Madras High Court
S.Srinivasalu vs The Management Of Bharat Heavy ... on 12 October, 2007
Author: K.Chandru
Bench: K.Chandru
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 12/10/2007 CORAM: THE HONOURABLE MR. JUSTICE K.CHANDRU W. P. (MD) Nos.8675 of 2006 W. P. (MD) Nos.11160 of 2006 and 2655 of 2007 and M.P. (MD) No.2 of 2006 in W.P. (MD) No.8675 OF 2006, M.P. (MD) No. 2 of 2006 in W.P. (MD) No.11160 of 2006 and and M.P. (MD) No.2 of 2007 in W.P.(MD) No.2655 of 2007 1.S.Srinivasalu 2.Selvaraj 3.K.Jyothikumar 4.P.Karunakara 5.T.Dhanasekar 6.G.Suriyarao 7.K.Rajakumar 8.K.Venkatesan 9.V.K.Sureshkumar .. Petitioners in W.P. (MD) No.8675 of 2006 1.A.Ravindran 2.A.Kuppuswamy .. Petitioners in W.P. (MD) No.11160 of 2006 1.V.Pradeep Nalankilli 2.K.Vijayakumaran .. Petitioners in W.P. (MD) No.2655 of 2007 vs. 1.The Management of Bharat Heavy Electricals Ltd. Rep. By its Chairman and Managing Director BHEL Corporate Office Siri Fort New Delhi 2.The Executive Director Bharat Heavy Electricals Ltd. Thiruchirapalli 3.The Senior Manager / HR (Recruitment & Systems) Bharat Heavy Electricals Ltd. Tiruchirapalli ... Respondents in all these petitions W.P. (MD) No.8675 of 2006 filed under Article 226 of the Constitution of India to issue a Writ of Mandamus directing the respondents to grant appointment to the petitioners in the permanent regular service of the respondent company in the post of Welder Grade IV as against 9 of the 68 vacancies notified under Employment Notice No.277. W.P. (MD) Nos.11160 of 2006 and 2655 of 2007 filed under Article 226 of the Constitution of India to issue a Writ of Mandamus directing the respondents to grant appointment to the petitioners in the permanent regular service of the respondent company in the post of Fitters. !For Petitioner ... Mr.V.Prakash, SC in W.P. (MD) Nos. for Mrs. Lakshmi Gopinathan 8675 of 2006 & 2655 of 2007 ^For Petitioner ... Mr.R.Nandakumar in W.P. (MD) No. 11160 of 2006 For Respondents ... Mr. K. Jayaraman :COMMON ORDER
In W.P. (MD) No.8675 of 2006, there are nine petitioners and the prayer is for appointing them as Welder Grade IV in the second respondent Bharat Heavy Electricals Limited [for short, 'BHEL'] as against the 68 vacancies advertised by the Employment Notice No.277. In W.P. (MD) No.11160 of 2006, there are two petitioners, who seek for a direction to appoint them as Fitters in regular and permanent basis. In W.P. (MD) No.2655 of 2007, there are two petitioners and the prayer in the writ petition is to grant them appointment on a permanent and regular basis as Fitters in the second respondent BHEL. Altogether, there are 13 workmen and the prayer is almost similar although the posts for which they seek for permanent employment are different.
2. In all these cases, the admitted facts are that the petitioner workmen have undergone industrial training and have obtained National Trade Certificate [for short, 'NTC'] under various trades and they have an apprenticeship training in the second respondent BHEL and are holding National Apprenticeship Certificate [for short, 'NAC']. They were also at times given post of casual employees on daily wages basis. It was stated that similarly placed persons at the BHEL Plant at Ranipet were given employment after the NAC apprenticeship training given by BHEL and the same was not followed in the second respondent industry. When some of the workmen made a complaint before the Assistant Commissioner of Labour (Conciliation) Tiruchirappalli, the workers were told that they can petition to the Management and get appropriate relief.
3. I have heard Mr.V.Prakash, learned Senior Counsel leading Mrs.Lakshmi Gopinathan, learned counsel appearing for the petitioner in W.P. (MD) Nos. 8675 of 2006 and 2655 of 2007, Mr.R.Nandakumar, learned counsel appearing for the petitioner in W.P. (MD) No.11160 of 2006 and Mr.K.Jayaraman, learned counsel appearing for the respondent BHEL and have perused the records.
4. A counter affidavit has been filed by the respondents stating that the NTC and NAC trainees have no right of direct employment and it is only when recruitments are made, they will be considered and when everything is equal, preference will be shown to NAC and NTC trainees. No relaxation can be made in respect of these apprentices though they may be trained by the respondent Company. They have also stated that the workmen have raised disputes and that they cannot ride two horses for the same cause and filing of writ petition is not an appropriate remedy.
5. A rejoinder was also filed by the workmen stating that raising of industrial disputes is with reference to non-employment issue and the present writ petitions relate to future employment on a regular basis. Therefore, there is no bar for the workmen raising the dispute.
6. Mr.V.Prakash, learned Senior Counsel appearing for the petitioners brought to the notice of this Court the Recruitment Policy followed by the respondent BHEL and in paragraphs 4.4., 4.5, it is stated as follows:
"4.4. Induction levels for Non-Executive categories in 'A' group salary grades (Technical) are as under:
Unskilled group : A-I Skilled group : A-III Supervisory / Technical group : SA I / AVII Induction in A-III and SA-I is normally by absorption of Artisan Trainees and Supervisory Trainees on satisfactory completion of their apprenticeship / training under the Apprentices Act 1961.
4.5. In 'B' group of salary grades (Non-Technical) direct recruitment is normally made at grades B1, BIII, BIV (for Stenographers and Receptionists), BV (for Staff Nurses) and SBI unless specifically decided otherwise by the competent authority. Induction in grade BIII is normally by absorption of Commercial Apprentices on satisfactory completion of their apprenticeship under the Apprentices Act."
Further paragraph 5 of the Recruitment Policy reads as follows:
"5. Sources of Recruitment:
Recruitment to induction and other levels, where approved by the competent authority, is normally made from the sources mentioned below:
(a) From Employment Exchanges as per the provisions of the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959.
(b) From open market through advertisement in the Press.
(c) By considering departmental candidates possessing the specified requirements.
(d) From reputed Engineering/Management Institutes through campus interviews."
Therefore, the learned Senior Counsel pressed into service the preference shown to NTC holders with NAC given by the respondents themselves.
7. Learned counsel appearing for the respondents relied upon the following judgments:
(i) 2007 (2) SCC 491 Punjab Water Supply & Sewerage Board and others v. Ranjodh Singh,and others]
(ii) 2007 (1) SCC 408 [Indian Drugs & Pharmaceuticals Ltd. v. Workmen, Indian Drugs & Pharmaceuticals Ltd.]
(iii) 2006 (8) SCC 111 [Arun Kumar Nayak v. Union of India and others]
(iv) 2006 AIR SCW 1991 [Secretary, State of Karnataka and others v. Umadevi and others] By placing reliance upon the above judgments, the learned counsel appearing for the Management wanted to argue that appointment in Public Sector can be made only on regular basis and in accordance with the Recruitment Rules. There cannot be a back door entry.
8. Further, he also placed reliance upon the judgment of the Division Bench of this Court (to which myself is a party) reported in 2007 (3) C.T.C. 161 [K.Venkadesan v. Chairman - cum - Managing Director, Neyveli Lignite Corporation and others] to state that the apprentices cannot be given preference and apprentices having NTC under the 1961 Act can only be considered along with the others.
9. However, learned Senior Counsel appearing for the workmen brought to the notice of this Court the Settlement dated 26.10.2005 signed under Section 12 (3) of the Industrial Disputes Act [for short, 'I.D. Act'] between the workmen and the second respondent Management at Ranipet wherein in paragraph 10, it is stated that 72 artisans were taken in the light of the Memorandum of Minutes dated 18.7.2005. In the light of the same, he submitted that there cannot be two policies one for Ranipet BHEL and the other for Tiruchirappalli BHEL, where the petitioners were employed.
10. He also submitted that this Court in its decision reported in 2007 (5) M.L.J. 862 [G.Ravikumar v. Chairman and D.G.O.F., Ordinance Factory Board and others] vide order dated 22.6.2007 dealt with similar issue and the same should be followed in the present case also. Paragraphs 5 to 10 of the said order may be usefully extracted below:
Para 5: "In the light of the stand taken by the respondents, the learned counsel brought to the notice of this Court a judgment of a Division Bench of this Court in K.Venkadesan v. Chairman-cum-Managing Director, Neyveli Lignite Corporation and others [2007 (3) CTC 161] (to which I am a party), held after referring to the decision of the Hon'ble Supreme Court in U.P.State Road Transport Corporation and another v. U.P.Parivathan Nigam Shighukha Burosgar Santh and others 1995 (2) SCC 1, and further judgment of the Hon'ble Supreme Court made in Civil Appeal Nos.5285 to 5328 of 1996 dated 3.10.1996 Tamil Nadu Electricity Board v. P.Arul and others, that Apprentices/Trainees shall have to go through the process of selection provided under the Service Regulations/Rules. Keeping in view the fact that the Apprentices acquire training under the same management, they are not required to sit in the written test. A trained Apprentice will have a preference over the direct recruitment if other things are being equal.
Para 6: Per contra, it was argued that if there was employment guarantee for the trained apprentices, then Section 22 (2) of the Apprentices Act 1961 will come into operation and the same reads as follows:
"22. Offer and acceptance of employment-(1) It shall not be obligatory on the part of the employer to offer any employment to any apprentice who has completed the period of his apprenticeship training in his establishment nor shall it be obligatory on the part of the apprentice to accept an employment under the employer.
(2) Notwithstanding anything in sub-section (1), where there is a condition in a contract of apprenticeship that the apprentice shall, after the successful completion of the apprenticeship training, serve the employer, the employer shall, on such completion, be bound to offer suitable employment to the apprentice, and the apprentice shall be bound to serve the employer in that capacity for such period and on such remuneration as may be specified in the contract."
Para 7: The issue decided by the Honb'le Supreme Court both in U.P.State Road Transport Corporation and Tamil Nadu Electricity Board's (case cited) supra arose out of the situation where Section 22(1) will come into operation and where there is no guarantee for any employment. If there is a guarantee for employment after the training period, then certainly to the exclusion of any outsider, the trained apprentices can be preferred. Therefore, reliance was placed upon the decision of the Hon'ble Supreme Court in Narender Kumar and others v. State of Punjab and others [(1985) 1 Supreme Court Cases 130] wherein, it has been held in paragraph No.9 as follows:
"9. We are also of the opinion that, apart from the implications arising out of Section 22(2) of the Apprentices Act, paragraph 2 of the letters of appointment creates a binding obligation upon the employer to absorb the apprentices in the department on the successful completion of the training period, provided there is a vacancy in which the apprentices can be appointed. It would be contrary both to the letter and spirit of paragraph 2 of the letters of appointment to hold that, even if there is a vacancy in which an apprentice can be appointed after the successful completion of his training,t he employer is free not to appoint the apprentice sand fill that vacancy by appointing an outsider. Such a reading of the assurance contained in paragraph 2 will also frustrate the very object of the provision made by the Legislature in Section 22(2) of the Act. The object of that provision is to guarantee, to the extent of the existence of vacancies, that the apprentices will not be rendered jobless after they complete their training."
Para 8: Reliance was also placed upon a recent Division Bench judgment of this Court reported in (2007) 3 MLJ 967 [M.Elumalai and others v. M. Bhuvaneswari and others]. Though the said decision did not arise under the Apprentices Act 1961, wherein the paragraph No.11 reads as follows:
"11. The entry into the category of nurses starts with the admission into a Government Training School. It is a composite scheme of recruitment, training and absorption exclusively for Government institutions. According to the State, if a person wants a posting in a Government Hospital, the entry point is an admission in the training institution run by the Government and there is no scope for any lateral entry. The candidates who succeed in the examination and are given training in Government institutions enter into an agreement to serve the Government for a minimum period of three years after completion of their training. Therefore, the Government provides these candidates rent-free quarters, free supply of electricity, paid stipend, which includes uniform allowance and therefore, public money is spent on them. The prospectus for admission also says "nursing students who have successfully completed their training and obtained their diplomas will be eligible for appointment as nurses. The appointment cannot be guaranteed to all or any of the successful candidates. Recruitment will be made in accordance with the Tamil Nadu Medical Subordinate Service Rules." Every year, 1795 candidates successfully come out of these Government institutions and there are more than enough candidates waiting for appointment in nurse posts. The Government is bound to protect these trainees and as observed in (1995) 2 SCC 1, having spent public money on them, the absorption of these trainee students cannot be said to be unreasonable." Para 9: Further, relevant passage found in paragraph 13 are extracted below:
"13. ... When even the nurses who have been trained in the Government institutions and who have executed the bond to serve the Government for a period of three years would not be entitled to a mandamus in view of Rule 16, it is difficult to see how the private nurses who had failed in their attempt to secure admission by passing the Government entrance examination would be entitled to such a mandamus. Their right is much inferior to that of the Government nurses."
Para 10: After quoting several decisions, the Division Bench upheld the right of the State in recruiting persons who are trained by them at their expense to the exception of a total stranger to the institution."
11. The judgment (cited supra) rendered by this Court has reviewed all the relevant cases relating to apprentices and made a distinction between category of apprentices covered by Section 22(1) of the Apprentice Act, who were merely trained by any industry without promise of future employment and with reference to apprentices who were trained by a relevant industry under Section 22 (2) of the Apprentices Act 1957 with a promise to absorb them.
12. In the present case, the policy for recruitment makes the Departmental candidate possessing specific requirements as a source of recruitment and also paragraphs 4.4. and 4.5 provide for induction to candidates having satisfactorily completed their apprenticeship training. Further, in the Ranipet Unit, similarly placed apprentices have been taken for employment. The respondents, being the same company, cannot make a distinction between the two units. Some of the petitioners have also been employed as casuals after their apprenticeship training. Therefore, the decision referred to by the learned counsel for the respondents has no application to the facts of the cases on hand. On the other hand, the issue raised in these petitions has been squarely answered by this Court in G.Ravikumar's case (cited supra).
13. In the light of the above, the writ petitions shall stand allowed and the respondents are directed to implement the order within a period of the four weeks from the date of receipt of a copy of this order. However, there will be no orders as to costs. Consequently, connected Miscellaneous Petitions are closed.
gri To
1. The Chairman and Managing Director Bharat Heavy Electricals Ltd.
BHEL Corporate Office Siri Fort New Delhi
2. The Executive Director Bharat Heavy Electricals Ltd.
Thiruchirapalli
3. The Senior Manager / HR (Recruitment & Systems) Bharat Heavy Electricals Ltd.
Tiruchirapalli.