing for the Income Tax Department has strenuously urged that there is no direct employer employee relationship. There is no single document or a voucher which can indicate that these petitioners are hired by the Income Tax Department. According to her, after the 6th Pay Commission in the year 2009, the recruitment rules also were brought for Multitasking Staff and the contract system was introduced for hiring manpower for all sanctioned posts. The Staff Selection Committee is the recruiting agency for hiring the employees. The respondent no.1 has nothing to do with either the recruitment or to relax the recruitment rules. It is a belated approach on the part of the petitioner who never appeared in any of the recruitment process nor have they approached any other statutory authority ventilating their grievance and for the first time in the year 2018 they have questioned their relationship which otherwise is only through the contractor. She has empathetically refuted that there is any unfair labour practice adopted by the department as according to her, the department is not an industry and assuming that there is a dispute then Page 16 of 47 C/SCA/4643/2019 JUDGMENT also the writ petition would not allow. She has also argued empathetically and fervently that the reliance on the office memorandum dated 09.10.2015 is also misplaced as it only talks of discontinuous of interviews for various junior level posts. She substantiated her case by relying on the following authorities:- (a) Union Public Service Commission vs. Girish Jayantilal Vaghela and Others, reported in (2006) 2 SCC 482. (b) Balwant Rai Saluka and Another vs. Air India Limited and Others, reported in (2014) 9 SCC 407. (c) Union of India and Others vs. Mohan Pal and Others, reported in (2002) 4 SCC 573. (d) L. Chandra Kumar vs. Union of India and Others, reported in (1997) 3 SCC 261. (e) Indian Drugs & Pharmaceuticals Ltd. vs. Workmen, Indian Drugs & Pharmaceuticals Ltd., reported in (2007) 1 SCC 408. 7. Having thus heard both the sides and also on having considered in detail the submissions, at the outset, the law on the subject, particularly of the maintainability of the petition require to be considered. 8. The petitioners are before this Court with a challenge of the action of the respondents with a specific factual matrix of their Page 17 of 47 C/SCA/4643/2019 JUDGMENT having worked from the year 2000 till 2019, so far as 47 workmen are concerned. In relation to others, out of 145, 63 workmen were working from 2009, 30 workmen were working from 2014 and 5 workmen from 2017 till the date of their termination of services. They have also admitted to substantiate their application with certain documents, more particularly, while putting forth the case that the payment of wages had been made by the Income Tax Department initially when some of the petitioners who are engaged and hired from the year 2000. Although, the total number of persons before this Court according to the Registered Union is 147. Out of which, 47 workmen are claiming to be in service from 2000 onwards till their services had been terminated in February-2019. This has been strenuously disputed by the other side on the ground that there had been no direct recruitment of any of these persons either by the public advertisement or through the employment exchange. It is also questioned on the ground that the respondent is a Central Government Department which has no authority to recruit anyone without following the prescribed procedure of law. 9. The question that has arisen is as to whether in a petition under Article 226 of the Constitution of India, the disputes of the Page 18 of 47 C/SCA/4643/2019 JUDGMENT parties could be adjudicated or is it a case for the Court to relegate the parties to the alternative remedy. In case of Roshina T. vs. Abdul Azeez K.T. And Others, reported in 2019 (2) SCC 329, the dispute was between the private parties relating to property rights involving the question of facts. The High Court when went into all questions of fact arisen on the face of the factual pleadings in detail and recorded a factual finding that it was a respondent in possession of the flat and therefore, restoration with the possession of the flat was must to be directed. The Apex Court in a challenge made by the parties had quashed and set aside the said order by holding that the High Court exceeded the extra ordinary jurisdiction conferred under Article 226 of the Constitution of India. It also went to an extent of saying that the High Court in granting the relief had virtually converted the writ petition into a civil suit and itself into a civil court. The filing of the writ petition was wholly misconceived. It deserves dismissal in limine on the ground of availability of alternative remedy of filing a suit in the civil court.. The Court held that regular suit is the appropriate remedy for settlement of the dispute relating to the property rights between the private parties, such remedy under Article 226 of the Constitution will not be available except where violation of some statutory duty on the part of the statutory authority is alleged. Page 19 of 47 C/SCA/4643/2019 JUDGMENT The Court in such case would have a jurisdiction to issue appropriate directions to the authority concerned. The High Court cannot allow its constitutional jurisdiction to be used for deciding disputes, for which remedies under the general law, civil or criminal law are available. 9.1. The Court while taking note of this aspect also needs to bear in mind that the petitioner is before this Court pleading violation of the statutory duty on the part of this statutory authority alleging the same against Central Government Department, the Court can have a jurisdiction to issue appropriate directions to the authority in an appropriate case, however, the question that arises as to whether this is the case for directing the parties to be relegated to the alternative remedy or whether the Court should enter into the factual pleadings and decide the matter in accordance with law. 9.2. Before this Court answers this question, it is also conscious of the fact that whenever there are disputes of workman in relation to the industrial dispute under the labour laws, the workman shall have to take recourse to the labour laws. It is not in dispute that the workmen of the petitioner union fall under the definition of workman under Section 2(s) which defines the “workman” as any person employed to do any Page 20 of 47 C/SCA/4643/2019 JUDGMENT manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward whether the terms of employment be express or implied and for the purpose of any proceedings under this Act in relation to an industrial disputes which includes any such person who has been dismissed, discharged or retrenched in connection with, or in consequence of that dispute or whose dismissal, discharge or retrenchment has led to that dispute with certain exceptions as stipulated in the definition clause. 10. Relevant would be to refer to the definition of “Industry” under Section 2(j) which means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation or workmen. 10.1. Section 2(K) provides for “industrial dispute” which means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen which is connected with the employment or non- employment or the terms of employment or with the conditions of labour, of any person. 11. On the ground that the establishment if exercises Page 21 of 47 C/SCA/4643/2019 JUDGMENT inalienable government function, it can be taken out of the pale of industry. It is urged before this Court that the respondent no.1 cannot be included in the definition of the “Industry” as it discharges a sovereign function as stipulated under the constitution. Undoubtedly, the respondent no.1 is the Central Government Department under the Union of India and is discharging sovereign function for collection of the tax. It is the stand of the respondent no.1 that any grievance in relation to the service under the Union of India is governed by the Administrative Tribunal Act, 1995 and there is an efficacious remedy available therefore also, this petition is not maintainable, shall regard consideration as well. 12. Heavy reliance is placed on the decision of L. Chandra Kumar vs. Union of India and Others, reported in (1997) 3 SCC 261, where the Court held that power of judicial review is a basic and essential feature of the constitution and hence, the jurisdiction conferred on the High Courts under Articles 226/227 and on the Supreme Court under Article 32 is a part of the basic structure of the constitution. The component of power of judicial review had been examined at length by the Court. There is a need of securing independence of the judiciary for effective exercise of the power of judicial review. Since the Page 22 of 47 C/SCA/4643/2019 JUDGMENT challenge was to Articles 323(A) and clause3(d) of the Article 323(B) to the extent they excluded the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the constitution respectively, the same were held as unconstitutional. Thus, the Apex Court emphasized the powers of the Supreme Court and High Court of judicial review under Articles 226/227 and 32 of the Constitution are parts of inviolable basic structure of constitution. The Court held and observed thus:- The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution. “99. In view of the reasoning adopted by us, we hold that Clause 2(d) of Article 323A and Clause 3(d) of Article 323B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the \"exclusion of jurisdiction\" clauses in all other legislations enacted under the aegis of Articles 323A and 323B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323A and Article 323B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, Page 23 of 47 C/SCA/4643/2019 JUDGMENT be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls. The Tribunals will, nevertheless, continue to act like Courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal. Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated. ” 13. This decision, in fact, does not take away the powers of the judicial review of the Court. The Court has shown the desirability of the parties for ventilating his grievance in relation to the service and service conditions. It is to be noted that the respondent has empathetically refuted any relationship with the workmen of the petitioner's trade union on the ground that neither those 47 who claimed to have been working from the year 2000 nor those who substantially taken through the contractor who worked as its manpower and who essentially discharged the duties of Group-D which later on has been nomenclatured as Group-C for Multitasking Staff, the respondent has chosen to state that it has nothing to do with any of these persons. It also has refused any employer employee relationship or for that matter, any relationship which can be directly established under the law. Page 24 of 47 C/SCA/4643/2019 JUDGMENT 14. This Court notices that in the case of nearly 47 workmen, a specific claim has been put forth of their discharging the duties directly under the respondent no.1 and the payment also had been made directly by the said respondent. The document produced at Annexure-B for the months March-2006, August- 2007, July-2008, December-2009 etc. speak of the vouchers of petty contingent expenditure raised by some of the workmen which has the signature of Chief Commissioner of Income Tax, Ahmedabad on the said vouchers which speak of having working for nearly three days in a particular month and the payment having been made of the wages of the particular day. This is given under the signature of Deputy Director of Income Tax, Ahmedabad. There are other vouchers also produced at Annexure-I (Collectively) of various months which also bears the signatures of Income Tax Officers of different boards and also of the Chief Commissioner of Income Tax, senior department representatives, ITAT. 15. These documents are prima facie indicative of some of the workmen having performed their continuous and regular duties with the respondent no.1. There appears to be a direct payment of wages to some of these persons from the documents which have been produced by the petitioner. It is the case of the Page 25 of 47 C/SCA/4643/2019 JUDGMENT petitioner union that some of these workmen have been performing the continuous and perennial duties till respondent no.1 introduced contract system in the department. They not only had been directly engaged by the department, but, also had continued to discharge the duties thereafter under the instructions of the senior officials in different offices at Ahmedabad. The vouchers which have been produced on record are reflective of the signatures of the different heads of different department which are prior to the year 2009. It is the case of the respondent no.1 in the affidavit-in-rejoinder and even orally that after the 6th Pay Commission was implemented, for any manpower recruitment, the service provider had been engaged and it was by a settled prescribed procedure that the hiring of the contractor was done. 16. It is urged by the respondent department that by publishing the tender, in sealed bids, the department invites the registered firms and agencies for hiring the manpower for all miscellaneous work of all offices of the Income Tax Department. For the first time, the contract system for providing outsourcing manpower was started in the year 2009 and thereafter, it has continued. Last such contractor was M/s. Rajdeep Enterprise. 17. As mentioned above, the Court finds prima facie some Page 26 of 47 C/SCA/4643/2019 JUDGMENT vouchers indicating the hiring of the staff of respondent no.2. It is not only difficult but impermissible to enter into the factual matrix and finalize as to how may number of workmen had been hired by the Income Tax Department and what was the relationship which had governed the parties. These being the disputed question of facts, shall need to be answered by the competent Trial Court. The Court is also conscious of the fact that from the year 2009, when the department had introduced the contractors by inviting the bids for hiring the manpower, the workmen of the petitioner – registered union accepted to work under such contractors and continued to perform the duties all throughout. For the first time in the year 2018, the challenge has been made by seeking to protest as they were aggrieved by the conduct and the action of the respondent no.1. It is a long 10 years that these petition has been preferred. 18. This delay is sought to be explained by the petitioner union stating that these workmen continued to work under the contractor as they belong to the socio economic strata which does not afford them a luxury of litigation at the cost of their family. They did not approach the Court till they found that their services came to be terminated at the instance of the respondent no.1 who never was ready to take the responsibilities as a Page 27 of 47 C/SCA/4643/2019 JUDGMENT principal employer. This delayed approach also can be examined this wise that on their own, the petitioners have not approached the department and the reason put forth is the collection of the details pursuant to the Office Memorandum dated 29.11.2013. According to these workmen, this Office Memorandum which collected the details of the casual labourers for granting them the temporary status or the regularization as per the scheme of 1993, Mr. J.A.Vaidyanathan, Director, Government of India Ministry of Personnel, Public Grievances and Pension (Department of Personnel and Training) had called for the details from all the departments of the Ministry of the Government as it had not have the full details of casual labourers/ daily wagers who are to be engaged for work which is casual or seasonal or intermittent nature or for work which is not of full time nature. The government since received number of representations and the references of various ministries, this exercise has been undertaken. Apt would be to refer to the said Office Memorandum in its entirety. “No. 49011/31/2008- Estt ( c) Government of India Ministry of Personnel, Public Grievances & Pensions Department of Personnel & Training Establishment C Section ** * ** North Block, New Delhi Dated the 29 November, 2013 Page 28 of 47 C/SCA/4643/2019 JUDGMENT OFFICE MEMORANDUM Subject: Casual Labour (Grant of temporary status and regularization) Scheme of 1993- Assessment of present status of the scheme-regarding. 1. The undersigned is directed to refer to this Department’s O.M. of even number dated 17th February, 2009 wherein all Ministries/Departments were requested to furnish consolidated information on the number of Daily Wage Casual Labourers (Temporary Status) in position in their Ministries/Departments. Including attached subordinate offices and Field Formations. After 6th CPC, all Group ‘D’ posts placed in Group ‘C’, PB-1, Grade Pay ‘1800/- (Non-technical) is now to be made only through Staff Selection Commission and minimum educational qualification for appointment to the MTS has been specified as Matriculation or ITI pass. The said information was sought to enable this Department to implement the recommendation of 6th CPC and to assess the extent of financial implications involved in the references received in this Department regarding fixation of wages/pay on regularization of Casual Labour. A copy of the said O.M. is enclosed for ready reference. 2. In response detail received from 29 Ministries/ departments and after obtaining the concurrence of Department of Expenditure, Approval of this department was conveyed for relaxation of the condition in para 8 of O.M. No. 51016/2/90 Estt(C) detect 10th September, 1993. Thereafter requests from other department/ Ministries for regularisation of casual labour with temporary status were also obtained, which were accordingly considered. 3. While instructions exist that Casual labourers/ Daily Wage Workers are to be engaged for work which is casual or seasonal or intermittent nature or for work which is not for full time nature, for which regular posts cannot be created it is noted that casual labours continued to be engaged for long period of time. The Government has been receiving a number of representations/references from various Page 29 of 47 C/SCA/4643/2019 JUDGMENT ministries relating to regularisation of services of Casual/Daily Wage Labours. This issue is also the subject of Litigation in number of court cases has been contested by various Ministries/Departments. Proposals are also being received from various ministries/Department on relaxation of recruitment rules of the post of MTS for regularization of Casual Labourers. 4. In this regard, it is stated that it was held in Mohan Pal Case SLP (Civil) No. 2224/2000 that the Scheme of 1993 for CL-TS was not an ongoing Scheme. This was communicated to all Ministries/Departments vide this Department’s O.M.No. 40011/6/2002-Estt(C) dated 06.06.2002. Also the Hon’ble Supreme Court held in a number of Judgments that regularisation which is not as per the Constitutional Scheme cannot be allowed, if such appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution, illegality cannot be regularized. The judgement in the Uma Devi Case (Appeal (civil) 3595-3612 of 1999). Shri Mukesh Kukreti Case (SLP No. 2826/2008) and Shri M.L. Kesri Case (SLP No. 15774/2006) may kindly be referred in this regard. Also the Uma Devi Case does not apply to Casual Labour as they are not engaged against regular/sanctioned posts but for seasonal or contingent work. The case applies to person appointed on daily wage/Casual labour against sanctioned posts. 5. In this context and with a view to assess the position in the aftermath of the Scheme of 1993 for granting temporary status & regularisation of Casual Labours, this Department considers it necessary to have realistic information on the number of Casual Labours across the offices in the Government. Accordingly, all ministry/Department are requested to furnish information relating to Casual Labours on their rolls (including attached/subordinate and autonomous bodies) as per the enclosed proforma. It is requested that the information may please be provided by 31.12.2013. Page 30 of 47 C/SCA/4643/2019 JUDGMENT ENCL: (2) As above (J.A.Vaidyanathan) Director (Estt) Telefax: 23093179 [e-mail] To All Ministries & Departments of the Government of India.” 19. An information relating to the daily wagers/ casual laboures by a proforma has been called for which proforma is as follows:- Period of Engagement Sr . N o. Name of the Officer (Data in r/o of attached /subordi nate & autonom ous bodies may be segerega ted) No. of DWC Ls (with out tempo rary status ) as on 31.10. 2013 More than 15 years Betwee n 10 years and 15 years Between 7 years and 10 years Between 5 years and 7 years Between 2 years and 5 years Less than 2 years Less than 1 year 1. 2. 3. 4. 5. 6. Total 20. It is also necessary to refer to the communication dated 23.10.2019 of the Directorate of Income Tax, Human Resource Department, Central Board of Direct Taxes with a subject of Page 31 of 47 C/SCA/4643/2019 JUDGMENT issue relating to the casual labourers in the Income Tax Department. It has been decided by the competent authority relating to the casual labourers in the Income Tax Department, as to what would be their entitlement, which says that the entitlement will be to 1/30th of the pay in relevant pay scale for each day of work based on the minimum of the relevant revised pay scale approved by 6th CPC w.e.f. 01.01.2006. For those casual workers who were granted the temporary status in terms of Casual Labourers (Grant of Temporary Status and Regularization) Scheme of Government of India, 1993, issued by the department, they are to be paid the basic of the Pay Band-I with Grade Pay of Rs.1800/- w.e.f. 2006 provided they are matriculate. It further provides the implementation of the 7th Central Pay Scale as per the Government of India Notification dated 25.07.2016, the casual labourers with temporary status to continue to receive their wages w.e.f. 01.01.2006 as per the provisions of the said scheme worked out on the basis of the pay scale of Group-C as per Level 1 of the pay matrix recommendation. 21. This has been referred essentially to appoint all other who still work as casual labourers in the department and after the Office Memorandum of 2013 when the details have been Page 32 of 47 C/SCA/4643/2019 JUDGMENT collected, the outcome of which has not been known, but, the department continued to be concerned about the casual labourers and the grant of temporary status as well as regularization to such workmen. 22. Being conscious of the decision in case of Indian Drugs & Pharmaceuticals Ltd. vs. Workman, Indian Drugs & Pharmaceuticals Ltd., reported in 2007 (1) SCC 408, where the Court has held that in the public employment for creation of posts, appointment to the posts, regularization, fixing of pay scale, continuation in service, promotions, etc. there is impermissibility of deciding on the basis of sympathy or compassion. All the said functions are executive or legislative and not for the Court to step into this sphere, except in a rare and exceptional case. The Court cannot create a post where none exists, nor issue directions to absorb or regularize temporary employees, nor continue them in service, nor pay them salaries of regular employees, as these are purely executive or legislative functions. The Court cannot arrogate to itself powers of the executive or legislature. Such questions are to be decided on legal principles. Ordinarily the Court ought not to give the direction of regularization and the law is well settled that if there are unfair labour practices adopted, the Court can direct the Page 33 of 47 C/SCA/4643/2019 JUDGMENT equal pay for equal work and also give appropriate directions to the concerned authorities. 23. The Apex Court in case of Daily Rated Casual Labour Employed under P&T Department through Bhartiya Dak Tar Mazoor Manch vs. Union of India and others, reported in (1988) 1 SCC 122, was considering the case of daily rated casual labourers in P & T department doing work similar to that of regular workers of the department, hold that they are entitled to minimum pay in the pay scale of regular workers plus DA but without increments from the date of filing of the writ petition. It took act of International Covenant on Economic, Social and Casual Rights, 1996 and held that these casual laboures since are at the lowest rung of the department, they would be at least entitled to the equal pay for equal work as no unfair labour practices could be permitted by the Court. 24. The decision of Supreme Court in General Manager, Oil and Natural Gas Commission, Silchar vs. Oil and Natural Gas Commission Contractual Workers Union, reported in 2008(12) SCC 275, the appellant – ONGC had engaged large number of staff in various fields through contractors. The Contractual Workers Union raised a dispute demanding the regularization of service which was resisted by the ONGC and on Page 34 of 47 C/SCA/4643/2019 JUDGMENT failure of conciliation proceedings, the State had made a reference to the Industrial Tribunal. The Tribunal held that the members of union were the employees of the ONGC rather than contract labourer. This was challenged by the ONGC in the High Court and the submission had been accepted by the learned Single Judge which allowed the writ petition. Before the Division Bench when challenged by the union, the decision was reverse. When challenged before the Apex Court, after detailed examination in the matter of regularization, the Court found no merit in the appeal and had dismissed the same. 24.1. The findings and observations of the Apex Court which found no perversity nor illegality in the award of the Industrial Tribunal, would require reproduction:- “18. There are several observations which do suggest that a workman who has put in 240 days or is a contractual worker, is not entitled automatically to regularization. We, however, believe that the present case is not one of regularization simpliciter such as in the case of an ad-hoc or casual employee claiming this privilege. The basic issue in the present case is the status of the workmen and whether they were the employees of the ONGC or the contractor and in the event that they were employees of the former, a claim to be treated at par with other such employees. As would be clear from the discussion a little later, this was the basic issue on which the parties went to trial, notwithstanding the confusion created by the ill-worded reference. The Division Bench has examined the evidence on this aspect and has endorsed the finding of the Industrial Tribunal. We also find that the observations in R.K.Panda's Page 35 of 47 C/SCA/4643/2019 JUDGMENT case(supra) are significant: \"7. It is true that with the passage of time and purely with a view to safeguard the interests of workers, many principal employees while renewing the contracts have been insisting that the contractor or the new contractor retains the old employees. In fact, such a condition is incorporated in the contract itself. However, such a clause in the contract which is benevolently inserted in the contract to protect the continuance of the source of livelihood of the contract labour cannot by itself give rise to a right to regularization in the employment of the principal employer. Whether the contract labourers have become the employees of the principal employer in course of time and whether the engagement and employment of labourers through a contractor is a mere camouflage and a smokescreen, as has been urged in this case, is a question of fact and has to be established by the contract labourers on the basis of the requisite material. It is not possible for the High Court or this Court, while exercising writ jurisdiction or jurisdiction under Article 136 to decide such questions, only on the basis of the affidavits. It need not be pointed out that in all such cases, the labourers are initially employed and engaged by the contractors. As such at what point of time a direct link is established between the contract labourers and the principal employer, eliminating the contractor from the scene, is a matter which has to be established on material produced before the court. Normally, the Labour Court and the Industrial Tribunal, under the Industrial Disputes Act are the competent fora to adjudicate such disputes on the basis of the oral and documentary evidence produced before them.\" 19. Likewise in Steel Authority of India's case (supra) this is what the Court had to say: \"An analysis of the cases, discussed above, Page 36 of 47 C/SCA/4643/2019 JUDGMENT shows that they fall in three classes: (i) where contract labour is engaged in or in connection with the work of an establishment and employment of contract labour is prohibited either because the industrial adjudication/court ordered abolition of contract labour or because the appropriate Government issued notification under Section 10(1) of the CLRA Act, no automatic absorption of the contract labour working in the establishment was ordered; (ii) where the contract was found to be a sham and nominal, rather a camouflage, in which case the contract labour working in the establishment of the principal employer were held, in fact and in reality, the employees of the principal employer himself. Indeed, such cases do not relate to abolition of contract labour but present instances wherein the Court pierced the veil and declared the correct position as a fact at the stage after employment of contract labour stood prohibited; (iii) where in discharge of a statutory obligation of maintaining a canteen in an establishment the principal employer availed the services of a contractor the courts have held that the contract labour would indeed be the employees of the principal employer.\" 20. It was contended by Mr. Dave that this Court in Uma Devi's case (supra) has clearly opined that the contract or casual labour could not claim regularization and he has in particular emphasized that in the light of the admitted position that at some stage, the workmen were indeed contract employees the ratio of the aforesaid was clearly applicable to the facts of the case. We, however, observe that the aforesaid decision was considered by another Bench of this Court in Pandey's case (supra) wherein it has been held that the ratio of any decision must be understood in the background of the facts of that case and that the case is only an authority for what it logically decides and what logically flows from it. In Pandey's case (supra) the question was as to whether casual employees working in the Electricity Board Page 37 of 47 C/SCA/4643/2019 JUDGMENT were entitled to regularization of their services. This is what the Division Bench had to say in paragraphs 16 and 17: \"16. We are constrained to refer to the above decisions and principles contained therein because we find that often Uma Devi's case (supra) is being applied by Courts mechanically as if it were a Euclid's formula without seeing the facts of a particular case. As observed by this Court in Bhavnagar University's case (supra) and Bharat Petroleum Corporation Ltd.'s case (supra), a little difference in the precedential value of a decision. Hence, in our opinion, Uma Devi's case (supra) cannot be applied mechanically without seeing the facts of a particular case, as a little difference in facts can make Uma Devi's case (supra) inapplicable to the facts of that case. 17. In the present case the writ petitioners (respondents herein) only wish that they should not be discriminated against vis-`-vis the original employees of the Electricity Board since they have been taken over by the Electricity Board \"in the same manner and position\". Thus, the writ petitioners have to be deemed to have been appointed in the service of the Electricity Board from the date of their original appointments in the Society. Since they were all appointed in the society because 4.5.1990 they cannot be denied the benefit of the decision of the Electricity Board dated 28.11.1996 permitting regularization of the employees of the Electricity Board who were working from before 4.5.1990. To take a contrary view would violate Article 14 of the Constitution. We have to read Uma Devi's case (supra) in conformity with Article 14 of the Constitution, and we cannot read it in a manner which will make it in conflict with Article 14. The Constitution is the supreme law of the land, and any judgment, not even of the Supreme Court, can violate the Constitution.\" It will be seen therefore that each case has to be Page 38 of 47 C/SCA/4643/2019 JUDGMENT examined to a very large extent on its specific facts, and a universal yardstick should not be attempted. 21. In the instant case, on a consideration of material produced before it, the Tribunal came to the following conclusions: (1) That there existed a relationship of master and servant. (2) That there was no contractor appointed by ONGC. (3) That the ONGC used to supervise and allot works to individual workers. (4) That the ONGC took disciplinary action and called for explanations from the workers. (5) The workers were paid wages though they did not attend their duties due to Cachar Bandh and due to flood. (6) The wages were paid direct to the workers by the ONGC and the acquaintance roll was prepared by the Management to make payment to the workmen\". It has also been observed that even the ONGC had admitted that since 1988, there was no licensed contractor and that the wages were being paid through one of the leaders of the Union and one such contractor, Manik has been named. The Tribunal then opined that it appeared from the record that Manik himself was a workman and not a contractor as he too was shown in the acquaintance roll to have received wages. We find that the real issue was as to the status of the workmen as employees of the ONGC or of the contractor, and it having been found that the workmen were the employees of the ONGC they would ipso-facto be entitled to all benefits available in that capacity, and the issue of regularization would, therefore, pale into insignificance. We find that in this situation, the Industrial Tribunal and the Division Bench of the High Court were justified in lifting the veil in order to determine as to the nature of employment in the light of the judgments quoted above. We, therefore, find that the ratio of the judgment in Uma Devi's case (supra) would not be Page 39 of 47 C/SCA/4643/2019 JUDGMENT applicable and that the facts of Pandey's case are on the contrary more akin to the facts of the present one. 22. We are therefore of the opinion that in the light of the aforesaid observations, Mr. Dave's argument that the workmen being on a contractual, were not entitled to any relief, cannot be accepted and the large number of judgments cited by Mr. Dave, on this aspect, cannot be applied to the facts of the case. 23. We have also considered Mr. Dave's argument with regard to the nature of the reference. We re- produce the reference as made: \"Whether the demand of the ONGC `Contractual Workers' Union, Silchar on the management of ONGC, Cachar Project, Silchar for regularization of the services of the contractual workers is justified. If so, what relief are the workmen concerned entitled to?\" It is true that the underlined portion of the reference prima facie does give the impression that it presupposes that the workmen were contractual employees and the only dispute was with regard to the regularization of their services. It is equally true that the reference appears to have been rather loosely worded but as observed by the Industrial Tribunal and the Division Bench, both parties were aware of the real issues involved in the light of the protracted litigation and the efforts made during conciliation proceedings. The Division Bench has, thus, rightly observed that it was open to the Industrial Tribunal to have lifted the veil so as to determine the nature of the employment and the dispute between the parties and for that purpose to look into the pleadings and evidence produced before it. 24. In Delhi Cloth & General Mils Co. Ltd. vs. The workmen & Others AIR 1967 SC 469, this is what the Court had to say: Page 40 of 47 C/SCA/4643/2019 JUDGMENT \"In our opinion, the Tribunal must, in any event, look to the pleadings of the parties to find out the exact nature of the dispute, because in most cases the order of reference is so cryptic that it is impossible to cull out therefrom the various points about which the parties were at variance leading to the trouble. In this case, the order of reference was based on the report of the Conciliation Officer and it was certainly open to the Management to show that the dispute which had been referred was not an industrial dispute at all so as to attract jurisdiction under the Industrial Disputes Act. But the parties cannot be allowed to go a stage further and contend that the foundation of the dispute mentioned in the order of reference was non-existent and that the true dispute was something else\". ” 25. The Apex Court in the case of Narendra Kumar Tiwari and Others vs. State of Jharkhand and Others, reported in (2018) 8 SCC 238, was considering the entitlement to the regularization of daily wagers / contractual employees refers to the various judgments including Umadevi and M.L.Kesari. The Apex Court held that the Regularization Rules must be given a pragmatic interpretation and if the employees have completed 10 years of the service on the date of promulgation of Rules, they ought to be given the benefit of service rendered by them. If they have completed 10 years of service, they should be regularized unless in case of misconduct. “4. Having heard learned counsel for the parties and having considered the decision of the Constitution Bench in Umadevi (3) as well as the subsequent decision of this Court explaining Page 41 of 47 C/SCA/4643/2019 JUDGMENT Umadevi (3) in State of Karnataka and Ors. v. M.L. Kesari and Ors.2, we are of the view that the High Court has erred in taking an impractical view of the directions in Umadevi (3) as well as its consideration in Kesari. 5. The decision in Umadevi (3) was intended to put a full stop to the somewhat pernicious practice of irregularly or illegally appointing daily wage workers and continuing with them indefinitely. In fact, in paragraph 49 of the Report, it was pointed out that the rule of law requires appointments to be made in a constitutional manner and the State cannot be permitted to perpetuate an irregularity in the matter of public employment which would adversely affect those who could be employed in terms of the constitutional scheme. It is for this reason that the concept of a one-time measure and a cut-off date was introduced in the hope and expectation that the State would cease and desist from making irregular or illegal appointments and instead make appointments on a regular basis. 6. The concept of a one-time measure was further explained in Kesari in paragraphs 9, 10 and 11 of the Report which read as follows: 2 (2010) 9 SCC 247 C.A. Nos.7423-7429 of 2018 (@ S.L.P. (C) Nos. 19832-19838 of 2017) “9. The term “one-time measure” has to be understood in its proper perspective. This would normally mean that after the decision in Umadevi (3), each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily- wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularise their services. 10. At the end of six months from the date of Page 42 of 47 C/SCA/4643/2019 JUDGMENT decision in Umadevi (3), cases of several daily- wage/ad hoc/casual employees were still pending before courts. Consequently, several departments and instrumentalities did not commence the one-time regularisation process. On the other hand, some government departments or instrumentalities undertook the one- time exercise excluding several employees from consideration either on the ground that their cases were pending in courts or due to sheer oversight. In such circumstances, the employees who were entitled to be considered in terms of para 53 of the decision in Umadevi (3), will not lose their right to be considered for regularisation, merely because the one-time exercise was completed without considering their cases, or because the six- month period mentioned in para 53 of Umadevi (3) has expired. The one-time exercise should consider all daily-wage/ad hoc/casual employees who had put in 10 years of continuous service as on 10-4-2006 without availing the protection of any interim orders of courts or tribunals. If any employer had held the one-time exercise in terms of para 53 of Umadevi (3), but did not consider the cases of some employees who were entitled to the benefit of para 53 of Umadevi (3), the employer concerned should consider their cases also, as a continuation of the one-time exercise. The one-time exercise will be concluded only when all the employees who are entitled to be considered in terms of para 53 of Umadevi (3), are so considered. 11. The object behind the said direction in para 53 of Umadevi (3) is twofold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi (3) was rendered, are considered for regularisation in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on Page 43 of 47 C/SCA/4643/2019 JUDGMENT daily-wage/ad hoc/casual basis for long periods and then periodically regularise them on the ground that they have served for more than ten years, thereby defeating the C.A. Nos.7423-7429 of 2018 (@ S.L.P. (C) Nos. 19832-19838 of 2017) constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10-4-2006 [the date of decision in Umadevi (3)] without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularisation. The fact that the employer has not undertaken such exercise of regularisation within six months of the decision in Umadevi (3) or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularisation in terms of the above directions in Umadevi (3) as a one-time measure.” 7. The purpose and intent of the decision in Umadevi (3) was therefore two-fold, namely, to prevent irregular or illegal appointments in the future and secondly, to confer a benefit on those who had been irregularly appointed in the past. The fact that the State of Jharkhand continued with the irregular appointments for almost a decade after the decision in Umadevi (3) is a clear indication that it believes that it was all right to continue with irregular appointments, and whenever required, terminate the services of the irregularly appointed employees on the ground that they were irregularly appointed. This is nothing but a form of exploitation of the employees by not giving them the benefits of regularisation and by placing the sword of Damocles over their head. This is precisely what Umadevi (3) and Kesari sought to avoid. 8. If a strict and literal interpretation, forgetting the spirit of the decision of the Constitution Bench in Umadevi (3), is to be taken into consideration then no irregularly appointed employee of the State of C.A. Page 44 of 47 C/SCA/4643/2019 JUDGMENT Nos.7423-7429 of 2018 (@ S.L.P. (C) Nos. 19832- 19838 of 2017) Jharkhand could ever be regularised since that State came into existence only on 15th November, 2000 and the cut-off date was fixed as 10 th April, 2006. In other words, in this manner the pernicious practice of indefinitely continuing irregularly appointed employees would be perpetuated contrary to the intent of the Constitution Bench. 9. The High Court as well as the State of Jharkhand ought to have considered the entire issue in a contextual perspective and not only from the point of view of the interest of the State, financial or otherwise – the interest of the employees is also required to be kept in mind. What has eventually been achieved by the State of Jharkhand is to short circuit the process of regular appointments and instead make appointments on an irregular basis. This is hardly good governance. ” 26. From the above discussion, it can be thus held that the petition under Article 226 of the Constitution for the purpose of determining the relationship of employer employee and also for the purpose of deciding the entitlement of the petitioner to be appointed in continuation as the employees of the respondent no.1 shall need to be determined by the competent authority under the Labour Laws. The petitioner can also take a recourse otherwise to any other authority under the law for the purpose of determining the same. 27. The writ petition under Article 226 is not to be entertained when there is an efficacious remedy available. The judicial review of the Court will continue to remain, however, at an initial stage Page 45 of 47 C/SCA/4643/2019 JUDGMENT unless there are exceptional situations, the Court need not entertain the petition. 28. Therefore, without entering into the merits of the matter, the Court chooses not to entertain the petition and relegate the parties to the alternative efficacious remedy available. While so doing, the Court notices the Office Memorandum of 2013 and also noticing the fact that there is no outcome mentioned by the respondent nor there are any instructions given to the learned counsel representing the case as to what had happened to the list sought of the casual labourers for the purpose of regularization and when the petitioners have been categorical about their details having been furnished, pursuant to the said Office Memorandum, let the same be given an effect to by the department, since it is not at the level of Ahmedabad Commissioner or at the stage of Gujarat that such decision is required to be taken. 29. As can be noticed from the communication dated 23.11.2013 which is from Government of India Ministry of Personnel, Public Grievances and Pension and that to pursuant to the directions of the Apex Court, let the authority concerned consider positively and as a first resort, if there is a possibility of granting temporary status or regularization to the casual Page 46 of 47 C/SCA/4643/2019 JUDGMENT labourers as was the endeavour for seeking realistic information, the authority concerned shall attempt to do that. 30. Keeping in mind the fact that the contractor- respondent no.2 has chosen not to contest and when has refused to give work, bearing in mind the details, which have been furnished before this Court and prima facie the details which have emerged on the record, the Court notices that the petitioners have continued for number of years and there are no reasons not to direct the respondent no.2 to allocate the work to the petitioners who have continued for all these years. This will be not, in any manner, be prejudicial to the rights of the either party in challenging and questioning the right of regularization of petitioners as has been contested, for which, they have been relegated to the appropriate authority. 31. This direction will also in no manner, preclude the parties to end the contractual relation taking recourse to the prescribed procedure of law. None of the findings and observations shall affect the rights of the parties in pursuing their further legal course. 32. This petition is disposed of accordingly with no order as to cost. (SONIA GOKANI, J) Bhoomi Page 47 of 47 "