Nanak Chand vs Union of India (UOI) and Others

Permod Kohli, J.—Respondent-Triveni Structurals Ltd, Allahabad is Government owned company. Petitioners were engaged by the

respondent-company as Mechanic and Clerk respectively on 23.6.1989 and 1.6.1989 at Narloo Bridge site, Arnas, Tehsil Reasi District

Udhampur. Services of the petitioners have been terminated in the month of September 1998 on completion of Narloo Bridge project. While

terminating the services, they were allowed retrenchment benefit. This is evident from order dated 27.9.1998 annexure-A with the writ petition and

an amount of Rs. 7029/- was paid to the petitioner No: 1 and Rs. 7227/- was paid to petitioner No: 2. Retrenchment compensation has been

assessed in respect to employment of the petitioner No: 1 for the period 23.6.1989 to 27.9.1998 and in respect to petitioner No: 2 for the period

1.6.1989 to 29.9.1998. Claim of the petitioners in the present petition is for quashment of order of their termination and for their re-employment as

well as consequential regularization of their services in the respondent-company. Petitioners claim that they are entitled to regularization in terms of

policies and circulars issued by the Govt. of India from time to time. Respondent-company has under taken work of different bridges throughout

the country and even after completion of Narloo bridge, respondent-company is liable to adjust the petitioners in some other bridge as they are

willing to work at any bridge.

Respondent-company filed its reply. It is stated that petitioners were engaged on daily wage basis. No appointment order was ever issued in

favour of the petitioners and their employment was not in permanent capacity. Respondent-company engages certain workers on daily rated basis

to execute the work. Petitioners were also engaged in the same manner. Bridge for which petitioners were engaged has been completed. Services

of the petitioners engaged on daily wage basis are not required. After completion of bridge, retrenchment compensation in accordance with

Industrial Disputes Act has been worked out, however, they have refused to receive the same. It is further stated that petitioners were engaged for

specific period and for specific work and there services are no more required. In addition to this, it is stated that respondent-company has been

declared sick company under Sick Industrial Companies (Special Provisions) Act 1985 and referred to Board for Industrial and Financial

Reconstruction (BIFR). Respondent-company is passing through severe financial crisis. BIFR in its meeting dated 28.8.1995 through rehabilitation

scheme has taken certain measures. This included freezing of man power and to reduce the man power strength through voluntary Retirement

Scheme and more than 700 employees have opted for voluntary retirement. Engagement of the petitioners on daily wage basis has not been

disputed by either of the parties. It is also admitted case of the parties that no appointment order was ever issued. Engagement of the petitioners

was for bridge which has since been completed. Petitioners stand disengaged with effect from September 1998. Though retrenchment

compensation has been assessed, however, petitioners have not received the same.

Learned counsel for the petitioners has referred to various judgments. In Division Bench judgment dated 25.11.1998 passed in LPA(SW) No:

266/1997, a direction was issued for regularization of the services of the petitioners who were workers of Doordarshan in view of the scheme of

Govt. of India formulated in the year 1993. In another judgment from Punjab and Haryana High Court reported as 1994(2) SCT 14, it was held

that if there is no written order issued to the workman employing for specific period and for specific work it may be presumed that there was no

contract of employment for a specific period. In another case reported as 1995(4)SCT 400, it was held that service of daily wage workers cannot

be terminated so far as work to engage them is available. Yet another judgment relied upon by the petitioner reported as 1995(4)SCT 350.

Hon'ble Division Bench of Punjab and Haryana High Court held that State Government cannot abandon the project arbitrarily without any

sufficient reasons so as to render thousands unemployed and snatch the livelihood of poor workers abruptly and State must strive to afford

livelihood and not to snatch the same. Another judgment relied upon by the petitioner reported as 2000 LLR 577. Hon'ble Supreme Court has

held that termination of casual employee who has secured status of temporary employee on the allegation of assaulting watchman without any

enquiry is unsustainable. All the above judgments cited on behalf of the petitioner are totally irrelevant. Petitioners have not been disengaged on

account of criminal charges nor their engagement was punitive in nature. Petitioners have themselves placed on record representations made by

them to the concerned authority on 5.1.1998, 26.9.1998 and 6.10.1998 whereby they are claiming their regularization admitting therein that their

services have not been regularized. Learned counsel for the petitioners has not been able to show any rule or regulation framed by the respondent-

company where under services of the petitioners are required to be regularized nor any other law or rules has been brought to notice where under

company is bound to regularize their services. Engagement of the petitioners was for a bridge which has been since completed. Apex Court

considered similar issued in number of cases. In case of Sandeep Kumar and others Vs. State of Uttar Pradesh and others, Apex Court held as

under:

From the facts placed before us, it appears that the scheme under which the petitioners are working is of a very specific nature. There is no

permanent need for the work and since it is a project for a particular purpose, it will not be possible to direct that the petitioners may be

regularized in service.

In case of State of Himachal Pradesh v. Ashwani Kumar and Ors. AIR 1997 SC 352, while considering the case of the temporary employee

working in project, on closure of project court held as under:

It is seen that when the project is completed and closed due to non availability of funds, consequently, the employees have to go along with the

closed project. The High Court was not right in giving the direction to regularize them or to continue them in other places. No vested right is

created in temporary employment. Directions cannot be given to regularize their services in the absence of any existing vacancies nor directions be

given to create posts by the State to a non existent establishment. The Court would adopt pragmatic approach in giving directions. The directions

would amount to creating of posts and continuing them in spite of non availability of the work. We are of considered view that the directions issued

by the High Court are absolutely illegal warranting our interference. The order of the High Court is set aside.

Similarly in case of Rafiq Ahmed and Anr. v. State of Rajasthan and Ors. 1999(9) Sup 221, Apex Court considered right of absorption of

temporary employees and on completion of scheme/execution of project, court held as under:'

In our opinion, when the posts temporarily created for fulfilling the needs of a particular project of scheme limited in its duration come to an end

on account of the need for the project itself having come to an end either because the project was fulfilled or had to be abandoned wholly or

partially for want of funds, the employer cannot by a writ of mandamus be directed to continue employing such employees as have been dislodged

because such a direction would amount to requisition for creation of posts though not required by the employer and funding such posts though the

employer did not have the funds available for the purpose.

In view of the law laid down by the Apex Court in the aforesaid judgments, petitioners have no right to regularization nor their termination can

be said to be bad in any manner. Petitioners were admittedly working on bridge which has been completed and respondent-company cannot be

forced to employ the petitioners on any other bridge. Apart from above, respondent-company has been declared as sick company and revival

scheme has been formulated by BIFR and as many as 700 employees have been retired under voluntary retirement scheme. Financial condition of

the company is not conducive. This fact has not been rebutted by the petitioners in any manner. Keeping in view this fact, no direction can be

issued to re-engage the petitioners when they have already been disengaged. Petitioners have no Right of re-engagement or regularization. This

petition accordingly fails and is dismissed.