Neriwalm Employees Union and Another vs Union of India (UOI) and Others

A.K. Patnaik, J.—The Petitioner No. 1 is a Trade Union, registered under the Act, 1926 formed by employees of the North Eastern Regional Institute of Water & Land Management Dolabari, Tezpur, Petitioner No. 2 is the Secretary of the Petitioner No. 1 Union. In the year 1988-89 Shri Uttam Kakati, Badan Ch. Gogoi, Abdul Kadir, Abbas Ali and Dilip Kr. Bhuyan were eagaged as Muster Roll labourers under the Asstt. Executive Engineer, Tezpur Irrigation Department, Government of Assam. Wile they were working as Muster Roll worker, the North Eastern Regional Institute of Water & Land Management (for short NERIWALM) was set up at Dolabari, Tezpur. The aforesaid employees Uttam Kakati, Badan Gogoi, Abdul Kadir, Abbas Ali and Dilip Bhuyan were asked to report to the Director NERIWALM and they were engaged as Muster Roll worker under NERIWALM. Sometime in the year 1990 such other employees, namely Khagen Sarma, Soneswar Nath, Benikanta Sarma, Chandan Mech and Jadav Nath were engaged as casual employees under the NERIWALM in the year 1990-91-92 and they have been working as such under the NERIWALM. The Petitioner No. 1 and 2 by their letters dated 18th November, 1997, 10th November, 1997,15th Jan/1988 and 9th September/98 requested the Director, NERIWALM to regularise the services of the Muster Roll and casual employees including the aforesaid employees who are members of the Petitioner No. 1 Union. Instead of regularising the services of the aforesaid employees, 2 format of contractual agreement approved by the Managing Council, NERIWALM has been sent to the aforesaid employees for their consent by letter issued sometime in the month of September, 1998. Aggrieved, the. Petitioners have filed this writ petition for direction to the Respondents not to give effect to the said contractual agreement and for a direction to the Respondents to regularise the services of these employees belonging to the Petitioner No. 1 Union.

Mr. S.C. Biswas, learned Counsel for the Petitioners submitted that some of the aforesaid employees were working as Muster roll labour under the Irrigation Department, Government of Assam before their services were transferred to NERIWALM and the letter dated 13th Jan/1992 of the Director, NERIWALM to the Executive Engineer Tezpur Irrigation Division in Annexure-IV would show that the aforesaid Muster roll labourers were to be absorbed in NERIWALM. The aforesaid employees were thus the impression that their services would be regularised under NERIWALM and for this reason they had non objection for transferring their services from the Irrigation Department, Government of Assam to NERIWALM. Mr. Biswas further submitted that had these muster roll workers under the Irrigation Department continued to work under the Government of Assam, Irrigation Deptt. they would have been entitled to be regularised in their services in accordance with policy and circular of the Government relating to regularisation of the services of muster roll workers engaged prior to 1.4.93. But to the utter surprise and dismay of the aforesaid employees, they have now been asked to sign an agreement which contains a clause that after 2002 AD, they will have no right whatsoever to continue in their respective posts. According to Mr. Biswas, such a clause in the proposed agreement between the aforesaid employees and the NERIWALM is unreasonable and is voidable under Article 14 and Section 23 of the Indian Contract Act.

Mr. S. Ali, appearing for NERIWALM on the other hand, submitted relying on the averments in the affidavit filed by the Respondent Nos. 4 and 5 that the project of NERIWALM had a life span upto the end of 9th 5 year Plan i.e. to March/2002 and unless the project is continued and converted into a permanent establishment, all the staff employed in the project including the aforesaid employees will have to leave the NERIWALM.

Mr. NC Phukan, learned Sr. Government Advocate, Assam was called upon to address the court as to whether the aforesaid employees who are transferred from Irrigation Department to NERIWALM could be taken back in the Irrigation Department in the event the project of NERIWALM is discontinued with effect from March, 2002 and as to whether the said employees can be regularised in service under the Irrigation Department. Relying on the instruction receipt vide letter dated 29th May, 2001, of the Government of Assam, Irrigation Department, Mr. Phukan submitted that the employees concerned have left the Irrigation Department 11 years back and at this stage they cannot be taken back by the Irrigation Department and that the Irrigation Department could not regularise the services of the most of the muster roll worker as per the circular issued by the Government dated 20.4.95 due to shortage of fund.

It will thus appear from the aforesaid submission made by Mr. Phukan that no useful purpose will be served if direction is issued to the Irrigation Department. Government of Assam to take back the employees who were earlier engaged as Muster roll worker under the Irrigation Department. On the other hand, it appears that the project of NERIWALM will continue at least upto March, 2002 and the aforesaid employees of NERIWALM who have been either transferred from Irrigation Department or engaged directly as casual employees by NERIWALM will not be disturbed from employment upto March, 2002. It further appears from para 3 of the affidavit-in-opposition filed by the Respondent Nos. 4 and 5 that NERIWALM has created a new type of recruitment procedure by means of which the aforesaid employees may be able to draw more employments than that of a daily wage worker, have leave facilities for certain minimum days besides the Sundays have medical facilities at par with the other temporary staff of NERIWALM. Moreover, even though the project of NERIWALM is to continue upto March/2002 under the 9th 5 year Plan, the possibilities of the said project of NERIWALM being continued even after March/2002 under the 10th 5 Year Plan cannot be ruled out. In case the project of NERIWALM is continued beyond March/2002 or converted into permanent establishment, obviously the cases of the aforesaid employees who have put in long spells of service as muster roll and casual employees will have to be considered for continued/regular employment. For these reasons, it will be arbitrary and unreasonable of compel the aforesaid employees to sign the agreement containing a clause that they will have no right whatsoever after March/2002 A.D.

I dispose of this writ petition with a direction that the Respondents will not insist upon the aforesaid employees to sign an agreement with a clause that they will have no right to the post held by them after March/2002. I further direct that the aforesaid employees be given by NERIWALM more emolument than that of a daily wage worker, leave facilities for some minimum days besides Sundays, medical facilities at par with other temporary staff of NERIWALM as indicated in the affidavit-in-opposition of Respondent Nos. 4 and 5 and in case the project of NERIWALM is continued beyond March 2002 they will be continued in service, and in case the project is converted into a permanent establishment they shall be considered by NERIWALM for regularisation.