REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL  APPEAL No.3146   OF 2019 (Arising out of S.L.P.(C) No.17667 of 2017)

Union of India & Ors. ….Appellant(s)

VERSUS

All India Trade Union Congress  & Ors.               ….Respondent(s)

                 J U D G M E N T

Abhay Manohar Sapre, J.  

1. Leave granted.

2. This appeal is filed against the final judgment

and order dated 05.12.2016  passed by the  High

Court of Uttarakhand at Nainital in S.A. No.485 of

2015 whereby the High Court dismissed the appeal

filed by the appellants herein and issued directions

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to them in the nature of mandamus by framing a

scheme itself for its implementation to regularize

the services of the Casual Paid Labourers and

granted  them the  benefits  similar to those  of the

regular employees under all the Labour Laws.

3. A  few facts need mention hereinbelow for the

disposal of this appeal, which involves a short point.

4. The appellants herein are the respondents and

respondents herein are the writ  petitioners of the

writ  petition  filed  in the High Court out of  which

this appeal arises.

5. All India Trade Union Congress(respondent

No.1) is a registered  Trade  Union,  GREF  Mazoor

Kalyan Sangthan(respondent No.2) is also a Trade

Union,  which  is affiliated to respondent No.1 and

respondent  No.3 is one of the casual  workers in

Border Road Organization.  Respondent Nos.1 & 2­

Trade Unions consist of  members who are casual

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workers working in different organizations. There is

an organization called “Border Roads Organization”

(for short, “BRO”). This organization functions

under the Border Roads Wing, Ministry of Defence

and General Reserve Engineering Forces (GREF).

6. Respondents­Trade Unions filed a writ petition

in the High Court of Uttarakhand at Nainital against

the appellants claiming a relief for regularization of

the casual workers, who according to the

respondents (writ petitioners) were  working for a

considerable long period in one project undertaken

by the BRO in the State of Uttarakhand for

construction of roads for going to pilgrimage of Char

Dham Yatra. It was the case of the writ petitioners

that these workers though working for number of

years for the  Union  of India and rendering their

services, but they were neither being regularized in

the Government set up as a Government employee

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and nor were being paid regular

salary/perks/facilities which were being paid to

Government employees and nor they were being

provided with any protection which was available to

any  Government employee.   In substance  and in

effect, the respondents (writ petitioners) claimed

that all the casual workers, who were working in the

project in question should be regularized in

Government Service.

7. The appellant­Union of India opposed the

claim of the respondents(writ petitioners). The

Single Judge by order dated 11.03.2015 allowed the

writ petition and directed the appellant­UOI to

regularize the services of the workers.   The

appellants felt aggrieved and filed intra court appeal

before the  Division  Bench  of the  High  Court.  By

impugned order, the Division Bench dismissed the

appeal with costs of Rs.50,000/­ and while

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affirming the order of the Single Judge modified it

and issued further a writ of mandamus by directing

the appellant­Union of India to frame a scheme to

provide specific facilities to the workers enumerated

in the directions.   The directions contained in para

24 of the impugned order reads as under:

“24.  Accordingly, there is  no merit in this appeal  and the same  is  dismissed  with  the costs quantified as Rs. 50,000/­ (Rupees fifty thousand only). Judgment rendered by learned Single Judge is affirmed and following mandatory directions are issued to the Union of India:  

A. Union  of India is  directed to frame  a Scheme within a period of three months from today positively to regularize the services of the members of respondent Federations who have worked for more than five years’ continuously in BRO and GREF. The Union of India shall take into consideration the various schemes already framed by the  Department of Personnel & Training from time to time while framing fresh scheme.  

B. Union  of India is  directed to  pay  the members of respondents Federations the  minimum of the pay scale being paid to the corresponding regular Group

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‘D’ employee, including D.A., H.R.A. and C.C.A. The members of respondent Federation shall also be entitled to regular increments, as applicable to Group ‘D’ employees. They shall also be entitled to leave on pro­rata basis at the rate of one day for every ten days of work. The female members of the Federations are held entitled to maternity leave at par with regular Group ‘D’ employees.  

C. Union of India is directed to implement all the labour laws i.e. EPF,  Gratuity Act, Bonus Act, Workmen Compensation Act qua the members of respondent Federations.  

D. Communications dated 7.4.2011, 9.4.2011 and 18.4.2011, issued by the Union of India, are declared ultra vires the Constitution and are quashed and set aside.  

E. The Union of India is directed to give temporary status to the workmen/casual labourers who have worked for more than 240 days continuously in the block of 12 calendar months.  

F. The Union of India is directed to provide warm clothes to the casual labourers deployed in the border areas since they have to  work in very low temperatures.  

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G. The Union of India is directed to provide the members of respondent Federation pre­fabricated houses with a separate  bathroom.  The rooms  should be airy and well­lit. The houses should be provided with sufficient fuel to make them warm during severe winter conditions.  

H. The Union of India is also directed to open Creches in the areas where more than 20 families are deployed.  

I.  The respondents are directed not to retrench the services of the workmen, who have completed more than 240 days without following the due process of law.  

J.  The Union of India is directed that all the causal labourers who receive injuries, while discharging the duties in harsh conditions in border areas, should be treated in Military Hospitals free­of­cost. The Union of India is also directed that the casual labourers from the camping site of construction should be transported in buses and not in open trucks.”  

8. It is against this order, the appellant (Union of

India) have felt aggrieved and filed the present

appeal by way of special leave in this Court.

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9. So, the short question, which arises for

consideration, is whether the  High  Court (Single

Judge and Division Bench) was justified in allowing

the respondents’ writ petition and was justified in

issuing the directions after framing a Scheme itself

in the nature of mandamus against the appellant­

UOI to frame a scheme for providing specific kinds

of facilities/benefits to the casual workers working

in BRO in the State of Uttarakhand in construction

activities.

10. Heard Mr. Ajit K. Sinha, learned senior

counsel for the appellants and Mr. Colin Gonsalves,

learned senior counsel for the respondents.

11. Having heard the learned counsel for the

parties and on perusal of the record of the case, we

are  inclined to allow the appeal and while setting

aside the impugned order dismiss the writ petition

filed by the respondents.  

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12. It  may  not be  necessary to elaborately deal

with the issues arising in the case because we are of

the view that the issue involved in this appeal is no

longer res integra and settled by the decision of this

Court in  Union of India  vs.  Vartak Labour Union

(2) [(2011) 4 SCC 200].  

13. That was also a case where the Union of

workers namely “Vartak Labour Union” had claimed

a relief of regularization of the services of the casual

workers who were working in BRO for a

considerable period in construction activities

undertaken  by  BRO  in the  State  of  Assam.  The

Union of workers, therefore, filed a writ petition

against the Union of India in the  Gauhati High

Court. The High Court allowed the writ petition and

directed the Union of India to regularize the services

of all such casual workers. The Union of India felt

aggrieved and  filed special leave to appeal  in this

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Court against the judgment of the  Gauhati  High

Court.  This Court allowed the appeal and set aside

the order of the Gauhati High Court with the

following observations:

“17. We are of the opinion that the respondent  Union’s claim  for regularisation of its  members  merely because they have been working for the BRO for a considerable period of time cannot be granted in light of several decisions of this Court, wherein it has been consistently held that casual employment terminates when the same is discontinued, and merely because a temporary or casual worker has been engaged beyond the period of his employment, he would not be entitled to be absorbed in regular service or  made permanent, if the original appointment was not in terms of the process envisaged by the relevant rules. [See State of  Karnataka  v.  Umadevi (3);  Official Liquidator v. Dayanand; State of Karnataka v. Ganapathi Chaya Nayak; Union of India v. Kartick Chandra  Mondal; Satya Prakash v. State of Bihar and Rameshwar Dayal v. Indian Railway Construction Co. Ltd.]

22. Therefore, in the facts and circumstances of the instant  case,  where  members  of the respondent Union have been employed in terms of the Regulations and have been consistently engaged in service for the past thirty to forty years, of course  with short

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breaks, we feel, the Union of India would consider enacting an appropriate regulation/scheme for absorption and regularisation  of the services  of the  casual workers engaged by the BRO for execution of its ongoing projects.

23. In the final analysis, the appeals are allowed, and the impugned judgments and orders are set aside. However, in the circumstances of the case, the parties are left to bear their own costs.”

14. Keeping in view the law laid down by this

Court in the case of Union of India (supra) when we

examine the facts of the case at hand, we find that

the facts  of the case at  hand and the  one which

were subject matter   in the case of  Union of India

(supra) are identical in all respects except that

name of the Trade Union of workers and place of

working in  both the  cases  are  different,  which is

hardly of any significance.

15. The High Court, in our view, should have,

therefore, examined the case in the light of the law

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laid  down by  this  Court in the  case  of  Union of

India (supra) rather than to evolve its own separate

scheme.  

16. The High Court failed to see that it is not the

function of the Courts to frame any Scheme but it is

the sole prerogative of the Government to do it.  

17. All that the High Court, in exercise of its

extraordinary power under Article 226 of the

Constitution, can do is to direct the Government to

consider for framing an appropriate Scheme having

regard to the facts and circumstances of any case

which this Court did in the case of  Union of

India(supra) but not beyond it. It is only in an

exceptional case where the Court considers it

proper to issue appropriate mandatory directions it

may do so but not otherwise.  

18. It is not in dispute that the appellant­Union of

India has now framed a welfare scheme for all such

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casual workers. The salient features of the welfare

scheme and the benefits which are being extended

to all such casual workers are set out in Para 14 (i)

to (xii) of the petition. (see page M to R of SLP paper

book)

19. Learned counsel for the respondents by

placing reliance on a scheme(Annexure R­2)

contended that it is this scheme which should have

been implemented.   We find no merit in this

submission.   This issue, we find, was already

considered in the case of   Union of India  (supra)

and rejected.  

20. In the light of the foregoing discussion, we are

unable to agree with the reasoning and the

conclusion arrived at by the High Court in the

impugned order.

21. As a consequence, the appeal succeeds and is

accordingly allowed.   The impugned order is set

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aside and as a result thereof, the writ petition filed

by the respondents is dismissed.    

                                    .………...................................J.                                    [ABHAY MANOHAR SAPRE]    

                                      …...……..................................J.

            [DINESH MAHESHWARI] New Delhi; March 15, 2019

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