Madras High Court
Tamil Nadu Electricity Board vs The Presiding Officer on 30 September, 2022
Author: Mohammed Shaffiq
Bench: Mohammed Shaffiq
W.P. Nos.23857 and 24779 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 21.07.2022
Pronounced on : 30.09.2022
CORAM
THE HONOURABLE MR. JUSTICE MOHAMMED SHAFFIQ
W.P.Nos.23857 and 24779 of 2010
and M.P.No.1 of 2010
W.P.No.23857 of 2010
1.Tamil Nadu Electricity Board,
Anna Salai,
Chennai – 600 002,
Represented by its Secretary.
2.Ennore Thermal Power Station,
Ennore,
Chennai – 600 057,
Represented by its Chief Engineer. ... Petitioners
Vs.
1.The Presiding Officer,
Industrial Tribunal,
Tamil Nadu,
Chennai – 600 104.
2.S.Sivaraman
3.P.Ravi ... Respondents
PRAYER: Writ petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorari, calling for the records of the first
respondent in ID No.33 of 2006, quash its award dated 31.12.2009.
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For Petitioners : Mr.Anand Gopalan
for M/s.T.S.Gopalan and Co.
For R-1 : Tribunal
For R-2 and R-3 : Mr.Balan Haridoss
for Mr.S.N.Ravichandran
W.P.No.24779 of 2010
1.S.Sivaraman
2.P.Ravi ... Petitioners
Vs.
1.The Presiding Officer,
Industrial Tribunal,
Tamil Nadu,
Chennai – 600 104.
2.The Chairman,
Tamil Nadu Electricity Board,
Anna Salai,
Chennai – 2.
3.The Chief Engineer,
Ennore Thermal Power Station,
Ennore,
Chennai – 57. ... Respondents
PRAYER: Writ petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorarified Mandamus, calling for the records
made in the impugned Award of the 1st Respondent in I.D.33 of 2006 dated
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W.P. Nos.23857 and 24779 of 2010
31.12.2009, quash the same insofar as the denial of backwages is concerned
and direct the 2nd and 3rd Respondents to grant backwages to the Petitioners
with effect from 05.01.1998 with all consequential benefits thereof.
For Petitioners : Mr.Balan Haridoss
for Mr.S.N.Ravichandran
For R-1 : Tribunal
For R-2 and R-3 : Mr.Anand Gopalan
for M/s.T.S.Gopalan and Co.
COMMON ORDER
These two writ petitions are filed challenging the Award passed by the Industrial Tribunal in I.D.No.33 of 2006 dated 31.12.2009. While the Tamil Nadu Electricity Board (herein after referred to as the "Board") has challenged the Award in its entirety in W.P.No.23857 of 2010, the workmen, viz., S.Sivaraman and P.Ravi have challenged the Award of the Tribunal in W.P.No.24779 of 2010, insofar as it denies backwages to the said workmen.
2.Brief facts:
a) The Board was constituted in the year 1957 in terms of the Electricity Supply Act. The Board set up four Thermal Power Stations 3/58 https://www.mhc.tn.gov.in/judis W.P. Nos.23857 and 24779 of 2010 including one at Ennore. Ennore Thermal Power Station (herein after referred to as ETPS) was commissioned in the year 1971.
b) From 1980 onwards, the TNEB engaged contract workmen comprising semi-skilled and unskilled labourers for maintenance work and gradually contract workmen were engaged for other jobs including security.
The workmen, viz., S.Sivaraman and P.Ravi, were employed as contract labourers through various contractors at ETPS from 01.05.1994 and 18.07.1992, respectively. It is stated that both the workmen were employed as Security at ETPS and allotted work by the Security Officer of ETPS and supervised by the officers of ETPS. The nature of the work performed/rendered by the workmen, viz., Security, was perennial and continuous.
c) It is submitted that the contract labourers were exploited by the contractors. A number of complaints were made of retention of the wages paid to the contract labourers by the contractors, apart from the fact that the contract labourers/workmen were not getting employment opportunity on equitable basis. Further the Board as the principal employer had not taken any steps to protect the interest of the workmen. No proper Registers as 4/58 https://www.mhc.tn.gov.in/judis W.P. Nos.23857 and 24779 of 2010 required under the Contract Labour (Regulation and Abolition) Act, 1970 and the Factories Act was maintained either by the contractor or the principal employer.
d)In the year 1986, contract workmen of ETPS formed a Society called Industrial Co-operative Society in short called INDCOSERVE. The contract labourers of ETPS alone were members of the said Society, which was registered under the Tamil Nadu Societies Registration Act. On the formation of the above Society, ETPS placed indent on the Society for supply of labour and paid the charges for services rendered by its workmen. The Society maintained Attendance and Payment of Wages Register.
e)In the year 1987, the Board appointed the National Productivity Council to study the work allocation and assessment of man power on scientific basis/method for the four Thermal Power Stations including ETPS and submit its report. The Council submitted its report on 12.02.1998.
f) In the year 1987, ETPS was registered as a principal employer under Contract Labour (Regulation and Abolition) Act, 1970 and the names of the registered contractors were included in the certificate of registration. 5/58 https://www.mhc.tn.gov.in/judis W.P. Nos.23857 and 24779 of 2010
g) In view of the large scale exploitation and the recommendation of the Khalid Commission to abolish contract labour to the Board which was also accepted by the Government, various measures were taken and as a matter of fact contract labour was abolished with effect from 01.05.1990.
3. With the above factual background, before examining the issue, for a better appreciation of the controversy, it is necessary to refer to the Memos, Circulars, Instructions and Board Proceedings (herein after referred to as B.P.) issued from time to time which may have a bearing on the issue for consideration.
i) On 05.01.1998, a Memo was issued relating to engagement of contract labour, wherein, it was reiterated that no additional contract labourers should be engaged other than those engaged for a long time and stress should be to reduce the number of contract labourers. It was further stated that indiscriminate deployment of contract labourers by the Board has resulted in the Board being constrained to regularize contract labourers in view of the Khalid Commission's report without maintaining any level of 6/58 https://www.mhc.tn.gov.in/judis W.P. Nos.23857 and 24779 of 2010 qualification.
ii)Thereafter, a Circular was issued on 19.03.1999, wherein, reference was made to the Memo dated 05.01.1998 and instructions were issued to gather/collect the following details relating to the contract labourers, including,
(a) Name of the contract labourer,
(b) Father's name
(c) Age
(d) Date of Birth
(e) Educational Qualification
(f) Community
(g) Date of joining ETPS
(h) Details relating to the contract labourer being in continuous service with ETPS.
The Administrative Engineers of the concerned Division were instructed to make enquiry individually with the contract labourers and verify the above details upon examination of the original certificates/ 7/58 https://www.mhc.tn.gov.in/judis W.P. Nos.23857 and 24779 of 2010 documents and then submit the above details in the Form which was annexed to the said Circular along with photocopies of the Documents mentioned above and the photograph of contract labourers were to be attested by the certifying authority/Assistant Executive Engineer/Executive Engineer. This aspect is being referred only to show that the Board was actively involved in the above exercise. The Circular also set out the following guidelines for verification of the details of service, which, inter alia required the following:
(a) The details of the contract labourers shall be verified on a single day, i.e., on 24.03.1999.
(b) Verification shall be confined to contract labourers engaged until 05.01.1998. This would be clear from the following clause:
'2. 5-1-98 tiu gzpGhpe;Js;s xg;ge;j njhopyhsHfspd; tptuq;fs; kl;Lk; jhd; rhp ghHf;fg;gl Ntz;Lk;.'
(c) The details of the contract labourers shall be verified by the Administrative Engineer/ Assistant Administrative Engineer/ concerned Assistant/Junior Divisional Engineer and it was to be duly authenticated by 8/58 https://www.mhc.tn.gov.in/judis W.P. Nos.23857 and 24779 of 2010 the Divisional Contractor.
Importantly, the Circular also provided that while certifying that the contract labourer was actually employed in their Section/Division and the period/duration of service, the same ought to be issued only on the basis of the Registers maintained. On verification of all the details and after filling up the details in the said Form, the same was to be submitted before 25.03.1999 to the Superintending Engineer and that there will not be any extension of time. It may be relevant to note that the above Circular dated 19.03.1999 was a result of the decision to abolish contract labour system in the Board. The two workmen/Respondents herein, viz., S.Sivaraman and P.Ravi appeared on 24.04.1999 before the Scrutiny Committee and submitted photographs, ration card, proof of date of birth, educational certificates and proof of experience as contract labourers in the prescribed form. The above would show that Registers were maintained by the Power Station.
iii) Thereafter, B.P.No.16 dated 28.04.1999 was issued by the Board, wherein, after making reference to the study by the National Productivity Council, supernumerary posts was sanctioned as under: 9/58
https://www.mhc.tn.gov.in/judis W.P. Nos.23857 and 24779 of 2010 North Chennai Thermal Power Station: 423 Ennore Thermal Power Station : 488 Tuticorin Thermal Power Station : 363 Mettur Thermal Power Station : 220
iv)B.P.No.17 also dated 28.04.1999 was issued, wherein, after making reference to BP.No.16, it provided as under:
"contract labourers identified as on 05.01.1998 and now engaged in the four thermal stations shall be absorbed based on seniority in the respective stations to the extent of the regular sanction and super numerary posts of Helper mentioned in para-2 above for each station. The excess contract labourers who are to be regularised shall be absorbed as Helpers in the vacancies available in the nearby Distribution Circles".
Importantly, it provided for the following:
(a) That the excess contract labourers shall be absorbed in the vacancies available in the nearby distribution circles.
(b) That the contract labourers will be absorbed only from the list of persons identified as on 05.01.1998 and available with the Chief Engineer/ 10/58 https://www.mhc.tn.gov.in/judis W.P. Nos.23857 and 24779 of 2010 Personnel.
(c) The seniority will be fixed based on the date of joining.
(d) It also set out various conditions/circumstances which would result in disqualification and stated/restated that there will be no contract system in future for manpower and the absorption of contract labourers shall take effect from 01.05.1999.
v) The Board issued Instructions vide Memo dated 29.04.1999, wherein, while making a reference to BP No.16, stated that orders have been issued for absorption of contract labourers in four thermal stations and reiterated that the absorption will be from the list of persons identified as on 05.01.1998 and available with the Chief Engineer/Personnel. It further provided that the Chief Engineer of the thermal stations shall constitute a Committee to identify the eligible contract labourers and that consequent on absorption of the identified contract labourers, there will be no contract system from 01.05.1999.
vi)In ETPS, the total contract workmen identified was 1867 while the sanctioned post for absorption was much lesser than the number of persons identified, hence fair criteria was fixed by the Board. Accordingly, the Board again vide Memo, dated 07.05.1999, clarified that the Selection 11/58 https://www.mhc.tn.gov.in/judis W.P. Nos.23857 and 24779 of 2010 Committee while absorbing the contract labourers should observe the following instructions, viz., "the contract labourers who have put in a continuous service of 480 days in a period of twenty-four calendar months as on 5-1-98 are eligible for absorption as per the Tamil Nadu Industrict Establishments (Conferment of permanent status to workmen) Act, 1981"
vii)Again vide letter dated 14.05.1999, the Chief Engineer had clarified that contract labourers who had put in continuous service of 480 days within 24 calendar months as on 05.01.1998 would be eligible for absorption. This was again reiterated vide letter dated 30.08.1999 and this time reference was made to Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act, 1981.
viii) The Member Generation vide letter dated 27.10.1999 addressed to the Chief Engineer issued orders for appointment/absorption to contract labourers, who had completed 480 days within a period of 24 calendar months as on 30.04.1999.
4. The above sequence of the Board Proceedings, Memos and Circulars is set out above only to indicate that while 05.01.1998 was treated 12/58 https://www.mhc.tn.gov.in/judis W.P. Nos.23857 and 24779 of 2010 to be the cut off date when the exercise for absorption of contract labourers commenced and remained so, until B.P.No.17 dated 28.04.1999 for the first time introduced the requirement that the contract labourers who are to be absorbed pursuant to the above exercise ought to be in service on the date of issuance of the above said Board Proceedings in B.P.No.17, i.e., 28.04.1999. Thereafter on 27.10.1999, the Member Generation directed the Chief Engineers to absorb the contract labourers, who had completed 480 days within a period of 24 calendar months as on 30.04.1999.
5. Having set out the Instructions, Memos and Circulars relating to the absorption of contract labourers, it may be necessary to refer to the Writ Petitions filed by the contract labourers of the Board and Labour Unions in which the present workmen were also involved to complete the narration of the above sequence of events leading to the present Writ Petitions. The history of the litigation leading up to the present writ petition is set out hereunder, since it may have a bearing on the question that arises in these writ petitions challenging the award in I.D.No.33 of 2006 dated 31.12.2009.
a) Writ Petitions in W.P.Nos.13327 and 12994 of 1998 were filed by the Tamil Nadu Minvariya Oppantha Thozhilalar Sangam before this Court 13/58 https://www.mhc.tn.gov.in/judis W.P. Nos.23857 and 24779 of 2010 seeking disbursement of wages to the contract workers in the presence of the principal employer i.e., Board. This Court was pleased to grant an interim direction for disbursement of wages in the presence of the authorized representative of the Board. It is submitted that the workmen, viz., S.Sivaraman and P.Ravi were office bearers of the said Sangam / Association and played an important role in the said litigation. It is submitted/claimed by the petitioner that soon after the grant of interim direction by this Court, they were illegally and unjustly denied employment without any notice on 01.10.1998 and 02.10.1998 in view of the fact that the above two workmen were filing writ petitions through the Association for enforcement of the rights of contract labourers and implementation of labour welfare legislations.
b) Writ Petitions in W.P.Nos.15188 and 16743 of 1998 were filed by the Tamil Nadu Minvariya Oppantha Thozhilalar Sangam to ensure proper implementation of the provisions of Employees State Insurance and Provident Fund Act in respect of contract labourers.
c) Writ Petition in W.P.No.17142 of 1998 was filed by the Tamil Nadu Minvariya Oppantha Thozhilalar Sangam seeking absorption of the 14/58 https://www.mhc.tn.gov.in/judis W.P. Nos.23857 and 24779 of 2010 contract workers. The above writ petition came to be dismissed on the ground that rejection of absorption in the circumstances was essentially a question of fact which has to be tested with reference to individual labourers and cannot be the subject matter of a writ petition under Article 226 of the Constitution of India.
d)Writ Appeal in W.A.Nos.2038 and 2039 of 2000 was filed challenging the order of the learned Single Judge which was rejected with liberty being granted to the appellants therein namely 49 members of the Sangam to raise a dispute under Section 10 of the Industrial Disputes Act.
e)The Government referred the dispute for adjudication by G.O.Ms.No.887 Labour and Employment Department dated 24.10.2002. However, the names of the petitioners/workmen, viz., S.Sivaraman and P.Ravi, were not included in the claim statement filed by the Union/Sangam in I.D.No.45 of 2002 and the impleading application filed by the workmen also came to be dismissed by the Industrial Tribunal. Thus, W.P.No.24886 of 2003 was filed by the workmen challenging the order of the Industrial Tribunal rejecting their impleading petition. This Court granted liberty to 15/58 https://www.mhc.tn.gov.in/judis W.P. Nos.23857 and 24779 of 2010 the workmen to approach the Government and seek an independent reference. It is pursuant to the above direction, the workmen approached the Government and reference in G.O.(D).No.815 dated 24.11.2006 directing the Industrial Tribunal to adjudicate the dispute came to be issued. The terms of reference reads as under:
"Whether the demand of the workmen S.Sivaraman and P.Ravi that they should be re-employed and that their services should be regularised and is justifiable and if so to pass appropriate orders?"
6.Order of the Tribunal:
Consequent to the reference by the Government, the impugned award in I.D.No.33 of 2006 came to be passed by the Industrial Tribunal, the following issues were raised and resolved by the Tribunal, viz.,
(a) Firstly, the Board questioned the maintainability of the claim of the workmen for absorption on the premise that no dispute was raised regarding cessation of their employment. The above contention was rejected by the Tribunal stating that Public Sector Corporation are expected to be model employers and ought not to reject the legitimate claims of workmen 16/58 https://www.mhc.tn.gov.in/judis W.P. Nos.23857 and 24779 of 2010 by taking hypertechnical views.
(b) Secondly, it was submitted that the cut off date for regularization prescribed by the Board vide B.P.No.17 that the workmen ought to be in service as on 28.04.1999 and not as on 05.01.1998 when the identification exercise for absorption and the satisfaction of the condition of being in continuous service for more than 480 days in 24 months was to be reckoned is arbitrary. The Tribunal found that until 28.04.1999, the cut off date in all the communications/proceedings/Memos of the Board, was only mentioned and taken to be 05.01.1998 and the cut off date was refixed as 28.04.1999 only vide B.P. No.17. The change/refixation of the cut off date is artificial and not supported by reason nor is it rational.
(c) Thirdly, the Tribunal, insofar as the contention as to whether the two workmen had been in continuous service for more than 480 days in the 24 calendar months preceding 05.01.1998, found that the petitioner had taken out an application seeking direction of the Labour Court to the Board to produce the following documents:
1) Work allocation sheet, shift wise - Security Department from 1.5.94 to 1.10.98.
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2) Acquittance register security department.
3) Attendance register-Security department.
4) Wage register- Distribution of arrears of wages from 1.5.95 to 1.10.98.
Despite the direction of the Labour court, the Board had not produced the above documents and the Labour Court proceeded to draw an adverse inference for non production of documents and thus held that the workmen must be taken to have been in continuous service for more than 480 days in 24 calendar months preceding 05.01.1998.
(d) Fourthly, the Tribunal also found that workmen who were junior to the petitioners have been absorbed on the basis of exhibits W-53, 54 and
55. It was found that the contention of the workmen that they have been victimized stands to reason and consequently an award was passed holding that the demand of the workmen that they should be re-employed and their services should be regularized is justified and direction was issued to the Management to re-employ and regularize the services of the workmen from 18/58 https://www.mhc.tn.gov.in/judis W.P. Nos.23857 and 24779 of 2010 05.01.1998 with continuity of service, but without backwages.
7. The present two writ petitions are filed challenging the above award. While the Board is challenging the above award in its entirety, the workmen have challenged the above award insofar as the Tribunal has failed to grant backwages.
8. Submission of the Board/petitioner in W.P.No.23857 of 2010:
a) It is submitted that the workmen were employees of contractors and were terminated which could only mean termination by the contractors, thus unless the termination by the contractors is set aside, it may not be possible for the petitioner to fulfil the criteria of being in service on 28.04.1999 in terms of B.P.No.17.
b) The temination unless set aside, plea for regularization does not arise. In this regard, reliance was sought to be placed on the judgment of the Supreme Court in the case of Oshiar Prasad and others Vs. Employers in Relation to Management of Sudamdih Coal Washery of M/s BCCL reported in (2015) 4 SCC 71.
c) The Tribunal erred in drawing an adverse inference against the Board for non-production of documents thereby drawing an 19/58 https://www.mhc.tn.gov.in/judis W.P. Nos.23857 and 24779 of 2010 inference/conclusion that the Respondent had been in continuous service for 480 days in 24 calendar months.
d) The Tribunal had erred in stating that the workmen were victimized without any basis or reason.
e) The claim of the petitioner that they have been discriminated inasmuch as similarly placed persons, more so juniors have been absorbed and thus they were entitled for absorption overlooks the fact that the petitioners do not satisfy the requirement in B.P.No.17, under which the pre-requisite was that the workmen should have been engaged as on 28.04.1999.
f) Claim for permanency under the Tamil Nadu Industrial Establishment (Conferment of permanent status to workmen) Act, 1981, cannot be sustained since the pleading and the award was only with reference to B.P.No.17 and that assuming they have been disengaged, unless the disengagement is set aside, question of a reinstatement does not arise. In this regard, reliance was placed on the judgment of the Division Bench of this Court in W.A.No.2252 of 2021 and the case of Superintending Engineer, Erode Electricity Distribution Circle, Tamilnadu Electricity 20/58 https://www.mhc.tn.gov.in/judis W.P. Nos.23857 and 24779 of 2010 Board Vs. Inspector of Labour and others reported in 2022 SCC Online Madras 1003.
(i) W.A.No.2252 of 2021:
“9. In view of the above, while setting aside the order passed by the learned Single Judge and allowing the writ appeals, the respondent Corporation is directed to implement the order passed by the Labour Inspector, within six months from the date of receipt of a copy of this order. However, the benefit of conferment status would be admissible to the appellants/writ petitioners only for the period they have served in the respondent Corporation and not for the period during which they were not serving the respondent Corporation. To make it clear, if any of the appellants/writ petitioners was either discontinued from the contract or terminated, the benefit arising out of the order of the Labour Inspector would be only for the period of service and not after their discontinuance or termination, for which, the appellants/writ petitioners would be at liberty to take recourse as available to them, if they are so interested.”
(ii)Superintending Engineer, Erode Electricity Distribution Circle, Tamilnadu Electricity Board Vs. Inspector of Labour and others (2022 21/58 https://www.mhc.tn.gov.in/judis W.P. Nos.23857 and 24779 of 2010 SCC Online Madras 1003):
“....However, even if such an order is issued, it should be with a clear finding about each workman and the number of working days by referring to the period of 24 calendar months. The benefit as to the consequences thereupon would be only for the period of employment and if any of the workman is discontinued or not in service, he would be entitled to the benefit only for the period of service and not beyond that and, that too, after the completion of continuous service of 480 days in 24 calendar months, and not for a prior period. The direction aforesaid is not driven by the settlement for the reason that the workmen herein are those who were not extended the benefit of settlement and, therefore, sought claims by maintaining claim separately. However, it would not preclude both the sides from entering into settlement, if they so choose, during the period of summary enquiry by the Labour Inspector. The issue as to whether the respondents fall within the definition of “workman” is however decided against the petitioner Corporation, as not only a settlement was entered, but adjudication about claim to seek permanency has been decided earlier in reference to similarly placed.”
9. Submission of the Respondents/workmen – petitioner in 22/58 https://www.mhc.tn.gov.in/judis W.P. Nos.23857 and 24779 of 2010 W.P.No.24779 of 2010:
a) The contention of the Management that the workmen were not engaged after 01.10.1998 and 02.10.1998 and the dispute having been referred only in the year 2006, the relationship of contract labourer/employee and employer does not subsist, overlooks the fact that though the Government had framed reference vide G.O(D).No.815 dated 24.11.2006, it is only a culmination of the challenge made by the Respondent workmen through series of writ petitions and thus the submission of the Management/Board is fallacious and technical. As a matter of fact, when the first writ petition was filed by the petitioner in their capacity as office bearers they were in the services of the Board. It was thereafter that they were disengaged and the same were challenged by way of a writ petition and thereafter carried by way of a writ appeal. The above challenges cannot be disregarded and the same would indicate that the case of the Management that the cessation of employment was not challenged is preposterous.
b) The contention of the Management of failure to challenge the cessation of employment and consequently the attempt to suggest that 23/58 https://www.mhc.tn.gov.in/judis W.P. Nos.23857 and 24779 of 2010 unless the termination or disengagement is challenged and set aside, the plea for regularization does not arise and reliance placed on the judgment of the Supreme Court in the case of Oshiar Prasad reported in (2015) 4 SCC 71 in this regard is misconceived. It is submitted, that once the reference is made by the Government in relation to re-employment, legality of the cessation of employment becomes incidental to answer the said reference. In any view, the Board is estopped from raising the above plea, inasmuch as a Division Bench of this Court in W.A.No.504 of 2006 dated 20.04.2016 while dismissing the writ appeal filed by the petitioner/Management against the order granting Section 17B wages rendered a categorical finding as under:
"In the case on hand, it was a clear case of re-
employment/re-instatement. The regularisation was a follow up action. Thus, the dispute squarely falls within the ambit of Sec. 17B of the ID Act. We do not find any irregularity, illegality or infirmity in the order sought to be impugned in this appeal. Accordingly, the writ appeal is dismissed. No costs. Consequently, connected miscellaneous petition is closed"
The Management has not challenged the above finding and thus estopped from pleading to the contrary.
24/58 https://www.mhc.tn.gov.in/judis W.P. Nos.23857 and 24779 of 2010
c) It was further submitted that the petitioner being an instrumentality of the State, is required to act as a model employer and not deny the workmen/labourers their legitimate rights on the basis of hypertechnical plea.
d) That the Tribunal was right in drawing adverse inference for not furnishing the documents which was in the custody of the Management. The documents that were called for are public documents and in view of the refusal on the part of the Board to produce the same before the Tribunal, the workmen were forced to approach the RTI. The Tribunal found that the Board's witness had admitted in his cross examination that the documents were in existence and in custody of the Board. While the existence of the document was disputed and denied by the Electricity Board, MW.1, Mr.Devabalan (Administrator Assistant) in his cross examination admitted to the existence of the documents, with the Board, which were ordered to be produced by the Tribunal. The relevant excerpts are extracted hereunder :
“xg;ge;j njhopyhsHfSf;F rpg;L mbg;gilapy; jhd; Ntiy nfhLf;fg;gLk;. myf;Nfrd; xHf; rpg;L gb gphpj;Jf; 25/58 https://www.mhc.tn.gov.in/judis W.P. Nos.23857 and 24779 of 2010 nfhLg;gJ epHthfk; jhd;. Ntiy gphpj;J nfhLg;gJ rk;ke;jkhf vq;fsplk; Mtzq;fs; cz;L. ghJfhg;G gphptpy; gzpahw;Wk;> nraw; nghwpahsH> ,sepiy nghwpahsH> epHthfg; nghwpahsH MfpNahHfs; Nkw;ghHit nra;thHfs;. mjhtJ xg;ge;j njhopyhsHfSf;F khjhe;jpu Cjpak; toq;FtJ rk;ke;jkhf xg;ge;jjhuH tUif gjpNtl;bd; mbg;gilapy; xg;ge;j njhopyhsHfSf;F Cjpak; ngWtjw;F tUif gjpNtl;il ,sepiy nghwpahsUf;F mDg;GthH. ,sepiy nghwpahsH> cjtp nraw;nghwpahsH> epHthfk;
nghwpahsH mij ghHitapl;L ghprPyidf;Fg; gpd;
mf;fTz;l] ; ; nrf;rDf;F mDg;gg;gLk;. tUifg; gjpNtl;bd;
mbg;gilapy; xg;ge;j njhopyhsHfSf;F Cjpak;
fzf;fplg;gLk;. mf;A+nlz;l; hp[p];lhpy; ifnaOj;J thq;fpf; nfhz;L gzk; nfhLg;ghHfs;. mjDila fhg;gp vq;fsplk; cs;sJ. Xt;nthU tUlj;jpYk; 240 ehl;fs; njhlHe;J gzpGhpe;jhy; Nghd]; njhif toq;fg;gLtJz;L. 1994 Kjy; kDjhuHfSf;F mtHfs; Ntiy nra;j xt;nthU tUlKk;
fUizj; njhif toq;fg;gl;L te;jJ. fUizj; njhif toq;fg;gl;l Mtzq;fis ehq;fs; guhkhpj;JtUfpNwhk;. jpdf;$ypf;F Cjpa caHT nfhLf;Fk;NghJ> Cjpa caHit fzf;fpl;L Mtzq;fis guhkhpj;J tUfpNwhk; ehq;fs; vd;why; mJ rhp. Mtz vz;.18 kw;Wk; 19y; jpdf;$yp fzf;fplg;gl;L> me;j Mtzj;jpy;> cjtp nraw;nghwpahsH kw;Wk; cjtpg;nghwpahsH MfpNahHfis ifnaOj;jpLthHfs;. 05.01.98 milahsk; fhzg;gl;l njhopyhsHfspd; Kjepiyg; gl;bay; thhpaj;jpy; cs;sJ. me;j gl;baypy; xg;ge;j njhopyhsHfSf;F epue;ju gzpahsHfshf cj;juT toq;fg;gl;lJ.”
e) The dispute as to the cut off date, viz., whether it should be 26/58 https://www.mhc.tn.gov.in/judis W.P. Nos.23857 and 24779 of 2010 05.01.1998 as contended by the workmen, or 28.04.1999 or 30.04.1999 as contended by the Board, was rightly decided by the Tribunal as 05.01.1998.
More so, when the Board has on earlier occasions before this Court taken the position that the cut off date for the purpose of absorption pursuant to the present exercise shall be 05.01.1998, it may not be open for the Board to contend to the contrary.
f) That the contention of the Board that in terms of B.P.No.17, the workmen, who were engaged as on 28.04.1999 alone, were eligible for consideration is misconceived. More so, if one were to view the issue bearing in mind, Section 3 (2) of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, which provides that any workmen who had been in continuous service for more than 480 days in 24 calendar months shall be conferred the status of permanent workmen and if the cessation of work is not due to the fault of the workmen, they are deemed to be in service in terms of the provisions of the said Act.
g) That the order of the Tribunal is well reasoned insofar as it directs re-employment of the petitioner, absence of such direction would have rendered the order of the Labour Court, falling foul of Article 14, inasmuch 27/58 https://www.mhc.tn.gov.in/judis W.P. Nos.23857 and 24779 of 2010 as juniors of the petitioner, had been absorbed as would be evident from Exhibits W-53, 54 and 55.
h) That the position which has been taken by the Board is a reflection and a consequence of vindictive attitude towards the workmen who were at the forefront to assert their rights and those of their fellow workmen/members of the Association/Sangam.
i) That the impugned order of the Tribunal insofar as it denies backwages is unsustainable as it is contrary to the view expressed by the Supreme Court consistently that in the case of wrongful termination of service reinstatement with continuity of service and backwages is the normal rule.
10. Heard both sides and perused the materials on records.
11. Though a number of issues have been raised by both sides, it appears to me that the issue can be resolved, if one is able to find the answer to the following questions, viz.,
a) Whether the submission by the Board that the alleged failure to 28/58 https://www.mhc.tn.gov.in/judis W.P. Nos.23857 and 24779 of 2010 challenge the cessation resulting in the relationship of contract labourer/employee and employer ceasing to subsist between the Board and the workmen would prove fatal to the workmen's claim to the benefit of the Board Proceedings/exercise of absorption/grant of employment to contract labourers.
b) Whether the cut off date is 05.01.1998 as contended by the workmen, or 28.04.1999 as contended by the Board.
c) Whether the Tribunal was right in drawing adverse inference against the Board for non-production of documents.
12. The sheet anchor of the argument of the Board insofar as the maintainability of the dispute before the Tribunal was the judgment of the Supreme Court in the case of Oshiar Prasad reported in (2015) 4 SCC 71. Reliance was sought to be placed on the above judgment to submit that any absorption/regularization is legally not possible unless the employee claiming absorption or regularization was in employment. If the employee has been disengaged or terminated, the relationship of employee and employer comes to an end and does not subsist except for the limited 29/58 https://www.mhc.tn.gov.in/judis W.P. Nos.23857 and 24779 of 2010 purpose of examining the legality and correctness of the termination/disengagement.
13. To deal with the above contention, it may be necessary to examine the decision of the Supreme Court in the case of Oshiar Prasad closely to appreciate its relevance in deciding the said issue of maintainability raised by the Board.
The facts found/recorded by the Supreme Court in Oshiar Prasad's case:
a) The employer/Respondent was Government of India Undertaking and had a colliery.
b) The employer invited tenders for construction of a washery on turn key basis for running the colliery – Thus nature of washery was temporary not perennial as is the case before this Court.
c) On completion of the work in 1979, 2 years since it commenced in 1977, the contractor terminated the employment of all workers and offered retrenchment compensation under Section 25F of the Industrial Disputes 30/58 https://www.mhc.tn.gov.in/judis W.P. Nos.23857 and 24779 of 2010 Act, except for 39 skilled workers who were retained for looking after the maintenance work. After a year, the services of the 39 employees were also terminated. A dispute was raised and the Tribunal directed that the 39 workers be absorbed by the washery Unit/Division of the colliery and they be granted all consequential benefits. The said award was not challenged but was implemented and the 39 workmen were absorbed and regularised by the washery unit.
d) The issue before the Supreme Court was with reference to five other workmen who claimed to be working in the same project, and who filed a suit in 1980 for a declaration that they were entitled to continue in service under the employer/Government of India Undertaking and that they may be absorbed/regularized by the employer. While the Trial Court decreed the suit in favour of the workmen, the appeal filed by the employer was dismissed and the decree of the Trial Court was confirmed. A second appeal was filed before the High Court by the employer which was allowed.
A challenge was made before the Supreme Court, wherein, liberty was granted to the workmen to approach the Industrial Tribunal. The following 31/58 https://www.mhc.tn.gov.in/judis W.P. Nos.23857 and 24779 of 2010 reference was made by the Government to the Industrial Tribunal to adjudicate:
“Whether the management of Sudamdih Coal Washery of M/s Bharat Coking Coal Ltd., PO Sudamdih, District Dhanbad are justified in not absorbing Ainuel Haque and 150 others (as in the list annexed) as their regular employees? If not, to what reliefs are the said workmen entitled?” The Tribunal answered the reference against the workers which was again challenged by the workmen before the High Court. The award was upheld by the Single Judge, which was affirmed in the intra Court appeal filed before the High Court. It was against the above order of the High Court that the workmen approached the Supreme Court. Before the Supreme Court, it was submitted that the workmen before the Supreme Court and the 39 workmen who were absorbed by the employer were identically situated and thus there ought to be parity in treatment else the same may fall foul of Article 14 as being discriminatory. Against the above background, the Supreme Court was of the view that the services of the workmen having been terminated long prior to the reference and not being in service of either the contractor or / and principal employer on the date of 32/58 https://www.mhc.tn.gov.in/judis W.P. Nos.23857 and 24779 of 2010 reference, it was not legally possible to give any direction to absorb/regularize the appellant so long as they were not in employment. That absorption and regularization can be claimed only when the contract of employment subsist and is in force inter se employee and the employer. The following portions of the judgment are relevant and extracted hereunder:
“23. Coming now to the facts of this case, it is an admitted case that the services of the appellants and those at whose instance the reference was made were terminated long back prior to making of the reference. These workers were, therefore, not in the services of either the Contractor or/and BCCL on the date of making the reference in question. Therefore, there was no industrial dispute that "existed" or "apprehended" in relation to the appellants' absorption in the services of BCCL on the date of making the reference.
24. Indeed a dispute regarding the appellants' absorption was capable of being referred to in reference for adjudication, had the appellants been in the services of the Contractor or/and BCCL. But as said above, since the appellants' services were discontinued or/and retrenched (whether rightly or wrongly) long back, the question of their absorption or regularisation in the services of BCCL, as claimed by them, did not arise and nor could this issue have 33/58 https://www.mhc.tn.gov.in/judis W.P. Nos.23857 and 24779 of 2010 been gone into on its merits for the reason that it was not legally possible to give any direction to absorb/regularise the appellants so long as they were not in the employment.
25. It is a settled principle of law that absorption and regularisation in service can be claimed or/and granted only when the contract of employment subsists and is in force inter se employee and the employer. Once it comes to an end either by efflux of time or as per the terms of the contract of employment or by its termination by the employer, then in such event, the relationship of employee and employer comes to an end and no longer subsists except for the limited purpose to examine the legality and correctness of its termination.
26. In our considered opinion, the only industrial dispute, which existed for being referred to the Industrial Tribunal for adjudication was in relation to termination of the appellants' employment and whether it was legal or not? It is an admitted fact that it was not referred to the Tribunal and, therefore, it attained finality against the appellants.”
14. It appears that the above judgment of the Supreme Court may not be of any assistance to the employer in view of the following:
A)Maintainability and Reliance on Oshiar Prasad's case: 34/58
https://www.mhc.tn.gov.in/judis W.P. Nos.23857 and 24779 of 2010 a. Right of absorption - Found in Scheme Formulated by Board – In Oshiar Prasad’s case, there was no Scheme:
As stated above, pursuant to the Khalid Commission's report, a policy decision was taken by the Board and the Government to abolish contract labour system and a Memo dated 05.01.1998 was issued in furtherance to the said resolution/decision, wherein, it was reiterated that no additional contract labourers were to be engaged other than those who had been engaged for a long time. Reference was also made to the Khalid commission consequent to which the Board found itself constrained to regularize contract labourers without maintaining levels of qualification/skill. Importantly, vide Circular dated 19.03.1999, it was stated that details of the contract labourers who had worked until 05.01.1998 alone should be verified.
Thereafter, B.P.No.17 dated 28.04.1999 came to be issued, wherein, it was provided that contract labourers identified as on 05.01.1998 and "now engaged in the 4 thermal power stations" shall be absorbed based on seniority in the respective stations and a series of conditions was also set out while indicating that seniority will be fixed based on the date of joining. The Board does not in any manner dispute the validity of B.P.No.17. In fact, 35/58 https://www.mhc.tn.gov.in/judis W.P. Nos.23857 and 24779 of 2010 their whole case rests on B.P.No.17 and the expression “now engaged” employed therein. The argument of the Board that absence of challenge to the termination/cessation of employment may prove fatal in maintaining the dispute and reliance on the case of Oshiar Prasad appears to be misconceived for the reason that there is a scheme for absorption in the present case, however there was no such scheme before the Supreme Court in the case of Oshiar Prasad. The Scheme reflected through the Board Proceedings, Memos, Circular, forms the basis of the petitioners’ claim. The area of controversy is how does one understand the expression “now engaged” employed in B.P.No.17. It appears that the entire exercise commencing with the Memo 05.01.1998 followed by the Circular B.P.No.17 and Memos dated 29.04.1999 and 07.05.1999 are all a continuous exercise for abolishing and absorbing contract labourers. If the right of the contract labourers are founded on the Scheme which in turn was given effect through series of Memos, Circulars and Board Proceedings, the submission by the Board that the contract labourer/employee cannot question the rejection by the Board unless and until there is a challenge to the termination/disengagement appears to be misconceived. The following 36/58 https://www.mhc.tn.gov.in/judis W.P. Nos.23857 and 24779 of 2010 illustration may be relevant. Let us take the case of Employee X who has been in employment as a contract labourer and engaged in services which is perennial in nature from the year 1988 and had continued to be in service until 02.05.1999 when his services are disengaged and the said employee had not been absorbed by the Board. A challenge by the employee of the Board on the premise that Board was not acting in confirmity with the Board Proceedings/Memos/instructions, while claiming/asserting its right to be absorbed in terms of B.P.No.17 would appear to me to be maintainable. I would think so in view of the fact that the employee/contract labourer is setting up its right on the basis of the Board proceeding and a deviation / non-compliance or a departure by the Board, from the Scheme formulated by it would supply the reason/ground for the contract labourers/workmen to seek redressal by way of implementation/enforcement of the Board Proceedings and it may not be open to the Board to state that it would disregard and act in violation of the Board proceedings and non-suit the employee by raising a technical plea on maintainability. In any view the question of legality of termination is incidental to resolve the dispute and cannot be cast aside on the basis of technicalities. 37/58 https://www.mhc.tn.gov.in/judis W.P. Nos.23857 and 24779 of 2010 b. The disengagement and denial of the benefit of Board Proceeding was under challenge without let up:
In the case of Oshiar Prasad, 39 workmen were terminated and reinstated by the Tribunal on the strength of the above order of the Tribunal, 5 other employees after approaching the wrong forum and having lost several years, set up its claim on the basis of a reference which was made thereafter, i.e., several years after termination. The judgment of the Supreme Court may have to be viewed in the light of the peculiar facts. To the contrary there has been continuous challenge to the actions of the Board in fixing and changing the cut off date with regard to contract labourers who were intended to be absorbed pursuant to the policy decision by the Government to abolish contract labour system in the four Thermal Power Stations. One cannot be unmindful of the fact that these workmen have been agitating their rights before various forums through various bodies/Associations as part of "Collecting Bargaining" which is recognised under the labour/Industrial laws as a legitimate means of asserting / claiming the labourer's right to employment/re-employment/absorption thereof. As a matter of fact, the claim of absorption and regularization of the contract 38/58 https://www.mhc.tn.gov.in/judis W.P. Nos.23857 and 24779 of 2010 labourers was seized off by the Hon'ble High Court. After dismissal of the writ petition, challenge was preferred by the contract labourers and its Union by way of Writ Appeal in W.A.2038 of 2000, the members of the second petitioner Union also preferred separate writ appeal in W.A. 2039 of 2000 which was disposed on 17.06.2002 by a common order with directions. As per the said directions issued by the Hon'ble Division Bench in Writ Appeals, the Government has referred the matter for adjudication before this Tribunal, without awaiting submission of application by petitioners. The two workmen, i.e., the petitioners herein had on being left out in the claim statement filed by the Union/Sangam in I.D.No.45 of 2002 filed an impleading application which was dismissed by the Industrial Tribunal.
W.P.No.24886 of 2003 was filed challenging the order of the Industrial Tribunal rejecting their impleading petition, wherein, liberty was granted to seek an independent reference. G.O.(D).No.815, dated 24.11.2006 is a reference drawn pursuant to the above direction.
The above would show that the petitioners have been claiming/asserting their rights and challenging the denial of the benefit of the scheme without any let up. Thus, reliance on the judgment of the Supreme 39/58 https://www.mhc.tn.gov.in/judis W.P. Nos.23857 and 24779 of 2010 Court in the case of Oshiar Prasad may not be applicable to the facts in the present case.
c. State and its instrumentalities – Model Employer – not to deny legitimate claims by being technical:
The other reason which also makes me think that the plea of maintainability is possibly preposterous is in view of the fact that it is trite law that all these measures and legislations are intended to be beneficial and protect the right of the labourers. A substantive right of employment and redressal of the grievance of non-employment cannot be rejected on a technical plea as is sought to be done by the Board which being an instrumentality of the State ought to conduct itself as a model employer. In this regard, it may be relevant to refer to the following judgments:
(i)Bhupendra Nath Hazarika v. State of Assam, reported in (2013) 2 SCC 516:
“61. Before parting with the case, we are compelled to reiterate the oft stated principle that the State is a model employer and it is required to act fairly giving due regard and respect to the rules framed by it. But in the present case, the State has atrophied the rules. Hence, the need for hammering the 40/58 https://www.mhc.tn.gov.in/judis W.P. Nos.23857 and 24779 of 2010 concept.
62. Almost a quarter century back, this Court in Balram Gupta v. Union of India [1987 Supp SCC 228 : 1988 SCC (L&S) 126 :
(1987) 5 ATC 246] had observed thus : (SCC p. 236, para 13) “13. … As a model employer the Government must conduct itself with high probity and candour with its employees.” In State of Haryana v. Piara Singh [(1992) 4 SCC 118 : 1992 SCC (L&S) 825 : (1992) 21 ATC 403] the Court had clearly stated : (SCC p. 134, para 21) “21. … The main concern of the court in such matters is to ensure the rule of law and to see that the Executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16.”
63. In State of Karnataka v. Umadevi (3) [(2006) 4 SCC 1 :
2006 SCC (L&S) 753] (SCC p. 18, para 6) the Constitution Bench, while discussing the role of State in recruitment procedure, stated that if rules have been made under Article 309 of the Constitution, then the Government can make appointments only in accordance with the rules, for the State is meant to be a model employer.
64. In Mehar Chand Polytechnic v. Anu Lamba [(2006) 7 SCC 161 : 2006 SCC (L&S) 1580] (SCC p. 166, para 16) the Court 41/58 https://www.mhc.tn.gov.in/judis W.P. Nos.23857 and 24779 of 2010 observed that public employment is a facet of right to equality envisaged under Article 16 of the Constitution of India and that the recruitment rules are framed with a view to give equal opportunity to all the citizens of India entitled for being considered for recruitment in the vacant posts.
65. We have stated the role of the State as a model employer with the fond hope that in future a deliberate disregard is not taken recourse to and deviancy of such magnitude is not adopted to frustrate the claims of the employees. It should always be borne in mind that legitimate aspirations of the employees are not guillotined and a situation is not created where hopes end in despair. Hope for everyone is gloriously precious and a model employer should not convert it to be deceitful and treacherous by playing a game of chess with their seniority. A sense of calm sensibility and concerned sincerity should be reflected in every step. An atmosphere of trust has to prevail and when the employees are absolutely sure that their trust shall not be betrayed and they shall be treated with dignified fairness then only the concept of good governance can be concretised. We say no more.”
(ii)Asger Ibrahim Amin v. LIC reported in (2016) 13 SCC 797:
“19.... The State being a model employer should construe the 42/58 https://www.mhc.tn.gov.in/judis W.P. Nos.23857 and 24779 of 2010 provisions of a beneficial legislation in a way that extends the benefit to its employees, instead of curtailing it.” d. Reference for re-employment:
As pointed out by the learned counsel for the Respondent, the question for reference in Oshiar Prasad's case was for absorption and regularisation, while the question for reference here is for re-employment and regularisation. It appears that the expression "re-employment" would itself indicate that the workmen/employee were not in employment and they were seeking to be absorbed/employed/re-employed. The expression “Re- employment” is different from absorption or retention in service. While absorption or retention would possibly indicate continued employment, re-employment on the other hand appears to contemplate employment even of a worker not employed. If that is the position, then the present reference is apparently much wider than absorption which fell for consideration before the Supreme Court in Oshiar Prasad’s case.
Further a refusal to give employment/absorption of contract labourers by the Board would constitute an Industrial Dispute as defined under Industrial Disputes Act, which reads as under:
43/58 https://www.mhc.tn.gov.in/judis W.P. Nos.23857 and 24779 of 2010 Section 2(k) of the Industrial Disputes Act:
'Industrial dispute' means any dispute or difference between employers and employees, or between employers and workmen, or between workmen and workmen, which is connected, with the employment or non-employment or the terms of employment or with the conditions of labour, of any person.
The above definition is very wide in its terms to also include non-employment, terms of employment, etc. The width and ambit of the above definition has been considered by the Federal Court in the case of Western India Automobile Assn Vs. Industrial Tribunal reported in 1949 SCC Online FC 12, wherein, it was clarified that a dispute relating to non-employment is also an industrial dispute and that non-employment is the negative of employment and would mean that disputes of workmen out of service are within the ambit of the definition. Reference is made to the above only to show that industrial dispute is wide enough to also examine the question of non employment including re-employment. It appears that the refusal on the part of the Board to provide employment/re-employment to the workmen would qualify as an industrial dispute and the terms of reference is much wider in the present case 44/58 https://www.mhc.tn.gov.in/judis W.P. Nos.23857 and 24779 of 2010 inasmuch it uses the expression "re-employment" rather than “absorption”.
For the above reason, this Court is of the view that the plea of maintainability is liable to be rejected.
B.The next question that needs to be resolved is whether the cut off date ought to be 05.01.1998 as submitted by the workmen or 28.04.1999 as submitted by the Board. To answer the above question, it may be necessary to look to the series of Memos, instructions and Board Proceedings. As stated earlier, the entire exercise was pursuant to the policy decision by the Board and the Government to abolish the contract labourers in the four power stations.
(i)The Memo dated 05.01.1998 was issued relating to engagement of contract labour, wherein, it was reiterated that no additional contract labourers should be engaged other than those engaged for a long time and stress should be to reduce the number of contract labourers. It was further stated that indiscriminate deployment of contract labourers by the Board has resulted in the Board being constrained to regularize the contract labourers in view of the Khalid Commission's report without maintaining any level of 45/58 https://www.mhc.tn.gov.in/judis W.P. Nos.23857 and 24779 of 2010 qualification.
(ii) This was followed by the Circular dated 19.03.1999, wherein, a reference was made to the Memo dated 05.01.1998 and instructions were issued to examine various details relating to the contract labourers. It importantly provided that the details of the contract labourers shall be verified on 24.03.1999 and the verification shall be confined to contract labourers engaged until 05.01.1998. The physical verification was meant to be carried out on 24.03.1999 and the same was to be submitted before 24.03.1999 by the Scrutiny committee to the Superintending Engineer.
Thus, the entire exercise of gathering data/details of the contract labourers and verification and submission to the authorities were all made and was actually completed even prior to issuance of B.P.No.17. Importantly, B.P.No.17 was issued almost after a year and 3 months since 05.01.1998. Importantly, the verification being confined to contract labourers engaged only until 05.01.1998, it may not be open to the Board to insist that contract labourers must be engaged beyond the said date to be entitled to the benefit of the Scheme for absorption. The reliance upon the expression “now 46/58 https://www.mhc.tn.gov.in/judis W.P. Nos.23857 and 24779 of 2010 engaged” employed in B.P.No.17, to submit that all that was done on 05.01.1998 was only identification and out of the contract labourers so identified only those who continued as on 28.04.1999 when B.P.No.17 came to be issued would be absorbed appears to be difficult to accept for the following reason:
The exercise of abolition of contract labour was a policy decision which was given official recognition vide Memo dated 05.01.1998 and the actual exercise of collecting data and verifying the data physically vide Circular dated 19.03.1999 was with reference to contract labourers as on 05.01.1998. In this background, the question that needs to be resolved is whether it is permissible/open in the above background for the Board to introduce another condition, whereby, despite the fact that contract labourers have been identified as on 05.01.1998 and have passed the verification by the Scrutiny Committee to insist that the workmen must after a year and 3 months later continue to remain/engaged when B.P.No.17 was issued, i.e., 28.04.1999. It appears to be a condition which adversely impacts the right of the contract labourer for being absorbed, for the above condition would arm the Board with arbitrary powers of removing 47/58 https://www.mhc.tn.gov.in/judis W.P. Nos.23857 and 24779 of 2010 employees though identified and found eligible thereby denying their legitimate right to be employed. As a matter of fact, even after B.P.No.17, a Memo dated 07.05.1999 again indicates that the contract labourers identified as on 05.01.1998 shall be eligible for absorption in terms of the Permanency Act. Importantly, it does not refer to or impose a condition that they ought to have been engaged even as on 28.04.1999 which position was reiterated by the Chief Engineer vide letter dated 14.05.1999 and 30.08.1999. Thereafter, Member Generation vide letter dated 27.10.1999 addressed to the Chief Engineer issued orders for appointment of contract labourer who had completed 480 days within a period of 24 calendar months as on 30.04.1999/01.05.1999. Thus there was a change of cut off date from 05.01.1998 to 28.04.1999 and thereafter, to 30.04.1999 although this appears not to be insisted upon by the Board. It appears to me that the Board having expressed its intention to abolish contract labourer system and having made it clear that contract labourers as on 05.01.1998 would be verified could not have changed or imported another condition, more so when there is likelihood of misuse of the above condition. As a matter of fact, the above condition had in fact been misused to deny benefit of 48/58 https://www.mhc.tn.gov.in/judis W.P. Nos.23857 and 24779 of 2010 absorption to contract labourers by disengaging them, according to the whims of the Board thereby rendering the entire exercise vulnerable to challenge under Article 14. This would be evident when one finds that admittedly juniors of the petitioner have been employed as could be seen from Exhibits.53, 54 and 55, when the entire exercise of absorption was meant to be made on the basis of seniority which was to be reckoned from the date of joining. It appears that the contention of the Board that it is only those workmen/contract labourers who were not only engaged as on 05.01.1998 but who continued to be in service as on 28.04.1999 would be eligible for absorption/employment appears to be lacking merit.
e.Drawing of adverse inference:
The other issue which has been raised by the Board is that the Tribunal erred in drawing an adverse inference against the Board for non- production of documents and thereby drawing an inference that the workmen/contract labourers must be taken to have completed 480 days of continuous service in 24 calendar months. It appears to me that there is no doubt that the burden is on the workmen to show that he has been in 49/58 https://www.mhc.tn.gov.in/judis W.P. Nos.23857 and 24779 of 2010 continuous service. In the present case, admittedly, the abosrption/employment of the contract labourers is on the basis of the Board Proceedings. The above condition is a pre-requisite for claiming absorption/employment to the Board in terms of the Scheme. The petitioner had submitted details and is not disputed they have been in service during the relevant period and received ex gratia payment and called for interview by the Scrutiny Committee. Importantly, the petitioners had also submitted RTI applications seeking the Board to furnish documents and had also taken out an application before the Tribunal, wherein, the Board was directed to produce the documents. However, it was only when the Board failed to produce the documents admittedly in their possession as would be evident from the deposition of the Management witness, that the Tribunal had proceeded to draw adverse inference. It appears that one cannot lose sight of the distinction between burden, onus and the discretion to draw an adverse inference by an adjudicating body/Tribunal/court. The burden which is on the workmen stands discharged once he had let in evidence and had called upon the Board to furnish the documents. In the present case, the workmen had let in evidence in the form of photographs, ration card, proof 50/58 https://www.mhc.tn.gov.in/judis W.P. Nos.23857 and 24779 of 2010 of date of birth, educational certificates and proof of experience. Thereafter, the onus is on the Board, by refusing to produce the documents, the Board has failed to discharge the onus. Thus, the Tribunal in exercise of its discretion had proceeded to draw an adverse inference. Drawing of an adverse inference being essentially discretionary, the jurisdiction of this Court to interfere with the exercise of the above discretion is rather narrow and limited to cases which suffers from being perverse or arbitrary. In this regard it may be relevant to refer to the following judgements:
i) Govt. of Gujarat (Fisheries Terminal Dept.) v. Bhikubhai Meghajibhai Chavda, reported in (2010) 1 SCC 47 :
"7. .....It is further submitted that the workman in his evidence, categorically had made statement before the Labour Court that he had worked for more than 240 days in a preceding year and, since that evidence is not rebutted by the employer by producing the relevant oral and documentary evidence which would be in their possession, the Labour Court was justified in drawing adverse inference against the employer.
.......
17. Applying the principles laid down in the above case by 51/58 https://www.mhc.tn.gov.in/judis W.P. Nos.23857 and 24779 of 2010 this Court, the evidence produced by the appellant has not been consistent. The appellant claims that the respondent did not work for 240 days. The respondent was a workman hired on a daily-wage basis. So it is obvious, as this Court pointed out in the above case that he would have difficulty in having access to all the official documents, muster rolls, etc. in connection with his service. He has come forward and deposed, so in our opinion the burden of proof shifts to the appellant employer to prove that he did not complete 240 days of service in the requisite period to constitute continuous service."
ii) R.M. Yellatti v. Asstt. Executive Engineer, reported in (2006) 1 SCC 106:
"17. ........we find that this Court has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged only upon the workman stepping in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. In cases of termination of services of daily-waged earners, there will be no letter of appointment or termination. There will also be no receipt or proof of payment. Thus in most cases, the workman (the claimant) can only call upon the employer to produce 52/58 https://www.mhc.tn.gov.in/judis W.P. Nos.23857 and 24779 of 2010 before the court the nominal muster roll for the given period, the letter of appointment or termination, if any, the wage register, the attendance register, etc. Drawing of adverse inference ultimately would depend thereafter on the facts of each case....."
iii) Sriram Industrial Enterprises Ltd. v. Mahak Singh, reported in (2007) 4 SCC 94 :
" 32. The said approach, in our view, was erroneous in view of the decision of this Court in U.P. Drugs & Pharmaceuticals Co. Ltd. [(2003) 8 SCC 334 : 2004 SCC (L&S) 46] The petitioner had wrongly described the documents relating to attendance for the years 1991 onwards as far as the respondents are concerned, as being irrelevant and the Tribunal has also accepted the said reasoning. Consequently, instead of drawing an adverse presumption for non- production of the said records, the Tribunal accepted the contention of the petitioner that the workmen had not worked for more than 240 days in the year preceding the date of their termination nor had the workmen filed any proof to show otherwise.
.....
34. Having correctly interpreted the provisions of Section 6- N of the U.P. Act, the High Court rightly drew an adverse 53/58 https://www.mhc.tn.gov.in/judis W.P. Nos.23857 and 24779 of 2010 presumption for non-production of the attendance registers and the muster rolls for the years 1991 onwards. The best evidence having been withheld, the High Court was entitled to draw such adverse inference. The views expressed by this Court on the question of burden of proof in Range Forest Officer case [(2002) 3 SCC 25 : 2002 SCC (L&S) 367] were watered down by the subsequent decision in R.M. Yellatti case [(2006) 1 SCC 106 : 2006 SCC (L&S) 1] and in our view the workmen had discharged their initial onus by production of the documents in their possession."
I am afraid that this is not a case here where the drawing of adverse inference suffers from any arbitrariness. Thus the attempt by the counsel for the Board to submit that the drawing of adverse inference was unwarranted stands rejected.
15. Finally coming to the Writ Petition in W.P.No.24779 of 2010 filed by the two workmen claiming backwages, having found that the denial of the benefit of the scheme for absorption/employment by the Board is unsustainable, the claim for reinstatement with backwages by the petitioners/workmen on considering the overall facts and also the law relating to reinstatement as stated by the Hon'ble Supreme Court in the case 54/58 https://www.mhc.tn.gov.in/judis W.P. Nos.23857 and 24779 of 2010 of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya, reported in (2013) 10 SCC 324 which reads as under:
“22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer- employee relationship, the latter's source of income gets dried up. Not only the employee concerned, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi-judicial body or court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim 55/58 https://www.mhc.tn.gov.in/judis W.P. Nos.23857 and 24779 of 2010 full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. The denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the employee concerned and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments.” For all the above reasons, this Court is of the view that ends of justice would be met if the petitioners are reinstated with 25% backwages keeping in view the principle laid down by the Hon'ble Supreme Court. To this extent, the order of the Tribunal stands modified. The order of the Tribunal directing the management to reemploy and regularize the services of the workmen, viz., S.Sivaraman and P.Ravi from 05.01.1998 with continuity of service stands confirmed.
16. In the result, the Writ Petition in W.P.(MD).No.23857 of 2010 is dismissed and the Writ Petition in W.P.(MD).No.24779 of 2010 is disposed of on the above terms. There shall be no order as to costs. Consequently, 56/58 https://www.mhc.tn.gov.in/judis W.P. Nos.23857 and 24779 of 2010 connected miscellaneous petition stands closed.
30.09.2022 Index : Yes/No Speaking/Non-Speaking Order Lm To:
1.The Presiding Officer, Industrial Tribunal, Tamil Nadu, Chennai – 600 104.
2.The Chairman, Tamil Nadu Electricity Board, Anna Salai, Chennai – 2.
3.The Chief Engineer, Ennore Thermal Power Station, Ennore, Chennai – 57.
57/58
https://www.mhc.tn.gov.in/judis W.P. Nos.23857 and 24779 of 2010 MOHAMMED SHAFFIQ, J.
Lm/mka Pre-Delivery Order in W.P. Nos.23857 and 24779 of 2010 and M.P.No.1 of 2010 30.09.2022 58/58 https://www.mhc.tn.gov.in/judis