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2025 DIGILAW 391 (KER)

UNION OF INDIA v. SUHARA BHEEVI

2025-02-27

AMIT RAWAL, HARISANKAR V.MENON

body2025
JUDGMENT : Amit Rawal, J. 1. Present OP(CAT) at the instance of Union of India, Postal Department, is directed against the judgment dated 28.11.2022 rendered in O.A.No.322 of 2022, whereby following reliefs claimed by the respondents/applicants have been allowed, though according to the petitioner, in a different manner: I. To call for records leading to any proceedings directing termination of services of the applicants and quash the same; II. To direct the respondents to reinstate the applicants in employment and to continue them in service in preference to freshers and juniors with all consequential benefits including back wages for the period they were kept on service; III. grant such other reliefs as may be prayed for and the court may deem fit to grant, and IV. To grant the costs of this Original Application. 2. For adjudication of the lis, the facts, in narrow compass, are enumerated herein below: Respondents – applicants, twenty two(22) in number, who have been employed as casual daily waged Mazdoors for 5 to 11 years, had set up their claim before the Labour Commissioner for grant of minimum wages as has been granted to their counterparts in other departments. During the pendency of the matter before the Labour Commissioner, the department attempted to disengage their services giving cause to invoke the jurisdiction of the Central Administrative Tribunal by preferring aforementioned O.A claiming the reliefs aforementioned. Petitioners - respondents raised the objection qua maintainability, as the aforementioned reliefs, as per Section 7 and 7A of the Industrial Dispute Act, could have been agitated either before the Labour Court or Industrial Tribunal. 3. Learned Tribunal, on appreciation of the pleadings as well as the case laws cited by either of the parties much less by overruling the objection, allowed the O.A. with a direction to the petitioners to re-engage the employees till the scheme with regard to engagement through the outsourcing agencies is finalised/approved. However, while granting such relief in paragraph No.12, as extracted herein below, referred to the provision of Section 33 which is the point of challenge in the present O.P. as the pendency of the claim before the Labour Commissioner may not result into an adjudication without noticing the objection of the petitioner: “12. Section 33 of the Industrial Disputes Act is sacrosanct. The applicants are entitled get protection under Section33 of the Industrial Disputes Act. Their preferential claim cannot be ignore. Section 33 of the Industrial Disputes Act is sacrosanct. The applicants are entitled get protection under Section33 of the Industrial Disputes Act. Their preferential claim cannot be ignore. Therefore, till modalities for outsourcing through approved agencies are finalised, the respondents are directed to re-engage the applicants in preference to freshers and juniors. The application is allowed as above. No costs.” 4. Sri.T.C.Krishna submits that finding paragraph No.12 are required to be expunged. Even otherwise, the ratio in Ghaziabad Development Authority and others v. Vikram Chaudhary and others [ AIR 1995 SC 2325 ] relied upon by the Tribunal would not be applicable, as, the entire engagement had been through the outside agencies. 5. On the other hand, Sri.Hariraj, learned Senior Counsel assisted by Adv.Akhila submitted that the claim, though according to the instructions, before the Labour Commissioner is still pending, the fact remains that it is settled law that a set of contractual employees or daily wagers cannot be replaced by another set of employers either through outsourcing or through notifications, until and unless the posts have been filled up through regular employment, that too, against sanctioned posts. In support of the contention, relied upon the judgment of the Supreme Court in Hargurpratap Singh v. State of Punjab and Others [ (2007) 13 SCC 292 ] and urged this Court for dismissal of the O.P.(CAT). 6. We have heard the learned counsel for the parties and appraised the paper book. 7. On perusal of the extracted portion of the findings of the Tribunal, we are in agreement with regard to the findings recorded in paragraph No.11 but as far as paragraph No.12 is concerned, those findings, in our considered view, are obiter for the reason that the matter with regard to the claim of minimum wages is still pending or have been agitated before the Labour Commissioner. For claiming minimum wages, the remedy lies elsewhere ie., in terms of Section 33 of the Industrial Dispute Act. The Supreme Court in Hargurpratap Singh (supra) has also reiterated the findings rendered in Ghaziabad Development Authority and others (supra). 8. As far as the objection with regard to the maintainability is concerned, have already been pondered and rejected while culling out the ratio decidendi in Telecom District Manager and others v. Keshab Deb [ (2008) 8 SCC 402 ], in paragraph Nos.24 to 28. The same reads as under: 24 . 8. As far as the objection with regard to the maintainability is concerned, have already been pondered and rejected while culling out the ratio decidendi in Telecom District Manager and others v. Keshab Deb [ (2008) 8 SCC 402 ], in paragraph Nos.24 to 28. The same reads as under: 24 . We are, therefore, of the opinion that grant of compensation in stead of a direction of reinstatement with back wages would meet the ends of justice. 25 . In Atyant Pichhara Barg Chhatra Sangh and another vs. Jharkhand State Vaishya Federation and others this Court while opining that affirmative action is subject to judicial review and while stating that unequals cannot be treated as equals upon noticing the decision of this Court in Indra Sawhney vs. Union of India stated the law in the following terms :(Jharkhand case, SCC p.725, para 23) "23. Mandal Commission case has specifically noted that there is no constitutional bar to a State categorising the Backward Classes as backward and more Backward Class. The State of Jharkhand by its actions seeks to disempower communities that have been extended the benefits of reservation after a conscious adoption of the Bihar Act. What GO No. 5800 seeks to do by combining the Extremely Backward Class and Backward Class into one group is to treat unequals as equals thus violating the notion of substantive equality and Article 14 of the Constitution of India bringing it within the purview of judicial review by the Court." 26 . This Court in Ajoy Kumar Banerjee v. Union of India: has held as under: (SCC pp.159-60, paras 50 & 52) "50. Differentiation is not always discriminatory. If there is a rational nexus on the basis of which differentiation has been made with the object sought to be achieved by particular provision, then such differentiation is not discriminatory and does not violate the principles of Article 14 of the Constitution. This principle is too well- settled now to be reiterated by reference to cases. There is intelligible basis for differentiation. Whether the same result or better result could have been achieved and better basis of differentiation evolved is within the domain of legislature and must be left to the wisdom of the legislature. This principle is too well- settled now to be reiterated by reference to cases. There is intelligible basis for differentiation. Whether the same result or better result could have been achieved and better basis of differentiation evolved is within the domain of legislature and must be left to the wisdom of the legislature. Had it been held that the scheme of 1980 was within the authority given by the Act, we would have rejected the challenge to the Act and the scheme under Article 14 of the Constitution." It was further held :- (Ajoy Kumar case, SCC p.160, para 52) "52. It was further submitted on behalf of the respondents that the rationale, justification and the genesis of the law of nationalisation being the creation of economic instrumentalities to subserve the constitutional and administrative goals of governance in a social welfare society, the running of public sector undertakings is neither for profit earnings of the management nor for sharing such profits with the workmen alone but to utilise the investible funds available as a result of such ventures and undertakings for socially-oriented goals laid down by the governmental policies operating on the said sectors. In this connection reference was made before us to the decision in the case of State of Karnataka v. Ranganatha Reddy." 27 . Even if the provisions of Section 25-F of the Industrial Disputes Act had not been complied with, respondent was only entitled to be paid a just compensation. While, however, determining the amount of compensation we must also take into consideration the stand taken by the appellants. They took not only an unreasonable stand but raised a contention in regard to absence of jurisdiction in the Tribunal. They admittedly did not comply with the order passed by the Tribunal for a long time. It had raised contention which are not otherwise tenable. 28 . We, therefore, are of the opinion that in the peculiar facts and facts and circumstances of the case interest of justice shall be subserved if respondent is directed to be paid a compensation of Rs.1,50,000/- (Rupees one lakh fifty thousand only). The said sum should be paid to him within four weeks failing which it will carry interest @ 9% per annum. 9. The said sum should be paid to him within four weeks failing which it will carry interest @ 9% per annum. 9. For the reason aforementioned, we are of the view that the petitioners – respondents cannot be permitted to indulge into replacing the daily wagers/casual labours by another set of casual labours, until and unless the said post are filled up through regular vacancies. Preference has to be given to the experienced casual labours who had rendered more than 5 to 11 years of service as in the instant case. As far as finding in paragraph No.12 of the judgment is concerned, we declare it to be an obiter. Petition sans merit, accordingly dismissed.