both writ petitions.
W.P.(MD)Nos.4866 and 4964 of 2010 have been preferred under
Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records relating to the order dated 31.3.2010 passed by the first respondent in Na.Ka.No.5530/09/A and to quash the same as it is illegal, arbitrary and unconstitutional and to direct the second respondent to allow the petitioners' six members and four members respectively for loading, unloading and affixing seal of the Prohibition & Excise Department on the stocks of the second respondent in Madurai urban depot situated at Manalur Village in Sivagangai District.
!For Petitioners ... Mr.R.Suria Narayanan ^For Respondents ... Mr.V.Karthikeyan for RR1 and 2 ... Mr.G.R.Swaminathan for R-3
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:COMMON ORDER Heard the arguments of Mr.R.Suriya Narayanan, learned counsel for petitioners, Mr.V.Karthikeyan, learned counsel appearing for the Tamil Nadu State Marketing Corporation Limited (for short TASMAC) and Mr.G.R.Swaminathan, learned counsel for third respondent Trade Union.
2.These two writ petitions were filed by the trade unions registered under the Trade Union Act. The prayer in the two writ petitions are identical inasmuch as both trade unions were challenging the order passed by the Senior Regional Manager, TASMAC, Madurai, dated 31.3.2010 and for a direction to allow six members of the first trade union and four members of the second trade union to do loading and unloading work as well as affixing the seal of the Prohibition & Excise Department on the stocks kept in the godown in Madurai urban depot situated at Manalur Village in Sivagangai District.
3.While the first writ petition was admitted on 12.4.2010 and an order of status quo was granted, in the second writ petition, on notice, a direction to maintain status quo was ordered. It was further directed that both writ petitions should be tried together. Hence both writ petitions were posted together for final disposal.
4.On behalf of the respondent TASMAC, a counter affidavit, dated 30.6.2010 was filed in the first writ petition and a counter affidavit, dated 7.7.2010 was filed in the second writ petition. The impleaded third respondent trade union has also filed a counter affidavit, dated 19.4.2010.
5.The brief facts leading to the filing of the two writ petitions are as follows:
(5.1)The respondent TASMAC is a monopoly in the purchase, storing, distribution and selling of Indian Made Foreign Liquor (IMFL). For this purpose, they were having their own godowns or were hiring godowns established by the Tamil Nadu Warehousing Corporation. Initially, an IMFL Depot, was functioning at Anuppanadi. Later, it was shifted to Kappallur to be housed in the Tamil Nadu Warehousing Corporation godown. This godown at Kappallur caters both to Madurai Urban and Rural Districts. They were subsequently rechristened as Madurai East and West Districts. On 05.11.2009, the TASMAC built its own godown at Manalur village (Sivagangai District).
(5.2)For the purpose of loading and unloading work in these godowns, certain workmen were engaged by the TASMAC and the works were performed by the workmen. They were carrying out loading and unloading operations and were affixing the seals supplied by the Prohibition and Excise Department on the IMFL stock. The workmen who were engaged for this purpose came to be represented by three different trade unions. They were two writ petitioners and the third respondent. Very soon, the names of trade unions lost their significance and later referred to even in the official communication as union led by Mr.Mahadevan (W.P.(MD)No.4866 of 2010) and the union led by Mr.A.Muthuraman (W.P.(MD)No.4964 of 2010) and also the union led by Mr.Bose, the third respondent in both writ petitions.
(5.3)The system of engaging workers for loading and unloading works was not governed by any contract or agreement or any settlement under various labour enactments. In fact, the stand of the TASMAC was that they were not employees of TASMAC. They are self employed workers performing their work on their own on collective payment by TASMAC. In view of shifting from Anuppanadi godown to Kappallur godown and thereafter to Manalur godown, there were internecine quarrel among workers led by the three trade unions. Virtually there was a war between the three trade unions to capture the control over loading and unloading operations in these godowns.
(5.4)The inter-se dispute between the workmen as well as dispute between unions and the management were hardly taken before the forums under the Industrial Disputes Act as there was no law operating in this field. They were settled either through muscle power or at the intervention of law enforcing authorities, i.e. Police or revenue officials headed by the District Collector. Occasionally, it gave rise to certain writ petitions being filed before this court to establish the credibility of these unions.
(5.5)As can be seen from the records, in the earlier writ petition in W.P.No.10750 of 1999 filed before this court, the union led by Mr.Bose sought for regularisation of services of the workmen. The writ petition filed by the third respondent was disposed of with a direction that if workmen are employed for more than 240 days in a year, then work will not be denied to them and they should be continued in the same status wherever godown is located or shifted. In the proceedings initiated before the Deputy Commissioner of Labour, Madurai, certain adhoc arrangements were made with reference to number of workmen to be employed represented by each union. This did not give satisfaction to any of the union, which wanted to control the operations. A criminal case was also registered at Thirumangalam Town Police Station.
(5.6)Subsequently, another writ petition was filed by one Muthuraman union in W.P.No.18411 of 2000 before this court challenging the suggestion given by the Deputy Commissioner of Labour. This court by an order dated 19.12.2000 directed the District Collector to take over the matter and hire up a solution. Once again certain adhoc arrangements were made by the revenue officials leading to various litigations over number of workmen to be engaged for such operations. Even in 2008, the Union led by Mahadevan filed W.P.(MD)No.7808 of 2008 and sought for police protection. This court found that there was a peace committee formed and since loading and unloading operations could not be carried out at Manalur depot, the Kappallur depot was continued to be retained. In view of the same, that writ petition was disposed of.
(5.7)Thereafter, the third respondent union filed an another writ petition being W.P.(MD)No.2187 of 2010 seeking for dispose of their representation dated 15.12.2009. In that representation, the union referred to an agreement among the unions on 4.11.2009, on which total number of workmen to be shared for carrying out operations at Manalur godown was arrived at. But in the Kappallur depot, the unrest continued. Therefore, they wanted their representation to be considered. This court without going into the merits of allegations, merely directed the respondents to consider their representation,dated 15.12.2009. Pursuant to the said direction, the Senior Regional Manager, Madurai called the unions for a discussion on 24.3.2010 and notice was issued to both writ petitioners and the third respondent. Thereafter, he had passed an order dated 31.3.2010 stating that in the earlier case, because of law and order problem, the District Collector had given certain directions and there was amicable solution between the group led by Bose on one hand and Mahadeven and Muthuraman on the other hand.
(5.8)But, the problem at Kappallur godown continued because of interference made by parties. Therefore, the Senior Regional Manager gave advice by the impugned order which are as follows:
"(i)10 workers led by Bose who are prevented from doing work should be allowed at Manalur Madurai East godown.
(ii)In Manalur Madurai East godown, six workers belonged to Mahadevan group and four workers belonged to Muthuraman group should be allowed to do work in Kappallur Madurai West godown.
(iii)This advice was directed to come into force with an immediate effect and the District Manager was directed to forward those names and in future, no other loading workers should be allowed insider the IMFL godown." Aggrieved by this advice, these two writ petitions are filed as noted already.
6.It is the contention of both unions that the first respondent is not their employer and therefore, he cannot pass any order shifting one set of workers to another godown. The earlier agreement between unions provides for sharing of workers on the basis of 6:4:15 and that agreement cannot be breached. The present advice was without jurisdiction.
7.With regard to the maintainability of the writ petitions, the first respondent in his counter affidavit had stated that the writ petitions under
Article 226 are not maintainable and are liable to be rejected on that short ground. It was also stated that the Senior Regional Manager who is the controlling authority is entitled to take a decision in the interest of administration and smooth function of the corporation. In respect of allegations, he had stated in his written advice, dated 28.07.2010 to the Standing counsel as follows:
"TASMAC is not employing any loadmen, but permitting the loadmen employed by the transport contractor to work in the godown for loading and unloading activities. All the loadmen involved in this writ petitions are working in Madurai IMFS depots as per the order of the District Collector Madurai issued on the basis of High Court direction in W.P.No.18411/2000...."
8.The third respondent Union in their counter apart from refuting the contentions made in the writ petitions, in paragraph 8,11 and 13 averred as follows:
"8....the writ petitioner unnecessarily filed the writ petition with an ulterior motive to stall the shifting of the depot from Kappalur to Manalur. The writ petitioner had the ulterior intention to keep the depot at Kappalur itself because the loadn men belonging to his group and that of the Muthuraman group are hailing from Kappalur and they have total control over the depot and thereby they have been trying to oust the load men belonging to our union. Our union members are hailing from Anuppanadi Madurai and they have geographical proximity to the depot at Manalur.
11.I further submit that load men are working under the premises of the 1st and 2nd respondents under their direct supervision and whenever disputes arise they have been conducting peace committees and settling the labour problem. Also when a load man commits any misconduct the 2nd respondent has suspended them. Since the load men are working within the premises of the 2nd respondent he has every right and control over the load man. Kit is the 2nd respondent's prerogative to permit the load men and in the interest of their management they can transfer the load men. All along the writ petitioners have been creating law and order problem in the premises with an intention to oust the load men belonging to the Bose group. Day in and day out the writ petitioners have been interfering with the work of the 3rd respondent union loan man. There is every risk of the problem spiraling into a big conflict as it happened in earlier cases. The goods are worth lacs of rupees in the depot. The 1st and 2nd respondents in the interest of maintaining industrial peace has passed the impugned order and as such it is sustainable.
13....A trade union cannot maintain a writ petition against transfer of its members. Only the aggrieved can approach court of law individually. This writ petition involves disputed question of fact and has to be dismissed."
9.In the light of the above stand of parties, it has to be seen whether both writ petitions are maintainable and if the answer to the said question is in the affirmative, whether any relief can be granted to the petitioners in these writ petitions?
10.Mr.R.Suriya Narayanan, learned counsel for petitioners placed reliance upon the judgement of the Rajasthan High Court in All India Loco Running Staff Association Northern Railway and others Vs. The Union of India and another reported in 1985 (1) WLN 137, dated 29.10.1984 for the purpose of contending that if workmen are poor and unorganised, their association/trade union can bring the matter to the Court. Hence both writ petitions are maintainable.
11.Per contra, Mr.G.R.Swaminathan, learned counsel appearing for the third respondent place reliance upon a judgment of this court in Tamil Nadu Civil Supplies Corporation Employees Union Vs. Tamil Nadu Civil Supplies Corporation Ltd. reported in 1999 (I) CTC 310 for the purpose of contending that since advice given by the Senior Regional Manager, TASMAC, Madurai related to transfer of some employees to another godown, a writ petition cannot be filed by the trade union and only the aggrieved workman will have to come before this court.
12.However, neither the petitioners nor the contesting trade union came forward to address the argument focussing on the main issue involved herein. Merely because directions were given by this court on an earlier occasion directing TASMAC to consider the representation or that the District Collector had given certain advice on account of law and order problem or that among three trade unions, agreed condition was given by the Deputy Commissioner of Labour will not raise the issue involved herein to the level of certain statutory entitlement in their favour, thereby for any infringement of such term gave rise to a cause of action to the aggrieved persons in approaching this court.
13.The status of the loading and unloading workers represented by three fractions headed by certain named leaders itself is not clear. While the TASMAC is contending that they are not their employers and the earlier arrangement was continued, because of directions given by the District Collector, the two writ petitioners are also contending that the Senior Regional Manager is not their employer. Therefore, the factum of relationship between the loading workers and the management will have to be determined. Even if payments are made by TASMAC, a wholly owned State Government company, towards loading and unloading charges either in the name of individuals or in the name of leaders of working group, the workmen must establish the relationship with the employer which in the present case is the TASMAC. In order to maintain the dispute, the parties have not moved the forum either under the Industrial Disputes Act or under any other labour enactment. Even the earlier demand for regulatisation were not fruitful. Apparently, the workmen had satisfied with the isolated payment depending upon the volume of work done by them. It is not clear as to what is the relationship between the leaders of the trade unions and the rest of the workmen and as to how the amount sanctioned by the TASMAC was shared between themselves.
14.Admittedly, as on date, there is neither any settlement under the provisions of the Industrial Disputes Act, 1947 nor an Award in favour of the workmen granting their employment status and protection of their tenure. If the workmen want to safeguard their interest, they will have to move an appropriate court for determining their rights under law. In the absence of any right flowing from any enactment, the petitioners cannot maintain writ petitions solely on the ground that the respondent TASMAC is the wholly owned State Government company. Neither the advise given by the Deputy Commissioner of Labour nor the order passed by the District Collector who is a revenue authority, will give cause of action for the workmen to approach this court. Unfortunately, in the earlier rounds of litigation, these issues were not gone into, thereby proliferating number of writ petitions before this court claiming one relief or another.
15.In the State of Tamil Nadu, there is no law in regularising the service conditions of loading and unloading workers engaged by any employer. There is only Tamil Nadu Manual Workers Act under which different Boards are created for different sections of unorganised workers. Even those Boards are only concerned with the welfare of the workmen and are not concerned with the employer and employee relationship. Under the provisions of the Act, Tamil Nadu Unorganised Workers Welfare Board has been created and such Boards are empowered to grant certain reliefs to workers in cases of death or disablement.
16.In the State of Maharashtra, there is a comprehensive legislation, i.e. Maharashtra Mathadi, Hamal and other Manual Workers (Regulations of Employment and Welfare Act), 1969. The Act provides for legislation of establishment for engaging such workers who are otherwise unprotected by labour legislations. Even the Kerala State also enacted Kerala Headload Workers Welfare Act. In the absence of any direct legal protection to these workmen, the workmen will have to raise an appropriate dispute to establish their right under labour law.
17.When a dispute of loading and unloading workers employed by the Nilgiri District Cooperative Marketing society was referred to for adjudication by the Industrial tribunal which award has finally reached the Supreme Court. The Supreme Court vide its judgment in Workmen of Nilgiri Coop. Mkt. Society Ltd. Vs. State of Tamil Nadu reported in 2004 (3) SCC 514 dealt with the case in- extenso and some of the findings of the Supreme Court can be usefully reproduced below:
"32. Determination of the vexed questions as to whether a contract is a contract of service or contract for service and whether the employees concerned are employees of the contractors has never been an easy task. No decision of this Court has laid down any hard-and-fast rule nor is it possible to do so. The question in each case has to be answered having regard to the fact involved therein. No single test - be it control test, be it organisation or any other test - has been held to be the determinative factor for determining the jural relationship of employer and employee.
......
35. In a given case it may not be possible to infer that a relationship of employer and employee has come into being only because some persons had been more or less continuously working in a particular premises inasmuch as even in relation thereto the actual nature of work done by them coupled with other circumstances would have a role to play.
......
68. Whether a contract is a sham or camouflage is not a question of law which can be arrived at having regard to the provisions of the Contract Labour (Regulation and Abolition) Act, 1970. It is for the industrial adjudicator to decide the said question keeping in view the evidences brought on record."
18.Therefore, the workers will have uphill task even moving an industrial adjudicating forum to establish their status. Unless there are materials to show that they are eligible to get direct relief as against the respondent TASMAC, this court sitting under
Article 226 of the Constitution of India cannot go into such disputed facts and grant relief to the workmen. Till now the workmen were able to pull on with certain local arrangements made by the police, revenue and labour department, they can continue with such arrangement. The moment they tried to seek their right before this court, it is incumbent upon them to establish their credentials in terms of any known labour enactment. Merely filing writ petitions after writ petitions, they cannot anoint leaders of such vague trade unions so as to continue not only their suzerainty over the working group, but also dictate terms with the authorities by creating law and order situation.
19.In the light of the above factual matrix and the legal precedents, this court is unable to countenance the prayer made by two trade unions. The writ petitions are liable to be dismissed as not maintainable. However, the TASMAC a wholly owned giant Government Company having turn over of more than Rs.12,000/- crores of annual income ponder over such pathetic situation and be concerned about the unprotected workmen who are rendering services in the loading and unloading operations so as to regulate their conditions of employment in a fair and just manner.
20.Hence both writ petitions will stand dismissed. However, there will be no order as to costs. Consequently, connected miscellaneous petitions stand closed.
vvk To
1.The Senior Regional Manager, Tamilnadu State Marketing Corporation Ltd., Plot No.100, Annanagar, Madurai-20.
2.The District Manager, Tamilnadu State Marketing Corporation Ltd., Madurai TASMAC Godown, Manalur, Sivagangai District.