Regularise services of workers working for more than five years in BRO and GREF: Uttarakhand HC

Uttarakhand high court has directed the Government of India to frame a Scheme to regularize the services of workers who have worked for more than five years’ continuously in Border Road Organization (BRO) and General Reserve Engineer Force (GREF). It also directed the Government to pay them the minimum of the pay scale being paid to the corresponding regular Group ‘D’ employee, including D.A., H.R.A. and C.C.A. Several other directions meant to ensure welfare of workers were also issued. These directions were issued by a division bench of Uttarakhand high court, comprising Justices Rajiv Sharma and Alok Singh on 5 December 2016 in the case of Union of India & others v. All India Trade Union Congress & others [Special Appeal No.485 of 2015].

In this case, initially, a writ petition was instituted by respondents, on behalf of Members of Trade Union, seeking regularization of their services. The members of the Trade Union are working with the Border Road Organization (BRO) in various projects and General Reserve Engineer Force (GREF) in the State of Uttarakhand which are in the border areas such as Uttarkashi, Pithoragarh, Chamoli etc. The members made various representations but those were not considered. A single judge of the high court vide judgment dated 11 March, 2015, allowed the writ petition of the workers.

This judgment was challenged in the present case before the division bench of the high court by Union of India and others. The case of the appellants was that the casual workers like the members of respondents-federations are not engaged against any regular vacancies. The casual labour is not engaged against any regular establishment. There is no regular budget provision in the annual budget of the organization. Their wages are paid out of the funds earmarked for the works they are deployed depending upon the work load or as provided by the agencies by whom the work is entrusted to the BRO.

It is noteworthy that the Border Roads Development Board comes under the Ministry of Defence. It is headed by a Lt. General from the Army. Similarly, the General Reserve Engineer Force is the force that carries out the responsibilities and tasks assigned to BRO. The GREF is primarily responsible for providing engineering support to the Army vide Notification dated 14.8.1985.

However, rejecting the contention of the appellants, the division bench of the high court held that the fact of the matter is that the members of the Federation are working for more than 10-20 years as daily wagers and casual labours. The construction of roads in border areas is a continuous process. The members work in harsh weather conditions without any proper equipment. The services of the labourers cannot be terminated without sufficient grounds. In case, the work is not available at one particular place, they are required to be deployed in adjoining area.

The high court also referred to similarly situated persons who had filed writ petition before the Jammu and Kashmir High Court. The writ petition was disposed by the Single Judge on 6-2-2002 by directing to regularize the service of the workers. In that case, the Union of India had filed an L.P.A. against the said judgment, but the said L.P.A. was dismissed by the Division Bench of Jammu & Kashmir High Court on 8.1.2005. Union of India preferred Special Leave Petitions (SLPs) against the order dated 8.1.2005. These SLPs were also dismissed by the Apex Court on 7.12.2009. A review petition was also preferred by the Union of India which was also dismissed by the Apex Court on 9.2.2010.

In the present case, the division bench of Uttarakhand high court held that Union of India, till the finalization of Scheme, could, at least, grant the members of respondent Federation, a temporary status. The artificial breaks given to the casual labourers are illegal. The members of respondent Federation have no bargaining powers with the Union being lowly paid employees. India is a welfare State. Our preamble talks of socialism. The welfare State and the socialism have defined connotations. The socialism and welfare State are the basic features of the Constitution. A welfare State cannot deprive the regular status to its employees who are working for more than 10-20 years, that too, on meagre wages in border areas.

The high court further held that it may be true that the members of respondent Federation have not been engaged against the regular posts but the fact of the matter is that they are continuously working for more than ten years and are being paid wages from the government funds. The construction of roads in the border areas is a continuous process and if one road is complete, the BRO/GREF undertakes to construct the next road. They are working regularly and their work cannot be termed as temporary. They are entitled for the basic wages to enable them to feed their children. They are also required to impart education to their children besides reasonable housing facilities in the remote areas including the clothing and equipment.

The high court also held that directions have been issued illegally by the higher authorities to their subordinates not to permit the respondents/workmen to work for more than 240 days. Directions have also been issued by the higher authorities to their subordinates to dismiss the workmen after completion of 239 days. The high court held that this is a callous attitude of the authorities towards their fellow citizens and is highly condemnable by this Court. One must give due respect to the workmen. It is the workmen who toil hard in nation building. The construction of roads in the border areas is of utmost importance and the same cannot be compromised by insensitive officers/officials of the Organization who have no respect for the human values.

The high court also referred to various judgments of the Supreme Court, inter alia, on the issue of welfare of workers:

• All India Reserve Bank Employees’ Association and another Vs. Reserve Bank of India and another, AIR 1966 SC 305.
• S. Nakara and others Vs. Union of India, 1983 (1) SCC 305.
• Vincent Panikurlangara v. Union of India & others, (1987) 2 SCC 165.
• Consumer Education & Research Centre & others v. Union of India & others, (1995) 3 SCC 42.
• Paschim Banga Khet Mazdoor Society & others v. State of W.B. & another, (1996) 4 SCC 37.
• Municipal Corporation of Delhi Vs. Female Workers(Muster Roll) and another, 2000 (3) SCC 224.

In view, inter alia, of these reasons, the high court gave following mandatory directions to the Union of India:

1. 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.
2. 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 ‘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 pro-rata 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.
3. Union of India is directed to implement all the labour laws i.e. EPF, Gratuity Act, Bonus Workmen Compensation Act qua the members of respondent Federations.
4. 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.
5. 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.
6. 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.
7. The Union of India is directed to provide the members of respondent Federation pre-fabricated houses with a separate bathroom. The rooms should be airy and well-lit. The houses should be provided with sufficient fuel to make them warm during severe winter conditions.
8. The Union of India is also directed to open Crèches in the areas where more than 20 families are deployed.
9. 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.
10. The Union of India is directed that all the casual labourers who receive injuries, while discharging Act, the duties in harsh conditions in border areas, should be treated in Military Hospitals free-of cost. 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.

The high court also imposed costs of Rs. 50,000 on the appellants.

Read full order of the court: