Madras High Court
P.Paramasivan vs The Management Of Madurai Corporation on 3 September, 2015
Author: S.Vaidyanathan
Bench: S.Vaidyanathan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 03.09.2015
Coram
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
W.P.(MD).No.14148 of 2013
and W.P.(MD).No.16595 of 2013
1. P.PARAMASIVAN
2. MADURAI MAANAGARATCHI
THOZHLILALAR SANGAM,
REP. BY ITS GENERAL SECRETARY,
19, BHARATHIYAR ROAD,
MELAPONNANAGARAM,
MADURAI- 625 016 ... Petitioners in W.P.(MD).No.14148 of 2013
-vs-
1. THE MANAGEMENT OF MADURAI CORPORATION,
REP. BY ITS COMMISSIONER,
MADURAI.
2. THE INSPECTOR OF LABOUR
MADURAI. ... Respondents in W.P.(MD).No.14148 of 2013
MADURAI CORPORATION
MADURAI,
REP.BY ITS COMMISSIONER. ... Petitioner in W.P.(MD).No.16595 of 2013
-vs-
1. THE INSPECTOR OF LABOUR,
MADURAI.
2. R.MARIYADASS
3. M.PAPPA
4. L.ALAGURANI
5. P.TAMILARASI
6. A.DEVI
7. A.KARTHIK
8. K.VALIVITTAN
9. M.SONAI
10. T.PONGODI
11. P.SUBBAMMAL
12. R.MUNIYASAMY
13. V.MURUGAN
14. M.RAKKAMMAL
15. K.MOOKKAMMAL
16. P.MUTHUKUMAR
17. M.KANNAN
18. P.MUNIYAMMAL
19. K.MEENATCHI
20. R.DEIVANAI
21. M.MOOKKAMMAL
22. PANDANASELVI
23. P.PALPANDIYAMMAL
24. S.GOVINDASAMY
25. M.ILANGO
26. A.PARVATHI
27. P.RAJENDRAN
28. VEERASAMY
29. K.PERUMAL
30. N.KARTHIK
31. R.SARAVANAN
32. A.RANI
33. K.VALIVITTAN
34. A.MARIYAMMAL
35. M.SELVAM
36. C.MURUGAN
37. G.SELVAKUMAR
38. M.CHINNAKUMAR
39. P.VEERAPANDI
40. P.SEENIYAMMAL
41. P.MURUGAN
42. L.LAWRENCE
43. T.RAMALAKSHMI
44. N.NAGAMMAL
45. R.MRIYAMMAL
46. G.VIJAYAKUMAR
47. N.PANJAVARNAM
48. S.VASANTHA
49. R.VELLAIYAMMAL
50. K.MUTHUPILLAI
51. C.MUTHUMARI
52. A.SHANTHI
53. P.MARIYAMMAL
54. C.BALAMURUGAN
55. C.SENTHILKUMAR
56. P.CHANDRA
57. V.GNANAM
58. M.JOTHIMUTHU
59. P.MUTHUPALANI
60. P.MALATHI
61. R.SANGILI
62. M.MALAIYANDI
63. S.KALIYAMMAL
64. M.PALANIYAMMAL
65. M.ALAGAR
66. P.MEENA
67. P.PALANIYAMMAL
68. C.ALAGAMMAL
69. K. SELVAKUMAR
70. M.MAHALAKSHMI
71. A.MURUGESWARI
72. A.MAHALAKSHMI
73. B.LATHA
74. C.NAGALAKSHMI
75. A.SUBBAMMAL
76. P.MURUGESWARI
77. O.SELVI
78. S.SURIYAPRAKASH
79. A.PITCHAMUTHU
80. GANESAN
81. R.KALIYAPPAN
82. R.ESWARAN
83. E.MEENA
84. P.SEETHALAKSHMI
85. S.PARVATHI
86. M.KAVITHA
87. D.MAHALAKSHMI
88. P.SEVANAMMAL
89. M.MEENA
90. T.PANDIYAMMAL
91. S.ROHINI
92. M.SIVA
93. A.VELMURUGAN
94. M.MARI
95. S.ALAGAR
96. P.KURUVAN
97. P.PALANI
98. K.KARUPPASAMY
99. K.MARAGADAVALLI
100. R.PALANI
101. T.KUPPUSAMY
102. R.MARRY
103. P.RADHAMANI
104. N.PALPANDI
105. M.MUTHUSELVAM
106. A.ALAGARSAMY
107. S.MAHENDRAN
108. M.PANDI
109. N.KUMARAVEL
110. R.RAJA
111. A.BOOMINATHAN
112. P.PARAMASIVAN
113. K.PADMA
114. T.MUTHUGANESAN
115. P.MOOKKAIAH
116. P.ARUMUGAM
117. P.RAMAR
118. P.MANIKANDAN
119. M.NALLU
120. K.KALIMUTHU
121. P.MEENAKSHI
122. P.KADARKARIYAN
123. G.NATARAJAN
124. M.KARUPPASAMY
125. A.PERUMAL
126. K.KALIYAMMAL
127. VEERAMMAL
128. A.DEVAKI
129. M.MURUGESWARI
130. K.MEENATCHIAMMAL
131. S.PANJAVARNAM
132. G.ALAGI
133. G.MUTHUKUMAR
134. D.VELMURUGAN
135. M.MARIAPPAN
136. R.MURUGAN
137. G.MURUGAN
138. T.KALIYAPPAN
139. T.MUNIYANDI
140. K.SEVUGAN
141. M.MUNIYANDI
142. L.SELVAM
143. T.NALLATHANGAL
144. M.MUTHALAMMAL
145. V.RAJAMMAL
146. R.KANNAN
147. T.GNANAMATHI
148. K.MADATHI
149. M.PITCHAIMUTHU
150. G.NAGARAJAN
151. A.MARIYAMMAL
152. V.MALLIGA
153. P.PALANIYAMMAL
154. M.SELVAM
155. K.PANDI
156. S.PANDI
157. S.RANI
158. P.BALAMURUGAN
159. S.LAKSHMI
160. S.KALYANI
161. R.KRISHNAVENI
162. P.SELVI
163. K.BALAMMAL
164. G.KANNIYAMMAL
165. V.RADHA
166. R.KANNAKI
167. V.MUTHUKUMAR
168. K.BALASUBRAMANIAN
169. S.MANIKANDAN
170. T.VARADHARAJAN
171. C.AYYANAR
172. A.ALAGAR
173. P.MOORTHY
174. A.VELAMMAL
175. S.KANNIYAMMAL
176. M.PALANIYAMMAL
177. S.NATARAJ
178. M.AYYAPPAN
179. S.MALLIGA
180. B.VIJAYALAKSHMI
181. S.RADHIKA
182. M.SELVAKUMAR
183. M.MUTHUVEL
184. P.ALAGARSAMY
185. K.MEENATCHI
186. S.MUNIYAMMAL
187. I.VEERAPATHIRAN
188. K.MURUGESAN
189. V.SUBRAMANIYAN
190. R.VALLI
191. P.KRISHNAPANDI
192. S.RAMASAMY
193. T.MUNIYANDI
194. G.VELAMMAL
195. T.ARUMUGAM
196. M.KANNAN
197. E.MURUGAN
198. N.MUTHU
199. A.PANDI
200. M.ARUMUGAM
201. S.ARUMUGAM
202. R.PANNEERSELVAM
203. ASIRVADHAM
204. A.NAGAMMAL
205. K.VALLI
206. S.JAKKAMMAL
207. R.KARTHIGAI JOTHI
208. A.KARPAGAM
209. K.JANAKI
210. P.PANDIYAMMAL
211. P.PALPANDI
212. M.ALAGURANI
213. K.SARAVANAN
214. S.RAMALAKSHMI
215. C.MUTHULAKSHMI
216. R.MUTHULAKSHMI
217. A.MEENATCHI
218. S.VELMURUGAN
219. K.PALRAJ
220. M.VALLIYAMMAL
221. A.SAHNMUGAVALLI
222. M.PONNUTHAI
223. S.UMAIYARAJ
224. P.MURUGAN
225. P.PANDIYARAJ
226. P.LAKSHMI
227. M.MUTHUMARI
228. P.PUSHPAVALLI
229. K.BASKARAN
230. S.KALIMUTHU
231. V.LATHA
232. T.KANNIYAMMAL
233. V.DHARMAPANDI
234. A.MUNIYASAMY
235. P.SURESH
236. V.SHAKTHIVEL
237. V.DEVI
238. M.SARASWATHI
239. P.ADAIKALAM
240. A.AMBEDKAR
241. A.VALASAPPAN
242. P.RAVICHANDRAN
243. M.JAMBUNATHAN
244. K.PANJAVARNAM
245. M.THANGAPANDI
246. M.PANDIYAMMAL
247. M.LAKSHMI
248. A.SHEELADEVI
249. T.ALAGAMMAL
250. G.MAYIULAMMAL
251. M.MUTHUPANDI
252. S.MUTHUMARI
253. VEERALAKSHMI
254. S.SAHHTHI
255. R.PADAMPRIYAL
256. K.SELVI
257. A.SELVAPANDI
258. A.RAMESH
259. ARUMUGAM
260. G.ALAGAMMAL
261. A.MARIAPPAN
262. A.ARUMUGAM
263. V.MURUGAN
264. P.ARAYEE
265. P.THAYAMMAL
266. M.MEENS
267. K.THEIVANDHIRAN
268. T.MANIMEGALAI
269. M.NALLALU
270. K.PITCHAIAMMAL
271. M.MURUGESAN
272. A.LAKSHMI
273. M.PANDIYAMMAL
274. P.LAKSHMI
275. N.VASANTHI
276. M.ARAMMAL
277. C.CHITRADEVI
278. M.MADASAMY
279. P.IRULANDI
280. M.MARIYAMMAL
281. A.MANIKANDAN
282. A.VENNILA
283. P.SHANMUGAVALLI
284. K.MEENAKSHISUNDARAM
285. R.PANJAVARNAM
286. K.ANDI
287. P.SAKTHI
288. P.RAKKAMMAL
289. D.SUBBULAKSHMI
290. S.GANESAN
291. A.VEERAIYAKALI
292. M.MUNIYAMMAL
293. K.LAKSHMI
294. M.MURUGAMMAL
295. V.KUPPATCHI
296. V.PATTU
297. P.ALAGARSAMY
298. C.VEERAMMAL
299. M.VELAMMAL
300. C.RAMAR
301. M.SEETHALAKSHMI
302. K.POOPANDI
303. M.MARIYAMMAL
304. A.CHINNATHAI
305. M.GANESAN
306. J.PERIYAR
307. P.SHANMUGAM
308. P.PANDIYAMMAL
309. P.ALAMU
310. S.ANITHA ... Respondents in W.P.(MD).No.16595 of 2013
Prayer in W.P.(MD)No.14148/2015
Writ Petition is filed under Article 226 of
the Constitution of India for the issue of a Writ of Mandamus, directing the
1st Respondent Corporation to regularize the services of the 1st petitioner
and 308 Sanitary Workers employed in the 1st Respondent Corporation, who are
members of the 2nd petitioner Union and confer permanent status on them from
the date on which they completed 480 days of service in 24 calendar months
and to pay all other monetary and attendent benefits to them by implementing
the order passed by Inspector of Labour Madurai in Na.Ka.No.E/3672/2011 CPS
No.1/2010 to 309 of 2010 dated 21.02.2013 passed under Tamil Nadu Industrial
Establishements (Conferment of Permanent Status to Workment) Act , 1981.
Prayer in W.P.(MD)No.16595/2013
Writ Petition is filed under Article 226 of
the Constitution of India for the issue of a Writ of Certiorari, calling for
the records relating to the proceedings of the 1st respondent made in
Na.Ka.No.E/3672/2011 C.P.S.No. 1 to 309 of 2010 dated 21/02/2013 and quash
the same .
(W.P.(MD)16595/2013)
!For Petitioner : Mr.G.R.Swaminathan
For Mr.R.Murali (Madurai Corporation)
^For R1 : Mr.R.Velmurugan
Govt. Advocate
For R2 to 310 : Mr.Ajay Khose For Mr.A.Rahul
Orders Reserved on : 23.07.2015
Orders Pronounced on : 03.09.2015
:COMMON ORDER
The writ petition in W.P.(MD) No.14148 of 2013 has been filed, seeking a direction to the 1st Respondent Corporation to regularize the services of the 1st petitioner and 308 Sanitary Workers employed in the 1st Respondent Corporation, who are members of the 2nd petitioner Union and confer permanent status on them from the date on which they completed 480 days of service in 24 calendar months and to pay all other monetary and attendent benefits to them by implementing the order passed by Inspector of Labour Madurai in Na.Ka.No.E/3672/2011 CPS Nos.1 to 309 of 2010 dated 21.02.2013 passed under Tamil Nadu Industrial Establishements (Conferment of Permanent Status to Workmen) Act , 1981.
2. The petitioner / Madurai Corporation has also filed a writ petition in W.P.(MD) No.16595 of 2013 to quash the proceedings of the 1st respondent made in Na.Ka.No.E/3672/2011 C.P.S.Nos.1 to 309 of 2010 dated 21.02.2013, in and by which, the Management of Madurai Corporation was directed to confer permanent status to all 309 Sanitary Workers from the date on which they completed 480 days of service in 24 calendar months.
3. Since the issue involved in both these writ petitions is one and the same, they are taken up together for disposal. For the sake of brevity, the facts are being taken from W.P.(MD) No.14148 of 2013 as under:
i) The petitioner and other 308 Sanitary Workers (in short ?the Workmen?), who are members of the 2nd petitioner Union, registered under the Trade Unions Act with Registration No.59/MDU, were employed in the 1st respondent Corporation on daily wage basis with effect from 08.08.2006. The Workmen, whose services were continuous in nature without any interruption, were paid a sum of Rs.163/- as their daily wage and that the wages were also paid every month through their Bank Account. Inspite of the representation of the 2nd petitioner Union to regularize the services of the Workmen, no steps were taken by the 1st respondent Corporation to regularize their services, even after completion of more than 6+ years of service.
ii) It was submitted by the Workmen that they filed petitions under Section 3(3) of the Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act, 1981 (hereinafter referred to as ?the Act, 1981?), before the Inspector of Labour, Madurai, seeking to regularize their services from the date on which they completed 480 days of service, which were all clubbed together and taken up for hearing by the 2nd respondent.
Madurai Corporation filed a counter before the 2nd respondent therein, stating that there are no legal provisions available in the Madurai City Municipal Corporation Act and the Rules framed thereunder to reguarlize the services of the Workmen. That apart, enquiry was conducted by the 2nd respondent for about two years and all the 309 Workmen were examined individually and thereafter, the impugned order came to be issued by the 2nd respondent.
iii) It was further submitted that pursuant to the said order, the Workmen through the Union sent a representation dated 04.03.2013 for implementation of the order of the 2nd respondent. Though the said representation was received by the 1st respondent on 05.03.2013, no action was taken by the 1st respondent to regularize the services of the Workmen. Therefore, they filed a writ petition in W.P.(MD) No.6123 of 2013, seeking to direct the 1st respondent Corporation to regularize the services of the 1st petitioner and 308 Sanitary Workers employed in the 1st respondent Corporation, who are members of the 2nd petitioner Union and confer permanent status on them in pursuant of the order passed by the Inspector of Labour, Madurai dated 21.02.2013. This Court disposed of the said writ petition on 16.04.2013 with a direction to the 1st respondent therein to consider and pass orders on the representation submitted by the petitioners. The 2nd petitioner Union sent a representation dated 17.05.2013 to the 1st respondent followed by a legal notice dated 27.06.2013 for implementation of the direction. In pursuance of the same, the 1st respondent issued a reply dated Nil signed on 25.06.2013 stating that the 1st respondent is taking steps to challenge the order of the Inspector of Labour by filing writ petition, but however, no steps have been taken so far.
iv) It was also submitted by the workmen that this Court, in identical matters in W.P.(MD) No.20439 of 2009 and 34128 of 2004 etc., directed the Tamil Nadu Electricity Board to implement the order passed by the Inspector of Labour under the provisions of the Act, 1981. Since the 1st respondent is a State within the meaning of Article 12, this Court can very well exercise its jurisdiction under Article 226 of the Constitution of India, taking into account the order of the competent authority. Thus, it is prayed that a direction be issued to the 1st respondent Corporation to regularize the services of the Workmen.
4. The respondent Corporation has not filed any counter in W.P.(MD) No.14148 of 2013, but however, they also filed a writ petition in W.P.(MD) No.16595 of 2013, by putting forthh their contentions as under:
i) It was stated that the Madurai City Municipal Corporation is functioning in terms of Legislative Act, namely Madurai City Municipal Corporation Act, 1971 (in short ?the Corporation Act, 1971?) and in terms of Section 106 of the Corporation Act, 1971, the State Government framed service rules for the Corporation. As per the Tamil Nadu Municipal Corporation Basic Service Rules, 1996, the Sweepers come under Class-IV category 6 in the name of Sanitary Workers, according to which, Sanitary Workers ought to be directly recruited. As per Rule 4 of the General Rules of Tamil Nadu Municipal Corporation Service Rules, 1996 in respect of Class III and IV employees, the appointment committee constituted and functioning under the Corporation Act, 1971 alone is the competent authority to appoint persons and under Rule 8 of the General Rules, it is open for the Corporation to appoint persons on contract basis and such persons shall not be regarded as a member of service to which they are appointed. Moreover, age limit of 30 is fixed for any appointment in the Corporation as per the Rules and the rule of reservation is also followed while appointing Class IV category as per Rule 13 of the Service Rules.
ii) It was further stated that the Workmen were appointed as Sanitary Workers on Daily Wages basis in the Corporation in order to fulfill the need of the Corporation for time being. They did not work continuously for 480 days in two years as per the statutory requirement under the Act, 1981 and they were engaged in regular break in their service, as the Corporation is having sufficient permanent Sanitary Workers. Though the Workmen sought to confer their posts in terms of the Act, 1981, they had not produced any material evidence to substantiate their claim. On behalf of the Corporation, though an objection also filed, which was referred to as a document in the impugned order, the 1st respondent, without considering the same, passed the impugned order. Before the 1st respondent, it was also specifically denied with regard to the continuous employment as claimed by the Workmen.
iii) It was also stated that if the Workmen are given permanent status and the order of the 1st respondent is implemented, the same will be against the decisions of the Apex Court made in Uma Devi case, reported in 2006 (4) SCC 1. The respondent Corporation assailed the impugned order stating that the same is liable to be set aside on the ground that it amounts to allowing back door entry and the provisions of Contract Labours (Regulation and Abolition) Act, 1970 is not applicable to the case on hand. Therefore, it was contended that the act of the 1st respondent is ex-facie illegal and needs interference by this Court.
5. Mr.Ajay Khose, learned counsel for the Workmen has submitted that the act of the Corporation is illegal, as it is not necessary for the Workmen to specify under which provisions of law, they seek the relief. Mere wrong quoting of the provisions of law does not entitle the Corporation to contend that the Workmen are not entitled to the relief sought for. It is his submission that the Workmen have been continuously working as Sanitary Workers on daily wage basis and that they should be considered for regularization of their service. In support of his submission, he also produced the Bank statement of one of the workmen to show that he received his wages on monthly basis from the Corporation, which was directly remitted to his account maintained in the Bank and the very same system is being followed in respect of other employees also. The fact remains so, the respondent Corporation has simply stated in the counter filed before the competent authority that as per the Rules of the Corporation, the Workmen cannot be regularized in service.
6. In reply, Mr.G.R.Swaminathan, learned counsel appearing for the Madurai Corporation has contended that the Inspector of Labour, Madurai has erroneously held that the Municipality is a commercial establishment in terms of Section 2(6) of the Tamil Nadu Shops and Establishment Act, 1947 and thereby applied the Act, 1981, which is not sustainable. To support his contention, learned counsel also referred to Section 2(3) of the Act, 1981, which is extracted below:
?Section 2(3) ?industrial establishment? means -
(a) a factory as defined in clause (m) of section2 of the Factories Act, 1948 (Central Act LXIII of 1948) or any place which is deemed to be a factory under sub-section (2) of section 85 of that Act; or
(b) a plantation as defined in clause (f) of section 2 of the Plantations Labour Act, 1951 (Central Act LXIX of 1951); or
(c) a motor transport undertaking as defined in clause (g) of section 2 of the Motor Transport Workers Act, 1961 (Central Act 27 of 1961); or
(d) a beedi industrial premises as defined in clause (i) of section 2 of the Beedi and Cigar Workers (Conditions of Employment) Act, 1966 (Central Act 32 of 1966); or
(e) an establishment as defined in clause (6) of section 2 of the Tamil Nadu Shops and Establishments Act, 1947 (Tamil Nadu Act XXXVI of 1947); or
(f) a catering establishment as defined in clause (1) of section 2 of the Tamil Nadu Catering Establishments Act, 1958 (Tamil Nadu Act XIII of 1958); or
(g) any other establishment which the Government may, by notification, declare to be an industrial establishment for the purpose of this Act.?
He has contended that Maudrai Corporation is neither an industrial establishment nor a shop as defined under the Act, 1981 to enable the competent authority to grant the relief sought by the Workmen by invoking the provisions of the Act, 1981 and therefore, once the Act, 1981 itself is not applicable to the case of the Workmen, the question of granting the relief does not arise at all. Above all, Madurai Corporation is a local body and duly governed by the statutory provisions, including the employment and hence, implementation of the order of the 1st repondent amounts to violating the statutory provisions of recruitment. Hence, he prayed that W.P.(MD) No.14148 of 2013 is liable to be dismissed and W.P.(MD) No.16595 of 2013 has to be allowed.
7. Heard the learned counsel on either side and perused the material documents available on record.
8. It is not in dispute that the Workmen are employed as Sanitary Workers on daily wage basis and the said post is a temporarily sanctioned post. It is seen that the wages of the Workmen have been directly remitted to the Bank account by the Corporation. I am entirely in agreement with the contention of the Workmen that mere wrong quoting of the provisions of the Act do not come in way of the Workmen in seeking permanent status. The Act, 1981 came into force with effect from 01.01.1982 after receiving the assent of the President of India. Since the said Act is a beneficial legislation, the benefits flowing therefrom to the Workmen cannot be denied. Of course, it is true that if the Act is not applicable, employees cannot seek any benefit from the said Act.
9. The Hon'ble Division Bench of this Court, in a case in The President, Srirangam Co-operative Urban Bank Ltd., vs. The Presiding Officer, Labour Court, Madurai and another, reported in 1996 II LLJ 216, permitted the parties to raise the points raised for the first time before the Court, even though no such plea was raised before the Labour Court. Since the plea raised by the Workmen as well as the Corporation are legal submissions, there is no harm in parties raising legal plea before the Court. The Hon'ble Supreme Court, in the case of Krishna District Co-operative Marketing Society Ltd., Vijayawada vs. N.V.Purnachandra Rao and others, reported in 1987 (II) LLJ 365, was pleased to observe that if the employees are workmen and the management is an industry, as defined in the Industrial Disputes Act and the action taken by the Management amounts to retrenchment then the rights and liabilities of the parties are governed by the provisions of Chapter V-A of the Industrial Disputes Act. However, the said judgment cited by the Workmen is not applicable to the present case, as the Hon'ble Supreme Court in the said case had considered whether Section 25F of the I.D.Act can be canvassed under the provisions of the Shops and Establishments Act and confirmed the orders of the High Court. Whether it is an industry or not cannot be gone into under Section 33 of the Industrial Disputes Act, as the definition deals with the Industrial Establishment.
10. Though the definition of industry cannot be gone into in the dispute under the Act, 1981, the violation of the provisions of the Industrial Disputes Act can be looked into, as per the Clause-10 of the Fourth Schedule of the Industrial Disputes Act, 1947, which deals with the conditions of service for change of which notice is to be given, in case there is any rationalisation, standardisation or improvement of plant of technique, which is likely to lead to retrenchment of workmen. The said clause is in consonance with Section 9-A of the Industrial Disputes Act, 1947, which is extracted below:
?9-A. Notice of change ? No employer, who proposes to effect any change in the conditions of service applicable to any workman in respect of any matter specified in the Fourt Schedule, shall effect such change:-
(a) without giving to the workmen likely to be affected by such change a notice in the prsecribed manner of the nature of the change proposed to be effected; or
(b) withint twenty-one days of giving such notice:
Provided that no notice shall be required for effecting any such change -
(a) where the change is effected in pursuance of any settlement or award; or
(b) where the workmen liiely to be affected by the change are persons to whom the Fundamental and Supplementary Rules, Civil Services (Classification, Control and Appeal) Rules, Civil Services (Temporary Service) Rules, Revised Leave Rules, Civil Service Regulations, Civilians in Defence Services (Classification, Control and Appeal) Rules or the Indian Railway Establishment Code or any other rules or regulations that may be notified in this behalf by the appropriate Government in the Official Gazette, apply.?
The said aspect has been clearly taken note of by the Hon'ble Division Bench of this Court in a judgment reported in 1999 (1) LLJ 622 in N.Mamundiraj and others vs. Bharat Heavy Electrical Ltd., Trichy and another, by holding that the respondent therein has resorted to unfair labour practice and the workman would be deemed to be in service, when the cessation of work has been brought about by the employwer for extraneous consideration, as in the case.
11. It is also pertinent to extract Section 3 of the Act, 1981, which describes about the Conferment of permanent status to workmen in toto as under:
3. Conferment of permanent status to workmen:- (1) Notwithstanding anything contained in any law for the time being in force every workman who is in continuous service for a period of four hundred and eighty days in a period of twenty four calendar months in an industrial establishment shall be made permanent.
12. The workmen also referred to my judgment in the case of Tamil Nadu Electricity Board, Rep. By the Executive Engineer/Acquisition, Kumbakonam and another, reported in 2014-IV-LLJ-386(Mad), to contend that the Corporation is amenable to writ jurisdiction. For better appreciation, the relevant paragraph of the judgment (supra) is extracted below:
17..... From the above, it is clear that there was evidence to establish that thre was substantial number of workmen. But, in this case, there is no evidence more particularly when the Management has disputed the locus standi of the Union in raising a dispute. Even though I accept the contention of the Management that the Union has not established the case before the labour Court through evidence about the support of substantial body of workmen concerned in the Management supporting the case of 19 workme, since the Board is a State withint the meaning of the Article 12 of the Constitution of India, amenable to the jurisdiction of this Court, the relief sought for by the Workmen is to be granted by holding that the decision in Bombay Union of Journalist and Others v. State of Bombay and Another reported in AIR 1964 SC 1617:LNIND 1963 SC 305:1964-I-LLJ-351 will not be applicable to the case of the workmen in the case on hand.?
13. Learned counsel for the Corporation, in support of his contention that these workmen cannot be regularised as their appointments were not made in accordance with the Corporation Act, 1971, relied on the judgment of the Hon'ble Supreme Court in the case of Uma Devi vs. State of Karnataka and others (2006(4) SCC 1). However, it is pertinent to mention here that when Uma Devi's case came up for consideration before the Honble Supreme Court in Maharashtra SRTC v. HYPERLINK "http://indiankanoon.org/doc/1500941/"Casteribe Rajya Parivahan Karmchari Sanghatana repoted in (2009(8) SCC 556), the Honble Supreme Court has dealt with the scope of Uma Devi case in respect of labour matters and held that though the employees (in that case) were appointed irregularly by the Maharashtra SRTC Limited in violation of the Standing Orders, since they were exploited by the corporation for years together by engaging them as piece-rate basis, such employees were entitled for permanent status and if such privilege was not extended to such employees, it would tantamount to putting premium on their unlawful act of engaging in unfair labour practice.
14. A learned Single Judge of this Court in the case of Oil And Natural Gas vs. The Petroleum Coal Labour (W.P.No.1846 of 2000), decided on 04.01.2011, has dealt with the similar circumstances in detail, by analyzing various judgments of the Hon'ble Supreme Court and also referring to the judgment of yet another Single Judge and granted the relief to the workmen. For the sake of convenience, the relevant paragraphs of the judgment, referred to supra, are reproduced below:
?39. Very recently, yet another judge of this Court [Hon'ble Mr.Justice K.Chandru] had an occasion to deal with an identical issue in Hindustan Petroleum Corporation Limited and another v. HYPERLINK "http://indiankanoon.org/doc/1648013/"The Presiding Officer, Central Government Labour Court-cum-Industrial Tribunal, Chennai and others, 2008 (4) CTC 819. In that case, the learned Judge, having considered Umadevi, Umarani as well as the Maharashtra State Road Transport Corporation's cases, in para 33 has held as follows:-
?33. Therefore, the present issue will have to be decided in the light of the parameters indicated by the latest decision of the Supreme Court in O.N.G.C. Case (cited supra) which had taken note of all the contentions raised by the learned Advocate General. The sum and substance of the decisions are that if it is established that the workmen were employed directly by HPCL, even on temporary basis, they are eligible for regularisation provided it is shown that they have not come through any back door. One such back door entry as indicated in the decisions of the Supreme Court in Uma Rani and Uma Devi (3)'s cases (cited supra) is not getting the names sponsored through the Employment Exchange.?
40. The learned Judge has also taken note of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 [Tamil Nadu Act 46 of 1981]. The said Tamil Nadu Act 46 of 1981 was upheld by the Hon'ble Supreme Court in State of Tamil Nadu v. Nellai Cotton Mills Limited, 1990 (2) SCC 518.
41. A deep reading of the said Act would go to show that it does not distinguish between regularly appointed temporary employees and irregularly appointed temporary employees. It is an affirmative Act in favour of the temporary employees who have worked for more than 480 days in a period of two calender years to get regularised in their service. To repeat, it is immaterial as to whether such employees were regularly appointed by following the procedure for selection and appointment or irregularly appointed. When the said Act has been upheld by the Hon'ble Supreme Court, in my considered opinion too, there can be no gain saying in contending that the Industrial Tribunal / Labour Court cannot issue a positive direction to regularise irregularly appointed temporary employees who had worked for a period of more than 480 days in two calendar years. This is, exactly, the view taken by the learned single Judge [Justice K.Chandru] of this Court in paragraph 38 of the Judgement which runs as follows:-
?38. Once there is a valid State enactment providing for relief to such of those workmen deemed permanency to those who had completed 480 days' of service within a period of two calendar years then, such workmen getting permanent status cannot be questioned by any Management. Such conferment of permanent status to the workmen cannot be labelled as violation of Articles 14 and 16 of the Constitution. The effect of a local enactment conferring permanent status to workmen was never considered by any Court so far.?
42. Coming to the factual matrix, as I have already stated, there is no dispute that these petitioners were appointed on temporary basis in the year 1988 and they have been continuously working [i.e.,] for more than 480 days in two calendar years. Of course, their appointments are all irregular, even then they are entitled for regularisation, in view of the law laid down by the Hon'ble Supreme Court in Maharashtra Road Transport Corporation's case and followed by this Court in Hindustan Petroleum Corporation Limited v. The Presiding Officer, Central Government Labour Court-cum-Industrial Tribunal, 2008 (4) CTC 819. Thus, I do not find any infirmity in the award passed by the Industrial Tribunal warranting interference at the hands of this Court.
15. The contention of the Workmen that since the Corporation is amenable to writ jurisdiction, the relief sought by them could be granted, can be accepted in the light of the decision reported in 1990 [2] LLN 26 [Indian Bank rep. By its Assistant General Manager, Madras Vs. R.S.Thiruvengadam], which Judgment I had referred to in paragraph 15 of the decision reported in 2014 [IV] LLJ 386 [Tamil Nadu Electricity Board, rep by The Executive Engineer/Acquisition, Kumbakonam and another Vs. Tanjore District Podhu Thozhilalar Sangam rep by its Secretary N.Santhanam, Tanjore and others]. The said paragraph 15 is extracted here under:-
?....15.At this juncture, it is useful to refer to a Division Bench of this Court reported in Indian Bank rep.by its Assistant Manager, Madras, V. R.S.Thiruvengadam [1990] 2 LLN 26, wherein the Divison Bench, while considering the case of a person employed under the Establishment Act in a nationalised Bank, the jurisdiction of the authority who have entertained and disposed of the appeal under section 42 of the Establishment Act was considered and the Division Bench of this Court, has held that even though the authority under the Shop Act lacked jurisdiction in view of the decision of the Hon?ble Apex Court in C.V.Raman V. Bank of India, [1988] 2 LLN 156 : 1988-II-LLJ-423, wherein the Hon?ble Apex Court has held that nationalised Banks will not fall under the purview of the Establishment Act and that the authority has no jurisdiction, have exercised its jurisdiction, under Article 226 of the Constitution of India, dealing with the validity of the dismissal order in that case as the Bank is a State within the meaning of the Constitution of India and as such amenable to the jurisdiction of this Court in its action.?
I have also had an occasion to hold that the decision in Umadevi?s case will not be applicable to the Labour matters by referring to two decisions of this Court reported in 2014 [3] LLJ 558 [Mad] [V.C.Vadivel and others V. Government of Tamil Nadu by its Secretary, Municipal Administration and Water Supply Department, Chennai-9 and others] wherein in paragraph 10 it has been held as follows:-
10.....The contention of the respondents that in view of the decision reported in the case of Secretary, State of Karnataka V. Umadevi AIR 2006 SC 1806 : [2006] 4 SCC 1 : LNIND 2006 SC 261 : [2006] 2 MLJ 326 : 2006-II-LLJ-
722, the petitioners have no right to seek for absorption cannot be accepted as this Court, while considering the cases with regard to the employees seeking relief under Permanent Status Act, has distinguished the facts of Secretary, State of Karnataka V. Umadevi [supra] case and the decisions are reported in Hindustan Petroleum Corporation Ltd., V. Presiding Officer, Central Government Labour Court cum Industrial Tribunal, 2008 [4] CTC 819 :
LNIND 2008 MAD 2300 : [2009] 1 MLJ 1115 and Oil and Natural Gas Corporation Ltd. V. Petroleum Coal Labour Union LNIND 2011 MAD 27 : 2011-III-LLJ-497 [Mad.]. Therefore, the decision of the Hon?ble Supreme Court in Secretary, State of Karnataka V. Umadevi [supra] case is not applicable to the facts of the present case.?
16. Taking into consideration the overall facts and circumstances of these cases and upon analyzing various judgments, this Court is of the view that there is much force in the contention of the argument of the workman that the Management is amenable to the writ jurisdiction and the writ petition filed by the Corporation is liable to be dismissed. Accordingly, the writ petition in W.P.(MD).No.16595 of 2013, which is filed by the Corporation, is dismissed. The writ petition filed by the Workmen in W.P.(MD).No.14148 of 2013 is allowed and the respondent Management of Madurai Corporation is directed to regularize the services of the Workmen and confer permanent status on them from the date on which they completed 480 days of service in 24 calendar months, within a period of two months from the date of receipt of a copy of this order. The arrears of backwages, if any payable to them, shall be paid within a period of six months from the date of receipt of a copy of this order.
17. However, it is made clear that in case of non compliance of the above order of this Court, liberty is granted to the Workmen to make necessary complaint under the provisions of the Act for prosecuting the Officials of the respondent Corporation, so as to bring the issue to a logical end. If any such complaint is given, the Authority concerned shall sanction prosecution within a month after hearing the Management and by applying the principles laid down in Raj Kumar Gupta vs. Lt. Governor, Delhi and others reported in 1997 [1] SCC 556, even though the said decision has been rendered considering the provisions of the Industrial Disputes Act, 1947. The Criminal Court to whom such a issue is raised, has to deal with the matter on day-to-day basis and shall not adjourn the matter beyond two working days at any point of time. No costs. Consequently, connected miscellaneous petition is closed.
To
1. The Commissioner Madurai Corporation, Madurai.
2. The Inspector of Labour, Labour.