REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CONTEMPT PETITION (C) NO.817 OF 2018 IN

CONTEMPT PETITION (C) NO. 309 OF 2016 IN

S.L.P (C) NO. 4470 OF 2014

BADRI VISHAL PANDEY AND ORS.                 .... PETITIONERS

VERSUS

RAJESH MITTAL AND ORS.                        .... RESPONDENTS

WITH

CONTEMPT PETITION (C) NO. 1290/2018 IN CONTEMPT PETITION (C) NO. 860/2016 IN S.L.P (C) NO. 3540/2015

WITH

CONTEMPT PETITION (C) NO. 1291/2018 IN CONTEMPT PETITION (C) NO. 861/2016 IN S.L.P (C) NO. 3542/2015

J U D G M E N T Hemant Gupta, J.

The present Contempt Petitions arise out of an order passed by

this Court on 07.09.2015 which reads as under:-

“It is submitted by learned counsel for the petitioner that it has decided to take the respondents-workmen  on  daily  wage basis  as  per  the  office  order  dated 07.04.2015  and  list  contained  therein. Needless  to  say,  the  names  of  the respondents-workmen are included in the list  contained  in  office  order  dated

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07.04.2015 which  has  been  filed  before this Court. Learned  counsel  for  the  respondents submitted  that  as  the  names  of  the respondents-workmen are included in the list as per the aforesaid office order, they have no grievance. Recording  such  concession,  the  special leave petitions  stand disposed of.  There shall be no order as to costs.”

2. Earlier Contempt Petitions filed before this Court alleging non-

compliance of the said order were disposed of on 11.01.2017 in view

of the fact that the name of respondents-workmen has already been

included in the seniority list.

3. The background leading to the present contempt petitions is

that  U.P.  Jal  Nigam Construction  Division  (Jal  Nigam in  short)  has

engaged  workmen  in  the  category  of  Runner,  Beldar  and  Lab

Assistants prior  to 1991. The services of  the workmen engaged or

appointed after 31.3.1989 were retrenched on 22nd June, 1991 or so in

terms of Section 6N of the U.P. Industrial Disputes Act, 1947 (Act in

short). The Writ Petition No. 5686 of 1991 challenging such order of

termination was decided on 5.11.2009, when the following order was

passed:-

“3.  Petitioners  were  engaged  as  daily wager in the U.P. Jal Nigam sometime in the  year  1989  on  various  dates  facing retrenchment  of  their  services  in pursuance to decision taken by the Board. U.P.  Jal  Nigam took  a  decision  and  had issued  a  circular  that  all  the  persons appointed  after  31.8.1989  shall  be retrenched after  serving a month notice and  payment  of  salary.  Accordingly,  in pursuance to decision taken by the Board

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petitioner's  services  have  been terminated after  payment of  one month salary. Cut off date fixed by the Jal Nigam has  been  impugned  in  the  present  writ petition.

4.  In a recent  judgement reported in  JT 2009 (9) SC 229, A.Manjula Bhashini and others Vs. The M.D., A.P. Women Coop. Finance Corp. Ltd. their Lordship of  Hon'ble  Supreme  Court  held  that ordinarily fixing of cut of date can not be held arbitrary unless it suffers from want of  jurisdiction  or  violative  of  certain statutory  provisions  or  constitutional mandate.

5. In the present case, nothing has been brought on record to indicate that cut off date fixed by the Jal Nigam suffers from any illegality or violative of fundamental right  available  to  the  petitioner.  Initially an interim order was passed by this court but Hon'ble Supreme Court while deciding Special  Leave  Petition  against  the  said interim order had set aside the same and permitted the Jal Nigam to proceed at its end.

6. In view of above, there appears to be no substantial  illegality in the impugned order passed by the Jal Nigam divesting the  petitioner  from  service.  However, since the petitioners had discharged duty for  about  three  years,  it  shall  be appropriate  for  U.P.  Jal  Nigam  to  give preference  to  the  petitioners  while making  any  fresh  selection  or appointment for the post of  daily wager or work charge employee or muster roll in future vacancies.”

4. The  petitioner  No.1  raised  an  industrial  dispute  which  was

referred to Labour Court, Mirzapur. The learned Labour Court ordered

to  pay  compensation  of  Rs.  25,000/-  and  Rs.  2,000/-  as  litigation

expenses in its  Award dated 04.02.2009.  The Award of  the Labour

Court notices a fact that the services of the workman was engaged on 3

1.4.1990 and terminated on 22.6.1991. It also noticed that the order

of termination was stayed on 20.5.1991 in Writ Petition No. 18124 of

1991 but after the decision of the said writ petition, the services of

the workman was terminated in 1994.

5. Such Award was challenged by the first petitioner by filing Writ

Petition-C  No.  4027 of  2010.  The learned  Single  Bench  passed  an

order in terms of the order passed in Writ Petition-C Nos. 35846 of

1997 and 20921 of 1999. Four more writ petitions were decided along

with the said writ petition filed by the first petitioner. The operative

part of order reads as under:

“….  Earlier  there  was  stay  order  and when writ petition was filed the same was dismissed  in  1994  on  the  alternative ground to approach the labour court. The petitioners continued to work upto June, 1994. Subsequently, after dismissal of the writ  petition,  petitioners  were  again terminated  on  01.07.1994.  Admittedly, they have worked for more than 240 days in a calendar year. In view of the fact, all the  petitioners  are  entitled  for  relief hence  the  present  writ  petition  is  also decided in terms of the order passed in writ petition no. 35846 of 1997 and 20921 of  1999.  Accordingly,  the  impugned orders  are  hereby  set  aside.  The respondents are directed to consider the claim of  the  petitioners  in  terms  of  the decision  by  this  Court  in  aforesaid  writ petitions.”

6. The order in the Writ Petition No. 35846 of 1997, as mentioned

in the above order, is of reinstatement but without back-wages. The

relevant extract from the order dated 09.05.2011 reads as under:-

“Looking  to  the  entire  facts  and circumstances,  I  am of  the  opinion  that the  requirement  of  law  and  justice  will best be served by directing reinstatement

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but  without  any  back  wages.  Let  the petitioner be reinstated forthwith and be paid  salary  as  is  being  paid  to  others. Impugned award is accordingly modified.”

7. The  Jal  Nigam  filed  Special  Leave  Petition  Nos.  4470/14,

4802/14,  16142/14,  16137/14  and  16139/14  against  the  common

order  of  the  learned Single  Bench dated 9.10.2013.  Special  Leave

Petition (C) Nos.  3542 of  2015 and 3540 of  2015 were against an

order passed by the learned Single Bench of Allahabad High Court on

27.11.2012 and the order in Review Petition dated 13.12.2013 in Writ

Petition  Nos.  16370  and  16368  of  1999.  Another  Special  Leave

Petition (C) No. 5057 of 2014 was also taken up for hearing which was

directed against an order dated 09.12.2013 passed by the High Court

in Writ Petition No. 54570 of 2011. All such Special Leave Petitions

were decided by the common order dated 07.09.2015 on the basis of

office order dated 07.04.2015 wherein it was resolved that in future,

as  and  when  any  vacancy  arises  on  daily  wages/muster  roll,  the

preference will  be given to terminated/retrenched employee of  the

department.   A list  of  1003 retrenched workmen were attached to

such communication. The relevant extract from the office order dated

7.4.2015 reads as under: -

“1. Due  to  paucity  of  work  order  and excess number of muster roll employees the Department and keeping in view the financial loss caused to the Department; the  said  muster  roll  employees  were terminated from service. Challenging said termination,  the  muster  roll  employees filed cases before the High Court and the Supreme Court.

xxx xxx xxx

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4. In light of the decisions passed by the Hon’ble High Court, and the Hon’ble Supreme Court, it is hereby resolved that in future as and when any vacancy arises on daily wage/ muster roll; preference will be  given  to  the  terminated/retrenched employees  of  the  department.  List  of terminated  muster  employees  has  been provided  to  the  office concerned  to  the Executive Engineer, vide letter reference number  –  424/A-4/191-0037/15  dated 09.03.2015.”

8. The Contempt Petition No. 817 of 2018 has been preferred by

62 petitioners but only the first petitioner was the party before this

Court in a bunch of Special Leave Petitions which were decided on

07.09.2015. The Contempt Petition Nos. 1290 and 1291 of 2018 are

by the petitioners  who were  the respondents  in  the Special  Leave

Petitions filed by the Jal Nigam. Thus, only three of the petitioners

were parties before this Court in the Special Leave Petitions.

9. In  the  written  submissions  filed  by  the  counsel  for  the

petitioners,  it  is  averred  that  an  impression  was  given  by  the  Jal

Nigam that it shall comply with the directions of reinstatement passed

by the High Court. The relevant extract reads as under:

“Therefore,  an  impression  was  given  by  the Nigam  before  this  Hon’ble  Court  that  the Respondent  Nigam  shall  comply  with  the directions  passed by the Hon’ble  High Court (reinstatement without back wages) in terms of  office  order  dated  07.04.2015  and  list contained therein. The fact of having prepared list  of  retrenched  employees  in  terms  of seniority was raised by the Nigam before this Hon’ble Court for the first time in SLP (C) 5057 of 2014.  It is important to mention that the authenticity  of  the  names  contained  in  the office  order  dated  07.04.2015  and  list

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contained  therein  is  not  known  to  the Petitioners and the Petitioners have brought to the notice of this Hon’ble Court.”

10. In  respect  of  an earlier  Contempt  Petition No.  309 of  2016,

which was disposed of  on 11.01.2017,  it  is  again averred that the

impression was given that Jal Nigam shall do the needful to comply

with  the  order  dated  07.09.2015.   The  extract  from  the  written

submissions reads as under:

“That again an impression was given to this Hon’ble  Court  that  the  Respondent  Nigam shall do the needful to comply with the order dated  07.09.2015  passed  by  this  Court  in S.L.P.  (C)  5057  of  2014.   The  Respondent Nigam in  gross  defiance  of  the  undertaking given  before  this  Hon’ble  Court,  deliberately and  wilfully  disobeyed  specific  directions  of this Hon’ble Court to reinstate the Petitioners, as  daily  worker/  muster  roll  employees, without  back  wages,  which  led  to  filing  of second contempt petition no. 817 of 2018.”

11. Learned counsel for the petitioners relies upon communication

dated  15.04.2017  to  contend  that  550  vacant  Group  D  posts  are

available,  therefore,  petitioners  can  be  reinstated  and  regularised

against the vacant  posts thus available.  Therefore,  it  is  contended

that  the  erstwhile  daily  wagers  engaged  on  muster  roll  basis  are

required to be reinstated.

12. It is also submitted that this Court has passed orders from time

to time to comply with the directions issued by this Court.  The Jal

Nigam has employed thirty-two workmen only as daily wage workers /

muster roll  employees.  The learned counsel  for the petitioners has

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thus sought reinstatement of the petitioners at the minimum of pay

scale applicable to the regular employees working on the same posts.

Reliance is placed upon State of Punjab v. Surjit Singh reported in

(2009) 9 SCC 514,  State of Punjab & Others v. Jagjit Singh &

Others reported in (2017) 1 SCC 148 and Sabha Shanker Dube v.

Divisional Forest Officer & Others reported in 2018 (14) SCALE

765.  

13. It  is  further  contended  that  there  was  a  direction  for

reinstatement of the workmen by the High Court and there was no

reason  for  the  petitioners  to  give  up  their  claim  on  the  basis  of

circular  dated  07.04.2015  on  the  basis  of  which  Special  Leave

Petitions were disposed of. Therefore, the circular dated 07.04.2015

has, in fact, prejudiced the claim of the petitioners.

14. The Jal Nigam in the counter affidavit asserted that the circular

dated 07.04.2015 was issued in pursuance of directions of the High

Court in Writ Petition No. 5686 of 1991 as reproduced in para 3 of this

Judgment.  It was decided that in case of necessity of engaging daily

wagers in future, preference will be given to muster roll employees as

per the list of 1003 workmen annexed in the said office order. It is also

pointed out that in terms of interim order passed by this Court earlier

in the present contempt petition, an advertisement was issued in the

newspaper to call 100 retrenched employees as per the seniority list

circulated on 07.04.2015 for the purpose of their re-instatement. Such

advertisement was published as it was difficult task to contact first 40

retrenched employees in order of seniority after lapse of 27 years. In 8

response to such advertisement, 32 employees have responded and

have been appointed on 06.09.2018. It is also averred that there was

paucity of work and also accumulated losses, therefore, retrenchment

was affected in  the year 1991. It  is  also stated that there was no

undertaking  or  direction  to  re-engage  the  retrenched daily  wagers

and  that  the  earlier  Contempt  Petitions  having  been  dropped,

therefore the present petitions do not merit any consideration as the

order of this Court has been complied with.

15. In  the  written  submissions  filed  by  the  counsel  for  the  Jal

Nigam, there is an assertion that there have been no vacancies for

daily wages in the Jal Nigam since the order dated 07.04.2015 was

passed and that in the absence of any such vacancies, no occasion to

employ any of the retrenched employees arises and there is no wilful

and deliberate disobedience by the respondents.    

16. It is further stated that 550 posts in Group D posts are not for

daily wagers / muster rolls and that Jal Nigam has not appointed any

employee even in Group D post even for last five years because it is

facing  financial  strains.  It  is  also  asserted  that  consequent  to

implementation of recommendation of the 6th Pay Commission not to

engage workers on “non-technical” posts through recruitment, it was

decided to outsource non-technical work, if required.  It is asserted

that Jal Nigam has not outsourced any non-technical work since the

year 2010.  It  is  also stated that Jal  Nigam was established under

Uttar Pradesh Water Supply and Sewerage Act, 1975. The execution of 9

projects of  water  supply and sewerage were earlier carried out on

‘Deposit Work Basis’, where the Jal Nigam would purchase material

and engage daily wage labourers to complete the project, under the

supervision of the permanent technical staff.  But, due to increasing

financial stress, the work model has been changed to seek execution

of projects through Contractors. In the new work model, the Project

would be awarded to the contractor whose bid is the lowest.  The

process has eliminated the need for the Jal Nigam to employ daily

wage labourers for execution of projects.

17. We have heard Learned Counsel for the parties and have also

gone through the written submissions submitted. The re-engagement

of retrenched workmen is governed by Section 6Q of the Act which

contemplates  that  where  the  workmen  are  retrenched,  and  the

employer proposes to employ other persons, he shall, in such manner

as may be prescribed give an opportunity to the retrenched workmen

to offer themselves for re-employment, and the retrenched workmen

who offer themselves for re-employment shall have preference over

other persons.

18. We find that the circular dated 07.04.2015 is in terms of the

mandate  of  Section  6Q  of  the  Act  so  as  to  maintain  a  list  of

retrenched workmen to be engaged as and when the necessity arises.

19. The order dated 07.09.2015 has been passed on the basis of

concession given on behalf  of  the workmen in  light  of  the circular 10

dated 07.04.2015. There was no order of this Court to re-engage the

workmen who were parties in the Special Leave Petitions. Therefore,

in  the  absence  of  any  specific  and  categorical  direction  of

reinstatement,  the  petitioners  cannot  claim  any  right  for

reinstatement  on  the  basis  of  the  orders  passed  by  this  Court  on

07.09.2015. Still further, 61 petitioners were not party in the group of

Special Leave Petitions which were decided on 07.09.2015.

20. The Order of this Court dated 07.09.2015 is to take workmen

on  daily  wage  basis  as  per  office  order  dated  07.04.2015.  The

argument that they accepted the order under the impression that the

workmen are being reinstated cannot be accepted as the order dated

07.09.2015  has  been  passed  on  the  basis  of  the  circular  dated

07.04.2015 which contemplates that the workmen shall be reinstated

as per the seniority list as and when requirement in future arises. The

Order  of  the  Court  cannot  be  interpreted  on  the  basis  of  the

impressions which may be drawn by the petitioners, in view of the

specific order passed by this Court on 07.09.2015.

21. The argument that 550 Group D posts are available against

which petitioners may be appointed is not tenable. The Group D posts

are required to be filled on the basis of qualifications prescribed for

filling up of such posts in the Rules as may be applicable to make

appointments to such posts. The petitioners, if eligible, can compete

for  such  appointments.  But  merely  they  were  once  engaged  on

muster  roll,  they  cannot  have  right  to  seek  regular  appointment 11

against Group D posts  dehors the eligibility conditions prescribed in

the Rules. The regular appointment can be made keeping in view the

principles  of  public  appointment  which  is  by  issuance  of  an

advertisement giving opportunity to all eligible candidates to apply

and to consider their  suitability  for  the posts in  non-discriminatory

manner. The petitioners appointed on muster roll basis cannot claim

regular  appointment  against  the  vacant  Group  D  posts  when  the

Award  of  the  Labour  Court  was  of  reinstatement  and  not  that  of

regular appointment.

22. The  judgment  referred  to  by  the  learned  counsel  for  the

petitioners  in  Jagjit  Singh & Others  (supra)  is  not  applicable  in

respect  of  a  daily  wager  engaged  on  muster  roll.  The  question

examined therein was  whether temporarily engaged employees are

entitled to minimum of the regular pay scale, along with dearness

allowance etc. on account of their performing the same duties which

are discharged by those engaged on regular basis, against sanctioned

post. This is not the case of re-instatement of a retrenched workmen

arising out of an Industrial Dispute. In RBI v. S. Mani, (2005) 5 SCC

100, it was held that in law, 240 days of continuous service by itself

does not give right to claim of permanence. Section 25F provides for

grant of  compensation if  a workman is sought to be retrenched in

violation  of  the  conditions  referred  to  therein.  A  direction  for

reinstatement for non-compliance with the provisions of Section 25F

of the Industrial Disputes Act would restore to the workman the same

status which he held when terminated. In the present case, the order 12

of the Writ Court is of reinstatement. The reinstatement can be on the

same  post  and  on  the  same  terms  from  which  services  were

retrenched subject to availability of such posts.

23. In the case of  Surjit Singh (supra),  the question examined

was in respect of applicability of the doctrine of “equal pay for equal

work”.   The  respondents  therein  were  appointed  as  daily  wagers

without  following  any  recruitment  process.   The  question  of

reinstatement  in  pursuance of  Award of  Labour Court  was not  the

issue  raised  or  decided.  In  an  Industrial  Dispute,  the  nature  of

engagement, whether on muster rolls, daily wages or ad-hoc basis is

not the relevant consideration for an Award of reinstatement. The only

question required to be examined is as to whether the workman has

worked for 240 days in a preceding calendar year and as to whether

the  workman  has  been  paid  retrenchment  compensation.  The

question of regularization or equal pay for equal work was not the

dispute raised or examined by the Labour Court.

24. Similarly,  in  Sabha  Shanker  Dube (supra),  the  Appellants

were daily rated workers employed in Group ‘D’ posts in the Forest

Department  in  the  State  of  Uttar  Pradesh.  The  claim  in  the  Writ

Petitions was of regularization of their services and the payment of

the minimum of the pay scales available to their counterparts working

on  regular  posts  and  treating  them as  being  in  continued  service

while condoning the breaks in their service. For the reasons recorded

above, even the issue raised in the said judgment is not helpful to the

arguments raised by Mr. Bhushan, learned counsel for the petitioners. 13

25. Still  further there is no direction in the order passed by this

Court  to reinstate the petitioners or  to place them in minimum or

regular pay scale. The contempt jurisdiction cannot be invoked on the

basis of impressions, when the order of the Court does not contain

any direction for reinstatement or for grant of regular pay scale. The

contempt would be made out when there is wilful disobedience to the

orders  of  this  Court.   Since  the  Order  of  this  Court  is  not  of

reinstatement, the petitioners under the garb of the contempt petition

cannot seek reinstatement, when nothing was granted by this Court.

26. Still further, 61 petitioners cannot claim any grievance of not

engaging them in pursuance of the order passed by this Court when

this Court has disposed of the Special Leave Petitions in the light of

circular  dated  07.04.2015 which  contemplates  that  the  retrenched

employees will be re-engaged in case any requirement arises and in

order of seniority. Therefore, it cannot be said that the respondents

have violated any order passed by this Court.

27. Thus,  we  do  not  find  any  merit  in  the  present  contempt

petitions,  accordingly,  they  are  dismissed.  The  Rule  is  discharged.

However,  the  services  of  the  workmen  who  have  already  been

engaged shall not be affected by this order.

The pending applications, if any, shall stand disposed of.

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.…...........................J. (A.M. KHANWILKAR)

…............................J.    (HEMANT GUPTA)

New Delhi, 4th January, 2019.

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