Madras High Court
Govt. Of Tamil Nadu vs Tamil Nadu Race Course General ... on 20 December, 1991
Equivalent citations: (1993)ILLJ977MAD
JUDGMENT Abdul Hadi, J.
1. These two writ appeals arise out of the same judgment dated September 20, 1991 of Bakthavatsalam, J. in W.P. No. 15392 of 1989. The writ petitioner, Tamil Nadu Race course General Employees Union is the appellant in W.A. No. 1187 of 1990. The 1st respondent in the writ petition, viz., the Government of Tamil Nadu, represented by the custodian, Department of racing, is the appellant in W.A. No. 1053 of 1990. The Writ petitioner is the 1st respondent in W.A. 1053 of 1990 and the above said Government is the 1st respondent in W.A. No. 1187 of 1990. The Committee of Management, represented by its Chairman, Race Course, Madras, which was the 2nd respondents in the writ petition is also so in both the appeals.
2. The writ petition is for mandamus, directing the said Government "to regularise the services of the race day employees after providing employment to all its race day employees as per the practice until October 1989, on all race and intervene betting days without giving deliberate breaks and without engaging outsiders."
3. The main allegation in the supporting affidavit to the writ petition are as follows. - The Madras Race Club had been taken over by the above said Government under the Madras Race Club (Acquisition and Transfer of Undertaking) Act, 1986. Out of about 3000 employees of the Race Club, 300 administrative staff alone are permanent and the remaining workers including the members of the writ petition-Union, who are about 850 in number are employed for years, originally under the private employer and now by the Government on daily wage basis with absolutely no security of employment and their jobs are selling tickets, collecting money, accounting etc. Due to mala fide and unfair practice, the above said Government is denying work to the daily wagers on the pretext that no work is available and thereby the Government only victimises the daily wagers and deprives them of their legitimate right of security of employment and other benefits. The members of the writ-petitioners Union raised an industrial dispute in this regard. The questions of revision of wages and certain other conditions of employment only were referred to the Industrial Tribunal in I.B. No. 76 of 1989. The workers had been repeatedly demanding regularisation of their services. However, deliberate breaks had been given to the daily wagers. The daily wagers had been continuously employed for 20-25 days in a month and had to work 8 to 12 hours a day. They are employed on all days when races are held in Madras or on days of intervene betting. Suddenly in November, 1989 the Government refused to give employment to hundreds of workers on some days on the ground that those days are inter-venue betting only. The Government has also employed strangers to the establishment to the extent of nearly 200 persons. The Custodian only informed the said employees that he was directed by the Committee of Management not to give employment to them on all days and to give work only by rotation and to ensure that the work load is allotted to them in such a way that the race day employees should not claim permanency in the department. The Committee of Management also has passed a resolution to that effect on November 21, 1989. The said resolution also directs that the above said employees are to be engaged only on the days of races, but not on inter-venue betting also. The said employees were used to be employed on days of inter-venue betting also. The members of the petitioner-Union do not have any record of their service since, when new identity cards were given, the old ones were taken back. Every year they are asked to make an application in forms with certain conditions. The conditions there in are one sided and unreasonable and they offend Arts. 14, 16 and 21 of the Constitution of India. The Government takes disciplinary action against the members of the Union and this fact shows that they are continuously employed. Before take over by the Government, the management had imposed the condition that the race day employees must have attended at least 80% of the races, failing which they would not be engaged in future.
4. The allegations in the counter-affidavit are mainly as follows :- The members of the writ petitioners-Union are given jobs on the racing days and during inter-venue betting in the after-noon on a part-time basis. Most of them are employed elsewhere. They are given jobs on turn basis in order to accommodate all of them equality. When suddenly the members of the petitioner-Union went on all illegal strike on the ground that they should be given employment on all days of racing not on rotation basis and irrespective of work load and monetary turn over, the Government was forced to employ a few new employees to carry out and conduct part of its operations to satisfy the racing public. The members of the petitioner-Union are given job on rotation for 15 days in a month only in the afternoon on the racing days. The demand of the members of the petitioner-Union for regularisation cannot be met by the Government when it is not in need of so many on a permanent basis. Those employees who already have a regular job elsewhere are employed distinctly with the understanding that they would be employed on the basis of hire on day-to-day part time casual, without creating any right. The conditions of service are agreed to by the said employees in the declaration signed by them. It is denied that the members of the petitioner Union have been continuously working for 20-25 days and 8 to 12 hours a day. The employees are required to work only for about 5 hours a day. While the number of employees required on Madras race days will be more, the number of employees required on inter-venue betting days depends on the center in which betting is conducted and in relation to the turnover in each centre. It is not true that all the employees are employed on all days. Turn system has been in vogue from time immemorial. The Custodian had explained to them that it is not possible for the management to employ all the employees on all racing days. 80% attendance on the allotted days of work on the turn duty basis is insisted because many employees come to work only on holidays and not on working days. There is no unfair labour practice.
5. A reply affidavit has also been filed by the employees, inter alia stating that they were deliberately stopped from work.
6. On the above said rival contentions, and the available materials, the learned Judge came to the following conclusions :-
(1) When considering the above said resolution passed by the Committee of Management, there is an attempt to refuse deliberately to engage the members of the petitioner-Union continuously. Such a practice in unfair labour practice.
(2) In the present case, no questions of continuous employment arises, but only seasonal.
(3) Though "all" the members of the petitioners-Union could not be regularised, it is reasonable to hold that a scheme should be evolved by which the "employees" of the petitioner-Union should be taken in.
(4) This Court cannot go into the question as to how many workers are there and for how long they are engaged as these are questions of facts, which have to be gone into. So, I do no think it is possible for this Court to enter into facts, and decide the issues, besides how the said scheme should be formulated."
7. After reaching the above said conclusions, the learned Judge held finally that it would be proper for the Government to refer the matter to the Commissioner of Labour, so that he could go into the facts and formulate a scheme. The learned Judge further observed that though the Government had refused to refer the above said issue of regularisation to the Industrial Tribunal, it would be proper in the interest of justice that it should refer the matter to the Commissioner of Labour to arrive at a scheme for regularisation of the members of the petitioner-Union, however, restricting to the above said employees who are wholly part-time casual labourers and not employees who worked somewhere else also. So holding, the learned Judge directed the Government to "apply" to the Commissioner of Labour.
8. The Government has preferred the above said appeal W.A. No. 1053 of 1990, aggrieved by the decision of the learned judge that a Scheme should be evolved for the above said regularisation. The writ petitioner has filed the other writ appeal W.A. No. 1187 of 1990 mainly on the grounds (1) that the learned Judge has failed to lay down norms as laid down by the Supreme Court, while directing framing of a scheme for the above said regularisation, (2) that the learned Judge ought to have directed the respondent not to employ the persons who were engaged for the first time in 1989, without first providing employment to the members of the petitioner-Union according to seniority, (3) and that the engagement of such new persons violate Section 25(G) and (H) of the Industrial Disputes Act, 1947 and Article 14 of the Constitution of India.
9. Mr. M. R. Narayanaswami, the learned Senior Counsel appearing for the Government urged before us that the direction issued by the learned Judge are in excess of the powers availability in the exercise of Writ jurisdiction. According to him, it is not practicable to have any scheme for the above said employees, having regard to the nature and extent of work available with the employer. According to him, the Supreme Court decisions relied on by the learned Counsel for the petitioner-Union Miss. Vaigai, related to cases where casual workmen were employed continuously, without break, which is not so in the present case. Further, according to him, having regard to the scope of the employment in the race course, the Race Club is perfectly within its limits to regulate its affairs in such way that it does not have the burden of an excessive work force. The learned Counsel also stressed that since the writ petition involves disputed question of fact, this Court should not have given any relief in the writ petition, but should have dismissed it outright.
10. We have give thoughtful consideration to the questions involved in the writ petition and the rival submissions that were before us. It is settled law that to employ workmen as casuals and continue them as such for years with the object of depriving them of the status and privileges of permanent workmen is unfair labour practice, (Vide Section 2(ra) of the industrial Disputes act, 1947 read with Item 1(10) of the Fifth Schedule of the said Act.) In H. D. Singh v. Reserve Bank of India 1986 - I - LLJ - 127, we also find that the Supreme Court has observed as follows at page 132 :
"The confidential circular directed the officers that workmen like the appellant should not be engaged continuously but should as far as possible, be offered work on rotation basis and the case that the appellant is a badli worker has to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra), Item 10 reads as follows :
To employ workmen as 'badlis', or temporaries and to continue them as such for years, with the object of depriving them of the status and privilege of permanent workmen.
We have no option but to observe that the bank, in this case has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli workers also has to fail. We thought it necessary to refer to the factual details in the case only to show our concern at the manner in which the employer in this case, The Reserve Bank of India, who should set a model for the other employers being a prestigious institution, behave towards its employees. It must have been him helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3 per day. Still see how he has been treated. We will not be far from truth if we say that the bank has deliberately indulged in unhealthy labour practice by rotating employee like the appellant to deny them benefit under the Industrial Law."
11. In the present case also, the learned Judge himself has extracted the resolution passed by the 2nd respondent Committee of Management on November 21, 1989, which, inter alia is as follows, in dealing with the above referred to race day employees :-
"The custodian will see that the workload is allotted to them in such a way that the race day employees should not claim permanency in the department.' This direction by the said committee of Management to the Custodian is similar to the above said "confidential circular" referred to in the above said passage in the above said judgment of the Supreme Court. So, just as the Supreme Court has viewed the said circular, we have also in unison with the view expressed by the learned Judge himself in the present case, hold that the above said resolution shows that the respondent in the Writ petition have indulged in methods amounting to unfair labour practice.
12. It is also well-known that Article 39(d), one of the Directive Principle of State, Policy enunciated in Part IV of the Constitution, states that the State shall, in particular, direct its policy towards securing that "there is equal pay for equal work for both men and women" and that article 42 of the same Part IV also stipulates that "the State shall make provision for securing just and humane condition of work ..." and that Article 14 coming under the "Fundamental Rights" Chapter of the Constitution of India states that the State shall not deny to any person equality before the law. The Supreme Court has also observed in Dharwad Dist. P.W.D.L.D.W.E. Association v. State of Karnataka 1991 - II - LLJ - 318 and even in the earlier decisions like Randhir Singh v. Union of India, 1982 - I - LLJ - 344 that, construing Articles 14 and 16 of the Constitution on India in the light of the Preamble and Articles 39(d), the principle "equal pay for equal work" is deducible from those Articles. Further, the said which dealt with daily-rated employees in varies Government Establishment, quoted with approval the following observation of the Supreme Court in the earlier decision in Daily Rated Casual Labour Employed under P. & T. Department through Bhartiya Dak Tar Mazdoor Manch v. Union of India, 1988 - I - LLJ - 370 at 375-376 "Of those rights the questions of security of work is of utmost importance. If a persons does not have the feeling that he belongs to an organisation engaged in production he will not put forward his best effort to produce more. That sense of belonging arises only when he feels that he will not be turned out of employment the next day at the whim of the management. It is for this reason it is being repeatedly observed by those who are in charge of economic affairs of the countries in different part of the world that as far as possible security of work should be assured to the employees so that they may contribute to the maximisation of production. It is again for this reason that management and the Governmental agencies in particular should not allow workers to remain as casual labourers or temporary employees for an unreasonably long period of time ..."
After quoting the above passage and certain other passage from other decisions, the Supreme Court in the above referred 1991 - II - LLJ - 318 concluded as follows at page 323 :
"We have referred to several proceedings all rendered within the current decade - to emphasise upon the feature that equal pay for equal work and providing security for service by regularising casual employment within a reasonable period have been unanimously accepted by this Court as a constitution goal to our socialistic policy. Article 141 of the Constitution provides how the decisions of this Court are to be treated and we do not think there is any need to remind the instrumentalities of the State, be it of the Centre or the State or the public sector, that the constitution-makers wanted them to be bound by what this Court said by way of interpreting the law."
From the above a said passages, it is clear that there is a greater responsibility on the Government Agencies in not allowing the workers to remain as casual labourers for an unreasonably long period of time. Further, it is also clear from the above said passages that the questions of security of work is of utmost importance of the workers. These two aspects were also very much emphasised in the present case by the learned counsel for the Writ petitioner-Union.
13. Further, in Surinder Singh, v. Engineer-in-Chief, C.P.W.D., 1986 - I - LLJ - 403 it has been observed as follows at page 404 :
"The Central Government, the State Governments and likewise, all public sector under takings are expected to function like model and enlightened employers and arguments such as those which were advanced before us that the principle of equal pay for equal work is an abstract doctrine which cannot be enforced in a Court of law should ill-come from the Mouths of the State Undertakings."
Further, in Dhirendra Chamoli v. State of U.P. 1986 - I - LLJ - 134 at 135-136 the following observation is significant :-
"The fact that these employees accepted employment with full knowledge that they will be paid only daily wages and they will not get the same salary and conditions of services as other Class IV employees, cannot provides as escape to the Central Government to avoid the mandate of equality enshrined in Article 14 of the Constitution. This article declares that there shall be equality before the law and equal protection of the law and implicit in it is the further principle that there must be equal pay for work if equal value ... it makes no difference whether they are appointed in sanctioned posts or not. So long as they are performing the same duties, they must receive the same salary and conditions of service as Class IV employees."
In the present case also, it was stressed by the learned counsel for the Government that the above said employees accepted the employment with the conditions mentioned in their application for casual employment. One such condition is the said employees could be "stopped (from work) at any time without notice, it being distinctly understood that the engagement is on the basis of hire on day-to-day casual basis without creating any right to be hired on future racedays/intervenue betting days." But, as the Supreme Court observed, the acceptance to the above said condition or any other similar conditions "cannot provide escape" to the Government "to avoid mandate of equality enshrined inn Article 14 of the Constitution."
14. Further, B. R. Singh v. Union of India 1989 - II - LLJ - 591 which was to some extent similar to the present case, dealt with the case of the casual workers, employed by the Trade Fair Authority of India and working in the periodical exhibitions conducted by the said authority in Delhi. In that case also, there was a strike by the said workers, demanding regularisation of the service and the authority refused work to them after strike and the Supreme Court directed the said authority to give them work and also directed to complete regularisation process within three months. Likewise in Bhagwati Prasad v. D.S.M. Devt. Corpn., (1990 - I - LLJ - 320) also, the Supreme Court directed regularisation in respect of daily, rated workman of a public sector corporation, viz., Delhi State Mineral Development Corporation. There, the Supreme Court observed as follows at page 322 :
"Once the appointments were made as daily rated workers and they were allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective post on the ground that they lack the prescribed educational qualifications. In our view, three years' experience, ignoring artificial break in service for short period/periods created by the respondents, in the circumstance, would be sufficient for confirmation. If there is a gap of more than three months between the period of termination and re-appointment that period may be excluded in the computation of three years period. Since the petitioners before us satisfy the requirements of three years'. Service as calculated above, we direct that 40 of the senior-most workmen should be regularised with immediate effect and the remaining 118 petitioners should be regularised in a phased manner, before April 1, 1991 and promotion to the next higher post according to the standing orders."
It should be noted here that even where there is a gap of more than three months between the period of termination and re-appointment that period should be excluded in the computation of the above said that three year period. Further, it is emphasised therein that all artificial breaks in service should be ignored.
15. Viewed in the background of the above referred to decisions of the highest Court, it would be but proper that we also in the present case, direct regularisation of the members of the writ petitioner - Union to the justified extent, taking into account, all the relevant factors. No doubt, in his regard, two main objections were raised by the learned counsel for the Government. One is, that this writ petition involves disputes questions of facts as mentioned by the learned judge himself, who heard writ petition, The other objection is that in all above said Supreme Court decisions there was a continuous employment of the casual workers concerned therein.
16. Taking the second objection first, it cannot be said that in all the above referred to Supreme Court decision, there was a continuous employment of casual labourers. In fact, in the above referred to 1986 - I - LLJ - 127 the Supreme Court directed regularisation of employment of the appellant (daily or casual workers) before it, even though on facts it found that he was actually working only for a continuous period of 240 days in a year. After going through the relevant affidavits therein, the Supreme Court came to the following factual conclusion at pages 131-132 :
"In the absence of any evidence to the contrary, we have necessarily to draw the inference that the appellant's case that he had worked for more than 240 days from July 1975 to July 1976, is true. Striking off the name of the appellant under these circumstances is clearly termination of his service and the dispute in this case therefore squarely comes within Section 2A of the Industrial Disputes Act ...."
...... In this case, for example, the bank should have treated the appellant as a regular hand in List II."
Therefore, even in such a case, the Supreme Court has held that concerned employee should be treated as regular employee. Further, the Supreme Court also observed that no contradict the appellant's case, the 1st respondent-Bank did not produce its records its records and that though the appellant wanted the relevant records to be filed, they would not produce. That is why the workmen's claim was accepted by the supreme Court in the said case. In the present case also, the Contention of the learned Counsel for the writ petitioner-Union is that if only the relevant wage register and other records for the period prior to October, 1989 were produced by the Government, it would have shown the extent of the continuity of the employment of the above said employees. In the present case, the statement produced by the Government relates to a periods only after April 1, 1990. So, the relevant earlier records must be seen to arrive at a conclusion which would be fair and reasonable to both the parties in the regularisation process. Further, according to the learned Counsel for the writ petitioner-Union, most of above said employees have been working in the Madras Race club for a period ranging between 10 to 30 years as shown by the "list of race day employees with details" filed by the writ petitioner Union. She also submitted that only an insignificant portion of the above said employees were working elsewhere. Further in that connection, she also points Jubilee Tailoring House v. C.I. of shops and Estts, 1973 - II - LLJ - 495 (SC) : at p. 504 :
"A person can be servant of more than one employer. A servant need not be under the exclusive control of one master. He can be employed under more than one employer (See "The Modern Law of Employment" By G. H. L. Frid man, P. 18 and Patwardhan Tailors, Poona v. Their workmen (1960 - I - LLJ - 772, at 726)."
On the other hand, the learned counsel for the Government drew our attention to the following, passage in the Supreme Court decision in Pyarchand v. Omkar Laxman 1970 - I - LLJ - 492 at P. 495 :
"The general rule in respect of relationship of master and servant is that a subsisting contract of service with one master is a bar to service with any other master unless the contract otherwise provides or the master consents."
But, the said passage itself suggests that if the contract otherwise provides or the master consents, there may not be any prohibition to have dual employers. In the present case, admittedly in the application for employment of any of the above said employees, who worked elsewhere, a letter of consent is obtained form the other employer concerned. Anyway, we make it clear that the contemplated regularisation need not cover any of the above said employees who were working with another employer as on October, 1989 or earlier. Now, in implementing the regularisation process, we may state that the extent of regularisation, would also depend on the seniority of each of the above said employees. In this connection, we may also point out the observation of the Supreme Court in Inder Pal Yadav v. Union of India, 1985 - II - 406 which also involved casual labourers employed on Railways projects and where also regularisation was directed. In that connection, their Lordships observed as follows (p. 409) "To avoid violation of Article 14, the scientific and equitable way of implementing the scheme is for the Railway Administration to prepare, a list of project casual labour with reference to each division of each railway and then start absorbing those with the longest service. If in the process any adjustments are necessary, the same must be done. In giving this direction, we are considerably influenced by the statutory recognition of a principle well known in industrial jurisprudence that the men with longest service shall have priority over those who have joined later on."
17. We shall then take up the first of the above said objections. The law on the subjects is clearly laid down in Babubhai v. Nandlal, :-
"The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioners right of relief, questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is no doubt discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises complex questions of fact, which may for their determination require oral evidence to be taken and on that account the High Court is of the view that the dispute should not appropriately be tried in a writ petition, the High Court may decline to try a petition (see Gunwant Kaur v. Bhatinda Municipality, ). If, however, on consideration of the nature of the controversy, the High Court decides, as in the present case, that it should go into a disputed question of fact and the discretion exercised by the High Court appears to be sound and in conformity with judicial principles, this Court would not interfere in appeal with the order made by the High Court in this respect.
18. Further Mukti Morcha v. Union of India, (1984 Lab IC 560) no doubt with reference to jurisdiction of the Supreme Court under Articles 32 the Constitution of India, initially it was observed as follows at p. 574 (of LIC) :-
"If the Supreme Court were to adopt a passive approach and decline to intervene in such a case because relevant material has not been produced before it by the party seeking its intervention, the fundamental rights would remain merely a teasing illusion so far as the poor and disadvantaged sections of the community are concerned. It is for this reason that the Supreme Court has evolved the practice of appointing commission for the purpose of gathering facts and data in regard to a complaint of breach of a fundamental right made on behalf of the weaker sections of the society."
The Supreme Court in the said decision has further observed even with regard to Articles 226 jurisdiction as follows :-
"We may point out that what we have said above regard to the exercise of jurisdiction by the Supreme Court under Art. 32 must apply equally in relation to the exercise of jurisdiction by the High Courts under Article 226, for the latter jurisdiction is also a new constitutional jurisdiction and it is conferred in the same wide as the jurisdiction under Article 32 and the same powers can and must therefore be exercised by the High Courts while exercising jurisdiction under Articles 226. In fact, the jurisdiction of the High Court under Article 226 is much wider, because the High Courts are required to exercise this jurisdiction not only for enforcement of a fundamental right but also for enforcement of any legal right and there are many rights conferred on the poor and the disadvantaged which are the creation of statute and they need to be enforced as urgently and vigorously as fundamental right."
19. In the light of the above referred to observations of Supreme Court and in the high of several of Supreme Court and in the light of several factual materials, placed before us by both the parties regarding (i) the days on the which races are held at Madras in a year, (ii) the days on intervenue battings go on in Madras in respect of races that take place in all other centres in India, like Calcutta, Bombay, Bangalore, Ooty, Hyderabad, etc., (iii) different race events that take place in Madras and other centres like Jackpot, win and place, etc., and other relevant details given in the counter affidavit dated February 10, 1991, filed by the Secretary in the Department of Racing of the Government in C.M.P. No. 16128 of 1991 in W.A. No. 1187 of 1990, we think that a direction must be given for further investigation of the facts, fully, so as to formulate just and reasonable regularisation of the above said employees to the extent possible and without prejudicing the business interest of the Government in running the races.
20. Now, what we propose to do in those writ appeals is as follows :- In the light of the discussions and findings reached in this judgment, if the Government is agreeable to regularisation of the above said employees, we intend directing the Government and the above said Committee of Management on the one hand and the writ petitioner-Union on the other hand to file within six weeks their proposals regarding the extent to which, and also the terms upon which, the regularisation could be fairly and reasonably made in the interest of both the parties. We adopt this course only in our eagerness to arrive at an amicable settlement between the parties.
21. In case, the Government is not coming forward to express it agreement as stated above, we propose to direct the Labour Commissioner to give and finding, after going through all the relevant records which are with the appellants or with the 2nd respondent herein and after hearing the parties and in the light of this judgment regarding the scheme to be adopted for regularisation. After the above said finding is submitted to this Court, a proper scheme could be framed for regularisation in the interest of both the parties by this Court.
22. So, initially we direct the Government to let us know whether, in the light of the finding in this judgment, it is agreeable to regularisation of the above said employees in a just manner, Post the writ Appeal for further orders on January 10, 1992.