D P SINGH Vs. ENGINEERING PROJECTS INDIA LIMITED

JUDGEMENT

(1.) By this writ petition under Article 226 of the Constitution of India, the petitioner/workman seeks an appropriate writ or order or direction, directing the first respondent M/s Engineering Projects India Limited, a Government of India Enterprise (executing construction projects in India and abroad) to regularise the services of the petitioner in the post held by him since 1976 and accord the same salary and conditions of service as are being given to all the regular employees performing similar duties and functions w.e.f. 12 February 1976. The second respondent is the Project office of the first respondent at Badarpur (Delhi) where the petitioner was last working

(2.) According to the petitioner he was employed as a Chowkidar on daily wages w.e.f. 12 February 1976 by respondent No.1 at Bokaro site office Dhanbad. As per his appointment letter, the appointment was temporary and on casual basis for 44 days. After the expiry of 44 days he was re-appointed on the same post vide letter dated 27 March 1976 for a further period of 44 days' on the same terms and conditions. Thereafter vide letter dated 31 May 1976 he was appointed as a Chowkidar on a consolidated salary. As per the appointment letter he was to be on probation for a period of six months which could be extended if considered necessary. As per clause 5 of said appointment letter his appointment with respondent No.1 was for a period of two years or till the completion of its project Bokaro Coal Crushing and Blending Plant, whichever was earlier and thereafter his services were liable to be terminated or else he could be considered for appointment in the company, subject to the approval of the Chairman and Managing Director. The petitioner's case is that he has been continuously working with the respondents since 1976 and was performing the same duties and functions as were being performed by the regular employees of respondent No. 1 but the respondents have failed to regularise his services. He claims that as per his service conditions he is entitled to the uniform and other benefits which are admissible to regular employees but the same are being denied to him on the ground that he was a temporary employee, even though the respondents have regularised the services of a temporary employee who was appointed later in time and is junior to the petitioner, as far back as in 1981. He, thus, contends that having put in 12 years of un-interrupted service with the respondents, refusal on their part to regularise his services and denial of the same pay and other benefits/facilities, as are being granted to the regular employees, is discriminatory, in violation of Articles 14 and 16 of the Constitution and against the judicial pronouncements of the Supreme Court.

(3.) The petition is resisted by the respondents. Apart from contesting the claim of the petitioner on merits, a preliminary objection to the maintainability of the writ petition has been raised in the counter- affidavit filed. It is claimed that an alternative and efficacious remedy is available to the petitioner under the Industrial Disputes Act 1947 (for short the Act), this Court should not exercise its extra-ordinary jurisdiction under Article 226 of the Constitution of India particularly because a similar writ petition filed in the Allahabad High Court on behalf of some of the project duration employees was dismissed in limine on the ground that the petitioners may raise an industrial dispute. On merits, it is stated that the first respondent, executing construction projects all over the country and abroad recruits regular as well as temporary employees for each project, who on the completion of the project, become surplus and in the normal course have to he discharged but still efforts are made to take back as many surplus employees as possible at the other upcoming projects. It is stated that the petitioner is a project duration employee and in the normal course he would have been discharged from the Bokaro project after its completion, as is normally done at all other sites but having regard to the memorandum of settlement dated 1 December 1981 between the respondents and the workmen, the petitioner was offered a temporary appointment at the construction site at Badarpur (Delhi) and on the completion of the main project work at Badarpur, he having become surplus had to he discharged like other security guards engaged on project duration basis. The respondents deny any illegality, discrimination or arbitrariness in their action.