N. PAUL VASANTHAKUMAR, J.
This writ appeal is directed against the order of the learned single Judge dated 23.12.2008 made in W.P.No.18771 of 2000, partly confirming the award of the Labour Court made in I.D.No.33 of 1998 dated 18.4.2000 ordering absorption of the second respondent as Telephone Operator in the appellant management, while setting aside the order of the Industrial Tribunal, granting 50% of the backwages.
2. The brief facts necessary for disposal of this writ appeal are as follows:
(a) The second respondent herein was employed as Telephone Operator as a contract employee through the third respondent. Eight such Telephone Operators worked under the third respondent. The Ministry of Labour, Government of India, by notification dated 2.3.1993, prohibited employment of Contract Labourers in the job of Telephone Operator in the establishment of the appellant Airport Authority, based on the judgment of the Supreme Court and ordered to fill up the vacancies on regular basis. Guidelines were issued stating that the post must be filled up by calling upon a list of candidates sponsored through Employment Exchange or through open advertisement and the candidates should be a graduate with two years working experience as Telephone Operator and the candidate must be less than 35 years of age.
(b) The case of the second respondent is that she worked as Telephone Operator in the appellant Airport Authority from 27.3.1992 and salary was paid through one Hitech Engineers for a short period and from 1.7.1992, salary was paid through the third respondent. On 16.10.1995, the second respondent submitted a representation and requested the Airport Authority to absorb her permanently in the post of Telephone Operator. The third respondent refused to employ her from 1.2.1996 without any reason, though several juniors of the second respondent were absorbed permanently.
(c) As against the termination, the second respondent filed W.P.No.2457 of 1996 and the same was dismissed by this Court on 1.3.1996. The second respondent raised a dispute before the Labour Commissioner and conciliation efforts having failed, a reference was made stating that the demand for absorption of service of the second respondent by the appellant management is justified or not.
(d) The said dispute was resisted by the appellant contending that the third respondent terminated the second respondent's service on 31.5.1997 and that decision was taken to abolish the Contract Labourers with further decision to employ Telephone Operators on permanent basis, subject to the requirement of job specifications and according to the appellant, second respondent did not hold the required qualification, namely graduation and therefore she could not be confirmed for absorption in the appellant management.
(e) The Industrial Tribunal, taking note of the relaxation of qualification given to two juniors of the second respondent viz., one Savitha Abrol and one Kantha, held that the authority should have recommended for relaxation of qualification in the case of the second respondent also. The contention of the appellant that the second respondent was not working with the third respondent Contractor at the time of scrutiny of application was not accepted as the same was not a condition precedent for absorption. The Tribunal granted the relief of absorption with 50% backwages and continuity of service, against which the appellant filed the writ petition.
3. The learned single Judge partly allowed the writ petition and confirmed the decision of the Tribunal with regard to absorption and set aside the order granting 50% of backwages, against which this writ appeal is filed by the management of Airport Authority of India, Chennai.
4. Mr.Vijay Narayan, learned Senior Counsel appearing for the appellant submitted that the second respondent was not included in the panel for absorption as she did not meet the job specifications viz., she was not having graduation/degree. Though the other two persons viz., Savitha Abrol and Kantha did not possess the required qualification, they were appointed at Delhi due to the relaxation granted by the Chairman, Airport Authority of India, for not possessing graduation/degree for one person and shortage of three months experience to the other person. The learned Senior Counsel also submitted that relaxation cannot be sought by the second respondent as a matter of right and the second respondent being not a graduate and she was also not in service of the third respondent at the time of absorption, she is not entitled to be absorbed by the appellant management.
5. Mr.A.L.Somayaji, learned Senior Counsel appearing for the second respondent on the other hand submitted that the termination of the second respondent was raised as a dispute before the Labour Commissioner and pending consideration of the said issue, absorption of the Telephone Operators, who were employed on contract basis also arose and the second respondent was directed by the appellant management to submit her bio-data for consideration of her absorption. Therefore the issue for reference was restricted by the Government of India in the reference order, namely, whether the demand of the second respondent for absorption of her service in the management of the Airport Authority of India, Chennai, the Principal employer, is justified or not. The learned Senior Counsel also submitted that having permitted to submit bio-data by the second respondent, the appellant is not justified in contending that the third respondent terminated the appellant and therefore she is not entitled to get relaxation for not possessing the degree qualification. The learned Senior Counsel also submitted that based on the records and evidence adduced on the side of the second respondent as well as the appellant management, the Industrial Tribunal gave a factual finding and the learned single Judge also held that there is no perversity in the said findings and therefore the appeal deserves to be dismissed.
6. We have considered the rival submissions made by the learned Senior Counsels appearing for the appellant as well as second respondent.
7. In the dispute raised before the Labour Commissioner on 3.3.1996, admittedly the Director of the appellant Airport Authority filed a reply statement on 19.3.1997 stating that due to the abolition of Contract Labourers in the job of Telephone Operators in the establishment of Airport Authority of India and the posts having been created by order dated 28.8.1995, the Labour Commissioner was requested to direct the second respondent to submit her application along with documentary proof of having served in the Airport Authority under the contractor and other documents meeting with the job specifications for appellant's consideration.
8. The above reply statement clearly establishes the fact that the appellant has ignored the termination order passed by the third respondent and permitted the second respondent to submit her application with proof for her credential. Considering the above stand taken by the appellant the issue decided by the Labour Commissioner was as to whether the second respondent is entitled to be absorbed in the service of the appellant management on permanent basis. The Labour Commissioner filed failure report on 30.6.1997 and therefore the Central Government referred the matter for adjudication before the Industrial Tribunal, Tamil Nadu, Chennai, with specific issue as stated supra.
9. The witness cited by the appellant viz., RW-1 before the Industrial Tribunal viz., D.R.Juyal, in his cross examination admitted that one Savitha Abrol and one Kantha, mentioned in Exs.M-8 and M-9 are also not graduates and they did not possess the required qualification of graduation and they were appointed at Delhi due to the relaxation granted by the Chairman of the Airport Authority of India. It is also stated in the cross examination that had the second respondent continued in the employment of the third respondent till March 1997, when other contract employees were considered, her name also could have been recommended for relaxation of qualification. Taking note of the said evidence, the Industrial Tribunal gave a finding in favour of the second respondent and ordered absorption of the second respondent along with other candidates, who appeared for interview and trade test on 27.3.1997.
10. The learned single Judge also concurred with the findings of the Tribunal, but set aside the direction with regard to payment of 50% of backwages by following the Supreme Court Judgments, holding that payment of backwages on absorption are not automatic. Having noticed the fact about the finding with regard to non-entitlement of 50% backwages, the learned single Judge set aside that portion of the award and confirmed the order giving direction to absorb the second respondent.
11. The submission of the learned Senior Counsel for the appellant that granting of relaxation is the discretion of the authority and the order of the Industrial Tribunal as confirmed by the learned Single Judge to absorb the second respondent is not sustainable, cannot be countenanced by us in view of the admission of RW-1 that if the second respondent had continued till March 1997, when the other contract employees were considered, second respondent's name might have been recommended for relaxation of qualification. It is well settled in law that even in discretionary matters
Article 14 has to be followed, if employees are identically placed. In the decisions reported in (1998) 2 SCC 407 (Director General of Police v. G.Dasayan), (2006) 6 SCC 548 (Anand Regional Co-Op. Oil Seedsgrowers' Union Ltd. v. Shaileshkumar Harshadbhai Shah) and (2008) 2 SCC 74 (Akhilesh Kumar Singh v. State of Jharkhand and Others), the Supreme Court ordered to maintain parity in punishment while dealing with delinquent officers, similarly situated. Though the said judgments of the Apex Court are with regard to imposing of penalty, the principle laid down can be applied to this case for the grant of relaxation of qualification in favour of the second respondent.
12. Having regard to the evidence available on record, the findings given by the Industrial Tribunal based on the said evidence cannot be treated as perverse finding. No case is made out to interfere with the order of the Industrial Tribunal ordering absorption, which was confirmed by the learned single Judge. There is no merit in the writ appeal and the writ appeal is dismissed. There is no order as to costs. Connected miscellaneous petition is also dismissed.
vr To The Presiding Officer, Industrial Tribunal, Tamil Nadu, Chennai