Madras High Court
S.Sasikumar vs Https://Www.Mhc.Tn.Gov.In/Judis on 1 August, 2022
Author: S.M. Subramaniam
Bench: S.M.Subramaniam
W.P.No.23834 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.08.2022
CORAM :
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
W.P.No.23834 of 2014
and
M.P.No.1 of 2014
1.S.Sasikumar
2.N.Jai Sankar
3.C.Paramasivam
4.K.Kandan
5.K.Kanagaraj
6.N.Ramesh
7.G.K.Elumalai
8.A.Arunagiri
9.C.Ramesh
10.A.Saravanan
11.D.Senkuttuvan
12.K.B.Sivam
13.Elumalai
14.S.Viswanathan
15.P.Sankar
16.K.Karthikayan
17.R.Mobin
18.B.Ramesh
19.L.Vediappan
20.K.Elumalai
21.E.Selvaraj
22.G.Gnana Jothi
23.V.Raja
24.S.Moorthy
25.R.Vediyappan
26.J.Farook Basha
27.C.Sivakumar ... Petitioners
Vs.
https://www.mhc.tn.gov.in/judis
Page 1 of 10
W.P.No.23834 of 2014
1.The Management of TANSI
Thiruvannamalai.
2.The Labour Officer – 2
Vellore. ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
for issuance of a Writ of Certiorarified Mandamus, calling for the records
relating to the order passed by the second respondent made in
Na.Ka.No.494 of 2013 dated 18.02.2014, quash the same and
consequently direct the said Authority to conduct conciliation of the
Industrial disputes raised by the petitioners.
For Petitioners : M/s.K.Shanmugakani
For R1 : Mr.V.R.Kamalanathan
For R2 : Ms.R.L.Karthika
Government Advocate
ORDER
The order dated 18.02.2014 issued by the 2nd respondent / Labour Officer-2, Vellore is under challenge in the present writ petition.
2. The petitioners state that all the petitioners are employed as workmen in the TANSI. The Government of Tamil Nadu established Tamil Nadu State Industrial Corporation for the management of Industrial Estates as well as taking up programmes on a commercial nature for small scale industries like production, marketing and raw materials depots. https://www.mhc.tn.gov.in/judis Page 2 of 10 W.P.No.23834 of 2014
3. The learned counsel for the petitioners made a submission that the petitioners are working for a considerable length of time and one among the petitioner i.e., 10 th petitioner / Workman was officially nominated by the 1st respondent as Contractor. It is contended that the minimum wages as applicable were not paid during the relevant point of time and the 1st respondent / Management has not considered the case of the writ petitioners for permanent absorption. No contract was registered under the relevant Statutes. There is no written contract between the said contractor and the management of TANSI. The workmen order is issued to the said contractor and he has erroneously approached as contractor. The wages are paid through the said contractor and distributed to the workmen.
4. The learned counsel for the petitioners made a submission that the contractor is a sham and therefore, the petitioners are entitled for the benefit of minimum wages and conferment of permanent status under the relevant Statutes. In order to raise the dispute, they have approached the 2nd respondent / Labour Officer, who in turn, instead of adjudicating the issues for the purpose of reference, suggested the petitioners to approach the competent authority under the provisions of the conferment of Permanent Status Act or before the competent authority under the https://www.mhc.tn.gov.in/judis Page 3 of 10 W.P.No.23834 of 2014 Minimum Wages Act. The said order was passed by the 2 nd respondent, which is perverse, as he has no jurisdiction to provide suggestion instead of referring the issues for adjudication.
5. The learned counsel for the petitioners relied on the judgment of the High Court of Madras delivered in the case of Employees in the Caltex (India), Ltd., Madras, Petroleum Workers' Union Vs. Commissioner of Labour and Conciliation Officer, Government of Madras, in W.P.Nos.914 and 915 of 1958, dated 24.02.1959, where in, the observation are made:
“The conciliation officer when acting under S. 12 of Industrial Disputes Act could not be considered to be acting in a judicial or quasi-judicial manner. No doubt there are opposing parties and various points at issue between them. But the conciliation officer is not competent to hear or decide any of them. All he can do is to try to persuade the parties to come to a fair and amicable settlement. The Act gives him power to “do all such things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute.” His duties are to induce or persuade; he has no power to decide anything at all. He can appeal to their good sense or to their sense of patriotism or to their self-interest. Within reasonable limits https://www.mhc.tn.gov.in/judis he may also remonstrate with them. He may invite them to Page 4 of 10 W.P.No.23834 of 2014 take into consideration the temper or public opinion or the hardships that the public may be put to. In fact, the matter is left entirely to his resourcefulness and powers of persuasiveness. How the discharge of such duties can be regarded as judicial or quasi-judicial, it is hard to see.”
6. The learned counsel appearing on behalf of the 1st respondent / TANSI objected the said contention by stating that the petitioners are not the employees of the TANSI and no such appointments were made. The petitioners are engaged by the sub-contractors with whom an agreement was entered into by the TANSI Management. Therefore, the petitioners are not the employees of the TANSI. If at all any grievances exists, they have to redress the same against the sub-contractor, who is the employer. It is further contended that the 2nd respondent / Labour Officer issued an order, stating that the petitioners have to approach the Competent Forum for the purpose of adjudication of the issues. If their grievances are for minimum wages, then they have to approach the competent authority under the Minimum Wages Act and if they seek permanent status, then also they are bound to approach the competent authority under the Statutes. Contrarily, they cannot seek any such benefit against the TANSI, as the TANSI is not the employer as far the writ petitioners are concerned. https://www.mhc.tn.gov.in/judis Page 5 of 10 W.P.No.23834 of 2014
7. This Court is of the considered opinion that the judgment referred by the petitioners have no application with reference to the facts and circumstances of the case on hand. In the present case, the TANSI has clarified that the petitioners are not employed by them. The petitioners have not produced any orders of appointment issued by the competent authority of the TANSI. The TANSI is owned by the Government of Tamil Nadu and therefore, they are bound to follow the Recruitment Rules or the settlement or otherwise for the purpose of appointing the workmen or employees.
8. The TANSI being a 'State' within the meaning of the Article 12 of the Constitution of India, has to follow the rules in force scrupulously, while undertaking the process of appointment to any post in TANSI organisation. Equal opportunity in public employment is to be maintained by the organisation. They are bound to conduct the process of selection through open competitive process and by following the procedures as contemplated. Therefore, regularisation or permanent absorption cannot be granted in Government Organisation in a routine manner by absorbing the workmen, who all are employed by the sub-contractors for the purpose of completion of certain works.
https://www.mhc.tn.gov.in/judis Page 6 of 10 W.P.No.23834 of 2014
9. Years back, the practice of securing public employment in an indirect manner was prevailing. The Courts also have passed certain orders to consider those workmen, despite the fact that that those workmen were not appointed by the State or through its Organisation or through instrumentality of the State. However, such practice of granting permanent absorption was heavily criticised by the Constitution Bench of the Hon'ble Supreme Court of India in the case of State of Karnataka Vs. Uma Devi reported in [2006 (4) SCC 1]. As far as the State and the Instrumentality of the States are concerned, the appointments are to be made under the constitutional scheme and by following the Recruitment Rules in force. It is not as if an employee or the private contractor, who performed certain job for the Government organisation can seek permanent absorption in the Government organisation without undergoing the selection process. Such an indirect way of grabbing the public employment is unconstitutional and the High Court cannot encourage such practice.
10. Misplaced sympathy in this regard would result in infringement of the Fundamental Rights of all other eligible citizen, who all are longing to secure public employment through open competitive process. Therefore, the appointments in the State or its organisation are concerned, it must be through the rules in force. Even if the daily rated employees or contract https://www.mhc.tn.gov.in/judis Page 7 of 10 W.P.No.23834 of 2014 employees are appointed by the organisation on certain terms and conditions, such irregular appointments cannot be regularised for the purpose of grant of permanent absorption. Therefore, the practice of grabbing public appointments in an indirect manner by the employees of the private contractors can no more be approved by the High Court nor any direction can be issued by the High Court under Article 226 of the Constitution of India, directing such State organisation or instrumentality of the State to regularise the services or grant the benefit of the permanent absorption. High Court cannot issue such direction for permanent absorption, which is otherwise not in accordance with Service Rules and the recruitment process, which all are in force.
11. The petitioners even as per their own affidavit are working under a private contractor. The agreement is between the sub-contractor and the petitioners. If the sub-contractor has violated any of the provisions of the Statutes that is to say Minimum Wages Act or any other Act, then the petitioners are bound to approach the competent authority under the particular Act or before the Labour Court for the purpose of adjudication of issues in the manner contemplated. Contrarily, they cannot approach the Labour Officer only against the TANSI, who is not an employer at all. https://www.mhc.tn.gov.in/judis Page 8 of 10 W.P.No.23834 of 2014
12. Even in the present case, the sub-contractor has not been provided with an opportunity before the Labour Officer. Beyond that the petitioners cannot seek any relief against the TANSI organisation, as they were not engaged by the TANSI nor an order of appointment were issued to them in accordance with law. Thus, erstwhile practice of regularising these contract labourers appointed by the private contractor can no more be encouraged by the Courts and in the event of granting any such relief, the same would result in unconstitutionality and further, infringe the Fundamental Rights of the citizen, who all are aspiring to secure public employment through open competitive process. If at all such workmen or employees are willing to secure public employments, they are also entitled to participate in the process of selection, whenever notification is issued in this regard. Contrarily, they cannot adopt an indirect way of securing public employment, which is to be construed as back door appointments.
13. Irregularity and illegalities in public employments can no more be approved by the High Court. This being the principles settled, the petitioners if aggrieved from and out of any of the act of the sub- contractors in terms of their employment, they are at liberty to approach the competent authority as rightly stated by the Labour Officer in the manner contemplated under Law.
https://www.mhc.tn.gov.in/judis Page 9 of 10 W.P.No.23834 of 2014 S.M. SUBRAMANIAM, J.
Jeni
14. With these observations, the Writ Petition stands dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.
01.08.2022 Jeni Index : Yes Speaking order : Yes To
1.The Management of TANSI Thiruvannamalai.
2.The Labour Officer – 2 Vellore.
W.P.No.23834 of 2014 https://www.mhc.tn.gov.in/judis Page 10 of 10