AERONAUTICAL DEVELOPMENT AGENCY Vs. V NANJAMMA

JUDGEMENT

(1.) It will indeed be a travesty of justice when Courts decline to protect the livelihood of a person who has had the good fortune to receive employment. There is so much debate on whether there can be any meaning or substance in the fundamental right to life if it is bereft of the assurance of income through work. The Republic of India should rightly be proud of schemes guaranteeing, even to a limited extent, rural employment. If the progress of our country cannot be lauded it is on account of the manifestation of the rich getting richer whilst the lot of the vast majority remains stagnant, is reason for regret. Eagerness for engagement in service cannot become a crime unless it is procured by illegal means. This is how we preface the present litigation initiated by the Petitioners praying for their absorption in the workforce of the Appellants. There is no dispute that the Respondents were employed by the Aeronautical Development Agency ("ADA" for brevity), without any coercion and without transgressing any of its Rules or practices, between the years 1985 and 1989; that ADA issued a Circular dated 29.07.1989 proposing to engage a Contractor for supply of labour leading to the filing of writ petitions assailing this device which had the regrettable result of metamorphosing their initially temporary or casual employment into an amorphous and legally tenuous one dependent entirely on the whim and while of the contractor or the employer. There was no backdoor engagement, no nepotism and no infraction of Rules because none were in existence. Rue the day when the Courts turn a blind eye to the use of stratagems by employers to deprive a simple impoverished and the lowest rungs of society of their right to live. What respect will our Constitution then demand. And the situation is all the worse since the employer is a creature of the Government who must already have expended in this protracted litigation what the Petitioners would collectively have earned throughout their years of employment. Our attention has been drawn to (i) Air India vs. United Labour Union, 1997 9 SCC 377 and (ii) Steel Authority of India vs. National Union Waterfront Workers, 2001 7 SCC 1 (SAIL) as the exposition of what the Apex Court earlier considered was the law, and what it thereafter and currently holds it to be. Learned Senior Counsel for the Appellants has eloquently argued that the present lis is completely covered by the Constitution Bench decision (iii) State of Karnataka vs Umadevi, 2006 4 SCC 1; (iv) Surinder Prasad Tiwari vs U.P. Rajya Krishi Utpadan Mandi Parishad, 2006 7 SCC 684; (v) Accounts Officer APSRTC vs K.V. Ramana, 2007 2 SCC 324; (vi) Pinaki Chatterjee vs Union of India, 2009 5 SCC 193; (vii) General Manager, Uttaranchal Jal Sansthan vs Laxmi Devi, 2009 7 SCC 205; (viii) State of Rajasthan vs Daya Lal, 2011 2 SCC 429; and (ix) Union of India vs Arulmozhi, 2011 7 SCC 397. It is contended that the learned Single Judge has not applied the law correctly in the impugned judgment thereby bringing upon himself the censure and disapproval meted out by the Apex Court in Official Liquidator vs Dayanand, 2008 10 SCC 1 where the three Judge Bench had to castigated the observations in U.P.SEB vs Pooran Chandra Pandey, 2007 11 SCC 92 to the effect that the ratio in Umadevi, "should not be applied by Courts mechanically as if it were an Euclid's formula without seeing the facts of a particular case..... as a little difference in facts can make Umadevi's case inapplicable to the facts of that case." In Dayanand, the Bench thereafter analysed several judgments of the Apex Court and eventually scathingly stated that the two Judge decision in Pooran Chandra Pandey "should neither be treated as binding by the High Courts, Tribunals and other judicial foras nor they should be relied upon or made basis for bypassing the principles laid down by the Constitution Bench." Learned Senior counsel for the Appellant has, on this predication, pressed for the rejection of the writ petitions and the acceptance of the appeals.

(2.) Perish the thought or even the possibility of any Bench of the High Court delivering a decision in disregard of and to a precedent established by the Supreme Court of India. It would tantamount to judicial indiscipline which in turn would inexorably lead to a miscarriage of injustice. Jural ignorance of the law laid down by the Apex Court is also an abhorrence. The obverse of this principle is that every Judge is duty bound to distill the factual matrix of a precedent in order to digest the dictum to be derived from it. It is our analysis that none of the decisions to which our attention has been drawn by learned Senior Counsel for the Appellants deals with a situation where the services of persons have been engaged and have continued uninterruptedly for several years, without at its inception, transgressing extant recruitment rules or norms. Air India ordained that the 'contracted' labour shall be deemed to be in 'direct relationship' with principal employer who is obliged to absorb these workers under Article 226 of the Constitution; and every High Courts in India possesses powers to direct a principal employer to absorb such workers. It was this enunciation that came to be overruled by the Constitution Bench in SAIL where it was laid down, interalia, that engagement of contract labour does not culminate in the emergence of a master and servant relationship between the principal employer and the contract labour; and that a direction for the absorption of the erstwhile contract labour was not envisaged in law. The conclusion of the Constitution Bench, as are germane for the present purposes, are extracted for facility of perusal-

(3.) We must reflect on why the contract labour system evolved. It seems to us that the simple answer is that it was an attempt to defeat the labour rights of workers by creating an artificial severance in the chain of actual employment. Predictably, this practice was peremptorily ended by the Contract Labour (Regulation and Abolition) Act, 1970. Counsel for the employers invariably place emphasis on the 4th sub-paragraph of paragraph 125 of SAIL reproduced above and unfairly gloss over the next two paragraphs. It is now an integral part of our jurisprudence that the Government is expected to exemplify the model employer. Legislation is directed not necessarily with governmental agencies in mind since they ought to automatically implement the prevailing legal ethos. It can be expected that welfare and labour protectionist laws may be received with reluctance by private employers, who have to be forced into compliance therewith. Therefore it is indeed alarming when Authorities adopt unfair labour practice, as is the example of the Respondents in the present case. In Rattan Lal Vs. State of Haryana, 1986 1 LLJ 23 SC, the Apex Court had viewed the intentional break in service and the policy' of adhocism to be in breach of Articles 14 and 16. Another Bench of three learned Judges in Karnataka State Private College Stop-Gap Lecturers Association Vs. State of Karnataka and others, 1993 2 LLJ 83 SC, without reference to any previous decisions ruled that the State Government's policy of appointing ad hoc Teachers for several years, with one day break, paying salaries which were ten rupees less than the minimum payable to regular Teachers was vocative of Article 14. It issued directions for continuing the services of such Teachers, for their regularisation and for payment of salaries on par with the regular Teachers, by implementing the principle of equal pay for equal work. In Bhagwati Prasad Vs. Delhi State Mineral Development Corporation, 1990 1 LLJ 320 SC, it was observed that once the appointments were made as daily rated workers and they are allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective post on the ground that they lack the prescribed educational qualification.