Madras High Court
Minvaria Oppanda Thozhilalar Sangam vs State Of Tamil Nadu And Ors. on 18 February, 2000
Equivalent citations: (2000)IILLJ425MAD, (2000)IIMLJ243
Author: V.S. Sirpurkar
Bench: V.S. Sirpurkar
ORDER V.S. Sirpurkar, J.
The present writ petition has been filed by a Trade Union, through its General Secretary. Mainly speaking, the petitioner's case is that its members, who were contract labourers, were discriminated against and were not absorbed in the regular employment in pursuance of the policy of the Tamil Nadu Electricity Board, first respondent herein, more particularly, in its unit Ennore Thermal Power Station, second respondent herein, whereas the juniors to these workers were actually absorbed and regularised. A direction is, therefore, sought to absorb the members of the petitioner Union in regular services consequent to the abolition of the contract labour system. The reference to this complaint is to be found in paragraph 35 of the main affidavit, dated November 1, 1998. It is stated therein as follows:
"It is submitted that after the filing of W.P. Nos. 13327, 15188 and 16743 of 1998 the workmen listed in Annexure I enclosed herewith are being denied employment by respondents 2 to 23 since these workers were active in the formation of the petitioner union and instrumental in filing of these writ petitions."
Annexure I makes a reference to the details of workmen employed through the respondents, including respondents 4 to 23, who are said to be the contract labourers in various establishments. A complaint is made that new persons were brought in by the contractors and the contSractors were also indiscriminately reducing the number of persons, who were actually employed by them and who are deserved to be made permanent and an ad interim injunction was, therefore, sought against the respondents 2 to 23 from denying employment to the workmen listed in Annexure I to the writ petition. In addition, a writ of declaration was sought that all the workmen listed in Annexure I to the writ petition to be the permanent workmen of respondents 2 and 3 consequently, a direction was also sought that all those workers should be regularised and absorbed in services on the same pay as was paid to the permanent workmen.
2. The petition, to begin with, has given a whole history as to how the second respondent-Board was formed. The petition also refers to the earlier decisions taken by the Board for regularisation of the casual workers. The petition then gives the history as to what works were being done by the workmen employed by each respondent-contractor. In fact, the pleadings upto paragraph 25, only suggest the various works done by the workers engaged "through the respondent-contractors separately. A reference then has been made in paragraph 25 that the first respondent has prohibited employment of contract labour for the work done by the labourers employed through most of the contractors. The wage structure is described in paragraph 26 and in paragraph 27, a complaint is made that for all these years when the wages were being distributed to the workers, no authorised representative of the principal employer was present at the time of disbursement of the wages by the contractors, i.e., respondents 4 to 23. A reference is then made to W.P. Nos. 13327 and 15294 of 1998, which were filed on behalf of the workers, complaining against the exploitation in the matter of payment of wages. A reference is then made to the directions issued by this Court in those writ petitions whereby, the petitioner's counsel was also permitted to be present at the time of disbursement of wages of the contract labourers. It is then pointed out that thereafter, the wages to the contract labourers were being disbursed in presence of the counsel for the petitioner. A further reference is made to the contractors, who were not making the payments to all the workers. It is then contended that the contractors were using the new registers for the disbursement of wages and the old registers, which were in vogue prior to the institution of the writ petition, were not any more being used. It is also pointed out that though the register showed three columns regarding deductions, one of them being related to the deductions of wages on account of contribution towards Employees' State Insurance and another being on account of Employees' Provident Fund, at the time of disbursement of the wages, no worker was ever asked about his Employment Provident Fund account number or contribution card for his Provident Fund deductions. It is then reiterated that none of them had any E.S.I. card or number. In paragraph 36, it is reiterated that the first respondent, being the principal employer, was bound to follow the provisions of Employees' State Insurance Act, 1948 and Employees' Provident Funds and Miscellaneous Provisions Act, 1952. It is then contended that there is large scale violations of the provisions of the above two Acts. It is then stated that it was for this reason that W.P. No. 15188 of 1998 and W.P. No. 16743 of 1998 were filed. In: paragraph 33, the petitioner then reverts back to the facts regarding the reported decision of the Apex Court in Standard Vacuum Refining Company of India Limited v. Its Workmen, (1960-II-LLJ-238). Lastly, a reference is again made in paragraph 34 to the decision of the Apex Court in Air India Statutory Corporation v. United Labour Union (1997-I-LLJ-1113). In paragraph 35, as has already been pointed out, a complaint is made that the workers, who were active in the formation of the petitioner Union and instrumental in filing of the W.P. No. 13327, 15294, 15188 and 16743 of 1998, were being denied employment as a measure of victimisation. In paragraph 36, it is pointed out that new persons were brought in by the contractors for getting permanent jobs in the second respondent Board and, on that account, the contractors were collecting large amounts from them and they deliberately reduced the number of persons employed as, in pursuance of the earlier orders of this Court, they were required to pay the wages in the presence of the counsel for the petitioner. This, in short, is the state of affairs regarding the pleading in this writ petition.
3. In so far as W.P. Nos. 13327 and 15294 of 1998 are concerned, therein a complaint was made that the wages were not being paid by the contractors regularly and in presence of the officer of the Board. In the said writ petitions, W.M.P. Nos. 20243, 23090 and 23091 of 1998 were also filed. It seems that this Court had given interim directions on August 29, 1998 whereby, the Court had controlled the disbursement of the wages to the contract labourers and had also directed that the counsel for the petitioner Union would be able to remain present at the time of disbursement of wages. Actually speaking, because of these directions, those writ petitions had become infructuous and they were as such disposed of by me, by my earlier orders dated December 17, 1999.
4. Insofar as W.P. No. 15188 of 1999 and W.M.P. No. 22921 of 1999 in that writ petition are concerned, the petition was for a direction to the Employees' State Insurance Corporation for implementation of the provisions of the Employees' State Insurance Act in respect of the employees covered by the contract labour. The second respondent Board had accepted in its counter that it would have no objection for the Employees' State Insurance Corporation taking appropriate steps for implementation of the Act and a statement had been made by the learned counsel on behalf of the Tamil Nadu Electricity Board that it had already implemented the provisions of the said Act. Therefore, a declaration was granted that it would be for the Employees' State Insurance Corporation to implement strictly the provisions of the Employees' State Insurance Act by making all out efforts. A direction to that effect was also given. It was also observed that if any breaches were found, the concerned person could take the individual action as was available to him in law. With that direction, even that writ petition was disposed of.
5. In short, initially, as the writ petition was presented all that was prayed in the petition was that all the persons mentioned in Annexure I, who were allegedly the contract labourers engaged by the contractors, i.e., respondents 4 to 23, should be regularised in the services of the Tamil Nadu Electricity Board and more particularly in Ennore Thermal Power Station.
6. Initially, there was a common counter affidavit filed on behalf of the respondents 2 and 3, which was sworn in by one K. Swamiappan, Chief Engineer, Ennore Thermal Power Station, Ennore. It was accepted in that counter, in paragraph 2, that the second respondent did award contract works for execution of certain type of work on quantity basis to be completed within a prescribed time. The said work is not of a permanent and perennial nature and is purely temporary, sporadic and intermittent in nature.
7. In so far as the contentions raised in the main affidavit by the petitioner in paragraphs 9 to 25 are concerned, it was stated that 665 contract workers were enrolled as members in the Industrial Co-operative Society, covered under the Co-operative Societies Act and they were engaged in various types of work regularly and daily. It was pointed out that the contract workers were paid by the contractors themselves and they were not paid by the Board directly and they were not on the rolls of the Board. It was asserted then that the Assistant Engineer/Junior Engineers, who were the authorised representatives of the principal employer, used to be present at the time of disbursement of wages and that the workers used to put their signatures in the relevant pages of the Acquittance Registers. A so called exploitation in that behalf was denied.
8. It is then pointed out that Employees' Provident Fund contributions were remitted by the contractors, who were having separate Employees' Provident Fund Code numbers, and the Provident Fund contributions were deducted from the contract bills and the same were remitted to the respective code numbers allotted by the Regional Provident Fund Commissioner and that the contract bills were passed only after verification of the E.S.I./E.P.F. remittance challans. It was then reiterated that all the provisions of the Factories Act, Employees' State Insurance Act and Employees' Provident Funds Act were strictly implemented and that there was no violation.
9. In so far as the absorption of the contract workers in the Electricity Board is concerned which was the main subject of the present writ petition, it was stated in this counter that, by order dated April 28, 1999, a decision was taken to absorb the contract workers working in four Thermal Power Stations, including the Ennore Thermal Power Station, as regular helpers in a phased manner on the basis of seniority and need. It was pointed out that a Selection Committee, consisting of Superintending Engineer/P & A Executive Engineer/C.W.S. Administrative Officer, was constituted to verify the bona fides of the contract workers regarding their age, service, educational qualifications, community, etc. It is reiterated that a Medical Officer was also appointed to assist the Committee to identify the aged workers and clear guidelines were also issued while processing the selection of contract workers for regular absorption. It was then reiterated that all those contract workers, who had put in a continuous service of 480 days in a period of 24 calendar months were eligible for absorption as per Section 3 of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act. It was then suggested that there was no continuity of 480 days service in a period of 24 calendar months in case of most of the contract labourers, who were claiming the relief of permanency.
10. Not satisfied with this counter since serious complaints were made by the counsel for the petitioner as regards the working of the said committee, as referred to in the counter of the respondent 2 and 3, a direction was given by me by order dated September 17, 1999. The order reads as under:
"The respondent Board is directed to file a further affidavit explaining therein as to what all steps have been taken by the Board to locate the contract labourers after the Government took decision to abolish the contract labour system. The affidavit shall contain all possible facts highlighting the steps taken by the Board to locate such persons. In addition, the Board shall also file supporting documents along with counter which would be able to depict the course undertaken by the Board and its Committee, if any. This shall be done, under any circumstances, within three weeks from today.
Put up after three weeks."
11. Unfortunately, the task could not be completed within three weeks and the Board, therefore, sought further time and ultimately the Board produced some documents on December 3, 1999, which included the earlier orders of this Court in the earlier writ petitions as also the orders of the Supreme Court. It also included the report of Hon'ble Mr. Justice KHALID dated February 11, 1991. Hon'ble Mr. Justice KHALID was appointed by the Apex Court in pursuance of the disputes raised by the Tamil Nadu Electricity Employees and Contract Labour Union, Tamil Nadu Electricity Workers' Federation and Central Organisation of Tamil Nadu Electricity Employees in the matter of regularisation of the contract workers.
12. The leaned counsel appearing on behalf of the Board also pointed out that the Board had taken a final decision on April 28, 1999, which can be said to be a basic decision on the basis of the report by the National Productivity Council, sanctioned certain number of posts for all the four Thermal Power Stations, including the Ennore Thermal Power Station. On the basis of this order, it was pointed out by the learned counsel that in so far as Ennore Thermal Power Station was concerned, 538 regular posts were sanctioned, while 284 posts were supernumerary posts. In this order, it is suggested that a Committee, consisting of the Accounts Member, Member (Distribution) and Member (Generation), would be constituted to study the operation of the Thermal Power Stations with the strength now sanctioned and a final decision would be taken with reference to the number of staff held on supernumerary strength.
13. There is also an order on record, dated April 28, 1999 wherein, it is suggested that in all, 9095 persons were presently engaged in four Thermal Power Stations, including 1867 persons, who were in Ennore Thermal Power Station, which included 709 INDCO-SERVE workers also. In paragraph 4 of this order, it is suggested that the contract workers identified as on January 5, 1998 and presently engaged in the four Thermal Power Stations shall be absorbed based on seniority in the respective.
Thermal Power Stations to the extent of the regular sanction and supernumerary posts of Helpers mentioned in para 2 for each station. The excess contract labourers who were to be regularised should be absorbed as Helpers in the vacancies available in the nearby distribution circles. In paragraph 5, the procedure for absorption of the contract labourers was provided as follows:
"(a) All the contract labourers to be absorbed will be absorbed as Helpers based on the seniority from among the persons who were already identified as on January 5, 1998. Out of that list, the seniors will be absorbed as Helpers in Thermal Stations and the juniors will be absorbed as Helpers in the vacancies available in the nearby Distribution Circles. For this purpose the list of persons already identified as on January 5, 1998 and available with Chief Engineer/Personnel will be the basis. Any contract labourer who does not find a place in this list is not entitled to the absorption. Seniority will be fixed based on the date of joining.
(b) The qualification and age may be related wherever necessary.
(c) Those who attained the age of 58 years will not be absorbed.
(d) Persons on whom criminal cases are pending in Courts of Law and who are medically unsuitable for the jobs in the Thermal Stations will not be absorbed.
(e) Those contract labourers who are absorbed as regular Helpers will not be considered for other posts through internal selection before completion of a period of one year.
(f) The absorbed contract labourers should carry out such works as are entrusted to them by the higher authorities. All of them are responsible to their immediate and other superiors for carrying out operation and maintenance of the Thermal Stations and to provide uninterrupted power supply to consumers.
(g) Consequent on absorption of contract labourers as Helpers, filling up of the. arising vacancies in the other ROE categories will be decided by the Board on need basis."
In paragraph 6 of this Order, it is specifically mentioned that consequent on the absorption of all the identified contract labourers in Thermal Stations, there will be no contract system in future for supply of manpower. Thus a cut off date was fixed at January 5, 1998. The workers working on that date for a continuous period of 480 days in preceding 24 calendar months were to be absorbed that too, on the basis of the list available with the Board.
14. It is pointed out further that there is an order passed on April 29, 1999 whereby the aforementioned Committee was directed to be formed by the Chief Engineers of the Thermal Stations. There is also a document, which is a memo dated May 7, 1999. which suggests that the contract labourers, who had put in a continuous service of 480 days in period of 24 calendar months, as on January 5, 1998, were eligible for absorption and regularisation as per the Tamil Nadu Industrial Establishments (Conferment of Permanent Status of Workmen) Act, 1981. So, this was also one of the guiding factors for absorption and regularisation of the contract labourers.
15. The documents mentioned above did not give any indication as to what exact exercise was made by the said Committee and, therefore, an affidavit was insisted upon by the Court, which affidavit came to be filed along with the above documents on December 3, 1999. In this affidavit, apart from the facts, which have already been stated as emanated from the documents, a reference was made to W.P. No. 8058 of 1999 for a writ of mandamus, directing the Board to regularise only such of those contract labourers, who have been verified to be bona fide and genuine in implementing the decision of the Board dated April 9, 1999 relating to absorption of 11,029 contract labourers working in the four Thermal Power Stations and other Generation Stations. A reference is also made to an order passed in the above writ petition, on April 30, 1999, wherein, an observation was made that the petitioner could approach the authorities under the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act within thirty days of receipt of copy of the order to verify the bona fides and genuineness of 11,029 persons, who were sought to be observed in the services of the respondent Board. It is then pointed out that a writ appeal against that order was already pending vide W.A. No. 840 of 1999. It was pointed out that the Board has completed its exercise of identification of contract workers and the absorption of the contract workers against the sanctioned posts and that there was no need to give any further directions in the matter of absorption. It was pointed out that if there was any individual complaint, the said complaint could be taken care of by approaching the authority under the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act.
16. Immediately a rejoinder came to be filed on behalf of the petitioner by an affidavit dated December 17, 1999 suggesting therein that it was not clear as to in what manner the said posts were filled up by the Board. It is also suggested in this affidavit that bureaucrats had become a party to new comers being accommodated against the permanent posts in place of those who should have actually been made permanent. The Board on January 7, 2000 filed a complete report of the Committee with a full seniority list of as many as 728 workers in respect of Ennore Thermal Power Station and pointed out the precise exercise made by the Committee. Some other documents have also been filed by the Board, which the Committee perused before conferring the permanent status on these employees.
17. Again, the petitioner has filed a reply affidavit, dated February 10, 2000. By this affidavit, the petitioner objects to the exercise taken by the Board and its Committee. The objections are that the verification was directed to be completed on one single day and that the Board did not have any records, either under the Factories Act or under any other Act, including the Contract Labour Act, to suggest as to who were the actual workers who were working on the cut off date. It is then suggested that some senior workers have been excluded and some junior workers were taken. The learned counsel also, while addressing this Court, strenuously reiterated that there was overall irregularity in distributing the forms, which were the basis for locating the said workers.
18. From the above facts, there is one thing certain that this controversy, which had once gone upto the Apex Court, though at the instance of some other Union, is now being blown out of proportion before this Court. I have already made reference to the various documents submitted by the Board along with its affidavits, which clearly suggest that the Board had taken a series of exercise of firstly deciding upon the number of posts which were to be created and also deciding the number of persons who were actually working. It had also suggested that a cut off date has to be fixed on January 5, 1998 and it also took into consideration, on the basis of the records for a continuous period of 480 days in two years time prior to January 5, 1998. The long exercise, which is apparent from the documents filed by the Board, does not anywhere suggest any mala fide on the part of the Board. Beyond suggesting that the whole exercise by the Board was mala fide and the whole bureaucracy was only interested against the workers and that there were several irregularities in locating the workers, the petitioner has not come up with any other concrete material in support of its case.
19. It is not the contention of the petitioner Union that nothing has been done in pursuance of the decision taken by the Board and the Government to confer permanency on the contract workers. What is being now suggested is that particular contract workers were not absorbed, though they deserved to be absorbed and regularised and some other particular contract workers, though did not deserve to be absorbed and confirmed got the advantages of absorption and confirmation orders. When a specific question was asked as to whether if the contention of the petitioner is to be accepted then, would it affect those persons, who have actually been absorbed and confirmed, the learned counsel had to admit that the acceptance of the petitioner's contention would result in their being ousted or, at any rate, their being affected. One fails to follow as to how this writ petition could proceed without those persons being made a party to this petition for, admittedly, they are going to be affected by the outcome of this writ petition. Even for that reason, the writ petition must fail. What is being insisted upon is now an exercise by the High Court, in its extraordinary jurisdiction under Article 226 of the Constitution of India, to look into the working of the Committee in individual cases and to locate as to whether a particular person was actually working on January 5, 1998 for a continuous period of 480 days in two years prior thereto and whether such person should have been absorbed and confirmed and has actually not been absorbed and confirmed. Such an exercise, in a writ petition, is not known to the constitutional law. At the most, it can be said that if any worker felt that his claim for absorption and regularisation has been incorrectly rejected, he would certainly have a remedy as has been observed by this Court in W.P. No. 8058 of 1999. In fact, this is nothing but an effort on the part of the petitioner Union to see that all its members get the benefit of absorption and permanency in the second respondent-Electricity Board. The decision of such question essentially depends upon the facts and the evidence which, this Court should not do under extra-ordinary jurisdiction under Article 226 of the Constitution of India. A disputed question of fact, merely because it engulfs substantial number of employees, cannot by itself become a raison d'etre for entertainment of the petition under Article 226 of the Constitution of India, if otherwise that petition is not maintainable. On the backdrop of the facts, individual cases could always be examined by the proper forums under the appropriate enactments. Such a complaint, merely because it is made by a Union, would be entertainable by this Court under Article 226 of the Constitution of India. It is trite law that where disputed questions of facts are involved and where the decisions of those questions would depend on the appreciation of evidence, the Writ Court shall not go into those questions. What cannot be done directly, cannot be done indirectly and, therefore, there will be no question of entertainment of this writ petition.
20. I have already pointed out that the second respondent Board has taken all the exercise in pursuance of its earlier decisions to confer the permanency on the contract labourers, at least on the basis of the documents filed before this Court, to which a liberal reference has been made in the earlier part of this order does not show that there are any mala fides on the part of the respondent Board. A mere cry in the name of mala fides on the part of the respondent Board is not sufficient. A plea of mala fide has to be substantiated with acceptable legal evidence and in this case, there is absolutely nothing to suggest that there was any mala fide on any of the officers of the Board. A general, vague and diabolic statement regarding the mala fides does not gain and inspire confidence and cannot activate this Court, much less in its exercise under Article 226 of the Constitution of India. This, precisely, has been the case here. I have deliberately referred to all the affidavits in detail to show that the petitioner has drifted from the original case and has allowed the whole issue to be snowballed by filing affidavits at every stage of hearing. I am afraid, such exercise was not possible. I have already pointed out that nothing contrary to the rules or law can be pointed out from the actions taken by the Board and, therefore, this petition has to be dismissed.
21. The writ petition is dismissed without any order as to costs.