The practice by a two judge-bench in referring issues to a larger bench has been institutionalised to perfection by the apex court. Surely, when decisions of a two-judge bench conflict inter se, it is often thought prudent to refer the matter to the chief justice of India (CJI) to constitute a larger bench which should decide the binding law under Article 141. Legal certainty is here considered integral to doing of justice. It is on this understanding that justices and legal professionals have achieved transactions of certainty in law. Future courts may tell us whether or not this produces legal certainty; the referring benches seem certainly to hope that this will be the case.
Not all decisions, even when seemingly at conflict, are referred to a lager bench. In the case referred to–Krishna Gopal (February 9, 2020) which referred the entire matter to the CJI to convene a larger bench–the referring bench cites a decision of Justice AK Sikri that seeks to apply the doctrine of harmonious construction in situations of conflicting opinion (Para 21).
However, the justice effects of reference to a larger bench provide some normative standards by which this is warranted. Such standards are scarcely exhausted by mere reference to conflicting decisions of two- judge benches but by reference to the contexts of different decisions in the same domain. Different statutory auspices render unjust any one-size-fits-all reference to a larger bench. Much would here depend though on how Article 32 guarantees enforcement of constitutional rights–seen as lying only within the power of the Court or accompanied with the duty to provide constitutional justice.
Justices Dr Dhananjaya Y Chandrachud and Ajay Rastogi in Krishna Gopal (in the dispute between temporary workmen and ONGC) requested the learned chief justice to constitute an appropriate bench to reconsider the decision in PCLU (2015). That decision needed reconsideration about the interpretation “placed on the provisions of clause 2(ii) of the Certified Standing Orders”; “the meaning and content of an unfair labour practice” under the Fifth Schedule of the Industrial Disputes Act and “the limitations, if any, on the power of the Labour and Industrial Courts to order regularisation in the absence of sanctioned posts”.
Prima facie, the reference seems justified but one ought to ascertain from the referring order whether the conflict among the two-judge benches justly warrants it. It is triggered primarily by the PCLU (Oil and Natural Gas Corporation Limited v Petroleum Coal Labour Union, 2015), which is a quarter-century-old saga of the battle of legal wits between the management and the workmen! All the courts before the apex court had already ordered the regularization of the temporary employees. Justice V Gopala Gowda (speaking also for Justice C Nagappan) upheld the validity of the Industrial Employment (Standing Orders) Act 1994. This order cannot be overcome by any company policy, for to do so would be to abandon the “sunny” days belief that the “economic law of demand and supply in the labour market would settle a beneficial bargain”–at law “they venerated as natural law” (Para 33). One hopes that the indictment of per incuriam does not extend so far as to invalidate this noble belief!
The referring bench states that the PCLU decision is not “prima facie correct”. Why so? Because it feels that the decision goes too far in ruling that “the workmen upon completion of 240 days service in a period of 12 calendar months … are entitled for regularisation of their services into permanent posts of the corporation” or that they have acquired a “valid statutory right” (Para 17). But the referring bench does not consider fully the argument that acting otherwise is unconstitutional and illegal because “the corporation which is an instrumentality of the State under Article 12 cannot act arbitrarily or unreasonably”. On the facts of the case here, that action of the corporation cannot but be considered (in the later phrase- regime of Justices Rohinton Nariman and Dhananjaya Chandrachud (Kantaru Rajeevaru, 2019) as “manifestly arbitrary”.
Similarly, it is not quite clear why the referring bench should not agree with decisions of coordinate benches which upheld the powers of industrial and labour courts in passing appropriate orders. In Uma Devi (2006), it has rightly been held by the apex court as applying only to High Courts and the Supreme Court; it does not oust the pertinent provisions in either the standing orders or of the Industrial Disputes Act. Nor do the other decisions concerning reemployment on retrenchment or creation of new posts (which is rightly held as lying within the competence of the executive) seem relevant to warrant a reference.
More startling is the observation regarding what may constitute an unfair labour practice. No doubt, “under Section 2(ra) read with Item 10 of the Vth Schedule of the ID Act, the employer should be engaging workmen as badlis, temporaries or casuals, and continuing them for years, with the object of depriving them of the benefits payable to permanent workmen”.
The opinion written by Justice Chandrachud virtually underscores the last 13 words. But surely these words are capable of an alternate interpretation which would suggest that the “object of depriving” the workers of the “benefits payable of permanent workmen” may be gathered implicitly or explicitly. That is, discrimination against such employees may be writ large or it may also be gathered from a course of conduct.
Moreover, Durgapur Casual Workers (2014) could have thrown adequate light on the scope of Umadevi. Justices Sudhashu Jyoti Mukhopadhyaya (with Justice Prafulla C Pant) maintain that it is an authoritative pronouncement for the proposition that the Supreme Court (Article 32) and High Courts (Article 226) should not issue “directions of absorption, regularisation or permanent continuance of temporary, contractual, casual, daily wage or ad hoc employees unless the recruitment itself was made regularly in terms of the constitutional scheme”. But it does not “denude the Industrial and Labour Courts of their statutory power” to “order permanency of the workers who have been victims of unfair labour practice on the part of the employer”, when the “posts on which they have been working exist”.
The referring bench sees a conflict in this holding; but is it illegitimate to ask why multiplicity of jurisdictional auspices by itself be seen as creating a conflict? Should Article 32 and 226 furnish the sole jurisdiction for all disputes on regularization, regardless of other statutory auspices?
We must finally note that in almost all the situations, detailed in this reference, the workmen involved were contract labourers asking for regularisation from state-owned statutory corporations who had continued their employment for very long periods of time. This practice has grown rampant, despite clear statutory intention to the contrary. Doing of justice required that the Court respected this intention of creating an implied statutory right rather than refer the matter to a larger bench.
—The author is an internationally renowned law scholar, an acclaimed teacher and a well-known writer