Madras High Court
The Director General vs The Presiding Officer on 19 February, 2015
Author: M. Duraiswamy
Bench: M. Duraiswamy
RESERVED ON: 12.02.2015
DELIVERED ON: 19.02.2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19 -02-2015
CORAM
THE Hon'ble Mr.JUSTICE M. DURAISWAMY
W.P.Nos.14047 of 2011 and 525 of 2012
W.P.No.14047 of 2011
1. The Director General,
Prasar Bharati Broadcasting Corportion of India
Doordarshan,
Mandi House,
New Delhi 1
2. The Director,
Prasar Bharati Broadcasting Corportaion of India
Doordarshan Kendra,
Swami Sivananda Salai,
Chennai-5 .... Petitioners
vs
1. The Presiding Officer,
Government of India,
Ministry of Labour and Employement
Central Government Industrial Tribunal- cum-
Labour Court,
I Floor, "B" wing, No.26, Haddows Road,
Shastri Bhavan, Chennai-6
2. H. Danesh
3. P. Pakkiriswamy
4. C. Ramanan
5. P. Arun Ravi
6. N. Ashok Kumar
7. A. Mahendran
8. K. Madanagopal
9. M. Balamurugan
10.G. Venkatesalu
11.T. Krishnamurthy
12.Ramesh
13.M. Shankar Sha
14.K. Selvaraj
.... Respondents
W.P.No.525 of 2012
1. H. Danesh
2. P. Pakkiriswamy
3. C. Ramanan
4. P. Arun Ravi
5. N. Ashok Kumar
6. A. Mahendran
7. K. Madanagopal
8. M. Balamurugan
9.G. Venkatesalu
10.T. Krishnamurthy
11.Ramesh
12.M. Shankar Sha
13.K. Selvaraj .... Petitioners
vs
1. The Presiding Officer,
Government of India,
Ministry of Labour and Employement
Central Government Industrial Tribunal- cum-
Labour Court,
I Floor, "B" wing, No.26, Haddows Road,
Shastri Bhavan, Chennai-6
2. The Director General,
Prasar Bharati Broadcasting Corportion of India
Doordarshan,
Mandi House,
New Delhi 1
3. The Director,
Prasar Bharati Broadcasting Corportaion of India
Doordarshan Kendra,
Swami Sivananda Salai,
Chennai-5 .... Respondents
W.P.No.14047 of 2011:
Writ Petition filed under Article 226 of the Constitution of India praying this court to issue a Writ of Certiorari to call for the records pertaining to I.D.No.9/2010 dated 21.5.2010 on the file of the Government of India, Ministry of Labour and Employement, Central Government Industrial Tribunal-cum-Labour Court, "B" Wing, (1st floor), No.26, Haddows Road, Shastri Bhavan, Chennai-6, the first respondent herein and quash the same.
W.P.No.525 of 2012:
Writ Petition filed under Article 226 of the Constitution of India praying this court to issue a Writ of Certiorari to call for the records relating to the Common Award dated 21.5.2010 passed by the first respondent Central Government Industrial Tribunal cum Labour Court, Chennai in I.D.No.09 of 2010 and to quash the same in sofar as it has denied the normal relief of regularisation w.e.f. 28.03.1998 and consequently grant regularisation w.e.f. 28.3.1998 with all other service benefits including the terminal benefits.
For petitioners in : Mr.A.S. Vijayaraghavan
W.P.No.14047/2011 SCGSC
& R.2 & R.3 in W.P.
No.525/2012
For petitioners in : Mr.N.G.R. Prasad
W.P.No.525/2012 for M/s Row & Reddy
& respondents in
W.P.No.14047/2011
COMMON ORDER
Challenging the Award passed in I.D.No.9/2010 on the file of Central Government Industrial Tribunal-cum-Labour Court, Chennai, both the Management and the workmen filed the above writ petitions.
2. W.P.No.14047 of 2011 has been filed by the Management to issue a writ of Certiorari to call for the records pertaining to I.D.No.9/2010 dated 21.5.2010 on the file of the Government of India, Ministry of Labour and Employement, Central Government Industrial Tribunal-cum-Labour Court, "B" Wing, (1st floor), No.26, Haddows Road, Shastri Bhavan, Chennai-6, the first respondent herein and quash the same.
3. W.P.No.525 of 2012 has been filed by the employees for issuance of a Writ of Certiorari to call for the records relating to the Common Award dated 21.5.2010 passed by the first respondetnt Central Government Industrial Tribunal cum Labour Court, Chennai in I.D.No.09 of 2010 and to quash the same in sofar as it has denied the normal relief of regularisation w.e.f.28.03.1998 and consequently grant regularisation w.e.f.28.3.1998 with all other service benefits including the terminal benefits.
4. Since the issue involved in both these writ petitions arises against the Award passed in I.D.No.9/2010, both the writ petitions are disposed of by this common order.
5. For the sake of convenience, the employees are referred as Petitioners and the Management is referred as respondents.
6. The brief case of the petitioners as follows:
(a) According to the petitioners, they are casual labourers with the second respondent Kendra from 1987-1992. Though the nature of work is permanent against the sanctioned posts, they are engaged as Peons or Farash extracting work of a regular Peon or Farash. Prior to 28.3.1996, the Kendra had been functioning 6 days a week with Sunday as weekly Holiday, but, after 28.3.1996, it is working 5 days a week with Saturday and Sunday as weekly holidays.
(b) The petitioners were originally engaged only for 15 days a month and thereafter, they have been engaged 18 days a month, thus, for 216 days for every calendar year excluding Saturdays and Sundays. According to the petitioners, they put in more than 240 days of continuous service in each calendar year inclusive of Saturdays and Sundays for calculating 240 days. Therefore, they should have been made permanent in 1998, having put in 480 days of continuous service in 24 calendar months by reason of entitlement to permanency under Section 3 of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workman) Act, 1981.
(c) On 10.9.1993, the Central Government issued Official Memorandum for grant of temporary status to casual labourers. Engagement of labour casually is one of the modes of recruitment in the Second respondent Kendra as recognised by the Central Government as is revealed from the establishment and administrtation manual which in a separate Chapter deals with Casual Labour engaged. While benefits of temporary status scheme was extended to one Samuel, similarly placed like the petitioners, the same was not extended to them in a discriminatory and illegal treatement.
(d) Writ Petiton in WP No.7908 of 1999, filed before this Court for Temporary Status, was dismissed on 25.8.2002. While dismissing the writ petition, this Court held that the Temporary Status Scheme was a one time scheme for regularisation for the entitlement of which the employees should have put in 206/240 days of service as the case may be in the preceeding 12 months and also held that the eligibility would be there for regularisation by reason of long years of service under the Labour Laws.
(e) The petitioners were forced to work continuously for more than 10 to 12 hours in a day. As per Sec.3(d) of Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959, unskilled jobs are exempted from application of the act and hence Employment Exchange need not sponsor candidates. The petitioners, who were to sign in ordinary register initially, are signing the Attendance Registrer from 1996. Not regularising them amounts to unfair labour practice.
(f) In these circumstances, the petitioners sought to regularise their services.
7. Per contra, the brief case of the respondents are as follows:
(a) According to the respondents, 5 days a week system is applicable to the Administrative Staff and not shift duty staff. The service of the petitioners are utilised on rotation basis in various sections such as News, Transport, Commercial, CPF, Studios, Transmitter etc, which function 7 days a week. The Office Memorandum dated 13.3.1996 was issued to that effect. The engagement of casual labourers is purely on exigency of work. Casual labourers were engaged in various sections and also for cleaning and sweeping work on shift basis only with other regular employees as per day today requirements. The petitioners cases are to be governed by 6 days a week system. The petitioners did not work for more than 480 days in 24 calendar months. Permanency as per Section-3 of Tamil Nadu Industrial Establishment Act is not applicable to the petitioners.
(b) As per the scheme for grant of Temporary Status and Regularisation of casual workers which was introduced with effect from 1.9.1993, the Temporary Status would be conferred to the Casual Labourers in employment on that date and to those who have rendered continuous service of atleast one year. The petitioners have not worked for 240 days in a Calendar year as on 1.9.93. The number of days worked in subsequent year will not be taken into account. The scheme is not an ongoing one. Only if they work for 240 days in a year they may claim regularisation. Tamil Nadu Industrial Establishment Act is not applicable to the respondents, where Central Government Rules are followed.
8. Before the Labour Court, on the side of the petitioners, M.W.1 was examined and 226 documents were marked as Exs.W.1 to W.225. On the side of the Management, though no oral evidence was let in, six documents Ex.M.1 to M.6 were marked.
9. The Labour Court held that the entry of the service by the petitioners is not through backdoor. Further they being unskilled workers, sponsoring through Employment Exchange is not mandatory. The Labour Court further held that the petitioners are entitled to the benefits of Section 3(1) of the Tamil Nadu Industrial Establishments Act, 1981. Ultimately, the Labour Court directed the respondents to regularise the petitioners forthwith. Aggrieved over the Award passed by the Labour Court, the employees and the Management have filed the above writ petitions.
10. Heard Mr.N.G.R. Prasad, learned counsel for the petitioners and Mr.A.S. Vijayaraghavan, learned Central Government Standing Counsel for the respondents.
11. Mr.A.S. Vijayaraghavan, learned Central Government Standing Counsel, appearing for the respondents submitted that the workmen are not sponsored through Employement Exchange and are engaged as casual labourers on rotational basis in shifts. They do not come under the 5 days a week system. Further, the learned Standing Counsel submitted that the provisions of Tamil Nadu Industrial Establishment Act is not applicable to the respondents and that only Central Government Rules are applicable. Further, the learned Standing Counsel submitted that the petitioners have not established that they worked for more than 240 days in a calendar year.
12. Countering the submissions made by the learned Central Government Standing Counsel, appearing for the respondents/ Managment, Mr.N.G.R. Prasad, learned counsel appearing for the petitoners/employees submitted that the petitioners have put in more than 20 years service and that their engagement was due to shortage of staff in the respondent Corporation. Further, the learned counsel submitted that the employement of the petitioners was not through the backdoor. The learned counsel contended that the petitioners, having worked continuously for more than 480 days in a period of two calendar years, under Sec.3(i) of the Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act, 1981, they are to be deemed to have been conferred permanent status. The petitioners have completed 240/480 days respectively. The learned counsel further submitted that the petitioners should have been regularised with effect from 28.3.1998. In support of his contention, the learned counsel relied upon the following judgments:
(i) 2007 (2) L.L.N 212 (V. Elayaperumal and Others vs State Bank of India, Asaveerankudikadu Branch), wherein this Court has held as follows:
" 17. In the instant case, the definite establishment is virtually lifted from Shops Act and has been incorporated Permanent Status Act. Therefore, provisions of C1.(c) of Sub-sec.(1) of the Shops Act which exempt establishments under the Central Government is of no consequence are Permanent Status Act would continue apply for such establishments unless an exemption has been obtained from the Government under S.9 of the Permanent Status Act. In C.V. Raman v Ba India (1988 (2) L.L.N 156) (vide 3) which was referred to by the learned Judge, the Court was concerned with question as to whether the provision of Shops Act would be applicable to nationalised bank in view of extent granted under S.4(1)(c). Therefor above decision has no relevance for determination of the issue involed in the present case. Consequently, we hold the provisons of the Permanent Status A apply to the banks including nationalised."
(ii) (2009) 8 SCC 556 (Maharashtra State Road Transport Corporation and another vs Casteribe Rajya Parivahan Karmchari Sanghatana), wherein the Apex Court has held as follows:
" 36. Umadevi (3) does not denude the Industrial and Labour Courts of their statutory power under Section 30 read with Section 32 of the MRTU and PULP Act to order permanency of the workers who have been victims of unfair labour practice on the part of the employer under Item 6 of Schedule IV where the posts on which they have been working exist. Umadevi (3) Courts in passing appropriate order under Section 30 of the MRTU and PULP Act, once unfair labour practice on the part of the employer under Item 6 of Schedule IV is established."
In 2008 (4) CTC 819 (Hindustan Petroleum Corporation Ltd vs The Presiding Officer, Central Government Labour Court cum Indistrial Tribunal), wherein this Court held that " Unfair Labour Practice" in any form is prohibited under Section 25-T of the I.D. Act and violation of which is punishable under Section 25-U of the said Act. The term " Unfair Labour Practice" is defined under Section 2(ra) r/w V Schedule to the I.D Act. Part I of the V Schedule lists out the Unfair Labour practics prohibited to be committed by an employer. Item No.10 of Part I reads as follows:
" to employ workmen as " badlis", casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen."
Hence commission of such an unfair labour practice by the employer is prohibited by the I.D. Act."
Further, this Court held that " 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 Management.
Further this Court held that the workmen are entitled to get their regularisation from the date of which each of them had completed 480 days of service within a period of 24 calendar months.
13. On a careful consideration of the materials available on record and the submissions made by the learned counsel on either side, it could be seen that as per Ex.W.1, the petitioners were engaged by the respondents against regular or leave vacancies. Ex.W.35 establishes the service details of the petitoiners.
14. It is not in dispute that the Administrative Department of the respondents follows only 5 days a week system. . On perusal of the Circular dated 28.3.96, it could be seen that from 1.4.96, 5 days a week system was introduced with Saturday and Sunday would be holidays. Accoding to the petitoiners, they have put in more than 206 days of service in a calendar year and they are entitled for regularisation.
15. The Attendance Register of the petitioners was marked from Exs.W.206 to Ex.W.217 for the year 2000. In the year 2000, the petitioners were engaged for more than 216 days in a year excluding Saturdays and Sundays. Hence it is clear that the petitioners have worked for more than 240 days in the year 2000, for claiming permanency.
16. As contended by the learned counsel for the petitioners, as per clause 10 of Part I of the V Schedule " keeping the workmen as casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen amounts to unfair labour practice".
17. In the case on hand, the petitioners have put in more than 20 years of service and they are claiming the benefits of regularisation. In Uma Devi's case, the Apex Court held that " if an employee is working on temporary basis for more than 10 years without the protection of court orders, they may be regularised as one-time measure".
18. When the petitioners rendered service for more than twenty years, their continued exploitation should come to an end by creating a feeling of job security in their minds at least at the fag end of their service.
19. It is also pertinent to note that the definition of establishment is virtually borrowed from the Shops Act and has been incoporated in the Permanent Status Act. Therefore, the provisions of Clause c of sub.sec.(1) of Sec.4 of the Shops Act which exempt the establishments under the Central Government is of no consequence and the Permanent Status Act would continue to apply for such establishments unless and until exemption has been obtainied from the State Government under Sec.9 of the Permanent Status Act. This ratio was laid down by the Division Bench of this Court reported in 2007 (2) L.L.N 212 (V. Elayaperumal and Others vs State Bank of India, Asaveerankudikadu Branch) cited supra.
20. Therefore, applying the principles laid down in the said judgments, I am of the considered view that the provisions of Clause c of sub.sec.(1) of Sec.4 of the Shops Act, which exempt the establishments under the Central Government, is of no consequence and the Permanent Status Act would continue to apply for such establishments unless and until exemption has been obtained from the State Government under Sec.9 of the Permanent Status Act. Further, in the case on hand, it is not the case of the respondents that they have obtained exemption under Sec.9 of the Permanent Status Act. Such being the case, the said provisions would not apply to the respondents.
21. In the Judgment reported in 2008 (4) CTC 819 (Hindustan Petroleum Corporation Ltd vs The Presiding Officer, Central Government Labour Court cum Indistrial Tribunal, this Court held that "if the employees have put in several years of service, it will not be reasonable if their claim for regularisation is denied even after such a long period of service." This Court also held that " apart from discrimination, Article 14 of the Constitution will also be violated on the ground of arbitrariness and unreasonableness if employees who have put in such a long service are denied the benefit of regularisation and are made to face the same selection which fresh recruits have to face".
22. In the case on hand, the employees have put in more than 20 years of service and therefore, the ratio laid down in the judgment reported in 2008 (4) CTC 819 (Hindustan Petroleum Corporation Ltd vs The Presiding Officer, Central Government Labour Court cum Indistrial Tribunal, squarely applies to the facts of the present case.
23. That apart, in the present case, the petitioners also contended that the benefits of Temporary Status Scheme was extended to one Samuel, who was similarly placed like the petitioners, but the same was not extended to them in a discriminatory manner. The denial of the treatment on par with the said Samuel, who was also similarly placed with that of the petitioners, is a clear discrimination and violation of Article 14 of the Constitution of India.
24. As already stated, as per clause 10 of Part I of the V Schedule, keeping the workmen as casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen amounts to unfair labour practice.
25. Therefore, the petitioniers are entitled to be regularised in the service. Further, it is also not the case of the respondents that they are continuing the service under the Orders of the Court. The Labour Court has rightly came to the conclusion that the entry of the petitoiners was not through back door and that they have continued their service because their service were indispensable.
26. That apart, the Labour Court has also rightly found that the petitoiners, being unskilled workers, sponsoring through Employement Exchange, is not mandatory. The petitioners are entitled to the benefits of Sec.3(1) of the Tamil Nadu Industrial Establishments Act, 1981. Since the petitioners had worked for more than 240 days in a year, they are entitled to be regularised.
27. The Labour Court, while regularising the services of the petitoiners, directed the respondents to regularise the employees forthwith. In the judgment reported in 2008 (4) CTC 819 (Hindustan Petroleum Corporation Ltd vs The Presiding Officer, Central Government Labour Court cum Indistrial Tribunal, this Court held that "the workmen are entitled to get their regularisation from the date on which each of them had completed 480 days of service within a period of 24 calendar months".
28. In the present case, the second respondent Kendra was having 6 days a week with Sunday as weekly Holiday, but, after 28.3.1996, it is working 5 days week with Saturday and Sunday as weekly holidays. The petitoners were engaged for 220 days in a year excluding Saturday and Sunday and if Saturday and Sunday are included, the petitioners would have put in 240 days in a year.
29. As per Sec.3(i) of the Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act, 1981, if an employee has worked continuously for more than 480 days in a period of two calendar years, he is entitled to claim permanent status.
30. Mr.N.G.R. Prasad, learned counsel appearing for the petitoiners sumitted that the word " forthwith" referred to in the Award of the Labour Court means from the date of the Award. According to the petitioners, they have completed 480 days of service in 24 calendar months on 28.3.1998. Therefore, they are entitled to be regularised from 28.3.1998. Therefore, applying the ratio laid down in the judgment reported in 2008 (4) CTC 819 (Hindustan Petroleum Corporation Ltd vs The Presiding Officer, Central Government Labour Court cum Indistrial Tribunal,, the petitioners are entitled to be regularised with effect from 28.3.1998.
31. Sofar as the finding of the Tribunal with regard to the regularisation of the petitioners is concerned, it is modified to the effect that the respondents are directed to regularise the services of the petitioners with effect from 28.3.1998.
32. In these circumstances, the writ petition in W.P.No.14047 of 2011, filed by the Management, stands dismissed and the writ petiton in W.P.No.525 of 2012, filed by the employees, stands allowed. No costs. Consequently, connected MP is closed.
19-02-2015 sr Index:no website:yes To
1. The Director General, Prasar Bharati Broadcasting Corportion of India Doordarshan, Mandi House, New Delhi 1
2. The Director, Prasar Bharati Broadcasting Corportaion of India Doordarshan Kendra, Swami Sivananda Salai, Chennai-5
3. The Presiding Officer, Government of India, Ministry of Labour and Employement Central Government Industrial Tribunal- cum-
Labour Court, I Floor, "B" wing, No.26, Haddows Road, Shastri Bhavan, Chennai-6 M. DURAISWAMY,J., sr Pre-Delivery Common Order W.P.Nos.14047 of 2011 and 525 of 2012 19-02-2015