Employer’s decision in matters relating to service of employees is not immune from judicial review

Calcutta High Court: A Division Bench comprising of Nishita Mhatre, Acting CJ and Tapabrata Chakraborty, J. dismissed the appeal filed by the National Institution for Orthopedically Handicapped, holding that the respondent-employees deserved to be absorbed and regularized in the service of the Institute.

In the instant appeal, the question raised was whether the employees who have been working satisfactorily for more than 30 years in a canteen which provides food for the patients and staff of an Institution run by the Union of India were entitled to absorption and regularization in service?

Learned Single Judge of the High Court previously held that the employees were entitled to be regularized in service with the Institute concerned.  Aggrieved by that decision of the learned Single Judge, the Institute preferred the instant appeal through its Director and other Officers.

The Institute was established, maintained and managed by the Government of India. There were in-patients who were admitted to the hospital run by the Institute and who were being treated there for years together. Food services for such patients were provided from the canteen in which the employees were working. The number of employees inducted into the canteen was regulated by the Institute. The Institute payed 70% of the salary of the canteen staff and 30% was paid through the income of the canteen.

The High Court after perusing all the material on record and the submissions made by the parties was of the opinion that the decision of the employer to create or abolish posts or to prescribe the source or mode of recruitment and lay down the qualification etc. is not immune from judicial review. In the instant case, the only obstacle in the way of absorption of the employees into regular service was lack of sanctioned posts. The High Court held that, to suggest that employees who have been working for 30 years without a break in the canteen which undoubtedly formed an integral part of the Institute would not be considered as permanent or regular employees, was utter callousness and neglect on the part of the Government in fulfilling its Constitutional mandate besides being contrary to the provisions of law as well as several judgments cited at the Bar.

Accordingly, the appeal filed by the Institute was dismissed and directions were given for the absorption and regularization of the canteen employees in service within 12 weeks. [National Institution for Orthopedically Handicapped v. Goutam Banerjee, 2017 SCC OnLine Cal 14927, order dated 18.09.2017]

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