Madras High Court
R.Rathna Kumar vs The Government Of Tamilnadu on 25 November, 2016
Author: R.Suresh Kumar
Bench: R.Suresh Kumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.11.2016
CORAM :
THE HONOURABLE MR. JUSTICE R.SURESH KUMAR
W.P.No.17195 of 2010 and
M.P.No.1 of 2010
1 R.RATHNA KUMAR
2 V.VIJAYAN
3 R.VELLINGIRI
4 S.A.SENTHILKUMAR
5 S.SIVARAJ
6 S.KRISHNAMOORTHY
7 R.JAGATHEESWARAN
8 R.RAMESH
9 L.VADIVELKUMAR
10 A.MANIKANDAN
11 S.SATHISHKUMAR
12 N.SIVAKUMAR
13 M.CHINTHAMANI
14 K.VENKATASUBRAMANIAN
15 R.KARUPPUSAMY
16 G.SHANMUGAM
17 R.SREENIVASAN
18 N.KALIDASS
19 S.PANNEERSELVAM
20 M.SENTHILKUMAR
21 G.MANIKANDAN
22 M.RAVICHANDRAN
23 M.MARUTHI
24 K.PAALAMAL
25 K.SUBRAMANIAM
26 K.RAVI
27 R.JAYAKRISHNAN
28 B.RAVEENDRAN
29 A.JEGANATHAN
30 G.RAVIKUMAR .. Petitioners
Vs.
1 THE GOVERNMENT OF TAMILNADU
REP BY ITS SECRETARY PERSONNEL AND
ADMINISTRATIVE REFORMS DEPT. CHENNAI 9
2 THE SECRETARY
ANIMAL HUSBANDRY DAIRY AND FISHERIES (MP II)
DEPT. FORT ST.GEORGE CHENNAI 9
3 THE COMMISSIONER
MILK PRODUCTION AND DIARY DEVELOPMENT
MADHAVARAM CHENNAI 51
4 THE GENERAL MANAGER
THE COIMBATORE DISTRICT COOP. MILK PRODUCERS
UNION LTD NEW DIARY COMPLEX PACHAPALAYAM
KALAMPALAYAM POST PERUR VIA COIMBATORE.. Respondents
Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Mandamus, directing the respondents 1 and 3 to issue appropriate orders enabling the 4th respondent to regularize the services of the petitioners with effect from the date of their respective first appointment with all other attendant service benefits including monetary benefits similar to the orders issued in G.O. (2D) No.139 dt 28.9.2007 and G.O. 2(D) No.123 dt 28.8.2008.
For Petitioner : Mr.A.Jenasenan
For R1 to R3 : Mr. T.Girija Govt.Advocate
For R4 : Mr. P.Narayanamoorthy
O R D E R
The prayer in the writ petition is for a writ of mandamus directing the respondents 1 and 3 to issue appropriate orders enabling the 4th respondent to regularize the services of the petitioners with effect from the date of their respective first appointment with all other attendant service benefits including monetary benefits similar to the orders issued in G.O. (2D) No.139 dt 28.9.2007 and G.O. 2(D) No.123 dated 28.8.2008.
2. These petitioners, who are unfortunate workers, had been appointed either temporarily or casually as labourers/mazdoors under the fourth respondent milk union on various dates between 1988 to 1994. These petitioners had been appointed and had been engaged to do all sort of works pertaining to the fourth respondent union such as, loading, unloading of milk cans, cleaning of tubs, making of byproducts, melting of ghee, packing, to assist the milk parlour incharges, in selling of milk and milk products delivery, cleaning of glasses, cups etc. Apart from this, some of the petitioners had been engaged as drivers of the fourth respondent union milk van and other vehicles.
3. These petitioners as such had been working from the date of their appointment/engagement and after a decade, they were not either regularised or absorbed permanently. Therefore, on their behalf, requests were made to the fourth respondent for absorption or regularization of these petitioners at the fourth respondent milk union as the services of these petitioners were continuously required. Considering the said request/plea made by the petitioners or on their behalf, the Managing Director of the fourth respondent by a very detailed request with due reasons and explanations on 07.7.1999 had written to the third respondent requesting him to make necessary arrangements to get orders from the Government for regularising these employees including the petitioners and in this regard, permission was also sought for giving relaxation of age and educational qualification. Along with the said request of the fourth respondent dated 07.7.1999, a detailed list of employees numbering about 49 have been annexed which includes all these petitioners herein.
4. Inspite of the said request having been made by the fourth respondent, neither the third respondent, nor the Government have come forward to take any decision regarding the absorption or regularization of the petitioners or other similarly placed employees working at the fourth respondent organisation for several years. Therefore, the petitioners for regularization of their services and other service benefits have come out with the present writ petition with the aforesaid prayer.
5. Heard both sides.
6. The learned counsel appearing for the petitioner by relying upon several Judgments of this Court as well as the Hon'ble Apex Court have made submissions that the petitioners since have been working for more than two decades, they are fully entitled to get absorption at the fourth respondent organisation. It is not the case where these people have been engaged for sometime and subsequently ousted or intermittently their services were dispensed with. But, these petitioners from the day one i.e., the date on which first they have been engaged or appointed, have been continuously working without any break. This factor would show that the services of the petitioners are very much required and therefore, there is no reason to state that their services should be kept as a temporary or casual workers and they should not be absorbed. In this regard, the learned counsel for the petitioner would contend that if the provisions of the Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workman) Act 1981 is pressed into service, these workers, since have completed several years of service, are fully eligible to get benefits of the said Act and ultimately, they have to be absorbed or regularised.
7. On the other hand, the learned standing counsel appearing for the fourth respondent would contend that these persons, no doubt have been engaged casually as casual labourers at various points of time between 1988-94 without getting their name sponsored from the employment exchange. Since some of the works undertaken at the fourth respondent union are only casual in nature for which no permanent employees can be appointed, the services of these casual employees are utilised by the fourth respondent. There is no cadre strength or sanctioned post for permanently absorbing these people. Therefore, absolutely, there is no scope for making them permanent at the fourth respondent organisation. Without following the rule of recruitment that too in a permanently sanctioned post, no person can be made permanent. In this regard, the learned counsel appearing for the fourth respondent would contend that as the law in this regard has been settled in the Uma Devi Vs. State reported in AIR 2006 SC 1806, there is no scope for regularising these petitioners and therefore, on behalf of fourth respondent, the third respondent already had written a letter to the State Government and State Government also in turn by letter dated 11.11.2013 had come forward to give time scale of pay to these employees. The relevant portion of the said letter dated 11.11.2013 are reproduced here under for better appreciation of the issue:
2. In this connection Government have decided that the pay of the Casual Labourers can be fixed at a scale i.e., 3840-8000 Grade pay Rs.1040/- and Dearness Allowance as applicable will be payable in addition. Further, if by this revision in the unlikely case of anyone getting less salary than their earlier salary, will be protected, Also the benefit will be applicable only to this 155 Casual Labourers under consideration in this proposal, from date of issue of orders (prospective effect only).
8. Pursuant to the said directives issued by the State Government, these employees had been brought in under time scale of pay by order dated 12.11.2013 by the third respondent of course with the following conditions:
"1. The employees getting time scale as per this move will not demand parity with regular employees
2.This will not confer regularization in the post and consequent benefits such as seniority promotion etc,
3.These employees getting time scale now as per this order will continue to be treated as "irregular employees" and will be governed by such rules as applicable for this category.
4.Clauses like partly with "Junior getting more pay" will not be applicable in these cases.
5.The irregular employees getting time scale of pay shall not be entitled to claim any higher salary or weight-age for any reason whatsoever.
6.Giving that scale of pay to the irregular employees shall not confer on them any legal status and they are liable to be terminated at anytime if the situation so warrants.
7.Irregular employees getting time scale of pay shall not be legally entitled to claim any service benefits.
8.Their pay shall be fixed in the minimum of time of pay applicable to the category of post to which such irregular employee was appointed initially."
9. Since all these petitioners had been brought into time scale of pay with aforesaid conditions, for which they are agreed upon, there is no further right accrued on them for seeking absorption permanently and therefore, the prayer sought for in the writ petition cannot be granted and in that view of the matter, the learned standing counsel for fourth respondent requests that the writ petition may be dismissed.
10. The learned Government Pleader appearing for the first respondent would contend that inview of the law having been declared by Hon'ble Apex Court in Uma Devi's case (cited supra), there can be no appointment through back door entry in Government or Public organisations. If such appointments are made temporarily, the same cannot confer any benefits for the said casual or temporary employees for seeking permanency and absorption. The reason for such a decision is that once these entrance of back door entry are recognized and permanent status is given, then such appointment be in violation of Articles 14 as well as 16 of the Constitution which is impermissible and therefore, at any rate, these petitioners cannot be treated as appointees made in consonance with the constitution scheme and therefore, they are not at all entitled to get permanency. Only in that context, the Government considering the plight of the employees decided to bring them on time scale of pay as per the request of the third respondent and it was readily accepted by the State Government and all these people have been brought into time scale of pay which they are getting. Apart from this, no other benefit can be conferred on them. Therefore, the prayer sought for in the writ petition is totally unjustifiable.
11. This Court have considered the rival submissions made by the learned respective counsel and the materials placed before this Court.
12. It is a fact that all these petitioners were appointed between 1988-1994, ofcourse, as casual labourers/mazdoors. They have been continuously working without any break. It shows that for more than two decades, their services are very much required for fourth respondent organisation. When that being so, it cannot be said that the services being rendered by these petitioners are only temporary in nature depending upon the requirement and contingency. If a position where the employee is working is required and the services rendered by the employee is very much essential for the organisation for years together, then certainly, it can be construed only as a permanent post/situation. Merely because the authorities have not sanctioned the post or created a cadre strength in the manner known to law, that will not absolve the right of the employees, who had been in service for decades together.
13. In this regard, a very detailed request made by the fourth respondent dated 07.07.1999 can be taken into account and the reasons given in the said letter in certain paragraphs are reproduced hereunder for better appreciation of the issue:
1. Hence, there was no other alternative except engaging casuals locally and allowing them to continue in the post in order to procure, collection, processing and to ensure prompt distribution of milk to the public without any dislocation. In fact, casuals for these kinds of work are scarce in Coimbatore City since it is an Industrial and Textile City where the Industries are paying much higher rate of wages for labourers. It is found very difficult even to make these casuals to stick on their jobs continuously and they are pulling on all these years with a fervent hope that one day or other their services would be regularised.
2. In this connection, it is submitted that according to section 3 of the Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workman) Act 1981 every workman who is in continuous service for a period of 480 days in a period of twenty four calendar months in an Industrial Establishment shall be made permanent. As per the Act a workman in a Dairy factory who satisfies the prescribed period of service shall be made to be permanent.
3. In this connection, it is submitted that if a worker completes 480 days of continuous service in a factory in a period of 24 calendar months he attains the status of permanency and we have to comply with provision of Sub-Section (3) of The Tamil Nadu Industrial Establishment Conferment of Permanent Status to Workman Act 46 of 1981, or else we are liable for legal action for non-compliance of statutory provision under the said Act and there is every possibility that the worker themselves raise an Industrial Dispute in the matter against the organisation in case of any further delay in regularisation of service.
4. At present, 262 employees are working in the cadre of Attender/Junior Mazdoor as against 184 and 30 employees are working in the cadre of Driver as against 45 as per approved Organisation Chart. The details regarding number of persons working as Attenders and Drivers who completed 480 days of service in a block of 2 years is enclosed for kind perusal.
5.Under the above circumstances, a subject was placed before the personnel Committee of this Union for sending proposals to the Special Commissioner for Milk Production and Dairy Development, for necessary orders for relaxing the age and educational qualifications by increasing the cadre strength of Junior Mazdoor.
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7. In the circumstances stated with a view to comply with the provisions of Section 3 of the Tamil Nadu Industrial Establishment Conferment of Permanent Status Act 1981, it is requested that orders of the Government may kindly be arranged to be obtained for regularising the services of all the above said 51 Casuals engaged without being sponsored from Employment exchange except Thiru. P. Rajendran, Casual Driver. (Thiru. A. Selvaraj, Casual Attender-pending case in the Labour Court)
8. We also request that orders of Government may kindly be arranged to be obtained for granting necessary age and educational qualifications relaxation in respect of the candidates referred to in Annexure II & III.
9. We also request that the action of the Union is having engaged these casuals without getting sponsored by Employment Exchange in view of the extraordinary circumstances explained in para 4 & 5 above may also kindly be got ratified under orders of Government.
10. We submit the above proposals for kind perusal and early orders.
14. Along with the said proposal dated 07.07.1999, the annexure was also sent consisting of 49 names including all the petitioners herein. Though such request having been made by the fourth respondent as early as in the year 1999, the first respondent has not come forward to take any decision there on. It is also not known as to whether the third respondent has forwarded its recommendation to the State Government on the proposal sent by the fourth respondent dated 07.7.1999. It is also a settled law that the Government must be a model employer and it should set a precedent as a model employer towards its employees as the state's function is primarily is the function of the welfare State. If the Government is having that parameters, certainly, conscious decision would have been taken by this time to decide the fate of these employees, who are innocently working at the fourth respondent's organisation for more than 20 years without seeing the light of permanency or any other service benefits.
15. Assuming that they have been brought into time scale of pay of Rs.3,840-8000/- with a grade pay of Rs.1040, the same cannot be treated as a decent salary in the present day scenario where the lowest salary of the State Government and its organizations are definitely double than what has been fixed now to these employees.
16. When the services of these employees are permanently required and for that purpose, they have been brought in for time scale of pay, this Court is at loss to understand the reason for why the respondents are hesitating to absorb these people permanently. Therefore, it can be construed that inorder to deny the service benefits of these employees, the respondents are refusing to absorb these people which is unjust and against all principles of labour and service jurisprudence. Moreover, the Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workman) Act 1981 also made all these employees/petitioners eligible to get absorption as a statutory requirement of completion of 480 days all these petitioners have crossed long back.
17. Therefore, in the circumstances, considering the situation, this Court is of the considered view that the request made by the petitioners for absorption in the fourth respondent organization is fully justifiable. Therefore, this writ petition is disposed of with a direction to the respondents, especially, the first respondent to take a conscious decision by adapting a pragmatic approach on the recommendation and request made by the fourth respondent in his proceedings in Ref. No.13617/Estt/99 dated 07.7.1999, ofcourse after taking the views of the third respondent regarding the absorption of these petitioners and such a decision shall be taken within a period of three months from the date of receipt of a copy of this order.
18. With this direction, the writ petition is disposed of. No costs. Consequently, connected miscellaneous petition is closed.
25.11.2016 Index : Yes Internet : Yes kua R.SURESH KUMAR,J.
kua To 1 THE GOVERNMENT OF TAMILNADU REP BY ITS SECRETARY PERSONNEL AND ADMINISTRATIVE REFORMS DEPT. CHENNAI 9 2 THE SECRETARY ANIMAL HUSBANDRY DAIRY AND FISHERIES (MP II) DEPT. FORT ST.GEORGE CHENNAI 9 3 THE COMMISSIONER MILK PRODUCTION AND DIARY DEVELOPMENT MADHAVARAM CHENNAI 51 4 THE GENERAL MANAGER THE COIMBATORE DISTRICT COOP. MILK PRODUCERS UNION LTD NEW DIARY COMPLEX PACHAPALAYAM KALAMPALAYAM POST PERUR VIA COIMBATORE W.P.No.17195 of 2010 25.11.2016 http://www.judis.nic.in