Regularising Workers Who Were Not Appointed Following Due Procedure Amounts To 'Back Door Entry': Punjab & Haryana High Court

The Punjab & Haryana High Court has made it clear that workers who are not appointed following the official procedure prescribed for appointing a regular employee cannot be regularised as the same would amount to legalising the "Back door entry."

Justice Jagmohan Bansal said, "It is crystal clear that employees who have not been appointed after following procedure prescribed for regular appointment cannot be regularized. It amounts to backdoor entry. It violates Articles 14 and 16 of the Constitution of India. No part time or casual worker can claim regularization on the ground of long period of service. He cannot claim violation of Article 21 of the Constitution of India."

The Court was hearing the plea of the National Institute of Technology Kurukshetra, a central university challenging the order of a labour tribunal whereby it directed to regularise the service of mess workers who were appointed by a committee of students on a temporary basis.

After examining the submissions and referring to the catena of judgements, the Court noted that the mess workers were not appointed after following the procedure meant for the appointment of regular employees.

"There was no advertisement, no interview and no written test. The appointment was made, though, under the signature of Warden/Chief Warden, however, by Mess/Food Committee which comprised of students," it added.

The judge observed that the employees appointed without following prescribed procedure or appointed in the absence of permanent post cannot claim regularization and cannot be regularized by the High Court or Supreme Court. "Their regularization would amount to legalization of backdoor entry and violation of Articles 14 and 16 of the Constitution," added the Court.

It found that the Labour Court erred in finding that, "mess workers are employees of petitioner-University. There is an Employer/Employee relationship between University and mess workers."

"The Tribunal has ignored the fact the petitioner-University is engaged in imparting education. It is a Government University and its motive is not making profit whereas its motive is to produce high quality of engineers who may become asset of the country and serve the nation. The University is bound to provide hostels to its students. Food is served in the hostels. The mess is managed by a Committee of students. Discipline is paramount in every educational institution especially when young students are involved," added the bench.

Justice Bansal highlighted that the appointment of mess staff was made by the Committee and salary was paid by said Committee. The Committee was also authorised to remove any employee, however, removal is approved by the Warden.

"The workers are not paid out of funds of the University. The mess workers indubitably fall within the definition of 'workmen' as provided under Section 2(s) of ID Act and they can claim rights contemplated by the ID Act, however, on account of continuity of service do not become employees of the University," it said,

The Court concluded that the University is neither paying salary nor contributing to ESI/Provident Fund, thus, "findings of the Tribunal that there is Master-Servant relation between University and mess workers is misconceived."

Mr. Amarjit Singh Virk, Advocate for the petitioners.

Mr. Dinesh Kumar, Advocate for respondent No. 1.

Title:  BOARD OF GOVERNORS, NATIONAL INSTITUTE OF TECHNOLOGY, KURUKSHETRA AND ORS V. MESS KALYAN EMPLOYEES UNION AND ANR

Citation: 2024 LiveLaw (PH) 265

Click here to read/download the order