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1993 DIGILAW 225 (KER)

VANAJAKSHY A. S. v. FACT LTD.

1993-04-07

K.G.BALAKRISHNAN

body1993
JUDGMENT : K.G. Balakrishnan, J.—The petitioner joined FEDO, a unit of the Fertilizers and Chemicals Travancorc Ltd. (for short "the FACT"), as a temporary typist/clerk for a period of one year with effect from 3rd October, 1983, The FACT is a company registered under the Companies Act and major percentage of the shares of this company are owned by the Union Government and the Slate Government. This company is an "authority" coming within the definition of "Stale" under Article 12 of the Constitution. The petitioner continued as typist initially for a period of one year and after the expiry of that term she was again appointed for another one year with effect from 4th October, 1984. The term of the second appointment expired on 3rd October, 1985. Then she was again appointed for a period from 4th October, 1985, to 31st March, 1986. Then by Exhibit P-4 order, her appointment was extended for a period of another three months. Thus by various extension orders, the petitioner could continue as a typist/clerk till her service was recently terminated. While the petitioner was working as a temporary hand, a vacancy of typist/clerk arose in the Cochin Division of the FACT. The petitioner though applied, she was not selected and one Sheelamani was appointed in that post. After 15th March, 1991, the petitioner was riot given any extension order, but she was allowed to work on daily-paid basis and a sum of Rs. 30 per day was paid. While the petitioner was working, she was given a consolidated amount of Rs. 1,250 per mensem, whereas the permanent typist is getting an amount of Rs. 3,000 including all allowances. The petitioner though termed as a temporary employee, was, in fact, working against a permanent vacancy. The first respondent recovered employees' state insurance and provident fund contributions from the petitioner's salary. The petitioner, therefore, prays that she should have been paid salary and allowances due to a permanent employee. The petitioner further contends that her service should be regularised as a typist with effect from 3rd October, 1983. 2. Respondents Nos. 1 to 3 filed a counter-affidavit. It is alleged that the FACT Engineering and Design Organisation (for short "FEDO") is the engineering and consultancy division of the FACT. The FEDO is mainly engaged in undertaking engineering and consultancy jobs relating to fertilizer and chemical plants. 2. Respondents Nos. 1 to 3 filed a counter-affidavit. It is alleged that the FACT Engineering and Design Organisation (for short "FEDO") is the engineering and consultancy division of the FACT. The FEDO is mainly engaged in undertaking engineering and consultancy jobs relating to fertilizer and chemical plants. As in the case of any other consultancy organisation, the work load in the FEDO is seasonal and not static, depending upon the availability of projects for execution. The FEDO maintains a number of engineers and the required supporting staff in its permanent strength to meet normal working. In order to meet extra additional requirements of man-power at project sites, recruitment of temporary personnel on work-charged/temporary basis is being resorted to. These vacancies are not regular vacancies and if regular appointments are made to these requirements they will be rendered surplus on completion of project, thereby causing heavy financial commitment on the company. Selection and engagement of such work-charged/temporary personnel are done for the project as per the temporary requirement. The permanent vacancies are filled by the personnel department after fulfilling all statutory requirements. But, these specifications are not always followed in the case of engagement of work-charged/temporary employees. The services of temporary employees are automatically terminated as soon as the piece work is over. There is no bar in engaging the services of such persons for other project sites. Salary and other benefits given to the permanent employees are as per the long-term tripartite agreement and the salary of temporary appointees are not covered by such agreement. 3. The petitioner was engaged at the PHENOL project as temporary typist/clerk on work-charged basis. She was also appointed similarly at the Cochin Division of the FEDO. 4. I heard the petitioner's counsel and also the learned standing counsel for the respondents. The main thrust of the argument of the petitioner's counsel was that petitioner should have been regularised in the permanent establishment of the respondent company having regard to the continuous service of the petitioner from 1983. It is argued that the non-regularisation is illegal and unfair labour practice. Several decisions were cited before me to emphasize this plea. The main thrust of the argument of the petitioner's counsel was that petitioner should have been regularised in the permanent establishment of the respondent company having regard to the continuous service of the petitioner from 1983. It is argued that the non-regularisation is illegal and unfair labour practice. Several decisions were cited before me to emphasize this plea. But, on going through those decisions, it is clear that regularisation was directed to be done by the Court in cases where a large number of persons were recruited on provisional basis and they were allowed to continue for long period without even paying the requisite salary commensurate with their service. Moreover, these employees were working just as regular employees and were not recruited for any particular project. One marked distinction in this case is that the petitioner was appointed against a vacancy under a project work. It is the specific contention of the respondents that the work of a typist is only seasonal and if there's is no consultancy or construction work to be done by the FEDO, they would not require the services of a typist. A survey of some of the decisions of the Supreme Court would make the position more clear. 5. In V.P. Chaturvedi v. Union of India (1991) 4 SSC 171, medical researchers continuing in research work under different projects for more than 15 years sought regularisation. The Supreme Court did not straightaway order regularisation, but held that the researchers who have worked in the All India Institute of Medical Sciences should be continued upon availability of its programmes but those who have put in longer periods may be absorbed in available vacancies. In another case reported in Babulal v. State of Haryana, 1991 2 Us 32 the appellant was appointed as Sub-Inspector on ad hoc basis. His service was terminated pursuant to a criminal proceeding, but he was acquitted of the criminal charge. The appellant had worked for about two years prior to his termination. The Supreme Court set aside the termination and directed that he was entitled to be considered for regularisation. The facts of this case have no relevance to the present case. Yet another decision was reported in State of Haryana and others Vs. Piara Singh and others etc. The appellant had worked for about two years prior to his termination. The Supreme Court set aside the termination and directed that he was entitled to be considered for regularisation. The facts of this case have no relevance to the present case. Yet another decision was reported in State of Haryana and others Vs. Piara Singh and others etc. etc., (1992) 4 SCC 118 wherein a large number of appointments were made to Class III and Class IV services in the States of Punjab and Haryana on ad hoc basis. The initial appointment was for a period of six months but they were allowed to continue for years together under orders passed from time to time. It may also be noticed that till 1987, all posts in the Education Department of that State were not brought under the purview of the SESB and all these posts were filled up by ad hoc appointments. It was only under those circumstances, the Court directed to regularise such employees. 6. Going by the various dicta laid down in these decisions, it cannot be said that merely because a person had worked for five or six years, he is entitled to get regularisation. Moreover, the Supreme Court in Delhi Development Horticulture Employees' Union Vs. Delhi Administration, Delhi and others, (1992) 4 SCC 99 warned that the regularisation of employees shall not be done lightly. It was observed that (at page 459): "A good deal of illegal employment market has developed resulting in a new source of corruption and frustration of those who are waiting at the employment exchanges for years". 7. In the instant case, the petitioner was appointed for a project work and appointment was on an ad hoc basis. So she has no right to be considered for regularisation. One important aspect to be noticed is that the petitioner was allowed to participate in a selection and she did not get herself qualified for appointment. 8. The contention of the petitioner that she is entitled to get equal pay for equal work also cannot be accepted. Those who were appointed on regular basis, passed the required test and were fully competent to hold the post whereas the petitioner was not subjected to any such selection. The plea of the principle of equal pay for equal work also is not available in this case. 9. Those who were appointed on regular basis, passed the required test and were fully competent to hold the post whereas the petitioner was not subjected to any such selection. The plea of the principle of equal pay for equal work also is not available in this case. 9. Original petition is without any merit and the same is dismissed.