I joined a govt of India psu in Delhi in July 2009 as a contract engineer initially the contract is for 2 years upto 2011. But they further extended the contract agreement for 1 year as the project is still going on. Now on the 1 year extension is given every time , till now I completed 8 years working there as contract engineer and as the first phase of the project is completed they terminated all of us in September 2017 ( there are 43 contract employee) We already approach the management many time in the past for providing regular post in the company As they already done regularisation of some of the contract staff in year 2013 , they have given this chance only because they are posted in foreign location but no chance is given to staff posted in Indian location. Please suggest what legal action we can take in this matter and ask for permanent position.
Dear Client,
How ever long the services on contract basis, no right of regularization arise.
What are terms of agreement, Rules under which such ad hoc appointments permitted.
No discrimination be made while absorption until rules specifically allows.
What rules says for absorption..
Provide details.
Firstly, you should try to get the contract and read it carefully as regard to the condition of being posted as a regular employee.
Secondly, if there is anything or if not then also compare yourselves with those who have appointed as permanent one.
Lastly, it is regularly been done by the PSU's. And if there is any discrepancy then we can move before the court by filing a writ on the ground of discrimination.
You have to check on what criteria the foreign staff has been regularised. You may had the ground to demand regularisation if any indian staff could have been regularised. otherwise generally contract employees cannot demand regularisation to a post which are to be filled by competitive exams i.e. those posts filled by any board or commission.
Hello sir , you can file a writ in Delhi high court , seeking for the relief ..
Hello,
Please tell us the conditions of the contract. If the differentiation is just being made on the basis of the posting then you can challenge the same being in violation of article 14 by preferring a writ petition before the High Court.
Regards
Hi
1) Supreme court has issued many orders in the past wherein it has NOT permitted regularisation/absorption of contract employees in government jobs without any set procedures and processes.
2) The judgments of Supreme Court in Surinder Prasad Tiwari v. U.P. Rajya Krishi Utpadan Mandi Parishad, National Fertilizers Ltd. v. Somvir Singh, State of Karnataka v. Umadevi have always held that "appointment in the State and its instrumentalities should only be in accordance with the rules and procedure relating to regular recruitment".
3) In your case since the PSU has by itself by its arbitrary and discriminatory action opened up a pandora's box where in it has regularised the services of some contract staff (foreign staff) in the year 2013, it is crystal clear that the PSU has acted against the judgment of supreme court in Umadevi's case.
4) You are at liberty to file a case under Article 226 in Delhi HIgh court and pray the court to declare the act of PSU selectively regularising the foreign based contract workers as arbitrary, discriminatory and illegal.
5) The outcome of you filing the case in High court might result in either of the following:
a) The PSU may choose to contest the claim in High court (which is highly unlikely)
OR
b) Avoid unnecessary litigation and fire from Delhi High court, might absorb you in regular employment. however this outcome is dependent on PSU management OR on the collective voice of contract workers(india based) who choose to challenge the PSU in court.
Hope this information is useful.
Seek regularisation/absorption as a parity, in comparison to those who were similarly placed as of you and were regularised in 2013. If this is not done, you all will be meted out with discrimination vis-a-vis those absorbed in 2013.
Approach the High Court and file a writ petition.
You can file writ petition in HC and seek regularisation on grounds that other contract employees have been regularised while you are being discriminated against and services terminated
1. Frankly speaking, there is hardly any chance to force the Management to regularise your service as permanent employees since you were engaged with the said PSU on contractual basis.
2. However, PSUs are found to be very weak in contesting cases and they always want to arrive at an amicable settlement.
3. You can file a Writ Petition before the High Court against your said termination on the ground that you have been discriminated with by the said PSU since other such employees have been absorbed by them leaving you in lurches when you have spent your long 8 years serving them, praying for justice.
4. Sine election year is fast approaching, the Govt. may decide to settle the matter in your favour to avoid any adverse Court order.
You can take up this matter to high court with a writ petition
If there is a precedence of absorbing other contractual employees as permanent staff, you can argue that this partiality shown towards your employment is a cause of concern.
Contract Labour is one of the acute form of unorganized labour
The system of employing contract labour is prevalent in most industries in different occupations including skilled and semi skilled jobs.
In India, contract labourers are protected by the Contract Labour Regulation and Abolition Act, 1970. A contract labourer is defined in the Act as one who is hired in connection with the work of an establishment by a principal employer through a contractor.
The Act serves two purposes that is-1) regulations of conditions of service of workers employed by the contractor who is engaged by a principal employer; and 2) the appropriate government abolishing contract labour altogether in certain Central Government or by any appropriate government, provide that upon the abolition of contract labour, the said labour would be directly absorbed by the principal employer.
You may discuss with a labor law practicing lawyer in the local and proceed as per the advises received.
Dear Sir, I want to add some points in my above question. 1. The absorption/ regularisation done in 2013 was not direct regularisation but proper vacancy is advertised but eligibility criteria is set like that only more than 3 years foreign posting is required, all other experience is similar to ours. 2. Only the internal candidate is selected for the post just by small telephonic interview. 3. Our main concern is that atleast they give us opportunity to apply for the regular post, as given to the foreign staff in 2013, or give us salary equivalent to the regular pay scale, following same work same wage principle. 4. And ensure our employment to continue as the next phase of the project is going to start in coming months. 5. Also suggest if I take any legal action against the company then A. What is the status of my PF amount as the PF is mentanied by company trust. B. What is the status of my security deposit and other dues. C. What is the status of my experience certificate need to get from company. D. Is I need to remain unemployment until the final order of the court come.
I think you need to meet, and we need to discuss it face to face, only then I can clarify the things. And may also let you know the outcome of this situation.
Also need to take out the synopsis to make you understand better.
Good Luck...!
1. The difference in the eligibility criteria even minor would entitle the organisation to reject your candidature.
2. It may be policy or instruction to follow the laid down procedural policy of the organisation.
3. Representation can be made through union or the association.
5.A PF amount will be safe and secured, it cannot be denied by the company
B The security deposit shall be refunded
C. You can get experience certificate for the period yo worked as a contract employee
D Since this is not a suspension or any other regular termination, you may get yourself employed elsewhere till you get a judgment by the court.
A. There will be no effect on your PF account.
B. You will have to remain unemployed till the outcome of the case, since you are claiming regularisation. Till that time you may join a contractual job.
Regards
You should be given chance to apply for regular posts as given to foreign staff in 2013
2) you can take legal proceedings and seek regularisation on grounds that other contract employees have been regularised
3) you don’t need to remain unemployed till final orders
4) you are entitled to experience certificate
1. You can file a Writ Petition against the said PSU as advised in my earlier post.
2. You are entitled to your PF and contribution to your PF account will be made by your next employer as per law.
3. You are entitled to refund of your security deposite and also experience certificate from your employer.
3. Our main concern is that atleast they give us opportunity to apply for the regular post, as given to the foreign staff in 2013, or give us salary equivalent to the regular pay scale, following same work same wage principle. -- This can be possible, even very recently Apex court has reiterated above principal.
5. Also suggest if I take any legal action against the company then --
A. What is the status of my PF amount as the PF is mentanied by company trust. -- Claim in PF is inherent right, company cant hold.
B. What is the status of my security deposit and other dues. -- recoverable but there should not be any pecuniary liability.
C. What is the status of my experience certificate need to get from company. -- If they fail to give, apply to Labor Commissioner
D. Is I need to remain unemployment until the final order of the court come. - No, court will give interim relief, but prepared petition careful as -----
The cardinal principle of service jurisprudence states that “an employee holding a post, be it contractual or tenure has no right to ask for automatic extension unless nothing repugnant appears from the letter of appointment”