SURENDRA KUMAR SHARMA Vs. VIKAS ADHIKARI

JUDGEMENT

(1.) The appellant was employed as a Junior Engineer on daily wages for a period of 100 days vide order dated 22.9.1988 in a scheme known as Rural Employment Programme. There were two similar employment welfare schemes operating, known as--Rural Employment Programme (REP) and Rural Landless Employment Guarantee Programme (RLEGP). The two schemes were merged in one elaborate scheme known as Jawaharlal Nehru Rozgar Yojna or Jawahar Rozgar Yojna. On completion of 100 days, his employment would have terminated aumatically; however, the authority passed a speciic order of termination dated 29.12.1988. Instead of being rendered jobless the appellant was offered yet another temporary employment in a scheme known as Jeevan Dhara vide order dated 17.1.1989. The employment was extended from time time up 12.6.1989. The last order of appointment was for a period of 7 days issued on 24.6.1989 which came an end of 30.6.1989. The appellant, and a few others similarly employed filed writ petitions in the High Court, which by an interim order protected their employment. However, the posts came be abolished and the appellants employment as also the employment of other similarly situated persons came be terminated with effect from 7.5.1991, consequent upon the posts having been abolished. The writ petitions were dismissed by the High Court holding that as the posts themselves have been abolished the question of regularization did not ise. The High Court also held that the workmen given employment under the schemes got the employment on an ad hoc basis, and from the very beginning knew that the employment was of a temporary nature co-terminus with the scheme itself, and therefore they could not be said have been retrenched within the meaning of 2(oo) of the Industrial Disputes Act, 1947, so as be entitled the relief of reinstatement if the provisions of 25F of the Act were not complied with. The appellant filed a writ appeal which has also been dismissed by the Division Bench of the High Court. This is an appeal by special leave.

(2.) Shri Sanghi, the learned senior counsel for the appellant, submitted that without regard the nature of employment, once a workman has worked in continuous employment for a period of 240 days his employment could not have been terminated except by complying with the provisions of25F; else he would be deemed have been retrenched and entitled the relief of reinstatement. Having heard the learned counsel for the parties we are satisfied that the appellant is not entitled any relief and the view taken by the High Court cannot be found fault with.

(3.) The nature of employment under Jawaharlal Nehru Rozgar Yojna came be examined by this Court in Delhi Development Horticulture Employees Union v. Delhi Administration, Delhi and Ors. , - (1992) II LLJ 452SC . The Court found that the scheme under which the petitioners therein were employed was evolved provide income for those who are below the poverty line and particularly during the periods when they are without any source of livelihood and therefore without any income whatsoever. Such schemes were further meant for the rural poor, for the object of the scheme was start tackling the problem of poverty from that end. The object was not provide the right work as such even the rural poor - much less the employed in general. The Union of India had filed a detailed affidavit showing the purpose and working of such schemes, which in their very nature could provide some employment some people for some time and not an employment all the employed for all times. The Court held, "if the resources used for the Jawahar Rozgar Yojna were in their entirety be used for providing full employment throughout the year, they would have given employment only a small percentage of the population in need of income, the remaining vast majority being left with no income whatsoever. No fault could, therefore, be found with the limited object of the scheme given the limited resources at the disposal of the State. Those employed under the scheme, therefore, could not ask for more than what the scheme intended give them. get an employment under such scheme and claim on the basis of the said employment, a right of regularization, is frustrate the scheme itself. No court can be a party such exercise. It is wrong approach the problems of those employed under such schemes with a view providing them with full employment and guaranteeing equal pay for equal work. These concepts, in the ontext of such schemes, are both unwarranted and misplaced. They will do more harm than good by depriving the many of the little income that they may get keep them from starvation. They would benefit a few at the cost of the many starving poor for whom the schemes are meant. That would also force the State wind up the existing schemes and forbid them from introducing the new ones, for want of resources. This is not say that the problems of the unemployed deserve no consideration or sympathy. This is only emphasise that ever among the unemployed a distinction exists between those who live below and above the poverty line, those in need of partial and those in need of full employment, the educated and uneducated, the rural and urban unemployed etc." The Court emphasized how a judicial sympathy with such workmen could boomerang upon the purpose of the scheme itself and thereby in the largest context, deny the limited benefit extended by the State the unemployed which would not be available but for such schemes. The Court held that the petitioners cannot be directed be regularized on the only ground that they have put in work for 240 or more days, as such directions lead pernicious consequences. Although there is the Employment Exchange Act which requires recruitment on the basis of registration in the Employment Exchange, it has become a common practice ignore the Employment Exchange and the persons registered in the Employment Exchanges, and employ and get employed directly those who are either not registered with the Employment Exchange or who though registered are lower in the long waiting list in the Employment Register. The Courts can take judicial notice of the fact that such employment is sought and given directly for various illegal considerations including money. The employment is given first for temporary periods with technical breaks circumvent the relevant rules, and is continued for 240 or more days with a view (SIC) benefit of regularization knowing the judicial trend that those who have completed 240 or more days are directed be aumatically regularized. 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. Not all those who gain such back-door entry in the employment are in need of the particular jobs. Though already employed elsewhere, they join the jobs for better and secured prospects. That is why most of the cases which come the courts are of employment in Government Departments, Public Undertakings or Agencies. Ultimately it is the people who bear the heavy burden of the surplus labour. The other equally injurious effect of indiscriminate regularization has been that many of the agencies have spped undertaking casual or temporary works though they are urgent and essential for fear that if those who are employed on such works are required be continued for 240 or more days have be absorbed as regular employees although the works are time-bound and there is no need of the workmen beyond the completion of the works undertaken. The public interests are thus jeopardized on both counts."