Kerala High Court
The Executive Engineer vs The General Secretary on 6 April, 2010
Bench: K.Balakrishnan Nair, P.N.Ravindran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 472 of 2008()
1. THE EXECUTIVE ENGINEER,
... Petitioner
Vs
1. THE GENERAL SECRETARY,
... Respondent
2. THE INDUSTRIAL TRIBUNAL, KOLLAM.
For Petitioner :GOVERNMENT PLEADER
For Respondent :SRI.P.RAMAKRISHNAN
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :06/04/2010
O R D E R
K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ.
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W.A.No. 472 of 2008
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Dated this the 6th day of April, 2010
JUDGMENT
Ravindran, J.
The appellant is the petitioner in W.P.(C) No.8106 of 2004. In that writ petition the appellant challenged Ext.P2 award passed by the Industrial Tribunal, Kollam in I.D.No.12 of 1988. By judgment delivered on 2.1.2008, the learned Single Judge dismissed the writ petition. Aggrieved thereby this writ appeal is filed. The brief facts of the case are as follows:
2. The Neendakara Fishing Harbour constructed by the Harbour Engineering Department of the State Government was commissioned on 28.3.1987. 42 casual workers engaged by the Harbour Engineering Department in the construction of the Neendakara Fishing Harbour as Drivers, Watchmen, Security Personnel, Electricians and Sweepers, raised various claims including confirmation in service. The dispute raised by them was referred to the Industrial Tribunal, Kollam for adjudication by the Government as per G.O. (Rt.) No.1891/88/LBR dated 18.10.1988. The workers contended that they have been working in the Neendakara Fishing Harbour Project since the investigation stage in various posts, that they are permanent W.A.No.472/2008 2 employees of the project and are entitled to get all benefits payable to permanent workers. They contended that they are engaged in fishing, distribution of fish and works connected with that and they are necessary for the working of the project. They claimed increase in salary and increments on the basis of length of service, casual leave, earned leave and paid holidays and annual bonus at par with Government servants. They also claimed appointment to the dependents of workers who died while working in the project or in connection with the work of the project. The workers who raised the said dispute were represented by the first respondent union.
3. The appellant opposed the claim of the workers. It was contended that the investigation and the subsequent construction work of the Neendakara Fishing Harbour was done by the Port Engineering Department of the Kerala Government which is a department of the Government and not an establishment and therefore, the dispute raised by the casual employees working in the project does not fall within the jurisdiction of the Industrial Tribunal. It was stated that local people were engaged on daily wages for the construction and other related works directly by the Port Engineering Department, that local people were thus engaged following the rules governing engagement of daily rated workers, that the casual workers cannot be W.A.No.472/2008 3 made permanent on the basis of their length of service, that the workers were paid as per the PWD schedule of rates and that daily rated casual employees are not entitled to any of the demands raised by the workers including confirmation in service.
4. One of the workers who was engaged as a Driver was examined as WW1 and a worker who was engaged as a Watchman was examined as WW2. On behalf of the appellant, no evidence, oral or documentary, was adduced. For the reason that the employer had not adduced any evidence to disprove the claim made by the workers, the Industrial Tribunal held that the workers are entitled to be confirmed in service in the various posts in which they were then working and also for the other reliefs claimed by the union and referred to the Tribunal for adjudication. An award was accordingly passed on 13.7.1989 declaring that the workers are entitled to be confirmed in various categories of posts and are entitled to all the reliefs claimed by them as stated in the reference order, as is being given to other similarly placed employees in the State service.
5. The appellant challenged the above award by filing O.P.No.9237 of 1990 in this Court. In that original petition, the appellant, inter alia, contended that the Department is not an industry as defined in the Industrial Disputes Act, 1947 and that the objection W.A.No.472/2008 4 raised to the jurisdiction of the Industrial Tribunal to entertain the dispute ought to have been considered and decided as a preliminary issue. By judgment delivered on 23.3.1995, a learned single Judge of this Court dismissed the original petition. It was held that the project which was executed by a Department of the Government is an industry and that as the workers have been engaged to work continuously for the past several years they are entitled to the benefits awarded by the Tribunal. The learned single Judge also held that there is no legal infirmity or any procedural irregularity in the award.
6. The appellant challenged the decision of the learned single Judge in O.P.No.9237 of 1990 by filing W.A.No.791 of 1995. By judgment delivered on 29.9.1998 the writ appeal was dismissed. The Division Bench however confined the operation of the award to 35 workers. The appellant thereupon moved the Apex Court by filing a Special Leave Petition. Special leave was granted and the appeal was taken on file and numbered as Civil Appeal No.5757 of 1999. By Ext.P1 order passed on 21.9.2000, the Apex Court set aside the judgments of this Court and the award passed by the Labour Court and remitted the matter to the Tribunal for fresh consideration in accordance with law after giving both parties adequate opportunity to adduce evidence. Since the Division Bench of this Court had in W.A.No.472/2008 5 W.A.No.791 of 1995 limited the relief granted by the Tribunal to 35 workers, the Apex Court directed that there shall be an order of status quo in relation to the said workers till the Industrial Tribunal passes a revised award in the matter. It was also observed that the continuance of the said 35 workers will not act as an equity in their favour at the time of final disposal.
7. After remand by the Apex Court, the union representing the workers did not adduce any evidence. The appellant was examined as MW1 and Exts.M1 to M12 were marked. The Tribunal after hearing the counsel on both sides passed Ext.P2 award on 5.1.2004 holding that the workers are entitled to be confirmed in various categories of posts as permanent workers and are also entitled to all the other reliefs claimed by them except payment of overtime wages. Aggrieved by the said award, the appellant filed W.P.(C) No.8106 of 2004 in this Court.
By judgment delivered on 2.1.2008, the learned single Judge dismissed the writ petition. Hence, this writ appeal.
8. We heard Smt.R.Bindu, the learned Government Pleader appearing for the appellant and Sri.T.C.Krishna, the learned counsel appearing for the first respondent. The learned counsel for the appellant contended that as the Harbour Engineering Department is a department of the Government and the workers represented by the W.A.No.472/2008 6 first respondent union were engaged on daily wage basis for the construction of the Neendakara Fishing Harbour by the said department, they cannot claim that they are workmen engaged in an industry governed by the provisions of the Industrial Disputes Act in view of the stipulations in section 4 of the Kerala Public Services Act, 1968. The learned Government Pleader submitted that though a Full Bench of this Court had in Umayammal v. State of Kerala (1982 KLT
829) held that sovereign functions strictly understood alone qualify for exemption from the provisions of the Industrial Disputes Act and other activities or economic adventures undertaken by the Government do not qualify for exemption and even in departments discharging sovereign functions if there are units which are industrial and they are substantially severable, then they can be considered to come within the meaning of the term 'industry' as defined in section 2 (j) of the Industrial Disputes Act, 1947, the State Legislature had amended the Kerala Public Services Act, 1968 by incorporating section 4 therein with effect from 1.10.1981 to exclude the applicability of Industrial Disputes Act, 1947 and therefore, the reference made by the Government to the Industrial Tribunal and the award passed by the Tribunal are without jurisdiction. The learned Government Pleader also contended that the Government are not estopped from canvassing the said position W.A.No.472/2008 7 applying the principle that there is no estoppel against the statute. The learned Government Pleader submitted with reference to the statement dated 22.3.2010 filed by the Assistant Executive Engineer, Harbour Engineering Department, South Division, Sakthikulangara, Kollam in this writ appeal that some of the persons who were engaged in the construction of the Neendakara Fishing Harbour Project have been regularised as SLR workers and that only such persons can claim absorption in the regular establishment as provided in G.O.(P) No.106/85/PW & T dated 17.9.1985 and G.O.(P) No.6/90/PW & T dated 20.1.1990.
9. Per contra, Sri.T.C.Krishna, the learned counsel appearing for the first respondent contended that in the earlier round of litigation, no such plea was raised and even in the present writ petition no such contention is raised and therefore, the appellant cannot rely on section 4 of the Kerala Public Services Act, 1968 to contend for the position that reference to the Industrial Tribunal and the award passed by the Tribunal are without the authority of law or without jurisdiction. The learned counsel also contended that the Tribunal had on the evidence adduced before it held that the workers represented by the first respondent union have been working in the Neendakara Fishing Harbour Project prior to and after its commissioning and that the W.A.No.472/2008 8 finding of the Industrial Tribunal on the evidence available before it cannot be characterised as perverse, warranting interference in exercise of the discretionary jurisdiction of this Court under Article 226 of the Constitution of India.
10. We have considered the rival submissions made at the Bar by the learned counsel appearing on either side. We have also gone through the pleadings and the materials on record including the judges' papers in O.P.No.9237 of 1990 and W.A.No.791 of 1995 and the award passed by the Industrial Tribunal in the first instance and Ext.P2 award which is impugned in the present proceedings. The dispute raised by the first respondent union was referred to the Industrial Tribunal, Kollam for adjudication under section 10 (1) (c) and (d) of the Industrial Disputes Act, 1947 as per G.O.(Rt.) No.1891/88/LBR dated 18.10.1988. The said Government order reads as follows:
"Whereas the Government are of opinion that an industrial dispute exists between the Executive Engineer, Neendakara Fishing Harbour Project, Harbour Engineering Department, Sakthikulangara P.O., Quilon and the workmen of the above Project represented by the General Secretary, Neendakara Port and Fishing Harbour, C.L.R.Workers Union, U.T.U.C., Neendakara P.O. in respect of matters mentioned in the annexure to this order.
And whereas, in the opinion of Government it is necessary to refer the said industrial dispute for adjudication:-
Now, therefore, in exercise of the powers W.A.No.472/2008 9 conferred by section 10(1)(c)/(d) of the Industrial Disputes Act of 1947 (Central Act XIV of 1947) the Government hereby direct that the said industrial dispute be referred for adjudication to the Industrial Tribunal, Quilon. The Industrial Tribunal will pass the award within a period of three months."
The issues referred for adjudication which are set out in the Annexure to the said order, are as follows:
"(1) Confirmation of workers.(2) Revision of Wage rates. (3) National and Festival Holidays. (4) Supply of Uniforms. (5) Issuance of Identity Cards. (6) Overtime wages for extra work. (7) Annual Bonus for 1985-86. (8) Filling up of existing vacancies."
11. The above referred Government order and the description of the first respondent union disclose that the workers who had raised the dispute were Casual Labour Roll workers (CLR workers). In that dispute the then Executive Engineer filed a statement dated 16.11.1988 wherein, inter alia, it was stated that casual workers were engaged based on need and that they are not entitled to regularisation or any of the other benefits claimed by them. Thereafter, the then Executive Engineer filed a statement wherein he questioned the jurisdiction of the Industrial Tribunal to adjudicate on the dispute. The relevant averment therein reads as follows:
"W.A.No.472/2008 10
.
. .
-
."
The English translation thereof is given below:
"Investigation and construction of the Neendakara Fishing Harbour is done by the Harbour Engineering Department of the Government of Kerala. It is a service department of the Government and not an industrial establishment. Therefore, the question whether the dispute raised by the employees engaged on daily wage basis is within the jurisdiction of the Industrial Tribunal, has to be examined."
It was also contended that the employees are not entitled to regularisation in service.
12. The award initially passed by the Industrial Tribunal on 13.7.1989 specifically notices the said contention. As held by the Apex Court in National Engineering Industries Ltd. v. State of Rajasthan and others ((2000) 1 SCC 371) the Tribunal could not have examined the validity of the reference made by the Government for the reason that the Tribunal gets jurisdiction only on the basis of the reference. The Tribunal could have in our opinion only considered the question whether the dispute is an industrial dispute in view of the stand taken by the appellant and whether the establishment to which W.A.No.472/2008 11 the dispute relates is an industry at all. However, without examining these aspects, the Tribunal proceeded to examine the issue with reference to the oral evidence adduced by two of the workers and held that in the absence of any evidence, oral or documentary, on the side of the management, the claim of the workers merits acceptance. An award was accordingly passed declaring that the workers are entitled to be confirmed in various categories of posts and to all other reliefs claimed by them as stated in the order of reference.
13. The appellant thereupon filed O.P.No.9237 of 1990 in this Court. In that original petition also, a contention was raised that the department is exercising sovereign functions, that it is not an industry as defined in the Industrial Disputes Act, 1947, that the workers are only casual workers working on daily wage basis and that they are not entitled to any relief. It was also contended that the objection regarding jurisdiction raised by the appellant ought to have been considered as a preliminary issue and a finding entered thereon. The learned single Judge who heard O.P.No.9237 of 1990 held following the decision of the Apex Court in Bangalore Water Supply and Sewerage Board v. Rajappa ((1978) 2 SCC 213) that the fishing harbour project is an industry governed by the Industrial Disputes Act, 1947. The learned single Judge proceeded to hold that as the workers W.A.No.472/2008 12 were not appointed for a specific period or for a particular work, the Tribunal had jurisdiction to decide the dispute. The learned single Judge thereafter considered the case of the appellant on the merits and held that no opportunity was denied to the appellant to participate in the proceedings and that the evidence was closed in view of the submission made by the learned counsel for the management and that he has no evidence to adduce. The award was accordingly upheld.
14. The appellant challenged the decision of the learned single Judge in O.P.No.9237 of 1990 by filing W.A.No.791 of 1995. In that writ appeal also, inter alia, it was contended that the department is not an industry as defined in the Industrial Disputes Act and that the workers are not entitled to regularisation. It was pointed out that if the claim of the workers is upheld the liability of the State for a limited period would come to Rs.9,72,342/- and that if the award is implemented in full the expenditure which the Government will incur will increase many fold. The writ appeal was however dismissed by judgment delivered on 29.9.1998. It appears that the provisions of the Kerala Pubic Services Act, 1968 were not brought to the notice of the Division Bench. The appellant carried the matter in appeal by filing a Special Leave Petition before the Apex Court. The Apex Court granted special leave, allowed the appeal, set aside the award passed W.A.No.472/2008 13 by the Industrial Tribunal and the judgments of this Court and remitted the matter for fresh disposal to the Tribunal. The Apex Court observed that the nature of the relationship between the workmen and the appellant need to be decided before other questions referred to the Tribunal are taken up for consideration. However, even after remand, the Industrial Tribunal did not specifically deal with the said issue, though it was specifically contended that as the workers were not appointed to any post in accordance with law, but only engaged on the basis of need, they have no right to hold the posts and therefore, they are not entitled to be regularised in service or to claim benefits available to regular employees. The Tribunal held that as the management has no case that after the project was commissioned, the services of workmen who were employed at the time of commencement of the project were terminated, they are entitled to all the benefits claimed by them except payment of over time wages.
15. As noticed earlier, a Full Bench of this Court had in Umayammal v. State of Kerala (supra) held that even in Government departments discharging sovereign functions, if there are units which are industries and they are severable, they can be considered to come within the meaning of section 2 (j) of the Industrial Disputes Act. The Full Bench also held that though Rule 9 of the Kerala W.A.No.472/2008 14 State & Subordinate Service Rules, 1958 cannot be said to be a provision which expressly or by implication repeals the provisions in Chapter V-A of the Industrial Disputes Act, as regards temporary Government employees who are workmen coming within the ambit of the Industrial Disputes Act, it may be possible in spite of section 25-J of the Industrial Disputes Act to exclude the operation of the provisions in Chapter V-A thereof by a positive provision in any new legislation. In coming to the said conclusion, the Full Bench had relied on the decision of the Apex Court in Bangalore Water Supply and Sewerage Board v. Rajappa (supra). The decision in Umayammal v. State of Kerala (supra) was rendered on 7.10.1982. Immediately thereafter, by the Kerala Public Services Act (Amendment) Act, 1983 (Act 4 of 1984), section 4 was introduced in the Kerala Public Services Ac, 1968 with effect from 1.10.1981. Section 4 of the Kerala Public Services Act, 1968 reads as follows:
"4. Act and rules thereunder to apply to apply to certain persons notwithstanding anything in the Industrial Disputes Act or any other law:- Notwithstanding anything contained in Chapter V-A or in any other provision of the Industrial Disputes Act, 1947 (Central Act 14 of 1947) or in any other law for the time being in force, or in any judgment, decree or order of any court, the appointment of any person to any public service or post in connection with the affairs of the State of Kerala and the conditions of service (including termination of W.A.No.472/2008 15 service) of any person appointed to any such service or post shall be governed by the provisions of this Act and th Rules made or deemed to have been made thereunder."
The statement of objects and reasons in the Kerala Public Services (Amendment) Act, 1983 reads as follows:
"Statement of Objects and Reasons:- A Full Bench of the Kerala High Court in its judgment dated the 7th October, 1982, in certain original petitions filed by provisional or temporary employees working in Government Departments, Government Companies, Statutory Corporations and local bodies has held that the petitioners, excluding those discharging inalienable Constitutional functions like administration of justice, are entitled to the benefit of protection of Chapter V-A of the Industrial Disputes Act, 1947 and that their services could be terminated, except to give place to permanent hands regularly recruited by the PSC, only in accordance with the provisions of the said Act. The High Court has also observed that in spite of Section 25-J of the I.D.Act, 1947 it may be possible to exclude the operation of the provisions of Chapter V-A of that Act by a positive provision in any new Legislation.
2. According to the rules now in force in the State, temporary employees are allowed to continue in service only for a period of 180 days and cannot, in the normal course, be re-employed even if the vacancies continue to exist beyond that period. If more than one temporary employee are working in a Department or Office, the persons to be discharged as per those rules are those who are appointed first.
3. The application of the I.D.Act to Government servants will cause administrative difficulties to Government. It was, therefore, considered necessary to exclude persons appointed to public services and posts in connection with the affairs of the State from the operation of the I.D.Act, by amending the Kerala Public Services Act, 1968. Accordingly, the Kerala Public Services W.A.No.472/2008 16 (Amendment) Ordinance, 1983 (5 of 1983) was promulgated by the Governor on the 8th day of February, 1983.
4. A Bill to replace the said Ordinance by an Act of the Legislature could not be introduced in, and passed by the Legislative Assembly of the State during its session which commenced on the 25th day of February, 1983 and ended on the 30th day of March, 1983. In order to keep alive the provisions of the said Ordinance the Kerala Public Services (Amendment) Ordinance, 1983 (16 of 1983) was promulgated by the Governor on the 6th day of April, 1983.
5. A Bill to replace Ordinance 16 of 1983 by an Act of the Legislature could not be introduced and passed by the Legislative Assembly during its session which commenced on the 20th day of June 1983 and ended on the 4th day of August, 1983. In order to keep alive the provisions of Ordinance 16 of 1983, the Kerala Public Services (Amendment) Ordinance, 1983 (36 of 1983), was promulgated by the Governor on the 5th day of October, 1983. The Bill seeks to replace the Ordinance 36 of 1983 by an Act of the State Legislature."
The statement of objects and reasons notices that the application of the Industrial Disputes Act to Government departments will cause administrative difficulties to the Government and therefore, it was considered necessary to exclude persons appointed to public services and posts in connection with the affairs of the State from the operation of the Industrial Disputes Act, 1947.
16. The Kerala Public Services Act (Amendment) Act, 1983 received the assent of the President on 5.1.1984 and was published in the Kerala Gazette Extraordinary dated 7.1.1984. Thus, on and with W.A.No.472/2008 17 effect from 1.10.1981, the provisions of the Industrial Disputes Act, 1947 do not govern the appointment of any person to any public service or posts in connection with the affairs of the State of Kerala. It was long after section 4 was introduced in the Kerala Public Services Act, 1968 that the Government referred the dispute which has led to these proceedings to the Industrial Tribunal for adjudication.
17. The Apex Court has in Newspapers Ltd. v. Industrial Tribunal, Uttar Pradesh and others (1957-II LLJ 1) held that in spite of the making of a reference by the Government under the Industrial Disputes Act in the exercise of its administrative powers, it is open to the aggrieved party to show that what was referred was not an industrial dispute at all and that on that ground the jurisdiction of the Industrial Tribunal to make the award can be questioned, even though the factual existence of a dispute may not be open to challenge. Reliance was placed on an earlier decision of the Apex Court in State of Madras v. C.P.Sarathy (1953-I L.L.J. 174). In the light of the authoritative pronouncement of the Apex Court, we are of the opinion that it is open to the appellant to contend that what was referred to was not an industrial dispute at all and therefore, the Tribunal had no jurisdiction to make the award. In our opinion, in view of section 4 of the Kerala Public Services Act, 1968, the provisions of the Industrial W.A.No.472/2008 18 Disputes Act, 1947 can have no application to the dispute referred by the Government to the Industrial Tribunal and therefore, the reference itself was without jurisdiction. Consequently, we hold that Ext.P2 award passed by the Industrial Tribunal is one without jurisdiction.
18. The Government have issued G.O.(P) No.106/85/PW & T dated 17.9.1985 to provide for absorption into the regular establishment of Nominal Muster Roll (NMR) workers of the Public Works Department and Seasonal Labour Roll (SLR) workers/Casual Labour Roll (CLR) workers engaged by the Public Works Department. The Government order was issued in consultation with the Kerala Public Service Commission based on a report submitted by a Committee constituted by the Government to examine various problems faced by NMR workers engaged by the Public Works Department. Paragraphs 6 to 9 of the aforesaid Government order are extracted below:
"6. Government have further examined the case in detail in the light of the advice tendered by the Public Service Commission. It is seen that there are about 3,807 N.M.R. workers who have completed 5 years of service as on 19.5.1983 and therefore they are eligible for absorption as per the Government decision. The decision for absorption of all N.M.R. workers having 5 years of service was taken by Government as early as on 19.5.1983 after considerable discussions with Unions and at various levels on the recommendations of the Committee.W.A.No.472/2008 19
Government do not consider it proper at this stage to go back on their commitment. The intention of Government is also that the category of N.M.R. workers should vanish within a period of three years.
7. In the circumstances, Government are constrained to disagree with the advice of the Commission and they are pleased to issue the following orders:-
(i) All persons who have completed five years of service as N.M.R. workers as on the date
19.5.1983 would be regularised immediately after creating sufficient number of posts in the regular establishment. Since the appointments to N.M.R./S.L.R./C.L.R. categories were made without considering the rules regarding communal rotation, qualifications etc., these persons shall be absorbed into Government service without insisting on communal rotation, qualification etc. The Chief Engineer (General) will prepare and forward to Government in triplicate a list of N.M.R. workers so regularised in the proforma attached.
(ii) The orders on the staff pattern required for regular jobs in the category that will arise in the Department like Pump Operators or Engine Drivers etc. will be issued separately.
(iii) The present scales of pay and the scales of pay admissible to N.M.R. workers when they are regularised in Government Service are as follows:
Present Scale of pay Scale of pay on regularisation Rs. Rs.
1. 185-3-209-4-245 280-5-340-6-400
2. 190-4-210-5-255-6-285 290-5-330-6-390-7-425
3. 210-5-250-6-280-7-315 300-6-360-7-402-8-450 W.A.No.472/2008 20
(iv) As and when a vacancy arises in the regular establishment in the posts created for absorbing N.M.R. workers, the same shall be filled up by regularising the existing S.L.R. workers on the basis of seniority. The vacancy in the S.L.R. cadre shall be filled up by appointing the existing C.L.R. workers on the basis of seniority. This facility shall not be available to any workers appointed after 19.5.1983.
(v) When regular posts are created to absorb N.M.R. workers, the deficiency, if any, in the number of posts occupied by Scheduled Castes/Scheduled Tribes in the category will have to be made up by conducting a special recruitment of Scheduled Castes/Scheduled Tribes and the vacancies as and when they arise in the category will have to be filled up first by persons from such special recruitment. Only there after will the S.L.R. workers be absorbed in the regular posts as and when vacancies arises in this category.
(vi) Option shall be given only to the persons who have completed 55 years of age as on May 19, 1983. Others shall have to come into Government service or retire from service. The intention is that the category of N.M.R. workers shall vanish within a period of three years.
(vii) From the date of regularisation, General Provident Fund shall be made applicable to them.
(viii) Salary and allowances of N.M.R. workers regularised shall be met from the appropriate head of account.
(ix) The retirement age of N.M.R. workers appointed after 7.4.1970 shall be 55 years. The persons recruited before this date shall be in service till attaining the age of 58.
W.A.No.472/2008 21
(x) The principles applied to Government servants in the pay fixation order, shall be adopted for fixing the pay scale of N.M.R. workers while they are regularised as Government servants.
(xi) The minimum benefit shall be limited to Rs.30 which is the interim relief already sanctioned to them with effect from 1.5.1981 as per G.O.(MS) No.140/81/PW&E dated 17.7.1981. The interim relief shall be merged with the pay while fixing the salary in the revised scale as is done in the case of regular Government servants.
(xii) No weightage shall be given to them when they are regularised.
(xiii) As N.M.R. workers are regularised in three specified scales of pay, category wages shall not be given to them.
(xiv) Only service in the regular establishment shall be counted for promotion to non-cadre post.
(xv) The leave already at the credit of N.M.R. workers shall be carried over when they are regularised as Government servants.
(xvi) No new concession shall be given to the persons who continue to remain as N.M.R. workers.
(xvii) Uniforms and other allowances admissible to regular Government servants shall be made applicable to N.M.R. workers after they are regularised as Government servants.
(xviii) The headquarters of N.M.R. workers regularised as Government servants shall be the place of work and they shall be eligible for normal T.A., D.A. Admissible to Government servants. The N.M.R. workers after regularisation shall not W.A.No.472/2008 22 be transferred from the headquarters without specific orders. The Chief Engineer (General) will issue credit cards and settle the P.F. dues of N.M.R. workers who have retired from service. (xix) All the rules and regulations applicable to the Government servants shall be made applicable to N.M.R. workers when they are regularised as Government servants.
(xx) General rules regarding condonation of break in service shall be made applicable to N.M.R. workers regularised in Government service.
S.L.R./C.L.R. Etc., service shall be counted for the purpose of minimum pension for N.M.R. workers. The Chief Engineer (General) shall initiate necessary action for sanctioning pension one year before the date of retirement of N.M.R. workers regularised in Government service.
(xxi) Normal H.R.A. Shall be made applicable to N.M.R. workers on regularisation.
(xxii) The question of providing additional facilities in the existing project quarters shall be considered separately by the Chief Engineer.
(xxiii) Separate car allowance shall not be given after the N.M.R. workers are absorbed into regular Government service.
8. The question of revision of scale of pay to those continuing as N.M.R. workers and S.L.R. workers will be considered separately."
The Government later issued G.O.(P) No.6/90/PW & T dated 20.1.1990 amending the Government order dated 17.9.1985. Paragraphs 2 and 3 thereof read as follows:
W.A.No.472/2008 23
"2. Government have examined the request of the Workers' Organisations and they are pleased to order that the C.L.R. workers in the Public Works Department be appointed to regular service on the following conditions:-
(i) C.L.R. workers will be appointed directly to the vacancies in the regular service created for the appointment of N.M.R. workers to the extent of vacancies available at present.
(ii) After the vacancies in the regular service are filled up as above, the other C.L.R. workers will be appointed to the vacant S.L.R. posts.
(iii) Those appointed to S.L.R. posts will also be appointed to regular posts as and when vacancies arise in the posts created for appointment of N.M.R. workers.
(iv) The C.L.R. workers to be appointed to regular service/S.L.R. posts should have been in service on or before 19.5.1983 and they should have put in a minimum service of 500 days as on 1.4.1987.
Those C.L.R. workers appointed on or before 19.5.1983 and have not completed 500 days of service as C.L.R. worker on 1.4.1987 will be eligible for absorption as S.L.R. worker according to the orders in G.O.(P)No.106/85/PW&T dated 17.9.1985 but they will not be eligible for appointment to regular posts.
(v) The absorption/regularisation shall be strictly in accordance with their seniority as C.L.R. workers.
(vi) The seniority of C.L.R. workers shall be reckoned with reference to the number of days they have worked as on 19.5.1983.
W.A.No.472/2008 24
(vii) The services of C.L.R. workers are mostly needed in the Irrigation Department and the posts intended for their absorption are mainly in the Public Works Department. When these posts are shifted to the Irrigation or other branches where the S.L.R. and the C.L.R. workers are now employed they may not have work year around if they perform only their present duties in these departments. Therefore during the off-season the C.L.R. workers absorbed against these posts will do any other job ordinarily done by regular workers.
3. A number of representations are being received from the Workers' Organisations and individuals to include more names of eligible persons in the C.L.R. seniority list. Government have examined the request and they order that prior sanction of Government should be obtained for inclusion of new names in the seniority list of C.L.R. workers.
19. It is evident from the stipulations in paragraph 6 of the Government order dated 17.9.1985 that the scheme for absorption set out therein was confined to 3807 NMR workers who had completed five years of service as on 19.5.1983. It was also stipulated that as and when an NMR worker is absorbed into the regular establishment, an existing SLR worker will be regularised as an NMR worker on the basis of seniority and the resultant vacancy in the SLR cadre filled up by existing CLR workers on the basis of seniority. It is also stipulated that this facility will not be available to any worker appointed after 19.5.1983. In the Government order dated 20.1.1990, it was also W.A.No.472/2008 25 stipulated that CLR workers to be appointed to regular post/SLR post should have been in service on or before 19.5.1983 and should have put in a minimum service of 500 days as on 1.4.1987. As regards those CLR workers who were appointed on or before 19.5.1983 and had not completed 500 days as CLR workers on 1.4.1987, it was stipulated that they will be eligible for absorption as SLR workers according to the Government order dated 17.9.1985, but, will not be eligible for appointment in regular posts. The learned Government Pleader submitted that in the Harbour Engineering Department also, the aforesaid Government orders have been implemented and a list of CLR workers in the Harbour Engineering Department as on 1.4.1987 has been prepared for the purpose of absorption as SLR worker and thereafter into the regular establishment.
20. The learned Government Pleader also brought to our notice that out of the 35 workers represented by the first respondent union, five persons namely, Sri.Francis, Sri.Sivarama Pilla, Sri.Somarajan P., Sri.Thomas Thankachan and Sri.Pachan Pillai though included in the list are no more. It is submitted that ten persons namely, Sri.K.Vijayakumar, Sri.Prasanna Rajan, Sri.N.Sumasaran, Sri.Joy Johnson, Sri.Soman, Sri.M.Ambaran, Smt.K.Santha, Sri.S.Vishal W.A.No.472/2008 26 Prasad, Sri.Raju S. and Sri.Amruthendra Gupthan are not included in the list and that Sri.K.Mohanan, Sri.Antony P., Sri.Marshal John, Sri.Antony Xavier, Sri.Daniel and Sri.T.George are employed abroad. The learned Government Pleader also submitted that the claims of CLR workers included in the list for absorption as SLR workers and later absorption into the regular establishment can be decided only on the basis of seniority and that if the award of the Industrial Tribunal is implemented it will have the effect of violating the rule of seniority. She also submitted that the CLR workers represented by the first respondent union who are included in the list will be absorbed as SLR workers and later regularised in service based on the rank assigned to them in the list. We record this submission.
In the light of the facts stated above, we hold that the workers represented by the first respondent union cannot claim regularisation in service or other benefits otherwise than in accordance with the stipulations in the Government orders G.O. (P) No.106/PW & T dated 17.9.1985 and G.O. (P) No.6/90/PW & T dated 20.1.1990. For the reasons stated above, we allow the writ appeal and reverse the judgment of the learned single Judge. W.P.(C) No.8106 of 2004 shall stand allowed and Ext.P2 award passed by the Industrial Tribunal, W.A.No.472/2008 27 Kollam in I.D.No.12 of 1988 shall stand set aside. The parties shall bear their respective costs.
K.BALAKRISHNAN NAIR Judge P.N.RAVINDRAN Judge TKS