M J Antony: No room for compassion

OUT OF COURT

The Supreme Court has taken away almost all rights of casual workers to absorption and equal wages in their establishments.

A recurring point of discord that the Supreme Court has been called upon to settle these days, relates to the regularisation of workers who are described as casual, daily-rated, temporary, ad hoc or called by similar names. The frequency with which this issue is raised at the apex forum is a clear indication that the laws are vague, inadequate or have become outdated in the new economic situation. In view of the lethargy of law-makers in tackling this labour problem, the judiciary has to intervene and lay down the law. Recent Supreme Court judgements have been doing exactly that, when faced with various aspects of the issue.

However, since the principles laid down by it hardly percolate to the labour courts, litigation travels up to the apex court, taking a decade for getting a final answer.

One of the significant judgements of the Supreme Court was delivered last week in the case of Indian Drugs & Pharmaceuticals (IDPL) vs Workmen of IDPL. This is the ailing PSU's third round in the court on the same issue. The company stopped production in 1994 and out of the original 6,500 employees, only 421 are left and they look after the assets of various units. It has been trying to reduce workforce for a long time and this led to a labour dispute.

The labour court ordered that the "causal daily rated" employees of the company, who have been working for many years, should be regularised and paid wages from 1996. When the company appealed to the Uttaranchal High Court, it modified the labour court's order, but insisted that those workers should be continued in the service till their superannuation. If their services are not required, they should be terminated only in accordance with the industrial law.

On a further appeal to the Supreme Court, those orders were quashed with the following observation: "One may be very large-hearted, but then economic realities have also to be seen. Giving appointments means adding extra financial burden to the national exchequer. Money for paying salaries to such appointees does not fall from the sky, and it can only be realised by imposing additional taxes on the public or taking fresh loans, both of which will only lead to an additional burden on the people."

It was not merely a case of misplaced sympathy, but also the violation of settled legal principles, according to the court. A chain of judgements have dealt with different situations and laid down the principles, in the absence of clear legislation. Some of the major decisions may be noted in this context.

A few months ago, the court had declared in the case,Principal, Mahar Chand Polytechnic vs Anu Lamba, that long years of service would not be a ground for demanding regularisation. In Madhyamik Shiksha Parishad vs Anil Kumar Mishra, it was categorically held that the completion of 240 days at work did not entitle the employee to regularisation, a claim which is made frequently. A temporary employee has no right to the post he held, it was asserted by the Supreme Court in the case, State of UP vs Kaushal Kishore. The court cannot give a direction to the employer to pay a daily wage worker the same remuneration that is paid to regular employees, according to the judgement in

State of Haryana vs Tilak Raj. Sometimes the quality of mercy might overflow. In A Umarani vs Registrar, Coop Societies, the labour court had ordered the employer to appoint a woman whose husband had deserted her. The Supreme Court quashed the order stating that such compassionate appointment had no legal sanction in the absence of a scheme for providing succour to deserted women. It was also stressed that regularisation is not a mode of recruitment.

A recent Constitution bench judgement, State of Karnataka vs Umadevi, emphasised that daily wage earners could not make a backdoor entry by demanding regularisation. The creation and the abolition of posts and regularisation are purely executive functions. In PU Joshi vs Account General, the Supreme Court stated that the judiciary cannot issue a direction to absorb workers or continue them in service, as these are purely executive functions.

The courts have sometimes directed the regularisation of temporary or casual workers. The Supreme Court distinguished those cases and stated that they did not lay down any principle of law. They were orders in the special facts and circumstances of those cases and on humanitarian grounds; they had no binding value as precedents.

In the IDPL judgement, the court sounded almost apologetic when it concluded that it would be happy "if everybody in the country is given a suitable job, but the fact remains that in the present state of our country's economy, the number of jobs is limited. Hence, everybody cannot be given a job, despite our earnest desire."