Temporary staff can’t do regular work in precarious jobs: SC

Taking strong note of acute dissimilarity in perks and retirement benefits of temporary and regular employees, the Supreme Court on Monday said that the State as an employer cannot retain a workforce which does the same work as permanent staff but is denied corresponding benefits.

A bench of Justices Sanjay Karol and AG Masih set aside an order of the Patna High Court that denied pensionary benefits to temporary employees who have served for decades in the Department of Post.

The top court said any classification resulting in denial of any benefits to a class of employees who are otherwise similarly situated in terms of duties and responsibilities would fall foul of the constitutional ethos.

The bench said this court has taken a consistent judicial approach that long-serving employees, whether casual or temporary, particularly those who have been conferred recognised status, cannot be denied corresponding benefits, including social security and pensionary benefits.

“The emphasis must be on ensuring that the State does not retain such employees in a precarious condition while extracting services identical to those performed by regular employees,” it said.

The bench directed the Centre to compute and release within three months the pensionary and consequential retiral benefits payable to a group of former employees or legal representatives of the employees who had rendered long years of service under the Department of Posts as casual labourers (Night Guards).

It said, in case of default, interest at the rate of six per cent per annum from the date of accrual till disbursement shall be payable to such persons.

The bench noted that, notwithstanding the conferment of temporary status and the extension of benefits akin to Group ‘D’ employees, the former employees or legal heirs of such employees were never formally regularised in service, mainly due to administrative inaction on the part of the Department of Posts.

“The Directive Principles of State Policy, particularly Articles 38, 39 and 43, cast a positive obligation upon the State to ensure social and economic justice, fair conditions of work, and a decent standard of life for labourers. Pension, in this context, is not a gratuitous benefit but a facet of social welfare and economic justice,” it said.

The top court said the concept of the State as a model employer, read in conjunction with the aforesaid constitutional mandate, reinforces the obligation upon the State to extend fair and equitable treatment to employees who have rendered long and continuous service and that the State cannot extract services of a permanent nature while denying corresponding benefits.

“At this stage, it is also necessary to note that pension is not a bounty but a vested and enforceable constitutional right,” the top court underscored, while referring to a 2013 verdict, which held that pension is a hard-earned benefit amassed by an employee by virtue of long and continuous service and is in the nature of “property” within the meaning of Article 300A of the Constitution.

It said once pension is recognised as a constitutional right in the nature of property, it cannot be taken away except by authority of law.

“A statutory right cannot be rendered illusory on account of inaction of the employer, and such inaction cannot defeat or deny a constitutional right.

“It is in the light of this above discussed judicial approach of this court over a period of time, the provisions of the Scheme and the subsequent applicable circulars must be read, understood and interpreted,” the top court said.

The bench said the Department of Posts formulated the 1991 Scheme for integration of casual labourers within the structured service framework, progressive extension of service benefits to such employees, ultimately leading to their regularisation in service.

It added that Clause 2 of the Scheme provides that casual labourers, upon conferment of temporary status, shall be paid wages on the basis of the minimum of the pay scale applicable to regular Group ‘D’ employees together with Dearness Allowance, House Rent Allowance and City Compensatory Allowance.

“The grant of pay and such other service benefits clearly indicates that the Scheme intended to move casual labourers away from the purely casual or daily-rated framework to progressively align their service conditions with the regular establishment,” it said.

It added that a cumulative reading of the Scheme clearly establishes that it was conceived as a beneficial and progressive framework intended to gradually extend to temporary status casual labourers the service conditions and benefits associated with Group ‘D’ employees.

It cannot be construed in any other manner so as to restrict and defeat its object of assimilation of casual labourers to regular employees, the court said.

“In view of the foregoing discussion and findings recorded hereinabove, we are of the considered opinion that the impugned judgments passed by the High Court proceeded on an erroneous interpretation of the Scheme and the circular dated November 30, 1992.

“The same are unsustainable in law and are, therefore, set aside,” the bench ruled.