The Supreme Court set aside a Kerala High Court order passed in 2017-2018 which had called for steps to regularise the appointment of certain casual labourers as plant feeders at Milma, a cooperative society that sells milk and milk products.

A bench comprising Justice Hima Kohli and Justice Ahsanuddin Amanullah observed that the Kerala High Court had lost sight of the fact that the appropriate remedy was the one provided under the Industrial Disputes Act (ID Act). The Supreme Court further pointed out that there were disputed questions of fact that went to the root of the case, which were better adjudicated by the competent authority under the ID Act.

The top court bench further explained that all the aforesaid questions would fall in the realm of disputed questions of fact that would have required evidence to be lead and proper assessment and adjudication before an appropriate authority which in the instant case, even as per the respondents-writ petitioners, would have been a remedy available under the ID Act.

The apex court was hearing an appeal filed by the Ernakulam Regional Cooperative Milk Producers Union, a society which is a member of MILMA against a January 2018 Kerala High Court judgment.

In the aforesaid judgment, the Managing Director of the society had been directed to prepare a list of casual labourers engaged by the society, so that the Director of the Kerala Dairy Development Department could regularise their services as plant attenders. The dispute relates to certain labourers engaged as plant attenders by the society through recruitment notifications issued in 1992 and 2010.

After the cooperative society issued a recruitment notification in 2011 with a view to engage plant feeders, these labourers moved the Kerala High Court to oppose the move. A Kerala High Court single judge bench and later a division bench of the High Court, ruled in favour of the labourers. Subsequently, the order was challenged by the society before the Supreme Court.

Notably, the society disputed the labourer’s contention that they had worked for around 240 days continuously and were thus entitled to the regularisation of their services as per the ID Act. It further claimed that there were breaks in their services and that none of these labourers had worked for more than 200 days in a calendar year. Furthermore, it also maintained that the labourers were well aware that they were not entitled to permanent service.

The top court also found that these were disputed questions of fact which should have first been decided by the authority under the ID Act. The bench remarked that the single judge bench appears to have got swayed by the judgement in the case of Umadevi to hold that the respondents, writ petitioners had put in service for over two decades and were therefore entitled to be regularized in terms of the directions issued in the said decision, unmindful of the fact that the appellant-Society had categorically dismissed the plea.

The court also underlined that according to circulars, the original writ petitioners (casual/ contract labourers) were members of the society and their dependents only.  The court mentioned that if the stance of society is to be believed, it would mean that it was not a case where the labourers were irregularly appointed, but a case of illegal appointments which cannot be regularised.

Subsequently, the top court allowed the society’s appeal and gave the casual workers liberty to pursue remedies under the ID Act. The court added that in the interim, those continuing in service with the society shall not be disturbed for six months.

The Supreme Court today upheld the order passed by the Jammu & Kashmir High Court, permitting the Government’s appeal to disengage need base labourers from performing duties in different Sheep Breeding Farms, for being temporary in nature, as initial engagement order was passed for a period of 89 days (Waheed Ahmed Bhat Vs The State of Jammu & Kashmir). 

A two-Judge Bench led by Justices Sanjay Kishan Kaul and Hrishikesh Roy observed that in light of the plight of casual labourers in the Union Territory of Jammu and Kashmir, who were engaged on need basis and disengaged subsequently, the government should consider providing similar employment. 

The top court noted that the courts cannot impose on the government to employ people or take out schemes and that there was no right or claim for employment in this case. The petitioners in this case were sheep herders, who were employed on a need basis in Jammu and Kashmir. 

Counsel for the petitioner Mustaq Ahmed pressed before the Court that the disengagement orders were not speaking orders and therefore, violative of Article 14 as it was arbitrary. 

The Court observed that the submissions of the petitioner was generalised. The employment can be terminated at any time, when the services are not required according to the facts of the present case. 

The present SLP challenged the final order and judgment dated January 29, 2021, passed by the Jammu and Kashmir High Court in LPA no. 269 of 2019 and connected matters whereby the High Court while deciding an intra court appeal in a batch of matters considered the issue of writ petitioners who were engaged on a need basis in various farms of the department of Sheep Husbandry, Kashmir in 2014.

In 2015, the government had withdrawn the authorisation given to various departments to engage casual/seasonal labour. Apprehensive of disengagement, the petitioners had approached the Hon’ble High Court seeking directions not to disengage them and for release of unpaid wages. 

The government had submitted that the engagement of the petitioners was an interim arrangement and did not confer any right to lay claim on the posts, and that the service could cease based on the performance or need of the department. The High Court in the writ petitions concluded that the government order to withdraw authorization of departments was prospective and therefore not applicable to engagements made prior to its issuance in 2015. Hence, it quashed the orders of disengaging the writ petitioners and further directed the release of unpaid wages. Therefore, the State of J&K availed the Letters Patent Jurisdiction of the Hon’ble High Court. 

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Vide the order, the High Court had observed that the engagement of writ petitioners was temporary and not on any substantive post carrying a regular pay scale and hence temporary. It observed that the services were not terminated not because they were not required, but because of the application of the Government order withdrawing authorization to the departments to engage the petitioners.

Therefore, there was no authority to extend the engagement of the labor. Further, that the engagement was on a need basis and without following any due process of selection, it would justify their disengagement. Hence, it was held that there was no right vested in the writ petitioners to continue in the department indefinitely. The High Court allowed the appeal of the State and set aside the judgment of the Writ Court.