Wednesday, March 23, 2011
ON UNFAIR LABOUR PRACTICE
SC Chides Centre for its 'Anti-Labour' Policy
New Delhi | Mar 22, 2011
The Supreme Court has chided the Centre for adopting "unfair" labour practices of employing a large number of casual labourers for six months and then giving "artificial breaks" by terminating their services to avoid regularisation.
A bench of justices D K Jain and H L Dattu expressed anguish that the central government, instead of being a role model employer, had chosen to adopt such anti-labour policies for the past 40 years in the Border Roads Organization (BRO).
"We are constrained to observe that the conduct of the appellants (union government) in engaging casual workers for a period of less than six months, and giving them artificial breaks so as to ensure that they do not become eligible for permanent status, as evidenced from the additional affidavit dated 23rd April, 2010, does not behove the Union of India and its instrumentalities which are supposed to be model employers," Justice Jain writing the judgement said.
The apex court made the remarks after examining an affidavit filed by the Centre admitting the fact that a large number of casual labourers have worked with "Project Vartak" for a number of years but their period of engagement at no stage had existed more than six months at a time.
"Their services are terminated before completion of six months and as per requirement they are recruited afresh by publishing Part II order by Mustering Unit."
"Due to the fact that they have not been in continuous engagement for more than six months, they do not get the status of permanent employee and accordingly as per Paragraph 503 of the Regulation referred to above, the casual personnel are not eligible for any other privileges for continued employment under the government," the Centre had acknowledged in its affidavit.
The apex court, however, upheld the appeal filed by the Centre challenging the March 27, 2001, Guwhati High Court order which directed the Centre to regularise the services of a large number of casual labourers working for the BRO projects.
The High Court had passed the direction on the basis of an inter-departmental communication for regularisation of the casual labourers' services.
The apex court accepted the argument of Additional Solicitor General Vivek Tankha that the High Court committed a serious error in law in treating communication dated 2nd February 2001, as a final scheme framed for regularization of the casual labourers engaged by BRO for a maximum period of 6 months at a time.
"We are convinced that the Division Bench had erroneously construed the Office memo dated 2nd February, 2001, as an approved scheme for absorption and regularization of the casual workers. It is manifest from a bare reading of the said memo that it was merely in the nature of an inter-department communication between the Border Roads Development Board headquarters and its officials."
"It is trite that inter-departmental communications and notings in departmental files do not have the sanction of law, creating a legally enforceable right," the bench said.
However, the apex court said that in the facts and circumstances of the case it hoped the Centre would consider enacting an appropriate regulation/scheme for absorption and regularization of the services of the casual workers engaged by BRO for execution of its on-going projects.