Holding that Film & Television Institute of India (FTII’s) ‘need-based’ defence collapses after creation of 15 Studio Assistant posts, the Bombay High Court has held the workmen entitled to reinstatement and notional benefits from January 2023. The Court reiterated that appointments made in violation of the constitutional scheme of equal opportunity cannot be regularised, and mere long continuation in service does not ipso facto create a right to regularisation. At the same time, the Court cautioned that regularisation is permitted as a one-time measure for irregularly appointed persons who have worked for ten years or more in duly sanctioned vacant posts without court intervention.
The Court also reiterated that the essence of employment must be determined by the actual course of employment over time, not merely by the initial terms of appointment. The Court clarified the distinction between ‘regularisation’ (curing procedural irregularities in appointments) and ‘permanency’ (a separate concept under Standing Orders), holding that what was granted in substance was regularisation, not permanency.
The Court rejected the workmen’s plea for permanency from January 2003, holding that neither the Central Standing Orders nor Municipal Council, Tirora support automatic grant of permanency on completion of 90 or 240 days of service in State instrumentalities. The Court also rejected FTII’s plea of delay, holding that a claim for regularisation gives rise to a continuous cause of action and arises only after rendering substantial length of service.
A Single Judge Bench of Justice Sandeep V. Marne observed that during 2003 to 2007, the workmen worked directly with FTII and were paid wages directly by FTII, though without any appointment letters. From 1 January 2007 onwards, the workmen were routed through four successive contractors, Aces India Pvt Ltd., Global Enterprises, and finally Sigma Human Resources (India) Pvt Ltd., but remarkably, the same seven workmen continued across all contractors, which the Court found highly unusual and indicative of a sham arrangement to avoid regularisation liability.
The Court noted that FTII created 15 posts of Studio Assistants and issued Advertisement No. 1/2023 for filling them up, which demolished FTII’s defence of ‘need-based’ engagement. The Court drew an adverse inference against FTII for deliberately withholding service records despite the Tribunal’s direction to produce them. The Court further observed that the termination of the workmen during the pendency of the Reference violated Section 33 of the Industrial Disputes Act, 1947, as statutory requirements of notice and retrenchment compensation were not followed.
Briefly, the Film and Television Institute of India (FTII), an autonomous body under the Ministry of Information and Broadcasting, Government of India, employed seven workmen, Javed Rasul Banedar, Rahul Rajendra Pawar, Prakash Nivrutti Kamble, Ramchandra Nathu Ambekar, Amit Kalidas Jagtap, Maheboob H. Bagwan, and Mahesh Atmaram Pawar, on an ‘as and when required’ basis for odd jobs such as light boy and studio boy since 2005–06.
The workmen claimed continuous service with FTII since 2003, alleging that from 2007 onwards, FTII illegally routed their wages through contractors to defeat their claim for permanency. At the workmen’s instance, reference was made to the Industrial Tribunal, Pune by the Ministry of Labour in November 2015. During the pendency of the Reference, FTII terminated the workmen’s services on 2 July 2018. The Industrial Tribunal by its Award, answered the Reference partly in favour of the workmen, holding FTII’s action of not regularising the seven workmen as illegal and unjustified, and directed grant of permanency from January 2023.
