Madras High Court
Registrar vs Principal Labour Court on 26 May, 2016
Author: K.Ravichandrabaabu
Bench: K.Ravichandrabaabu
W.P.Nos.37681 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON 28.02.2020
DELIVERED ON 29.05.2020
CORAM
THE HONOURABLE MR. JUSTICE K.RAVICHANDRABAABU
W.P.Nos.37681 of 2016, 17793 of 2017, 16817, 16818 and 20126 of
2018
and
WMP Nos.32292 & 34814 of 2016 & W.M.P.Nos.20008 & 20009 of
2018 and W.M.P.No.6648 & 6650 of 2019
W.P.No.37681 of 2016:
Registrar,
Tiruvalluvar University,
Serkadu,
Vellore 632 115. ...Petitioner
Vs
1 Principal Labour Court
Vellore,
Vellore District.
2 M.Mohan
3 Vijayalakshmi Venkatraman
4 D.Prakash
5 H.Vijayakumar
6 S.Ranjani
http://www.judis.nic.in1/101
W.P.Nos.37681 of 2016
7 L.Baskar
8 J.Parameshwari
9 K.Siva
10 P.Vijayalakshmi
11 S.Pramila
12 P.Ponmani Selvan
13 B.Godhavari
14 K.S.Ramesh
15 C.Prem kumar
16 T.Shinath
17 T.S.Manikandan
18 D.Vijaya
19 Velmurugan
20 K.Subramani
21 S.Lalitha
22 G.Kumaran
23 M.Dilli Prakash
24 V.Kirthika
http://www.judis.nic.in2/101
W.P.Nos.37681 of 2016
25 P.Vijenthra Kumar
26 S.Ravidoss
27 G.Sasikala
28 S.Saroja
29 V.Manjula
30 S.Janarthanan
31 K.Venkataramanan
32 D.Elamparithi
33 S.Venkatesan
34 K.Suresh
35 P.Thavamani
36 G.Krishnaveni
37 D.Lakshmi
38 M.Manivannan
39 K.Jothi
40 K.Rani
41 S.Amudhua
42 V.Karunakaran
43 S.Gnanam
http://www.judis.nic.in3/101
W.P.Nos.37681 of 2016
44 K.Karthika
45 N.M.Sivakumar
46 R.Rathina Kumar
47 C.Thalapathi
48 S.Radha
49 M.Jagadeesan
50 J.Baskar
51 G.Lakshmi
52 M.Suresh Babu
53 C.Shakila
54 V.Sarala
55 R.Gunasekaran
56 S.Geethanjali
57 A.Thirugnanasambandan
58 Prabakar
59 A.S.Nagarani
60 P.Sangararajan
61 R.Chandrakala
62 S.Baskaran
http://www.judis.nic.in4/101
W.P.Nos.37681 of 2016
63 M.Yuvarajan
64 Sasirekha
65 A.Harikrishnan
66 R.Parameswari ..Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of certiorari to call for the records of the 1st
Respondent's Award in I.D.No.61 of 2015 to 108 of 2015 and 110 of
2015 to 126 of 2015 dated 26.05.2016 on the file of the Principal Labour
Court, Vellore and to quash the same.
W.P.No.17793 of 2017:
1 M.Mohan
2 Vijayalakshmi Venkatraman
3 D.Prakash
4 H.Vijayakumar
5 S.Ranjani
6 L.Baskar
7 J.Parameshwari
8 K.Siva
9 P.Vijayalakshmi
10 S.Pramila
11 P.Ponmani Selvan
http://www.judis.nic.in5/101
W.P.Nos.37681 of 2016
12 B.Godhavari
13 K.S.Ramesh
14 C.Prem kumar
15 T.Shinath
16 T.S.Manikandan
17 D.Vijaya
18 Velmurugan
19 K.Subramani
20 S.Lalitha
21 G.Kumaran
22 M.Dilli Prakash
23 V.Kirthika
24 P.Vijenthra Kumar
25 S.Ravidoss
26 G.Sasikala
27 S.Saroja
28 V.Manjula
29 S.Janarthanan
30 K.Venkataramanan
http://www.judis.nic.in6/101
W.P.Nos.37681 of 2016
31 D.Elamparithi
32 S.Venkatesan
33 K.Suresh
34 P.Thavamani
35 G.Krishnaveni
36 D.Lakshmi
37 M.Manivannan
38 K.Jothi
39 K.Rani
40 S.Amudhua
41 V.Karunakaran
42 S.Gnanam
43 K.Karthika
44 N.M.Sivakumar
45 R.Rathina Kumar
46 C.Thalapathi
47 S.Radha
48 M.Jagadeesan
49 J.Baskar
http://www.judis.nic.in7/101
W.P.Nos.37681 of 2016
50 G.Lakshmi
51 M.Suresh Babu
52 C.Shakila
53 V.Sarala
54 R.Gunasekaran
55 S.Geethanjali
56 A.Thirugnanasambandan
57 Prabakar
58 A.S.Nagarani
59 P.Sangararajan
60 R.Chandrakala
61 S.Baskaran
62 M.Yuvarajan
63 Sasirekha
64 A.Harikrishnan
65 R.Parameswari ..Petitioners
vs
1 Principal Labour Court,
Vellore,
Vellore District.
http://www.judis.nic.in8/101
W.P.Nos.37681 of 2016
2 Thiruvalluvar University,
rep. by its Registrar,
Serkadu, Vellore 632 115. ..Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of certiorarified mandamus to call for the records
pertaining to the common award dated 26.05.2016 passed by the 1st
Respondent in I.D.No.61 of 2015 to 108 of 2015 and 110 of 2015 to 126
of 2015, quash the same insofar as the deprivation of 70% of the
backwages; the remarks made against their counsels at paragraphs 96,106
and 107 and condition imposed and rider added in paragraph 112 of the
common award subjecting the relief granted to the petitioners to the
outcome of the result in I.D.Nos.161 of 2014 and 50 of 2015 and holding
that the relief granted to the petitioner would be in-operative and
unenforceable in the event of losing the case in I.D.Nos.161 of 2014 and
50 of 2015 and consequently direct the second respondent University to
pay each of the petitioners 70% of backwages from the date of their
termination to the date of common award in addition to the relief already
granted to the petitioners, award costs.
W.P.Nos.16817 and 16818 of 2018:
The Registrar,
Thiruvalluvar University,
Serkadu, Vellore. ...Petitioner
vs
1 The Principal Labour Court,
Vellore, Vellore District.
2.Thiruvalluvar University,
Employees Union No.1505 V.L.R/2012,
Rep. by its General Secretary, Mr.Manivannan,
#17, Vivekanandan Street,
Vellore 632 006. ...Respondents
http://www.judis.nic.in9/101
W.P.Nos.37681 of 2016
Prayer in W.P.16817/2018: Writ Petition filed under Article 226 of the
Constitution of India praying to issue a Writ of certiorari to call for the
records of the proceedings made in I.D.No.161 of 2014 on the file of the
Principal Labour Court, Vellore District dated 12.04.2018 and to quash
the same.
Prayer in W.P.16818/2018: Writ Petition filed under Article 226 of the
Constitution of India praying to issue a Writ of certiorari to call for the
records of the proceedings made in I.D.No.50 of 2015 on the file of the
Principal Labour Court, Vellore District dated 12.04.2018 and to quash
the same.
W.P.No.20126 of 2018:
Thiruvalluvar University
Employees Union,
Rep. by its General Secretary,
Reg. No.1505 V.L.R/2012,
No.17, Vivekanandan Street,
Thirunagar, Vellore 632 006,
Vellore District. ...Petitioner
vs
The Thiruvalluvar University,
rep. by its Registrar,
Thiruvalluvar University,
Serkadu, Vellore 632 115. ...Respondent
Prayer: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of certiorarified mandamus, after calling for the
records pertaining to the award dated 12.04.2018 in I.D.No.161 of 2014
from the file of the Principal Labour Court, Vellore, quash the same
insofar as not granting the petitioners permanency only with effect from
05.11.2013 and not granting the petitioners permanency with effect from
the date of completion of 240 days of service and consequently direct the
respondent University to grant their permanency in the posts/work in
which they have already working with effect from the date of completion
of 240 days of service, with appropriate time scale of pay, pay and
allowance and all other consequential benefits, award costs.
http://www.judis.nic.in10/101
W.P.Nos.37681 of 2016
For Petitioner : Mr.K.Vijay Narayan,
in W.Ps.37681/2016, Advocate General
16817, 16818/2018 for Mr.M.C.Swamy,
And C.Senthilnathan and
For R2 in W.P17793/17 Mr.L.Arulmozhivarnan
and respondent in
W.P.20126/2018
For Petitioners : Ms.R.Vaigai, Sr. Counsel
in W.P.17793/2017 for Mr.V.Ajay Khose
20126/2018
and
For R2 to R66 in
W.P.No. 37681/2016 &
for R2 in W.P.Nos.
16817 & 16818/2018
For R1 in
W.Ps.37681/2016,17793/2017
16817 & 16818/2018 : Court
COMMON ORDER
W.P.No.37681 of 2016 is filed challenging the award of the Labour Court made in I.D.Nos. 61 of 2015 to 108 of 2015 and 110 of 2015 to 126 of 2015 dated 26.05.2015. The Management viz., Thiruvalluvar University is the writ petitioner. The Labour Court in its award set aside the dismissal order dated 05.11.2013 issued against the said employees and directed their reinstatement into service with 30% backwages and allowances, continuity of service and other attendant benefits. http://www.judis.nic.in11/101 W.P.Nos.37681 of 2016
2. W.P.No.17793 of 2017 is filed challenging the common award passed in I.D.Nos.61 to 108 of 2015 and 110 to 126 of 2015 dated 26.05.2016. The employees are the writ petitioners. They are aggrieved against the award of the Labour Court insofar as not granting the balance 70% of the backwages and also the remarks made by the Labour Court in the award against their counsels.
3. W.P.No.16817 of 2018: Challenge made in this writ petition is against the award of the Labour Court made in I.D.No.161 of 2014 dated 12.04.2018. The Management viz., Thiruvalluvar University is the writ petitioner. The Labour Court in its award ordered that 66 employees, who were listed in reference in G.O.(D)No.73 dated 23.02.2015 in I.D.No.50 of 2015 and one V.Vivekanandan are entitled to be made permanent as directly recruited by the University. It is further ordered therein that those people are entitled to be made permanent from 05.11.2013, on which day, they were terminated from service.
4. W.P.No.16818 of 2018 is filed challenging the award of the Labour Court made in I.D.No.50 of 2015 dated 12.04.2018. The http://www.judis.nic.in12/101 W.P.Nos.37681 of 2016 Management viz., Tiruvalluvar University is the writ petitioner. The Labour Court in the said award found that the University has committed unfair labour practice as defined in Part-I of Schedule-V of the Industrial Disputes Act, as against listed 65 employees.
5.W.P.No.20126 of 2018 is filed challenging the award of the Labour Court in I.D.No.161 of 2014 dated 12.04.2018. The employees Union is the writ petitioner. They are aggrieved against the said award insofar as not granting the petitioners permanency with effect from the date of completion of service of 240 days and consequently, for a direction to the respondent University to grant permanency with effect from the date of completion of service of 240 days with appropriate timescale of pay, etc.,
6. In all these writ petitions, the contesting parties are one and the same and the issues involved are also common. Out of the five writ petitions, three writ petitions were filed by the Management, viz., Tiruvalluvar University and the remaining two writ petitions were filed by the employees themselves and their Union.
http://www.judis.nic.in13/101 W.P.Nos.37681 of 2016
7. Thus, W.P.Nos.37681 of 2016 and 17793 of 2017 are filed against one and the same common award passed in I.D.Nos.61 of 2015 to 108 of 2015 and 110 of 2015 to 126 of 2015 dated 26.05.2016. While one writ petition is filed by the Management and the other one is by the employees.
a) The case of the Management in challenging the said common award is as follows:
The Management is the University. The Workmen are daily waged employees on adhoc basis. They had been engaged on need based work and employed in different Departments of the University. They are employed as Computer Operator, Assistants, Junior Assistants, Office Assistants, Assistant Computer Operators, Cleaning Labourers, Drivers and Electricians. The Government of Tamilnadu established this University under the Thiruvalluvar University Act 2002 on 16.10.2002. Section 44(7) of the said Act provided for appointment of temporary post. Any appointment to any sanctioned post can be made only by adopting due procedure for appointment such as calling for applications of the eligible candidates by notification or calling list of eligible http://www.judis.nic.in14/101 W.P.Nos.37681 of 2016 candidates from the Employment Exchange followed by selection by the duly constituted Selection Committee and approved by the Syndicate of the University. None of these workmen were called for through Employment Exchange. No reservation policy was followed. Based on contingencies arising from time to time, they were directly appointed. They were not continuously employed at a stretch. The benefits applicable to regular employees are not applicable to the daily wager. At no point of time, the daily wagers were promised by the University for regularization. These workmen were back door entrants and thus, not entitled for any protection under the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 or the Industrial Disputes Act, 1947. No appointment orders were issued to them. These workmen had not worked for 240 days in an year. Hence, they are not entitled to claim reinstatement of backwages with continuity of service. A group of workers including these workmen declared strike without any prior notice and the University called the workers to call off the strike by expressing their desire to represent the striking workers and for bringing amicable solution. The workers did not come forward to participate in the meeting. On 30.10.2013, individual http://www.judis.nic.in15/101 W.P.Nos.37681 of 2016 notices were sent to all striking workers to return work. Paper Publication was also given calling upon them to return to work. Despite such notices, none of these workmen reported to work. Hence, the University was constrained to terminate all the striking workers. The University published the advertisement calling for the applications from the eligible candidates for various posts sanctioned by the Government of Tamilnadu. These workmen were at liberty to apply for such post, if they are eligible. However, they have not chosen to do so. They filed writ petition in W.P.No.27043 of 2014 challenging the publication calling for application. This Court by order dated 19.02.2015, dismissed the said writ petition. Inspite of these facts, the Labour Court passed the award setting aside the dismissal order dated 05.11.2013 and directing reinstatement of these workmen with 30% backwages, allowances, continuity of service and other attendant benefits in I.D.Nos.161 of 2014 and I.D.No.50 of 2015. If the respondents loses their cases in I.D.No.161 of 2014, which is the main comprehensive dispute, the award that was passed in the present case would become inoperative and non-executable.
b) The case of 65 workmen, who filed the counter writ petition is http://www.judis.nic.in16/101 W.P.Nos.37681 of 2016 as follows:
These workmen were appointed by the University and paid wages on daily rated monthly basis. They were enrolled as Members of the Employees Provident Fund. The University itself categorized and gave the designation based on the educational and other qualifications. The University sent a proposal dated 10.03.2011 to the Government seeking approval/permission for absorption of their services in their respective posts in which they had been working. Since the University did not take any further steps to regularize their service, the Union submitted a charter of demands to the University including the demand for permanency. There was no reply or response from the University.
Hence, these workmen raised industrial dispute before the Labour Officer I, Vellore, who in turn took up the above dispute in Na.Ka.No.733/2013 dated 04.10.2013 for conciliation. The last conciliation meeting was held on 24.10.2013. The Labour Officer informed that he would issue failure report. In the meantime, the University started victimisation of the members of the Union and filed a false criminal case against some of the workmen. Union issued strike notice on 03.10.2013. However, the University did not come forward to resolve the issue. In the above http://www.judis.nic.in17/101 W.P.Nos.37681 of 2016 circumstances, the second respondent terminated their services by individual orders dated 05.11.2013. Though the termination was made for the alleged misconducts of going on a strike, absenteeism and causing dislocation of work, the University did not issue any charge memo nor it conducted any enquiry to prove allegation against these workmen. Thus, the termination was in violation of the principles of natural justice.
When the dispute before the Conciliation Officer was pending, the termination order issued amounting to alteration of the conditions of service without getting prior permission from the competent Authority, is in violation of Section 33(1)(a) of the Industrial Disputes Act. Since the termination was made as a measure of punishment for the alleged misconducts, the University ought to have paid these workmen one month notice pay and ought to have simultaneously filed approval petition as contemplated under Section 33(2)(b). Even assuming that the termination was not for any misconduct, it would amount to retrenchment within the meaning of Section 2(oo) of the Industrial Disputes Act.
Hence, the termination was in violation of Sections 25F, 25G and 25H of the I.D. Act. Hence, all these workmen raised industrial dispute under Section 2A of the I.D. Act individually. The Labour Court passed the http://www.judis.nic.in18/101 W.P.Nos.37681 of 2016 award setting aside the order of dismissal dated 05.11.2013 with reinstatement of service with 30% of backwages, etc., alone. Hence, as against the denial of balance 70% of backwages, these employees filed the other writ petition.
8. W.P.No.16817 of 2018 and 20126 of 2018 are filed against one and the same award passed in I.D.No.161 of 2014 dated 12.04.2018.
While one writ petition is filed by the Management, the other writ petition is filed by the employees Union.
a) The Management is aggrieved against the award of the Labour Court in declaring that 65 employees listed in the order of reference are entitled to be made permanent as directly recruited by University and they are to be made permanent from 05.11.2013 on which day, they were terminated from service. The Employees Union is aggrieved against the very same award insofar as not granting the permanency status with effect from the date of completion of 240 days of service.
b) The case of the Management and the case of the workmen are one and the same as projected supra.
http://www.judis.nic.in19/101 W.P.Nos.37681 of 2016
9. W.P.No.16818 of 2018 is filed by the Management/University challenging the award made in I.D.No.50 of 2015 dated 12.04.2018. The Labour Court found that the termination of the workmen, issuing paper publication for effecting new recruitment is an unfair labour practice committed by the University as defined in Part I of Schedule V of the Industrial Disputes Act as against listed 65 employees. Here also, the case of the petitioner/Management is the same as projected in other writ petitions.
10. Mr.Vijay Narayan, learned Advocate General appeared for the Thiruvalluvar University and made his oral submissions. A written argument is also filed by the learned counsel for the University. The sum and substance of the submissions made on behalf of the University are as follows:
a) The temporary employees were not engaged or appointed by the University as per any statutory rules and in conformity with the Constitutional scheme recruitment. Thiruvalluvar University has been following the Madras University Statutes, Ordinance Regulation and recruitment and Service Rules. The University, a State run University http://www.judis.nic.in20/101 W.P.Nos.37681 of 2016 and thus, an Authority within the meaning of Article 12 of the Constitution of India and therefore, the engagement of the employees are not an irregular but illegal. All the 65 persons were temporarily engaged without resorting to any procedures contemplated for the public employment. There were no sanctioned posts. The Government sanctioned 22 posts in 2007. Those who were temporarily engaged did not possess required qualifications. Hence they did not apply for the above 22 posts. The temporary employees of the respondent University got into the service at the backdoor entry knowing fully well that their services would be terminated at any point of time without notice. These persons do not come within the exemption carved out in Apex Court's decision in Uma Devi's case. i.e.,as on 31.01.2006, no temporary employees completed 10 years of service. Therefore, one time measure as stipulated in Uma Devi's case cannot be applied to these persons.
b) 65 I.Ds. were filed by the individual employees terminated from service. Only two persons viz., the petitioner in I.D.No.71/2015 and Siva in I.D.No.68/2015 alone were examined and no other employees were examined. Thus, the non examination of the individual employees wholly vitiated the proceedings and the findings rendered by the Labour http://www.judis.nic.in21/101 W.P.Nos.37681 of 2016 Court. The Labour Court allowed I.D.Nos.61 to 108/2015 and 110 to 126/2015 solely on the technical ground that the University did not comply with the mandatory requirement of Section 33 2(b) of the Industrial Disputes Act.
c) The Apex Court in 2017-III-LLJ-513 (SC) (Managing Director, NEKRTC Karnataka Vs. Shivasharanappa), found that the High Court ought not to interfere with the award of the Labour Court therein only on the ground of non compliance of Section 33(2)(b) of the I.D.Act. On the very same line, 2016(12) SCC 221 (Management of Karur Vysya Bank Limited vs. S. Balakrishnan), the decision of the Apex Court is also relied.
d) The Labour Court did not adjudicate upon the validity of the termination order. The relief of permanent status cannot be sought for by filing a single I.D.No.161/2014 and therefore, the Labour Court ought to have directed the individual employees to file individual I.Ds. Except three employees in I.D.No.161/2014, no other employees were examined.
If the award of the Labour Court made in I.D.Nos.61 to 108/2015 and http://www.judis.nic.in22/101 W.P.Nos.37681 of 2016 110 to 126/2015 is to be set aside in view of the law laid down in 2017(3) LLJ 513(SC), (Managing Director, NEKRTC Karnataka Vs. Shivasharanappa) the employees cannot be deemed to be in service on 05.11.2013 and consequently, they are not entitled for permanent status. Therefore, the Labour Court was wrong in holding that those employees were deemed to be in service on 05.11.2013. The Labour Court findings are self-contradictory at many places.
e) Mere completion of 240 days of continuous service would not confer any legal right to the employees for regularization or getting permanent status. In this connection, the decision of the Apex Court in 2014(7) SCC 190, Harinandan Prasad vs. Food Corporation of India, is relied on. When there was no sanctioned post existing on the date of the award of the Labour Court, granting the relief of regularization/conferment of permanent status, is wholly erroneous. The Labour Court was also not right in holding that these employees were victimised and that the University has committed unfair labour practice. As per the UGC Regulations, at present, there were 42 teaching staff in the University and correspondingly, there shall be 56 non teaching staff http://www.judis.nic.in23/101 W.P.Nos.37681 of 2016 and 14 technical staff shall be allowed. In 2002, 22 non teaching staff were sanctioned and filled up. In 2004, 54 non teaching staff were sanctioned and filled up. Therefore, the total non teaching staff strength is 79 which exceeds the approved sanctioned strength of UGC regulations.
f) Enrollment in EPF to the temporary workers would not confer them any right to continue to be in employment, as every temporary workers are eligible to be enrolled in EPF and ESI statutory benefits. The Labour Court did not formulate any issue as to whether the termination order is illegal for want of conduct of disciplinary proceedings. Therefore, in the absence of any specific plea as to the non conducting of domestic enquiry by the University, it did not have an opportunity either to file counter statement or filing any application seeking permission to lead evidence. Since the above issue is raised for the first time before this Court, it is submitted that the order of the Labour Court may be set aside and the matter may be remitted before the Labour Court for fresh disposal after affording opportunity to both parties to raise necessary pleadings and evidence on the issue regarding http://www.judis.nic.in24/101 W.P.Nos.37681 of 2016 the misconduct and to lead evidence. Before the Labour Court, though there was pleading on the side of the labourers regarding the violation of Section 25F of the Act, no issue was framed to that effect and no argument was advanced on that issue. Therefore, it is not open to the employee to raise the plea on Section 25F for the first time before this Court.
g) While issuing a public advertisement to fill up 54 sanctioned post on 17.07.2014, it was clearly indicated therein that for persons, who were in service temporarily on adhoc basis, the age relaxation was also given to them and the date of their entering the University would be taken to be the date for the purpose of selection process. Therefore, it is evident that the University bestowed their interest towards temporary employees and thus, it has never indulged in unfair labour practice. On the other hand, the conduct of the labourers can be characterized as unfair labour practice. No appointment orders were issued to them, when these employees were engaged by the University. The judgment relied on the side of the labourers reported in 2009(8) SCC 556, Maharashtra State Transport Corporation vs Casteribe Rajya Parivahan Karmchari http://www.judis.nic.in25/101 W.P.Nos.37681 of 2016 Sanghatana, is inapplicable to the facts of the present case, as the power conferred on the Labour Court therein is different and distinguishable from the power conferred on the Labour Court in this case. Even in the case of statutory violation of Sections 25F and 33(2)(b) of the I.D. Act or continuance of 240 days of service of the employees, benefit of reinstatement or regularisation cannot be given except the compensation, as held in 2014(7) SCC 190, Harinandan Prasad vs. Food Corporation of India. Therefore, the relief of reinstatement with backwages is not automatic in all cases of termination. In this connection, 2009(8) SCC 556, Maharashtra State Transport Corporation vs Casteribe Rajya Parivahan Karmchari Sanghatana, and 2016(1) SCC 521 (Vice Chancellor, Lucknow University, Lucknow vs. Akhilesh Kumar Khre and another), are relied on.
h) As per the orders passed in these writ petitions, the University is paying 17B wages from the date of the award to all the 66 dismissed employees. Till date, the University has paid Rs.1,80,94,892/- as 17B wages alone which has caused an actual financial strain to the University. These employees were gainfully employees elsewhere. The University http://www.judis.nic.in26/101 W.P.Nos.37681 of 2016 has not proved the same. These employees did not make any attempt to appeal for their absorption after their termination on 05.11.2013, before the awards were passed by the Labour Court. These employees did not respond to any of the genuine efforts put by the University asking them to call off strike and resume duty with an avowed intention to redress their grievances in a phased manner, even by addressing to the Government seeking for sanctioning of the post. Therefore, the University has no other option except to relieve these employees on termination from their service.
i) In 2007(1) SCC 575, State of M.P. vs. Lalit Kumar Verma, the Apex Court has made a categorical distinction between irregular employment and illegal employment. When these employees were appointed in total disregard of the constitutional scheme and the recruitment rules, the very appointment itself is illegal and therefore, they are not entitled for any relief. If this Court finds that the termination were bad for not conducting the domestic enquiry, the cases may be remitted to the Labour Court by granting opportunity to both the parties to raise all the pleas and lead evidence.
http://www.judis.nic.in27/101 W.P.Nos.37681 of 2016
j) The financial position of the university is very critical and running a deficit of Rs.15crores. Moreover, the Government has passed a G.O. taking over the constituent colleges of the University and issued G.O.MS.No.36 dated 28.02.2019 (Annexure-III), in and by which, those employees working in the constituent colleges both teaching and non teaching would be treated as university employees and those will be retained in the Government colleges on deputation and these people will all along be in the employment of the Government Colleges till the Government fill up those posts through their recruitment process and the University has to take back all the employees both teaching and non teaching and as on today, the Thiruvalluvar University had 6 constituent colleges and all the colleges have been taken over by the Government. There are total number of 86 staff both teaching and non teaching staff who were permanently employed in those 6 colleges. The non teaching staff strength alone comes 102 and the University is having 7 Departments and function with 42 teaching staff and 79 non teaching staff is over above the UGC regulations. In the near future the University is compelled to take back teaching and non teaching of the constituent http://www.judis.nic.in28/101 W.P.Nos.37681 of 2016 colleges who were permanent employees and the University as of now to find out a proper decision to take back those permanent staffs. The University is not engaged in outsourcing of any staff except for security maintenance (sweepers and cleaners). Therefore, at best the University can accommodate the 10 sweepers who have been terminated in 2013 along with non teaching staff through the contractors on a sympathetic ground only and the University does not have any sanctioned posts as of now and therefore it is impossible to accommodate any one of the temporary employees of the university.
11. Miss.R.Vaigai, learned Senior Counsel, appeared and argued on behalf of the employees. A written submission is also filed by the learned counsel for the employees. The sum and substance of the submissions made on behalf of the employees are as follows:
a) Allegations leveled against all the employees are not proved and established. The University has given false complaint against six workmen before the police only to threaten them. Since the University made a criminal complaint against six workmen and taken various vindictive action against the workmen and refused to take appropriate http://www.judis.nic.in29/101 W.P.Nos.37681 of 2016 action against a University Official, who indulged in sexual harassment, the Union was forced to give Strike Notice and to go on strike. The University refused to withdraw the false criminal cases. The University asked the workman to give an undertaking (apology) for permitting them to work. Since these 65 workmen did not give such undertaking, they were not allowed to work and they were terminated from service.
b) It is an admitted fact that all the workmen have been appointed only by the Vice Chancellor and Convener Committee, who are the competent authorities to make appointment. All the 65 workmen were dismissed from service by individual termination orders dated 05.11.2013 for misconduct and by way of punishment, without holding any inquiry to prove the charges. It is not in dispute that conciliation was pending before the Labour Officer I, Vellore, when all the 65 workmen were dismissed/terminated from service.
c) It is not in dispute that the University did not seek any approval for dismissal of the employees under Section 33(2)(b) of the I.D. Act. The case laws relied on by the University in respect of violation of http://www.judis.nic.in30/101 W.P.Nos.37681 of 2016 Section 33(2)(b) of the I.D. Act, are distinguishable on facts. In those cases, the Management have either conducted enquiry before dismissal or let in evidence afresh before the Labour Court and proved the charges against the workmen therein. In this case, the University failed to hold any enquiry before the dismissal and to prove charges before the Labour Court. The University, even though failed to conduct an enquiry before dismissal, can seek for opportunity before the Labour Court to lead evidence, while they filed their counter statement itself or by filing application. In this case, University did not seek for such opportunity before the Labour Court and failed to lead any evidence to prove the charges. When the University did not seek for such opportunity, it is not the role of the Labour Court to advise them of their right and give such opportunity on its own. Therefore, it is a clear case of no evidence. At this juncture, 1979 (3) SCC 371, Shankar Chakravarti vs Britannia Biscuit Co. Ltd. and another, is relied on. Consequently, the charges leveled against the employees having not been proved, the orders of termination were liable to be set aside, which the Labour Court has rightly ordered. The termination is bad not only on the ground of want of evidence and also on the ground of violation of Sections 33(1)(a), http://www.judis.nic.in31/101 W.P.Nos.37681 of 2016 33(1)(b) and 33(2)(b) of the I.D Act.
d) Even in the writ petition filed by the University in W.P.No.37681 of 2016, they have not raised any grievance regarding the non conducting of enquiry. Therefore, the University cannot advance any argument in that regard. Consequently, the question of remand for giving them an opportunity to lead evidence, does not arise.
e) As per the ratio laid down by the Constitution Bench in 2002(2) SCC 244 ( Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal Sharma), once there is a contravention of Section 33(2)(b), all these employees were straight away entitled to the full relief of reinstatement with backwages. The legal effect of the failure to seek approval is that all the 65 workers are being deemed to be continuing in service, as if they were never terminated/dismissed from service. In this regard, 2018 SCC Online Del 12069 and 2018 SCC Online Del 8852 are relied on.
f) In view of the above, the Labour Court ought to have granted http://www.judis.nic.in32/101 W.P.Nos.37681 of 2016 full wages to these employees. Insofar as the award already passed, there is no infirmity, perversity or patent error warranting interference by this Court under Article 226 of the Constitution of India.
g) The mode and source of recruitment and status is not relevant to the grant of reinstatement. Reinstatement is the normal Rule, while compensation is an exception. In this regard, 2011(6) SCC 584, Devinder Singh vs Municipal Council Sanaur, is relied on. In this case, these employees were appointed only by the Vice Chancellor and Convener Committee based on the need and requirement and their appointments were also approved by the Syndicate. In this regard, the following decision is relied on:
2015(6) SCC 321, Ajaypal Singh vs Haryana Ware Housing Corporation.
h) The reliance placed by the University on 2016(1) SCC 521 (Vice Chancellor, Lucknow University, Lucknow vs. Akhilesh Kumar Khre and another) is not correct, since in that case, employees were appointed by the incompetent authorities inspite of ban on appointment http://www.judis.nic.in33/101 W.P.Nos.37681 of 2016 on temporary/daily rated basis. In the above case, the employees therein served only for 3 years. Therefore, only in the above factual situation, the Hon'ble Supreme Court ordered for compensation. However, in this case, no such plea was made by the University that 65 workmen shall be given only compensation and that they shall not be given relief of reinstatement, even as an alternative plea. Therefore, the University's argument that these employees shall be given only compensation and that they are not entitled to reinstatement, is liable to be rejected. In this regard, unreported decision made in W.P.Nos.17935, 17941, etc., of 2011 dated 24.09.2019 and the judgment reported in 2015 SCC Online Madras 2976, are relied on.
i) The alleged UGC norms for fixation of non-teaching staff strength and post in the University is liable to be rejected, since the said plea was not raised before the Labour Court. When the University has more than 129 affiliated colleges and about two lakhs students in those colleges, the above UGC norms, as alleged by the University are not applicable to the University herein.
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j) From and out of 23 + 54 sanctioned posts, 12 posts in the cadre of Assistant cum Computer Operator, one post of Personal Clerk to Vice Chancellor and one post of Laboratory Technician (Graduate), one post of Lab Technician and one post of driver are vacant. Therefore, 30 out of 65+1, employees herein, who are suitable to the above post can be accommodated and reinstated. The University requires 88 more posts to be created as per the report of the Sub Committee. Therefore, all the 66 workmen are to be reinstated as per the award.
k) Though the University has denied that they are carrying out the the work done by 66 terminated workmen through outsourcing, the minutes of the 40th Meeting of the Finance Committee and 85th Meeting of the Syndicate dated 06.08.2019 and 09.08.2019 would clearly indicate that the University called for tender and outsourced the work of employees. Even as per G.O.No.36, Department of Higher Education dated 28.02.2019, all the regular teaching and non teaching staffs who are working in those Constituent Colleges were promised to be absorbed in the vacancies available in the University. It is further stated therein till vacancy arises and the employees are absorbed, they would be allowed in http://www.judis.nic.in35/101 W.P.Nos.37681 of 2016 the Constituent colleges. Therefore, the University cannot turn around and say that these employees cannot be reinstated.
l) So far as the argument of the University regarding its financial status, the statement made by them before this Court is false and in correct. As per the Information given under RTI Act, by the Government Local Fund Audit Department in Na.Ka.No.486/A2/2018, dated 09.05.2018, which is enclosed along with this written arguments, the amounts to be collected from the staffs and others itself comes to the tune of Rs.39,35,39,327/- towards the head under advance (others). Similarly, as per the head under advance (Exams) the amounts due to the University and to be collected by the University come to Rs.67,59,53,068.50/-. These amounts dues to be paid to the University as in 2015-2016 itself come to the tune of Rs.106,94,92,395.50/-. As on today, the amounts due to be paid to the University would be more than Rs.150 crores. Therefore, the statement of the University with regard to its financial status is not true and correct and it has sufficient source and funds so as to pay salary to the 66 workmen, if they are given reinstatement as per the impugned common award dated 26.05.2016.
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m) The University has agreed and consented for the common joint trial in respect of all the 65 disputes relating to non employment. Therefore, they are not entitled to raise an issue before this Court otherwise. Even though the Labour Court framed the issued only with regard to violation of Section 33(2)(b) of the I.D. Act and the consequential legal effects, these employees can supplement their arguments before this Court based on other issues as per Order 41 Rule 22 of CPC in view of the judgment rendered in 1984(1) LLJ 248, C.Umapathy vs Tamilnadu Diary Development Corporation Ltd.
n) If the termination was not by way of punishment for any misconducts, it would amount to retrenchment within the meaning of Section 2(oo) of the I.D.Act and hence, the same was in violation of Sections 25F and 25H of the I.D. Act. Terminating the service of the workmen not in good faith but in colorable exercise of the powers would amount to unfair labour practice. Similarly, the act of University in falsely implicating 6 workmen in criminal cases, which ultimately ended in closure by the Criminal Court, would again amount to unfair labour http://www.judis.nic.in37/101 W.P.Nos.37681 of 2016 practice. Similarly dismissal of the 65 workmen in utter disregard of the principles of natural justice would again amount to unfair labour practice.
o) The Labour Courts, as per the ratio laid down by the Apex Court in 2009(8) SCC 556, are vested with the power to issue a positive direction to grant permanency in case of a finding arrived at by it that the employer has committed unfair labour practice. Section 10 of the I.D. Act is pari materia to Section 30 of the MRTU and PULP Act. Therefore, it is incorrect to say that under the I.D. Act, Labour Courts/Tribunals have no power as per the one vested under Section 30 of the MRTU and PULP Act. The Labour Court has got ample power to issue directions under Section 10 of the I.D. Act, which can even create new contracts as held in AIR 1950 SCC 188 (Bharat Bank Ltd., Delhi Vs. Employees of the Bharat Bank Ltd., Delhi), 1969 (2) SCC 43 (Cooperative Central Bank Ltd., and others Vs. Additional Industrial Tribunal, Andhra Pradesh and others) and 1976 (1) SCC 496 (Premier Automobiles Ltd., Vs. Kamlekar Shantaram Wadke of Bombay and others) .
p) The nature of work, which 66 employees carried out ranging http://www.judis.nic.in38/101 W.P.Nos.37681 of 2016 from 3 years to 11 years, would clearly establish that they were employed in permanent nature of work and which is lasting and available throughout the year. Therefore, there is no infirmity in the award passed by the Labour Court in issuing grant permanency of all these workmen. The University is not correct in contending that there are no posts so as to make 66 workmen permanent. As already stated supra, there were sufficient vacancy so as to accommodate 66 workmen. The University has financial resources and therefore, financial crisis cannot be a valid reason for denying the benefit to these employees.
12. Heard both sides and perused the materials placed before this Court.
13. In all these writ petitions, the dispute is between the employer namely, Thiruvallur University and the employees of the said University. The employees approached the Labour Court and filed one set of Industrial Disputes challenging the order of termination dated 05.11.2013 of 64 employees with consequential relief to reinstate them into service. The Labour Court allowed those Industrial Disputes and declared the http://www.judis.nic.in39/101 W.P.Nos.37681 of 2016 termination order dated 05.11.2013 illegal. The Labour Court further directed the University to reinstate those 64 employees into service, however, by paying only 30% backwages alone with continuity of service and other attendant benefits. Challenging the said common award passed in I.D.Nos.61 to 108/2015 and 110 to 126/2015, the University filed W.P.No.37681/2016. Challenging the very same common award, the employees have also filed W.P.No.17793/2017 only insofar as not providing full backwages and also against the remarks made against the counsel appeared for the employees in the common award. Thus, the issue involved in the above two writ petitions is in respect of the termination order dated 05.11.2013 issued against 64 employees.
14. The employees filed another I.D.No.161/2014 seeking for conferment of permanent status for all the temporary employees who have completed 240 days. The Labour Court passed the award directing the conferment of permanent status to all the temporary employees from 05.11.2013, who have completed 240 days of service. Being aggrieved against the said award, the University filed W.P.No.14817/2018. http://www.judis.nic.in40/101 W.P.Nos.37681 of 2016
15. The employees filed W.P.No.20126/2018 challenging the very same award made in I.D.No.161/2014 insofar as not granting the permanent status with effect from the date of completion of 240 days of service. In other words, the employees seeks for permanent status from the date of completion of 240 days of their service and not from 05.11.2013, as awarded by the Labour Court. Hence, the issue involved in W.P.No.16817/2018 and W.P.No.20126/2018 is in respect of conferment of permanent status.
16. The employees filed another I.D.No.50/2016 to decide as to whether the University has committed unfair labour practice. The Labour Court passed an award holding that the University has committed unfair labour practice as against 65 employees. Challenging the said award, the University filed W.P.No.16818/2018.
17. From the above 5 Writ Petitions filed by the respective parties, the following are the issues to be decided. The decision on the first issue will certainly have a bearing on the decision of the other issues.
a) Whether the common award of the Labour Court http://www.judis.nic.in41/101 W.P.Nos.37681 of 2016 passed in I.D.Nos.61 to 108 and 110 to 126/2015 declaring the termination of 64 employees illegal and directing the University to reinstate them into service is sustainable?
b) If answer to question (a) is in affirmative, whether the award of the Labour Court in ordering 30% backwages alone is sustainable or whether the employees are entitled to get full backwages and remarks made against the counsel for the employees by the Labour Court are to be expunged?
c) If answers to question (a) and (b) are in favour of the employees, whether the award of the Labour Court directing conferment of permanent status to these temporary employees from 05.11.2013 is sustainable or whether the Labour Court ought to have granted such permanent status to these employees on completion of 240 days of service?
d) Whether the award of the Labour Court in holding that the University has committed unfair labour practice is sustainable?
18. Let me consider the first issue now. The employees before this http://www.judis.nic.in42/101 W.P.Nos.37681 of 2016 Court were terminated from their service on 05.11.2013. They challenged the said termination and the Labour Court set aside the same. Therefore, the first and foremost issue to be decided in these cases is in respect of the termination of these employees.
19. The State of TamilNadu established the Thiruvalluvar University under the enactment called the Thiruvallur University Act, 2002. Under Section 24 of the said Act various powers are conferred on the syndicate, out of which, sub-clause(a), 27(a)&(b) reads as follows:
“24. (a) The Syndicate shall have the following powers, namely:-
…(27)(a) to appoint the University Lecturers, University Readers, University Professors and the teachers of the University, fix their emoluments, if any, define their emoluments, if any, define their duties and the conditions of their service and provide for filling up of temporary vacancies;
(b) to make ordinances specifying the mode of appointment of administrative and other similar posts and fix their emoluments, if any, define their duties and the conditions of their services and provide for filling up of temporary vacancies.” http://www.judis.nic.in43/101 W.P.Nos.37681 of 2016
20. Perusal of the above provisions would show that the syndicate of the University on its own can appoint lecturers, readers, professors and teachers and can make ordinance specifying the mode of appointment of administrative and other similar posts and fix their emoluments and provide for filling up of temporary vacancies. There is no dispute to the fact that all these 64 employees were appointed by the University in their respective posts such as computer operators, assistants, junior assistants, office assistants, assistant computer operators, cleaning labourers, drivers and electricians. According to the University, these persons were employed only on adhoc and need basis on daily wages and thus, they are temporary employees. Though it is so contended by the University, the fact remains that these employees were continuously working from their respective date of appointment till the date of their termination, namely 05.11.2013, with continuous service commencing from the date of appointment, first of which was made in the month of November, 2002. It is admitted by the University that 34 persons were engaged as temporary staff during the first Vice-Chancellor period, ranging from 01.11.2002 to 31.10.2005. Likewise, during the second Vice-Chancellor period, 28 persons were engaged as temporary http://www.judis.nic.in44/101 W.P.Nos.37681 of 2016 staff during the period from 04.08.2006 to 07.02.2009. Likewise, during the third Vice Chancellor period 17 persons were engaged as temporary staff during the period between 02.09.2009 and 04.12.2011. Thus, it is an admitted fact that the University has engaged totally 79 persons as temporary staff between 01.11.2002 and 04.12.2011. Out of the 79 temporary employees, now, the dispute is in respect of 64 employees alone.
21. It is not in dispute that the employees' union made certain demands on 01.08.2012 and one such demand was for regularisation of their service. It is not in dispute that a petition was filed before the Labour Officer under Section 2(k) of the Industrial Disputes Act on 26.08.2013 for conciliation. The conciliation proceedings were going on for some time and the conciliation officer filed his failure report on 06.03.2014. However, in the meantime, the University issued the termination orders against 65 employees on 05.11.2013, as the remaining non-teaching staff, numbering 17, resumed duty on 30.10.2013 and 31.10.2013. Since these 65 persons did not resume duty and continued to agitate by going on strike from 21.10.2013, the University has chosen to http://www.judis.nic.in45/101 W.P.Nos.37681 of 2016 terminate their service. The individual termination orders, issued on all the 65 employees are identical. Thus one such order is extracted hereunder.
“TIRUVALLUVAR UNIVERSISTY SERKKADU, VELLORE 632 115.
Dr.M.Jayakumar, M.Sc., Ph.D., REGISTRAR Letter No.TVU/R/temp.staff/2013/7212 Dated 5.11.2013 TERMINATION ORDER You Mr.M.Mohan working as consolidated/daily wagers of Thiruvalluvar University unauthorizedly abstaining from duty since 21.10.2013 causing obstruction to the administrative activities by indulging in illegal strike along with other temporary staff of this University. We have published a notice in news paper “Thina Thanthi” dated 30.10.2013 and also issued notice on 30.10.2013 to all temporary staff of this University to report duty immediately and the service of those who fail to report duty shall be terminated immediately.
Inspite of the notice you have not reported to duty and therefore it is presumed that you are not interested to serve the University any further and hence your service is terminated immediate effect.
REGISTRAR To Mr.M.Mohan, 51/32A, Old Municipal Court Street, Saidapettai, Vellor 632 012.”
22. The stereotype termination order issued to all the employees as http://www.judis.nic.in46/101 W.P.Nos.37681 of 2016 extracted supra would disclose the following facts:
(a) It is not a termination order simplicitor of the temporary employees and on the other hand, it was issued based on certain allegations made against the individual employee, namely unauthorised absent form duty from 21.10.2013; causing obstruction to the administrative activities; indulging in illegal strike along with other temporary staff and failure to report duty even after notice dated 30.10.2013 issued by the University published in the Newspaper Dina Thanthi.
(b) The termination order thus indicates that had these employees reported duty immediately, their services would not have been terminated. In other words, it is evident that despite making such allegation against those employees, the University in fact and in effect wanted them to resume duty by issuing paper publication dated 30.10.2013 and only when these employees failed to report duty, the University had chosen to terminate them from service with immediate effect. Keeping the above factual background in mind, which culminated into passing of the termination order, it is to be examined as to whether the said termination can be sustained.
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23. Section 33 of the Industrial Disputes Act, 1947, contemplated that conditions of service etc., to remain unchanged under certain circumstances during pendency of proceedings, which reads as follows:
33. Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings - (1) During the pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceeding before an arbitrator or a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall -
(a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceedings; or
(b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, ay workmen concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending.
(2) During the pendency of any such proceeding in respect of any industrial dispute, the employer may, in http://www.judis.nic.in48/101 W.P.Nos.37681 of 2016 accordance with the standing orders applicable to a workman concerned in such dispute or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman-
(a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceedings; or
(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise that workman:
Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer.
(3) Notwithstanding anything contained in sub-
section (2), no employer shall, during the pendency of any such proceeding in respect of an industrial dispute, take any action against any protected workman concerned in such dispute-
(a) by altering, to the prejudice of such protected workman, the conditions of service applicable to him http://www.judis.nic.in49/101 W.P.Nos.37681 of 2016 immediately before the commencement of such proceedings; or
(b) by discharging or punishing, whether by dismissal or otherwise, such protected workman, save with the express permission in writing of the authority before which the proceeding is pending.
Explanation- For the purposes of this sub-section, a "protected workman", in relation to an establishment, means a workman who, being a member of the executive or other office bearer of a registered trade union connected with the establishment is recognised as such in accordance with rules made in this behalf.
(4) In every establishment, the number of workmen to be recognised as protected workmen for the purposes of sub-section (3) shall be one per cent, of the total number of workmen employed therein subject to a minimum number of five protected workmen and a maximum number of one hundred protected workman and for the aforesaid purpose, the appropriate Government may make rules provided for the distribution of such protected workmen among various trade unions, if any, connected with the establishment and the manner in which the workmen may be chosen and recognised as protected workmen.
http://www.judis.nic.in50/101 W.P.Nos.37681 of 2016 (5) Where an employer makes an application to a conciliation officer, Board, an arbitrator, a Labour Court, Tribunal or National Tribunal under the proviso to sub- section(2) for approval of the action taken by him, the authority concerned shall, without delay, hear such application and pass, within a period of three months from the date of receipt of such application, such order in relation thereto as it deems fit:
Provided that where any such authority considers it necessary or expedient so to do, it may, for reasons to be recorded in writing, extend such period by such further period as it may think fit:
Provided further that no proceedings before any such authority shall lapse merely on the ground that any period specified in this sub-section had expired without such proceedings being completed.
24. As already stated supra, admittedly the conciliation proceedings were pending before the Conciliation Officer at the time of issuing the termination order. Section 33(2)(b) of the Industrial Disputes Act contemplates that no workman shall be discharged or dismissed during the pendency of any conciliation proceedings unless such workman was paid wages for one month and an application has been http://www.judis.nic.in51/101 W.P.Nos.37681 of 2016 made by the employer to the authority before which the proceedings is pending for approval of the action taken by the employer.
25. While Section 33(1)(b) deals with discharge or dismissal, based on any misconduct connected with the dispute pending by way of conciliation proceedings, Section 32(2)(b) deals with discharge or dismissal in respect of any misconduct not connected with the dispute pending by way of conciliation proceedings. Section 33(1)(b) contemplates that no employer shall discharge or punish whether by dismissal or otherwise, any workman for any misconduct connected with dispute without express permission in writing of the authority before which the conciliation proceedings is pending. On the other hand, under Section 33(2)(b), the employer may discharge or punish whether by dismissal or otherwise, a workman for any misconduct not connected with the dispute, provided such workman has been paid wages for one month and that the employer has made an application to the authority before which the proceedings is pending, for approval of the action taken by the employer. In other words, while prior permission is required for discharge or dismissal under section 33(1)(b), post approval is http://www.judis.nic.in52/101 W.P.Nos.37681 of 2016 contemplated under section 33(2)(b).
26. In this case, admittedly the Management has not taken any approval or permission from the competent Authority as required under Section 33 of the I.D. Act 1947. There is no dispute to the fact that the Conciliation proceedings are pending before the conciliation Officer at the time of issuing the termination order. Therefore, the Management, while passing the order of termination, should have followed the mandatory requirements contemplated under Section 33 by obtaining permission from the competent Authority. In this case, the Labour Court proceeded to decide the matter by observing that the Management has not taken approval under Section 33 (2b) of the Industrial Disputes Act from the competent Authority. At this juncture, it is to be seen as to which of those provisions viz., 33(1b) and 32(2b), would apply to the facts and circumstances of the present case. In order to attract Section 33(1)(b), the order of discharge or dismissal must be a one based on any misconduct connected with the dispute pending by way of the conciliation proceedings. On the other hand, in order to attract Section 33(2b), such discharge or dismissal should be in respect of any http://www.judis.nic.in53/101 W.P.Nos.37681 of 2016 misconduct not connected with the dispute pending by way of conciliation proceedings. There is no dispute to the fact that the dispute pending before the Conciliation Officer is with regard to regularization/ seeking permanency.
27. Further, it is to be noted that the employees union through their letter dated 01.08.2012, submitted to the university, made several demands which include regularization of service and permanency of the employees employed by the university. Since their demand was not met out by the university, the employees union filed a petition before the labor officer under section 2(K) of the Industrial Disputes Act, 1947. Perusal of the above petition dated 26.08.2013 would show that the union requested the Labour Officer to initiate conciliation proceedings to arrive at a negotiated settlement in respect of the demands made by them. While the petition filed before the labour officer under section 2(k) was pending, a police complaint was filed against some of the employees by the university making certain allegations, which later seems to have been closed. The employees union through their notice dated 03.10.2013, informed the university that the members of the union would go on strike http://www.judis.nic.in54/101 W.P.Nos.37681 of 2016 from 21.10.2013 onwards on the reason that, apart from not meeting their demands, the university has indulged in filing false criminal case against its members. The conciliation proceedings which were pending before the labour officer subsequently ended in failure and accordingly the labour officer, through his communication dated 06.11.2013, sent a failure report to the Labour Commissioner who in turn, sent a communication on 06.03.2014 to the Government about the failure. Based on those two communications, the Government, through G.O No. 379 dated 21.08.2014, referred the matter to the labour court, under Section 10(2A) of Industrial Disputes Act, for adjudicating the dispute between the parties. While the facts stood thus, in the meantime, the university issued the order of termination on 05.11.2013, admittedly during the pendency of the conciliation proceedings and even before submission of the failure report by the Labour Officer.
28.In fact, in an information furnished under the RTI act, the Labour Commissioner informed that the failure report was received from the Labour Officer only on 16.12.2013. Therefore, it is evident that only thereafter the Government was addressed for making the reference of http://www.judis.nic.in55/101 W.P.Nos.37681 of 2016 dispute to the labour court. Thus, it is apparent on the face of record that the university passed the order of termination during the pendency of the proceedings before the labour officer, more particularly, when the demand made by the union and the dispute raised before the labour officer is one and the same. Therefore, it is apparent that the University has not followed and clearly violated the mandatory requirement under section 33(1)(b) of Industrial Disputes Act, 1947. At this juncture, it is to be noted the salient difference between section 33(1)(b) and 33(2)(b) of the said Act. As already discussed supra, under section 33(2)(b), though the management can pass an order of discharge or dismissal during the pendency of the proceedings, in respect of a matter not connected with the dispute, it has to however seek approval of the concerned authority of such order of dismissal or discharge. On the other hand, under section 33 (1)(b), the Management is not entitled to dismiss or discharge the workman without getting express prior permission in writing from the authority before whom the proceeding is pending. Therefore, in this case the relevant statutory requirement ought to have been followed is only Section 33(1)(b) and not section 33(2)(b), because the employer herein has terminated the employees in regard to the matter connected with the http://www.judis.nic.in56/101 W.P.Nos.37681 of 2016 dispute which was pending before the labour officer. Though the labour court has proceeded to decide as though the violation is under section 33(2)(b), in effect it is only under section 33(1)(b) as stated supra. Hence, it is evident that the very order of termination passed without getting prior permission from the labour officer under section 33(1)(b), is non est and void ab initio and thus, cannot be sustained. Therefore, the contention of the university before this court that mere failure to obtain post approval of the dismissal order would not vitiate the proceedings, is liable to be rejected.
29. It is submitted by the learned Advocate General that mere non-compliance of the statutory requirement under section 33 of the Industrial Disputes Act,1947 itself will not vitiate the termination order. In support of the above submission, the learned Advocate General relied on 2017(3) LLJ 513 (SC), (Managing Director, NEKRTC Karnataka Vs. Shivasharanappa) and 2016(12) SCC 221 (Management of Karur Vysya Bank Limited vs. S. Balakrishnan). On the other hand, the learned senior counsel for the employees contended that the above decisions of the Apex Court cannot be applied to the present case for the http://www.judis.nic.in57/101 W.P.Nos.37681 of 2016 simple reason that in those two cases, before passing the order of dismissal, the Management has conducted the domestic enquiry. Therefore, the learned senior counsel submitted that in this case, when admittedly, no such enquiry was conducted, the non-compliance of statutory requirement under section 33 cannot be stated as not fatal. A careful perusal of the above two decisions of the Apex Court would show that, as rightly pointed out by the learned senior counsel for the employees, before passing the order of termination, the Management in both cases has conducted the domestic enquiry. Therefore, it is evident that in the above cases, the principles of natural justice has been followed and thereafter, the order of termination was passed. However, in the present case, the Management has not followed the principles of natural justice before passing the order of termination. A careful perusal of the order of termination would undoubtedly indicate that the same was passed based on certain allegations made against the employees. Admittedly, no charges were framed against those employees and no domestic enquiry was conducted by the Management to prove the charges. Thus, it is evident that in this case, the principles of natural justice has been totally flouted by the employer before terminating the http://www.judis.nic.in58/101 W.P.Nos.37681 of 2016 employees. Needless to state that when the order of termination is not a termination under the guise of retrenchment and on the other hand, it is based on certain allegations/ charges, unless those charges are proved in a manner known to law by giving due opportunity of hearing to the employee, such order cannot withstand the scrutiny of law. Therefore, I am of the considered view that the order of termination passed by the Management in this case cannot be sustained on the ground of violation of principles of natural justice and also for not obtaining permission under 33(1)(b). Once this Court finds that the said order cannot be sustained, the next question to be considered is as to whether the matter needs to be remitted back to the Labour Court for considering the said issue, as sought for by the learned Advocate General.
30. It is not in dispute that the Management, in this case, did not make any request before the Labour Court to give an opportunity to prove the charges, when admittedly, they failed to conduct the domestic enquiry. If no such request is made, as rightly pointed out by the learned senior counsel for the employees, the Labour Court is not duty bound to give such an opportunity on its own. At this juncture, the decision of the http://www.judis.nic.in59/101 W.P.Nos.37681 of 2016 Apex Court reported in 1979(3) SCC 371 (Shankar Chakravarti vs Britannia Biscuit Co. Ltd. and another), paragraph No.28 is relevant to be quoted as follows:
It was contended that this Court has in unambiguous and incontrovertible terms laid down that there is an obligatory duty in law fastened on the Labour Court or the Industrial Tribunal dealing with a case of punitive termination of service either under S.10 or S.33 the Act, irrespective of the fact whether there is any such request to that effect or not, to raise a preliminary issue as to whether domestic enquiry alleged to have been held by the employer is proper or defective and then record a formal finding on it and if the finding is in favour of the workman the employer should be called upon which must demonstrate on record, without waiting for any such request or demand or pleading from the employer, to adduce further evidence to sustain the charge of misconduct if it so chooses to do. We are afraid that much is being read into the observation of this Court which is not either expressly or by necessary implication stated. There is nothing to suggest that in Cooper Engineering Ltd. case this Court specifically overruled the decision in R.K.Jain's case where the Court in terms negatived the http://www.judis.nic.in60/101 W.P.Nos.37681 of 2016 contention of the employer that there is an obligatory duty in law on the Labour Court or the Industrial Tribunal to give an opportunity to the employer irrespective of the fact whether it is asked for or not to adduce additional evidence after recording a finding on the preliminary issue that either no domestic enquiry was held or the one held was defective. It would be advantageous to refer to an observation of this Court in Delhi Cloth & General Mills Co. case at page 53 where after examining the ratio of the decision in R. K. Jain's case this Court held that there was no question of opportunity to adduce evidence having been denied by the Tribunal as the appellant therein had made no such request and that the contention that the Tribunal should have given an opportunity suo motu to adduce evidence was not accepted in the circumstances of that case. This observation in fact rejects the contention that there is any such obligatory duty cast by law on the Labour Court or the Industrial Tribunal to give' such an opportunity to the employer and then leave it to the sweet will of the employer either to avail it or not. This view in R. K.Jain's case was re- affirmed in Delhi Cloth & General Mills Co. case and there is nothing, in the decision in Cooper Engineering Ltd. case that case overrules the two earlier decisions. It was not possible http://www.judis.nic.in61/101 W.P.Nos.37681 of 2016 so to do because the decision in the Management of Ritz Theatre, wherein even though the application for adducing additional evidence was given before the Tribunal passed its final order, this Court declined to interfere saying that such a request was made at a very late stage and that is the decision of three judges and the decision in Cooper Engineering Ltd. case is equally a decision of three judges. Further the decision in Cooper Engineering Ltd. case does not propose to depart from the ratio of the earlier decisions because this Court merely posed a question to itself as to what is the appropriate stage at which the opportunity has to be given to the employer to adduce additional evidence, if it so chooses to do. Merely the stage is indicated, namely, the stage after decision on the preliminary issue about the validity of the enquiry. Cooper Engineering Ltd. case is not an authority for the proposition in every case coming before the labour Court o- Industrial Tribunal under 5. 10 or s. 33 of the Art complaining about the punitive termination of service following a domestic enquiry that the Court or Tribunal as a matter of law must firs, frame a preliminary issue and proceed to decide the validity or otherwise of the enquiry and then serve a fresh notice on the employer by calling upon the employer to adduce further evidence to sustain http://www.judis.nic.in62/101 W.P.Nos.37681 of 2016 the charges if it so chooses to do. No section of the Act or the Rules framed thereunder was read to pin-point such an obligatory duty in law upon the Labour Court or the Industrial Tribunal. No decision was relied upon to show that such is the duty of the Labour Court or the Industrial Tribunal This Court merely indicated the stage where such opportunity should be given meaning thereby if and when it is sought. This reading of the provision in Cooper Engineering Ltd. case is consistent with the decision in Ritz Theatre case because there as the application for permission to adduce additional evidence was made at a late stage the Tribunal rejected it and this Court declined to interfere. Now, if the ratio of the Cooper Engineering Ltd. case is to be read to the effect that in every case as therein indicated it is an obligatory duty of the Industrial Tribunal or the Labour Court to give an opportunity after recording the finding on the preliminary issue adverse to the employer to adduce additional evidence it would run counter to the decision in Ritz Theatre case. Such is not the ratio in Cooper Engineering case. When read in the context of the propositions called out in Delhi Cloth & General Mills Co. case and the Firestone Tyre & Rubber Co. Of India (P) Ltd. case, the decision in Cooper Engineering Ltd. case merely indicates the http://www.judis.nic.in63/101 W.P.Nos.37681 of 2016 stage at which an opportunity ha to be given but it must not be overlooked that the opportunity has to be asked for. Earlier clear cut pronouncements of the Court in R. K. Jain's case and Delhi Cloth & General Mills Co. case that this right to adduce additional evidence is a right of the management or the employer and it is to be availed of by a request at appropriate stage and there is no duty in law cast on the Industrial Tribunal or the Labour Court to give such an opportunity notwithstanding the fact that none was ever asked for are not even departed from. When we examine the matter on principle we would point out that a quasi-judicial Tribunal is under no such obligation to acquaint parties appearing before it about their rights more so in an adversary system which these quasi-judicial Tribunals have adopted. Therefore, it is crystal clear that the rights which the employer has in law to adduce additional evidence in a proceeding before the Labour Court or Industrial Tribunal either under S.10 or S.33 the Act questioning the legality of the order terminating service must be availed of by the employer by making a proper request at the time when it files its statement of claim or written statement or makes an application seeking either permission to take a certain action or seeking approval of the action taken by it. If such a request is made in the http://www.judis.nic.in64/101 W.P.Nos.37681 of 2016 statement of claiming application or written statement, the Labour Court or the Industrial Tribunal must give such an opportunity. If the request is made before the proceedings are concluded the Labour Court or the Industrial Tribunal should ordinarily grant the opportunity to adduce evidence. But if no such request is made at any stage of the proceedings, there is no duty in law cast on the Labour Court or the Industrial Tribunal to give such an opportunity and if there is no such obligatory duty in law failure to give any such opportunity cannot and would not vitiate the proceedings.
31. Even otherwise, going by the facts and circumstances of the present case, I am of the view that the very conduct of the Management itself would show that it is not necessary to give such opportunity to prove the charges, as the Management itself, in the impugned termination order, informed the respective employees that through their notice published in newspaper on 30.10.2013, called upon them to report duty immediately, despite making such allegation against those employees namely, unauthorisedly abstaining from duty; causing obstruction to the administrative activities; by indulging in illegal strike http://www.judis.nic.in65/101 W.P.Nos.37681 of 2016 along with other temporary staff. Therefore, it is evident that the University, though made such allegations against the employees, however was willing to take them back into service, provided they report duty pursuant to the public notice issued on 30.10.2013. Since these employees did not report duty pursuant to the said notice, the University presumed that these employees were not interested to serve the University any further. Therefore, the termination order states that their service is terminated with immediate effect as these employees were not interested to serve the University any further. The over all view of the impugned order, therefore, would undoubtedly, show that though the University has chosen to terminate the service of these employees, in effect, there was no intention to terminate their service based on the allegations made in the impugned order, but only on the reason that they did not report duty, even after issuing notice dated 30.10.2013 to report duty.
32. Therefore, I am of the view that when the intention of the University to take back the employees is very clear in the above terms, there is no necessity to remit the matter back to the Labour Court for http://www.judis.nic.in66/101 W.P.Nos.37681 of 2016 giving the Management an opportunity to prove the charges.
33. Therefore, this Court is of the view that the order of termination is bad, not only on the ground of violation of principles of natural justice and also for not following the mandatory requirements under Section 33(1)(b) of the Industrial Disputes Act. Consequently, this Court finds that the award of the Labour Court in setting aside the order of termination does not require any interference.
34. The other relief granted by the Labour Court, which is challenged before this Court is in respect of granting permanency of these employees. The learned Advocate General has vehemently contended before this Court and relied on various case laws as if the employees are not entitled to all those consequential reliefs as well. I am of the considered view that the above contentions are liable to be rejected on the sole reason that those contentions are made against the very stand taken by the University before terminating these employees insofar as the issue with regard to the permanency of these employees is concerned. A letter dated 03.01.2011 addressed by the Registrar of the University to http://www.judis.nic.in67/101 W.P.Nos.37681 of 2016 the Government would fully support the case of the employees. The said letter reads as follows:
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bjhHpy;El;g fy;tpj;jFjp. taJ cr;rtuk;g[ kw;Wk; ,dRHwp (Communal Rotation) Mfpa epge;jidfspypUe;J xl;Lbkhj;j tpyf;fspj;J (relaxation) Mizg; gpwg;gpf;FkhW ntz;of; bfhs;st[k; gzpf;fg;gl;Ls;nsd;/ ghh;it 2y; fhQqk; muR fojj;jpy; thpir vz; 1. 2 kw;Wk; 4,y; nfhug;gl;Ls;s tptu';fs; ,r;braw;Fwpg;gpd; ,izg;gf [ s; 1 Kjy; 5,y; ,izf;fg;gl;Ls;sd/ thpir vz;/3 bjhlh;ghf ,g;gzpahsh;fis epue;jug;gLj;Jk; gzpapl';fSf;fhd http://www.judis.nic.in72/101 W.P.Nos.37681 of 2016 jFjpfs; kw;Wk; Cjpa tpfpjj;ij eph;zak; bra;a[k; mjpfhuk; ,g;gy;fiyf;fHfj;jpd; Ml;rpkd;wf; FGtpw;nf cs;sJ vd;W bjhptpj;Jf; bfhs;s gzpf;fg;gl;Ls;nsd;/ ,r;braw;Fwpg;gpd; kPjhd murhiz bgwg;gl;lJk; nkw;fz;l 87 jw;fhypfg; gzpahsh;fisa[k; gzp epue;juk; bra;tjw;fhd xg;g[jy;
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http://www.judis.nic.in76/101 W.P.Nos.37681 of 2016
35. Therefore, it is evident that the University itself made a request to the Government to issue orders for making these employees permanent. No doubt, this communication was issued earlier to the termination order. At the same time, it is to be noted that when the order of termination is found to be illegal and not sustainable, as rightly found by the Labour Court, the consequential reliefs granting permanancy also need not be interfered with, more particularly, in view of the stand taken by the University by its own communication dated 03.01.2011, as extracted supra.
36. It is stoutly contented by the Learned Advocate General that the recruitment of these employees was not made by following mandatory procedures and therefore these persons cannot seek protection of their employment in any manner. I doubt whether the above contention deserves any merit. It is not the case of the university that these persons where never appointed by the university. On the other hand, it is an admitted fact all these persons were employed periodically commencing from the year 2002 during the tenure of each vice chancellor and that their appointments were never questioned or put to challenge by any one http://www.judis.nic.in77/101 W.P.Nos.37681 of 2016 before any court of law. In other words, these employees continued to work from the date of their initial appointment for several years till the date of termination viz., 05.11.2013. Further, the Thiruvalluvar University Act, 2002 also clearly indicates that under section 24(a)(27), the syndicate has the powers to make ordinances specifying the mode of appointments of administrative and other similar posts and define their duties and the conditions of services and provide for filling of temporary vacancies. Likewise, section 32(ix) of the said act also contemplates that the statutes provide for the classification, method of appointment and determination of terms and conditions of services of teachers and other persons employed by the university. Therefore, from the above provisions of the Thiruvalluvar University Act, there cannot be any doubt as to whether the university can appoint these employees through the mode in which they sought to make such appointment. May be that they would have not followed certain procedures while filling up the posts. But the fault is not on the persons who got employed but on the university. Therefore, after such a long period of time, these persons employed already, commencing from the year 2002 and worked till 2013, cannot be sent out on the reason that their appointment was irregular. http://www.judis.nic.in78/101 W.P.Nos.37681 of 2016
37. It is contended on behalf of the university that services of these employees does not require permanency. Again, the above contention of the learned Advocate General made on behalf of the university goes against the very stand taken by university through their notification/request made to the non-teaching staff calling upon them to resume duty. For better understanding, the above communication of the registrar dated 18.10.2013 is extracted hereunder.
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Thus, it is only a futile exercise by the university before this court to contend contra that services of these employees do not require http://www.judis.nic.in80/101 W.P.Nos.37681 of 2016 permanency.
38. The learned Senior Counsel for the employees relied on 2002(2) SCC 244 ( Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal Sharma) to contend that once there is a contravention of Section 33(2)(b), all the workmen are straightway entitled to full reinstatement with back wages and all other attendant benefits. She further contended that the above decision of the constitution bench is still holding the field. I have already pointed out that the three decisions of the Apex Court relied on by the university to contend that mere contravention of sec 33(2)(b) would not vitiate the termination order, cannot be applied to the present case for two reasons. Firstly, in all those cases the management therein conducted the enquiry and proved the charges. In this case, no such enquiry was conducted, is an admitted fact. Secondly, I pointed out that the relevant provision applicable to the present case is Sec 33 (1)(b) and thus the management ought to have obtained prior permission before issuing the order of termination. As the management has failed to obtain prior permission and consequently the termination order is to be held as non-est and void ab initio, all these http://www.judis.nic.in81/101 W.P.Nos.37681 of 2016 workmen are deemed to have been in continuous service.
39. In 2011(6) SCC 584, Devinder Singh vs Municipal Council Sanaur, the Hon’ble Supreme Court observed that the source of employment, method of recruitment etc. are not relevant for deciding whether a person is a workmen or not and that there is nothing in the plain language of Sec 2(s) to infer that only a person employed on regular basis is a workmen and that one employed on temporary, part time or contract basis or as a casual employee is not a workmen. At paragraph Nos.13 and 14 of the above judgment, it is stated as follows:
“13. The source of employment, the method of recruitment, the terms and conditions of employment/contract of service, the quantum of wages/pay and the mode of payment are not at all relevant for deciding whether or not a person is a workman within the meaning of Section 2(s) of the Act. It is apposite to observe that the definition of workman also does not make any distinction between full-time and part-time employee or a person appointed on contract basis. There is nothing in the plain language of Section 2(s) from which it can be inferred that http://www.judis.nic.in82/101 W.P.Nos.37681 of 2016 only a person employed on a regular basis or a person employed for doing whole-time job is a workman and the one employed on temporary, part-time or contract basis on fixed wages or as a casual employee or for doing duty for fixed hours is not a workman.
14. Whenever an employer challenges the maintainability of industrial dispute on the ground that the employee is not a workman within the meaning of Section 2(s) of the Act, what the Labour Court/Industrial Tribunal is required to consider is whether the person is employed in an industry for hire or reward for doing manual, unskilled, skilled, operational, technical or clerical work in an industry. Once the test of employment for hire or reward for doing the specified type of work is satisfied, the employee would fall within the definition of “workman””.
40. It is to be seen that the appointment of these workmen by the respective Vice Chancellors and Convener Committee were approved by the Syndicate, being the supreme body of the university. Therefore, the university cannot contend otherwise and dispute before this court with http://www.judis.nic.in83/101 W.P.Nos.37681 of 2016 regard to the mode of appointment. Even otherwise, it is to be noted that these workmen were not terminated on the ground that their appointments were made against the recruitment rules. The termination order only speaks about the alleged misconduct of the employees, which were not proved by the university by conducting an enquiry. Therefore, now the university cannot improve the termination order by stating some other reason, namely their recruitment was not in terms of recruitment rules.. At this juncture, it is relevant to quote the decision of the Hon'ble Apex Court in 2015 (6) SCC 321 wherein at paragraph Nos.23 and 24, it is held as follows:
“23. However, in other cases, when no such plea is taken by the employer in the order of retrenchment that the workman was appointed in violation of Articles 14 and 16 of the Constitution of India or in violation of any statutory rule or his appointment was a back door appointment, while granting relief, the employer cannot take a plea that initial appointment was in violation of Articles 14 and 16 of the Constitution of India, in absence of a reference made by the appropriate Government for determination of question whether the initial appointment of the workman http://www.judis.nic.in84/101 W.P.Nos.37681 of 2016 was in violation of Articles 14 and 16 of the Constitution of India or the statutory rules. Only if such reference is made, a workman is required to lead evidence to prove that he was appointed by following procedure prescribed under the Rules and his initial appointment was legal.
24. In the present case, the services of the appellant was not terminated on the ground that his initial appointment was made in violation of Articles 14 and 16 of the Constitution of India. No such reasons were shown in the order of retrenchment nor was such plea raised while reference was made by the appropriate Government for adjudication of the dispute between the employee and the employer. In absence of such ground, we are of the opinion that it was not open for the High Court to deny the benefit for which the appellant was entitled on the ground that his initial appointment was made in violation of Articles 14 and 16 of the Constitution of India.”
41. 2016(1) SCC 521 (Vice Chancellor, Lucknow University, Lucknow vs. Akhilesh Kumar Khre and another) is relied on by the learned Advocate General to contend that these employees are not http://www.judis.nic.in85/101 W.P.Nos.37681 of 2016 entitled for reinstatement with continuity of service. It is true that the Apex Court in that case, by following Uma Devi (3) case reported in 2006 (4) SCC 1, observed that temporary or casual workers have no right to seek for regularization and that relief by way of back wages is not automatic and compensation, instead of reinstatement, is to meet the ends of justice. The learned Senior Counsel for the employees, on the other hand, contended that the above decision cannot be applied to the present case since the very appointment therein was made not by the competent authorities and that the employees therein were working for a shorter period namely one and half years. I find force in the above submission made on behalf of the employees. The facts and circumstances of the above case would show that the Finance Officer of the university therein himself had made the appointment when the university had not created any post. Further, those casual workers had worked as against non sanctioned post only for one and half years. The facts and circumstances of the present case, as discussed supra, are totally different and hence, the above decision will not come to the rescue of the university, when admittedly the appointments made by the Vice Chancellor and the Convener Committee were approved by the Syndicate. http://www.judis.nic.in86/101 W.P.Nos.37681 of 2016
42. On behalf of the employees a decision of this court dated 24.09.2019 made in WP No. 17935 of 2011 etc reported in 2015 SCC Online Mad 2976 was relied on in support of their contention that these workmen are entitled for re-instatement instead of compensation. It is contended on behalf of the university that there is financial constraint for the university to re-instate as awarded by the labour court. I don’t think that when the university has passed the illegal order of termination as discussed supra, they can plead before this court by pointing out the financial constraint of the university as a hurdle to re-instate these employees. Even otherwise, it is contended on behalf of the employees that as per the information obtained by them under the RTI Act, the amounts due to be paid to the university form various heads would be more than Rs.150 Crores. However, this Court is not inclined to go into those aspects since that is not an issue to be decided in this case.
43. 2014 (7) SCC 190 (Harinandan Prasad vs. Food Corporation of India) is relied on by the learned Advocate General in support of his contention that only monetary compensation can be given http://www.judis.nic.in87/101 W.P.Nos.37681 of 2016 in the form of retrenchment compensation and not re-instatement as awarded by the labour court. At para Nos. 19 and 21, the Hon'ble the Apex Court has observed as follows:
“19.The following passages from the said judgment would reflect the earlier decisions of this Court on the question of reinstatement: (BSNL case[BSNL v. Bhurumal, (2014) 7 SCC 177] , SCC pp. 187-88, paras 29-30) “29. The learned counsel for the appellant referred to two judgments wherein this Court granted compensation instead of reinstatement. In BSNLv. Man Singh[(2012) 1 SCC 558 : (2012) 1 SCC (L&S) 207] , this Court has held that when the termination is set aside because of violation of Section 25-F of the Industrial Disputes Act, it is not necessary that relief of reinstatement be also given as a matter of right.
InIncharge Officer v.Shankar Shetty [(2010) 9 SCC 126 :
(2010) 2 SCC (L&S) 733] , it was held that those cases where the workman had worked on daily-wage basis, and worked merely for a period of 240 days or 2 to 3 years and where the termination had taken place many years ago, the recent trend was to grant compensation in lieu of reinstatement.
30. In this judgment of Shankar Shetty [(2010) 9 SCC 126 : (2010) 2 SCC (L&S) 733] , this trend was reiterated by referring to various judgments, as is clear from the following discussion: (SCC pp. 127-28, paras 2-4) ‘2. Should an order of reinstatement automatically follow in a case where the engagement of a daily-wager has been brought to an end in violation of Section 25- F of the Industrial Disputes Act, 1947 (for short “the ID Act”)? The course of the decisions of this Court in recent years has been uniform on the above question.
http://www.judis.nic.in88/101 W.P.Nos.37681 of 2016
3. In Jagbir Singh v.Haryana State Agriculture Mktg. Board [Jagbir Singh v.
Haryana State Agriculture Mktg. Board, (2009) 15 SCC 327 : (2010) 1 SCC (L&S) 545] , delivering the judgment of this Court, one of us (R.M. Lodha, J.) noticed some of the recent decisions of this Court, namely, U.P. State Brassware Corpn. Ltd. v. Uday Narain Pandey [(2006) 1 SCC 479 : 2006 SCC (L&S) 250] , Uttaranchal Forest Development Corpn. v. M.C. Joshi [(2007) 9 SCC 353 : (2007) 2 SCC (L&S) 813] , State of M.P. v.Lalit Kumar Verma [(2007) 1 SCC 575 : (2007) 1 SCC (L&S) 405],M.P. Admn.v. Tribhuban[(2007) 9 SCC 748 :
(2008) 1 SCC (L&S) 264], Sita Ramv.Moti Lal Nehru Farmers Training Institute[(2008) 5 SCC 75 : (2008) 2 SCC (L&S) 71] ,Jaipur Development Authorityv.Ramsahai[(2006) 11 SCC 684 :
(2007) 1 SCC (L&S) 518] ,GDA v.Ashok Kumar[(2008) 4 SCC 261 : (2008) 1 SCC (L&S) 1016] and Mahboob Deepak v.Nagar Panchayat, Gajraula [(2008) 1 SCC 575 :
(2008) 1 SCC (L&S) 239] and stated as follows: (Jagbir Singh case [Jagbir Singh v. Haryana State Agriculture Mktg. Board, (2009) 15 SCC 327 : (2010) 1 SCC (L&S) 545] , SCC pp. 330 & 335, paras 7 & 14) “7. It is true that the earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow.
However, in recent past, there has been a shift in the legal position and in a long line of cases, this Court has consistently taken http://www.judis.nic.in89/101 W.P.Nos.37681 of 2016 the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice.
14. It would be, thus, seen that by a catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation of Section 25-F although may be set aside but an award of reinstatement should not, however, be automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily-wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily-wager who does not hold a post and a permanent employee.”
4. Jagbir Singh[Jagbir Singh v.Haryana State Agriculture Mktg. Board, (2009) 15 SCC 327 : (2010) 1 SCC (L&S) 545] has been applied very recently in Telegraph Deptt. v. Santosh Kumar Seal[(2010) 6 SCC 773 : (2010) 2 SCC (L&S) 309] , wherein this Court stated:
(SCC p. 777, para 11)
11. In view of the aforesaid legal position and the fact that the workmen were engaged as daily-wagers about 25 years back and they worked hardly for 2 or 3 http://www.judis.nic.in90/101 W.P.Nos.37681 of 2016 years, relief of reinstatement and back wages to them cannot be said to be justified and instead monetary compensation would subserve the ends of justice.’”
21. We make it clear that reference to Umadevi (3)[State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] , in the aforesaid discussion is in a situation where the dispute referred pertained to termination alone. Going by the principles carved out above, had it been a case where the issue is limited only to the validity of termination, Appellant 1 would not be entitled to reinstatement. This could be the position in respect of Appellant 2 as well. Though the factual matrix in his case is slightly different, that by itself would not have made much of a difference. However, the matter does not end here. In the present case, the reference of dispute to CGIT was not limited to the validity of termination. The terms of reference also contained the claim made by the appellants for their regularisation of service.”
44. No doubt the Hon'ble Apex Court in the above case has observed as above, going by the facts and circumstances of the said case.
It is seen from those facts that two appellants before the Hon'ble Apex Court were disengaged from service without paying retrenchment compensation or notice of pay. Both of them had worked for 3 and 4 http://www.judis.nic.in91/101 W.P.Nos.37681 of 2016 years respectively. First of all, I would like to point out that the case on hand is not the one of retrenchment but a termination by way of punishment. Section 2(oo) of the ID Act defines the word “retrenchment” as follows:
" (oo) retrenchment means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include--
(a) voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (bb) termination of the service of the workman as a result of the non- renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or]
(c) termination of the service of a workman on the ground of continued ill- health;] http://www.judis.nic.in92/101 W.P.Nos.37681 of 2016
45. A careful perusal of the above definition would show that a punishment inflicted by way of disciplinary action cannot be called as a retrenchment. In this case, the order of termination is clear and categorical that the same was made as a punishment to the employees for the alleged misconduct. Therefore, if the workmen were punished by passing the order of termination without conducting enquiry and giving them due opportunity of hearing, thereby violating the principles of natural justice, this Court has to only see as to whether such order of termination can be sustained or not. This issue has already been discussed in detail supra by giving a finding that the order of termination is void ab inito and non-est one. Therefore, I find that the above decisions which are factually distinguishable cannot be applied to the present case.
46. In view of the above stated facts and circumstances and the findings rendered by this Court that the order of termination is bad and non-est, it would automatically result in reinstatement of the employees into service in their posts which they were holding on the date of termination.
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47. The next question to be considered and decided is as to whether these employees are entitled to get their service regularised on completion of 240 days. No doubt, the University contended that when the very appointment itself was not made in compliance with constitutional scheme and rules, those appointments cannot be regularised. In support of such contention several decisions are relied on.
48. At this juncture, I would like to point out, at the risk of repetition, two factors. (a)The appointments were made by the University Vice Chancellor and Convenor Committee and those appointments were subsequently, approved by the Syndicate. (b) Secondly, these appointments were not put to challenge before the Court of law at any point of time by anybody. On the other hand, the fact remains that after making those appointments, the University has justified those appointments and addressed the Government seeking for sanction of posts, through various communications. The prime issue before the Labour Court was against the order of termination. As already stated supra, the termination was not made based on the reason that such http://www.judis.nic.in94/101 W.P.Nos.37681 of 2016 appointment was irregular or illegal and on the other hand, it was made purely based on certain alleged misconduct of the employees. Therefore, the University is not justified in contending that these employees having been appointment without following due procedure, are not entitled for regularisation. Needless to state that the facts and circumstances of each case are to be seen to apply the case laws quoted by the respective parties. Only when the facts and circumstances of the case laws are identical or similar to the facts and circumstances of the case on hand, application of such case law would arise.
49. It is stated that the University, as of now, is not having the sanctioned strength to accommodate these employees. If that be the case, it is for the University to address the Government once again and seek for sanctioning of the posts so as to accommodate these employees in their respective posts.
50. The other question to be considered is as to whether the University has committed unfair labour practise in this case. This question does not require a detail answer as the very conduct of the http://www.judis.nic.in95/101 W.P.Nos.37681 of 2016 University in passing the order of termination is without following the basic principles of natural justice. The University, being a statutory body, has, unfortunately indulged in such an unfair labour practise. If the termination is in the form of retrenchment as defined under section 2(oo), one can understand that the question of unfair labour practise does not arise, provided the other procedures and mandatory requirements as contemplated under section 25(F) etc. are followed by the University. In this case, it is not a retrenchment as found supra. On the other hand, it is a pure and simple termination based on certain alleged misconduct/allegations. The University has not chosen to put these employees on notice about those alleged misconduct/allegations and given them an opportunity of hearing by conducting an enquiry. The termination order was passed straight away by making those allegations. Therefore, this conduct of the University, in my considered view, would certainly fall within the ambit of unfair labour practice.
51. In W.P.No.17793 of 2017, the employees, apart from challenging the award of the Labour Court insofar as not granting the balance 70% of the backwages, also seek for expunging the remarks http://www.judis.nic.in96/101 W.P.Nos.37681 of 2016 made by the Labour Court in the award against their counsels. Since this Court finds that the order of termination is bad and non est, this employees were entitled for reinstatement. However, while coming to the backwages, it is seen that the Labour Court has granted 30% backwages to these employees. On the other hand, the employees seek for full backwages. In this case, the employees did not take the opportunity to resume the work once the University had issued the public notice for them to resume work. Had they resumed work, I think all these litigations would not have arisen. Moreover, during the pendency of these writ petitions, these employees are getting their last drawn wages under Section 17B all these period. Therefore, it is evident that these employees are receiving their salary all these years without doing their work. Considering the above stated facts and circumstances, I find that the 30% backwages awarded by the Labour Court need not be confirmed and on the other hand, the award of the Labour Court passed in I.D. Nos.61 of 2015 to 108 of 2015 and 110 of 2015 to 126 of 2015 dated 26.05.2015 is to be modified only to the extent of directing the reinstatement of these employees into service without backwages and with continuity of service. I have already pointed out that these http://www.judis.nic.in97/101 W.P.Nos.37681 of 2016 employees are not entitled to get the backwages in view of the reasons stated supra. However, insofar as the remarks made by the Labour Court in the award against the counsel appeared for the employees are concerned, this Court finds that the Labour Court ought not to have made such adverse remarks against the counsel going by the facts and circumstances of the case. Accordingly, wherever the adverse remarks were made against the counsel for the employees in the award, the same are expunged.
52. In W.P.No.20126 of 2018, the employees seek permanency with effect from the date of completion of service of 240 days. The Labour Court awarded the permanency from 05.11.2013 onwards. Going by the facts that these employees were appointed by the Vice Chancellor and approved by the Syndicate and their appointments were never questioned, this Court is of the view that they are entitled to permanency of the post as per the statutory provision, from the date on which they completed the service of 240 days. Therefore, I find that the award of the Labour Court in granting such permanency only from the date of the termination order dated 05.11.2013 is not just and proper. http://www.judis.nic.in98/101 W.P.Nos.37681 of 2016
53. Considering the overall facts and circumstances of the entire case, this Court is of the view that the awards passed by the Labour Court do not require total interference by this Court except to the extent stated above.
54. Thus, these writ petitions are disposed of as follows:
a) W.P.No.37681 of 2016 is allowed in part and the award of the Labour Court made in I.D. Nos.61 of 2015 to 108 of 2015 and 110 of 2015 to 126 of 2015 dated 26.05.2016 is modified as follows:
i) the termination order dated 05.11.2013 is set aside.
Consequently, the University shall reinstate these employees with continuity of service, within a period of six weeks from the date of receipt of a copy of this order.
ii) However, these employees are not entitled for any backwages for the reasons stated supra.
b) W.P.No.17793 of 2017 is disposed of only by expunging remarks made by the Labour Court in the award made against the learned counsel for the employees. The relief sought for by the employees in respect of the backwages is rejected.
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c) W.P.No.20126 of 2018 is disposed of by directing the University to grant permanent status to the employees with effect from the date of their completion of 240 days of service, within a period of four months from the date of receipt of a copy of this order.
d) W.P.No.16817 of 2018 is dismissed in the light of the order passed in W.P.No.20126 of 2018.
e) W.P.No.16818 of 2018 is dismissed.
No costs. Consequently, connected miscellaneous petitions are closed.
29.05.2020 Speaking/Non Speaking Index:Yes/No Internet:Yes/No vri/vsi To
1. The Principal Labour Court Vellore, Vellore District.
2.The Registrar, Thiruvalluvar University, Serkadu, Vellore 632 115.
http://www.judis.nic.in100/101 W.P.Nos.37681 of 2016 K.RAVICHANDRABAABU,J.
vri/vsi ORDER IN W.P.Nos.37681 of 2016, 17793 of 2017, 16817, 16818 and 20126 of 2018 29.05.2020 http://www.judis.nic.in101/101