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PETITIONER: INDER PAL YADAV AND ORS. ETC.

       Vs.

RESPONDENT: UNION OF INDIA AND ORS ETC.

DATE OF JUDGMENT18/04/1985

BENCH: DESAI, D.A. BENCH: DESAI, D.A. MISRA RANGNATH

CITATION:  1985 SCR  (3) 837        1985 SCC  (2) 648  1985 SCALE  (1)703

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

HEADNOTE:      The  petitioner-workmen   styled  as   ’Project  Casual Labour’ in  these writ petitions and special leave petitions contended that  even  though  they  had  put  in  continuous service for  years, their  services were  terminated on  the ground that the project on which they were employed has been wound up  on its  completion and their services were no more needed. After  the conclusion  of the hearing in some of the matters, the Railway Ministry framed a scheme to find a just and  humane   solution  affecting   the  livelihood  of  the petitioner  It  provided  that  casual  labour  employed  on projects may  be treated  as temporary  on completion of 360 days of continuous employment.      Disposing of the petitions, ^      HELD: 1.  (i) By  and large  the scheme certainly is an improvement on  the  present  situation  though  not  wholly satisfactory. However the Railway being the biggest employer and having  regard to  the nature of its work, it would have to engage casual labour and therefore, as a preliminary step towards realisation  of the  ideal enshrined  in Articles 41 and 42,  this Court proposes to put its stamp of approval on the scheme with one major variation which is herein set out.                                                       [841D]      1.  (ii)   The  scheme   envisages  that  it  would  be applicable to  casual labour on projects who were In service as on  January 1,  1984. The  choice of  this date  does not commend,  for   it  is  likely  to  introduce  an  invidious distinction between  similarly situated  persons and  expose some  workmen   to  arbitrary  discrimination  flowing  from fortuitous court’s  order, since, in some matters, the court granted interim  stay before the workmen could be retrenched while some  other were not so fortunate. Those in respect of when the  Court granted interim relief by stay suspension of

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the order  of retrenchment, they would be treated in service on l.  l. 1981  while others  who fail to obtain interim rel if though similarly situated 838 would be  pushed down  in the  implementation of the scheme. Therefore, those who could not come to the Court need not be at a  comparative disadvantage  to those who rushed in here. If they  are otherwise similarly situated, they are entitled to similar treatment. Keeping in view all the aspects of the matter, the Court modifies part 5.1 (a) (i) of the scheme by modifying the  date from  1.1.1984 to  1.1. 1981.  With this modification and  consequent rescheduling in absorption from that date  onward, the  scheme framed by Railway Ministry is accepted  and   a  direction   is  given  that  it  must  be implemented by  re-casting the  stages consistent  with  the change in the date as herein directed. [841E-G; 842B-C]      (2) To  avoid violation  of Art. 14, the scientific and equitable way  of implementing the scheme is for the Railway administration to  prepare, a  list of project casual labour with reference  to each  division OF  each railway  and then start absorbing  those with  the longest  service. If in the process any  adjustments are  necessary, the  same  must  be done. In  giving this  direction, the  court is considerably influenced by  the statutory recognition of the principle of last come  first go  or to  reverse it first come last go as enunciated in  s.25G of  the Industrial  Disputes Act, 1947. [842D-F]

JUDGMENT:      ORIGINAL JURISDICTION: Writ Petitions Nos. 147, 320-69, 459, 4335 4434/85 etc.      (Under Article 32 of the Constitution).      For the Appearing Parties: B. Datta RishiKesh M.K. Rama murti MA.  Krishnamurty. Anis  Suhrawardy M  S. Gujaral S.C. Maheshwari PP  Singh C. V. Subba Rao R.N. Poddar C.P. Pardey V.R Verma  R P.  Singh Indira  Sawhney S.C.  Patel   Harbans Singh G.N.  Chowdhary   Narinder R D. Uradhyay PK. Jain K.R. Nagaraja Shakil  Ahmed Syed  NS.  Das  Bahl  K  R.P.  Pillai D.Goburdhan C.  Malhotra SN.  Chowdhary V.K.  Pandit   Manoj Saxena Madan,  Sharma G.S.  Narayan Ms.  Halida Khatoon  K K Gupta C.  Agarwala h. Satish Ms. A. Subhashini Sambandam and Pillai P.N. Gupta Mrs. Jayashree Wad and Raju Ramachandran.      The Judgment of the Court was delivered by      DESAI,J.  Articles   41  and  42  of  the  Constitution notwithstanding, there are certain grey areas where the rule of  hire  and  fire,  a  legacy  of  laissez-faire  even  in Government employment  still rules  the roost. Casual labour employed on  projects also known as ’projects casual labour’ is one  such segment  of employment  where one may serve for years and  remain a daily rated worker without a weekly off, without any  security of  service, without the protection of equal pay  for equal  work. In  short at  the sweet will and mercy of the local 839 satraps. Even the formidable railwaymen’s unions least cared for   these helpless and hapless workmen. Suddenly a torrent of writ  petitions and  petitions for special leave awakened this  Court  to  the  plight  of  these  workmen.  In  quick succession, 48  writ petitions  and 32 petitions for special leave flooded  this Court.  In each  writ petition / S.L.P., the grievance  was that  even though  the workmen  styled as ’project casual  labour’ had  put in  continuous service for years on  end to  wit ranging from 1974 till 1983, yet their

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services were  terminated with  impunity under  the specious plea that  the project  on which they were employed has been wound np  on its  completion and their services were no more needed. No  one is unaware of the fact that Railway Ministry has a  perspective plan spreading over years say decades and projects are  waiting in  queue for execution and year these workmen were  shunted out  (to use a cliche from the railway vocabulary) without any chance of being re-employed. Some of them rushed  to the  court and obtained interim relief. Some were not  so fortunate. At one stage some of these petitions were set  down  for  final  hearing  and  the  judgment  was reserved. When  some other similar matters came up, Mr. K.G. Bhagat,  the  then  learned  Additional  Solicitor  General, requested the  Court not  to render  the judgment because he would take up the matter with the Railway Ministry to find a just and  humane solution  affecting the livelihood of these unfortunate workmen. As the future of lakhs of workmen going under the  label of  casual project  labour was likely to be affected, we  repeatedly adjourned  these matters  to enable the Railway Ministry to work out a scientific scheme.      Railway Ministry  framed a  Scheme and  circulated  the same amongst  others to  all the  General Managers of Indian Railways including  production units as per its circular No. E(NG)II/84/CL/41 dated  June 1,  1984. In  the Scheme it was stated that  all  the  General  Managers  were  directed  to implement the decision of the Railway Ministry by the target dates It was further stated that a detailed letter regarding group 5 1(ii) would follow. Such a letter was issued on June 25,  1984.  Thereafter,  these  matters  were  set  out  for examining the  fairness  and  justness  of  the  Scheme  and whether the Court would be in a position to dispose of these petitions in  view of  the Scheme. That is how these matters came up before us.      The relevant portions of the Scheme read as under: 840           "5.1. As  a  result  of  such  deliberations,  the      Ministry of Railways have now decided in principle that      casual  labour  employed  on  project  (also  known  as      ’project casual labour’) may be treated as temporary on      completion of  360 days  of continuous  employment. The      Ministry have decided further as under:      (a)  These orders will cover:      (i)  Casual labour on projects who are in service as on           1.1.84; and      (ii) Casual labour  on  projects  who,  though  not  In      service on  1.1.84, had  been in  service  on  Railways      earlier and  had already completed the above prescribed      period (360  days) of  continuous  employment  or  will      complete  the  said  prescribed  period  of  continuous      employment on  re-engagement  in  future.  (A  detailed      letter regarding this group follows).      (b)  The  decision  should  be  implemented  in  phases           according to the schedule given below: Length of  service   Date from  which   Date by  which (i.e. (i.e.continuous      may be  treated        decision  should employment).       as temporary      be implemented (i) Those who have     1.1.1984         31.12.1984 completed five yearsof service as on 1.1.84 (ii) Those  who have        1.1.1985              31.12.1985 completed three years but less than five years of service as on  1.1.1984 (iii) Those who have    1.1.1986          31.12.1986 ted 360 days but less than three years of

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service on 1.1.1984 841      (iv) Those   who   complete               1.1.1987   or           31.3.1987 360 days after               the date on which 1.1.1984                     360 days are                              completed which ever                              is later.           5.2. The  Ministry would like to clarify here that      casual labour on projects who have completed 180 days of continuous employment would continue to be entitled to the benefits now admissible to them (so long as they fulfil the conditions in this regard) till they become due for the benefits mentioned in the preceding sub-paragraph."      By and  large the scheme certainly is an improvement on the  present   situation  though  not  wholly  satisfactory. However, the  railway being  the biggest employer and having regard to  the nature  of its  work, it would have to engage casual labour  and therefore,  as a preliminary step towards realisation of the ideal enshrined in Articles 41 and 42, we propose to  put our stamp of approval on the scheme with one major variation which we proceed to herein set out.      The   Scheme envisages  that it  would be applicable to casual labour  on projects who were in service as on January 1, 1984. The choice of this date does not commend to us, for it is  likely to  introduce an invidious distinction between similarly  situated  persons  and  expose  some  workmen  to arbitrary discrimination  flowing  from  fortuitous  court’s order. To  illustrate, in  some matters,  the court  granted interim stay  before the  workmen could  be retrenched while some other  were not  so fortunate. Those in respect of whom the court  granted interim  relief be stay/suspension of the order of  retrenchment, they  would be treated in service on 1.1.1984 while  others who  fail to  obtain  interim  relief though similarly   situated   would  be pushed  down in  the implementation of  the Scheme.  There is  another area where discrimination is  likely  to  rear  its  ugly  head.  These workmen come  from the lowest grade of railway service. They can ill  afford to  rush to  court. Their  Federations  have hardly been  of any  assistance. They  had  individually  to collect money and rush to court which in case of some may be beyond  their  reach.  Therefore,  some  of  the  retrenched workmen failed to knock 842 at the  doors of the court of justice because these doors do not open unless huge expenses are incurred. Choice in such a situation, even  without crystal gazing is between incurring expenses for  a litigation with uncertain outcome and hunger from day  to day.  It is a Hobson’s choice. Therefore, those who could not come to the court need not be at a comparative disadvantage to  those who  rushed in  here. If  they    are otherwise similarly  situated, they  are entitled to similar treatment if  not by anyone else at the hands of this Court. Burdened by all these relevant considerations and keeping in view all the aspects of the matter, we would modify part 5.1 (a) (i)  by modifying  the date  from 1.1.1984  to 1.1.1981. With this  modification  and  consequent    rescheduling  in absorption from  that date  onward,  the  Scheme  framed  by Railway Ministry  is accepted  and a direction is given that it must  be implemented  by re-casting the stages consistent with the change in the date as herein directed.      To avoid  violation of  Art.  14,  the  scientific  and equitable way  if implementing the scheme is for the Railway administration to  prepare, a  list of project casual labour

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with reference  to each  division of  each railway  and then start absorbing  those with  the longest  service. If in the process any  adjustments are  necessary, the  same  must  be done.  In   giving  this   direction,  we  are  considerably influenced by  the statutory recognition of a principle well known in  industrial jurisprudence that the men with longest service shall have priority over those who have joined later on. In  other words,  the principle of last come first go or to reverse  it first  come last go as enunciated in Sec. 25G of the  Industrial Disputes  Act, 1947 has been accepted. We direct accordingly.      All these  writ petitions  and special  leave petitions shall stand  disposed  of  consistent  with  the  scheme  as modified by  this judgment  and the directions herein given. The scheme as would stand modified by the directions here in given forms  part of this judgment and a copy of it shall be annexed to this judgment.      Learned counsel  Shri Anis  Suhrawardy has  put in  the maximum labour  in making a very useful compilation. He must have spent  days and  months! The  compilation helped us the most 843 in dealing  with the  writ petitions  and the  special leave petitions and  in ascertaining  the proper principle. Such a compilation ought  to have  been  prepared  by  the  Railway administration. Therefore,  we direct  the Union of India to pay  Rs.  5,000  as  and  by  way  of  costs  to  Shri  Anis Suhrawardy, advocate, Supreme Court. M.L.A.                                  Petitions dismissed. 844